Chiles v. Fort Smith Commission Co.

• Decision Date: 14 July 1919
• Docket Number: 98
• Citation: 216 S.W. 11,139 Ark. 489
• Parties: CHILES v. FORT SMITH COMMISSION COMPANY
• Court: Arkansas Supreme Court

216 S.W. 11

139 Ark. 489

CHILES v. FORT SMITH COMMISSION COMPANY

No. 98

Supreme Court of Arkansas

July 14, 1919

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; reversed.

Judgment reversed, and cause remanded.

T. J Wear, for appellants.

1. The complaint alleges a good cause of action by alleging negligence in general terms and that with the known facts as set out in the complaint, they could have introduced expert evidence sufficient for a recovery without alleging and proving the specific acts of negligence. 29 Cyc. 628; 19 Id. 15, § 4; 107 Cal. 549; 40 P. 1020; 48 Am St. Rep. 146; 29 L. R. A. 718.

2. Res ipsa loquitur rule does not apply here. 29 Cyc. 591-2. The relation of master and servant does not exist here. The deceased owed appellee no contractual duty. Defendants owed deceased a duty not to injure him, as he was in their building under a special contractual relation as set forth in the complaint. 29 Cyc. 594; see also 11 F. 438; 107 Cal. 549; 20 L. R. A. 718; 40 P. 1020; 86 Ark. 76; 57 Id. 429.

Hill Fitzhugh & Brizzolara and Daily & Woods, for appellees.

1. No negligence is charged in the complaint and no attempt to state any facts charging negligence to defendants. Only certain conclusions of law are stated in general terms. It was insufficient. 35 Ark. 104; 60 Id. 606; 43 Id. 296; 95 Id. 6; 17 Id. 445; 97 Id. 97; 34 Id. 111; 94 Id. 524; 110 Id. 416; 83 Id. 78; 44 N.Y.S. 284; 15 A.D. 74; 102 Ill.App. 461; 99 N.Y.S. 890; 114 A.D. 290; 170 Pa.St. 25; 32 A. 607; 71 Iowa 658; 180 Pa. 409; 44 L. R. A. 92. Thornton on Oil & Gas (3 ed.), § 743; 174 S.W. 730; 59 So. 959; 64 S.E. 721; 65 W.Va. 552.

2. Res ipsa loquitur does not apply. 166 F. 651; 42 A. 708; 113 N.Y.S. 343; Thornton on Oil & Gas (2 ed.), § 610-11; 61 P. 50; 158 Ky. 848; 51 W.Va. 96; 46 Oh. St. 386; 71 W.Va. 335; 67 S.W. 610; 122 N.Y. 118; 128 N.Y. 103; note to L. R. A. 1917 E, 189; 127 Ark. 98. See also 8 Gray 123; 129 Mass. 318; 12 Phila. 173; 22 Wash. L. Rep. 656; 65 W.Va. 552; 150 Ill.App. 126; 87 Ark. 190; 96 Id. 500; 44 Id. 529; 77 Id. 74; 79 Id. 617.

OPINION

SMITH, J.

Appellants are the widow and children of J. C. Chiles, and brought this suit as such to compensate the loss sustained by them in the death of their intestate. For their cause of action the following facts are alleged: That the defendants were conducting a mercantile business at No. 119 Rogers avenue in the city of Fort Smith in a four-story brick building, of which they had joint control and management. Other allegations of the complaint are as follows:

"That said defendants were in joint control of all of the pipes, pumps, tanks, machinery and all other appliances that were used by defendants in their business in furnishing the gas and ammonia that was used for the various purposes of the defendants in said building.

"That there was large amounts of ammonia used by said defendants in said building and by reason thereof they had large amounts or quantities of ammonia stored in pipes, tanks and vats in the basement of said building and they also had large amounts and quantities of natural gas circulating through and into said building by means of large pipes.

"That on or about 1:50 P. M. on the 22d day of October, 1918, through the negligence of the defendants, their agents, servants and employees, in some manner unknown and unexplained to plaintiffs, the gas and ammonia that was being used by said defendants in said building was exploded and was set on fire and said building was wrecked and burned up and demolished and the said J. C. Chiles, deceased, who was in said building at the time of said explosion and when said gas and ammonia was set on fire, was killed by reason of said explosion and fire by the gas, ammonia, and by fire which suddenly filled said building, before he was able to make his escape from the fourth floor of said building where he was at work as an employee of the W. J. Echols Company, wholesale grocers.

"That at the time of the said explosion and fire, the said J. C. Chiles, deceased, was in the employ of the W. J. Echols Company, wholesale grocers, and when the explosion and fire occurred, he was in a room or on the fourth floor of the said building of the defendants aforesaid, which room or floor the said W. J. Echols Company, wholesale grocers, had rented or reserved from the defendants and into which the said W. J. Echols Company, wholesale grocers, had the right under its contract with the defendants to enter with its employees to transact its business on said fourth floor of said building and it also had the right of ingress and egress to said building and the said defendants by reason of their said contract with the said W. J. Echols Company, wholesale grocers, owed it and its employees a contractual duty and ordinary care not to injure or kill them by reason of an explosion of the said gas and ammonia or the burning of the gas and ammonia in said building which was used in their building, by their negligence or by the negligence of either of them.

"That at the time that said J. C. Chiles, deceased, was killed by said explosion and by the burning of said gas and ammonia in said building, he was at work for the said W. J. Echols Company, wholesale grocers, and was in the due scope or course of his employment and was using due and proper care and caution for his own safety and protection at the time he was killed, and that it was through no fault of his that said explosion occurred or that said gas and ammonia was set on fire or that he was killed.

"That the defendants owed the said J. C. Chiles, deceased, a contractual duty as aforesaid not to injure or kill him by their negligence in the manner as aforesaid.

"That plaintiffs do not know the exact act or acts of negligence of the defendants that caused said explosion and caused said gas and ammonia to be set on fire and they were unobtainable by these plaintiffs as said building, pipes, pumps, tanks, vats, machinery and appliances in and being used in said building were in the sole and exclusive control and management of the defendants, their agents, servants, and employees as was also the gas and ammonia that was in said building and that was being used by said defendants in their business in said building at the time.

1 "That it was through the negligence of the defendants that said explosion occurred and said gas and ammonia was set on fire and that said building was wrecked and burned up and demolished and that said J. C. Chiles, deceased, was killed.

"That said explosion would not have occurred and said gas and ammonia been set on fire and said building would not have been wrecked and burned up and demolished and the said J. C. Chiles, deceased, been killed if the defendants had used due and proper care in the management and control of the pipes, pumps, tanks, vats, machinery and appliances that were used by said defendants in their business in furnishing the gas and ammonia that was used for the various purposes of the defendants in said building and if they had used due and proper care in the storing and handling of the said gas and ammonia that was used by said defendants in said building.

"That the act or acts of negligence upon the part of the defendants that caused said explosion and caused said gas and ammonia to be set on fire and said building to be wrecked, burned up and demolished and caused the said J. C. Chiles, deceased, to be killed, were and are known to the defendants."

A demurrer was filed on the ground that the complaint did not state facts sufficient to constitute a cause of action against the defendants, or either of them. The demurrer was sustained and the complaint dismissed, and this appeal has been prosecuted to review that action.

Appellants first insist that negligence on the part of the defendants is sufficiently charged to constitute a cause of action; and the second contention is made that, if this be not true, sufficient facts are alleged to make applicable the maxim res ipsa loquitur.

We do not agree with the first contention. The allegations in regard to negligence are in effect conclusions of law; and if the maxim res ipsa loquitur is not applicable the complaint is demurrable. Ballard v. Kansas City & Memphis Farms Co., 131 Ark. 83, 198 S.W. 527; Hollis v. Hogan, 126 Ark. 207, 190 S.W. 117; Phillips v. Southwestern Tel. & Tel. Co., 72 Ark. 478, 81 S.W. 605; Northern Construction Co. v. Johnson, 132 Ark. 528, 201 S.W. 510; Keller v. Vowell, 17 Ark. 445; C., R. I. & P. R. Co. v. Smith, 94 Ark. 524, 127 S.W. 715; Wood v. Drainage Dist. No. 2, 110 Ark. 416, 161 S.W. 1057; Southern Orchard Planting Co. v. Gore, 83 Ark. 78, 102 S.W. 709.

So far from alleging the cause of the explosion or the particular act or acts of negligence which occasioned it, the complaint contains the affirmative recital that the plaintiffs do not know the cause of the injury, consequently there could be no specific allegations concerning it. When analyzed, the complaint is found to contain substantially the following allegations: That a four-story business house was blown up and plaintiff's intestate killed; that the building and all gas and ammonia fixtures and appliances therein were in the exclusive control of the defendants; that the intestate was rightfully in the building at the time of the explosion but had no duty to perform in connection with the instrumentalities which occasioned the injury; and that the cause of the explosion was unknown to plaintiffs. The concurrence of these conditions makes applicable the doctrine of res ipsa loquitur.

This doctrine does not dispense with the requirement that the party who alleges negligence must prove the fact; but relates only to the mode of proving it. Stewart v....