Carter v. Skelly Oil Co.
| Decision Date | 10 November 1952 |
| Docket Number | No. 1,No. 43136,43136,1 |
| Parties | CARTER v. SKELLY OIL CO. et al |
| Court | Missouri Supreme Court |
William D. Cosgrove, Kansas City, for appellant.
Carl C. Lovell and C. A. Randolph, Kansas City, for respondent, Skelly Oil Co.
This is an action to recover damages in the sum of $40,000 for personal injuries suffered by plaintiff from an explosion of gasoline on premises owned and operated by defendants. The sole question for determination is whether the petition states a cause of action under the res ipsa loquitur doctrine.
Defendants filed separate motions to dismiss upon the ground the amended petition failed to state a cause of action, or, in the alternative, to require plaintiff to specifically plead the negligence with which he charged defendants. The motions to dismiss were overruled, and the alternative motions were sustained. Upon plaintiff's refusal to further plead, the petition was dismissed and judgment entered in favor of defendants. Plaintiff appealed. No brief has been filed in behalf of defendant Scott.
The petition, reduced to narrative, alleged:
On November 8, 1951, defendant Skelly Oil Company, a corporation, owned and operated a service and filling station in Kansas City. Defendant William N. Scott and James Merritt, Jr., now deceased, and then Scott's partner, were agents of Skelly Oil Company in the operation of said station. On said date, plaintiff drove his automobile to the station for service and repairs. Defendants drove the car into their lubrication room and closed the outer doors thereof, and caused the car to be raised upon their hydraulic grease rack. The lubrication room was equipped with a kerosene heating stove; the outdoor temperature was 43 degrees, Fahrenheit. While attempting to repair and service the car, defendants drained approximately ten gallons of gasoline from the car tank onto the concrete floor of the lubrication room. As the gasoline was draining, defendants were pushing it along the floor with a squeegee. Defendants 'carelessly and negligently allowed said gasoline to violently explode and catch fire', injuring plaintiff.
Although the petition does not so allege, defendant states, and plaintiff's reply brief impliedly admits, that plaintiff was present in the lubrication room when the explosion occurred.
Much has been written on the doctrine of res ipsa loquitur. The difficulty is not in stating the rule, but in determining its applicability to the facts. 'In general and on principle the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.' McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 641. See also Cruce v. Gulf, Mobile & Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78, 80-82; Hart v. Emery-Bird-Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, 510-512.
It is a matter of common knowledge that gasoline is highly volatile and explosive when exposed to flame or spark and that it must be carefully guarded therefrom. Defendant Skelly Oil Company concedes as much, and suggests: 'The necessary spark might have been produced by the fire in the kerosene oil stove, if it were burning, by nails in his [plaintiff's] or the attendant's shoes in walking on the concrete floor, by either smoking or lighting a cigarette, by either turning a light switch, by dropping a tool on the concrete floor, by a running motor in this work shop, and perhaps by other means.'
Defendant contends, however, that an explosion such as is charged in the petition is 'not unusual or out of the ordinary', citing Kapros v. Pierce Oil Co., 324 Mo. 992, 25 S.W.2d 777, 78 A.L.R. 722; Nomath Hotel Co. v. Kansas City Gas Co., 204 Mo.App. 214, 223 S.W. 975, 981; Kelley v. National Lead Co., 240 Mo.App. 47, 210 S.W.2d 728, 733. Neither of these cases is in point here. In the Kapros case, this court especially noted that the fire there in question started on a driveway accessible to and used by the customers of defendant in driving their cars to defendant's gasoline pumps to have their car tanks filled. The court said of the facts, 25 S.W.2d loc. cit. 781: In the course of the opinion the statement was made, 25 S.W.2d loc. cit. 782: 'It cannot be said as a matter of common knowledge that fires ordinarily do not occur at gasoline filling stations except from negligence on the part of the proprietor, especially when automobiles are being charged with gasoline.' That statement is made in connection with the facts there under consideration. It is not applicable to the facts here alleged.
In the Nomath Hotel case, supra, specific nebligence was alleged and the case was determined on that basis. The Kelley case, supra, did not deal with a fire or explosion and what is said therein is in no way akin to the problem here posed.
Defendant also says that the mere fact that there was an explosion does not make out a prima facie case or raise a presumption of negligence, under the res ipsa loquitur theory. True, the mere fact of the explosion, without more, does not bespeak negligence. Niswander v. Kansas City Gas Co., Mo.App., 181 S.W.2d 165; Nomath Hotel Co. v. Kansas City Gas Co., 204 Mo.App. 214, 223 S.W. 975. If, however, in addition to the explosion, there are other facts and circumstances from which the jury may reasonably infer that the explosion was caused by a flame or spark emanating from an instrumentality under the management and control of defendants, then their negligence may be inferred.
The case of Nelson v. Zamboni, 164 Minn. 314, 204 N.W. 943, is fairly analogous. In that case, plaintiff's decedent was using a toilet in defendant's filling station when an explosion occurred in the building, fatally injuring decedent. There was no direct evidence of its cause. There was evidence that two large gasoline tanks were in the basement. They were not buried as is usually the case. Air pressure was supplied to them by an electrically operated pump controlled by an automatic switch. There was evidence that the switch was uncovered. Plaintiff's theory was that gasoline vapors could come into contact with a spark from the switch. The court held, 204...
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