Clark v. Ocala Gas Co., s. 30942

• Decision Date: 07 June 1961
• Docket Number: Nos. 30942,30942-A,s. 30942
• Citation: 131 So.2d 193
• Parties: Maxine W. CLARK, as Exec., etc., and Maxine W. Clark, Petitioner, v. OCALA GAS COMPANY, Inc., Respondent. Maxine W. CLARK, Petitioner, v. OCALA GAS COMPANY, Inc., Respondent.
• Court: Florida Supreme Court

Page 193

131 So.2d 193

Maxine W. CLARK, as Exec., etc., and Maxine W. Clark, Petitioner, v. OCALA GAS COMPANY, Inc., Respondent.

Maxine W. CLARK, Petitioner, v. OCALA GAS COMPANY, Inc., Respondent.

Nos. 30942, 30942-A.

Supreme Court of Florida.

June 7, 1961.

Rehearing Denied July 6, 1961.

Writ of Certiorari to the District Court of Appeal, First District.

W. Robert Smith, Ocala, and D. Newcomb Barco, Tampa, for petitioner.

Green, Bryant & Simmons, Ocala, for respondent.

PER CURIAM.

It appearing after argument that the writ of certiorari was improvidently issued and the petition is without merit, the writ is hereby quashed and the cause dismissed.

THOMAS, C. J., and THORNAL and O'CONNELL, JJ., and WILLIS, Circuit Judge, concur.

HOBSON, ROBERTS and DREW, JJ., dissent.

HOBSON, Justice (dissenting).

This cause is before the court on petition for certiorari to review the decisions of the District Court of Appeal, First District, in Clark v. Ocala Gas Company, Fla.App.1960, 123 So.2d 391, 393, and a companion case of the same style, 123 So.2d 399.

In these suits the petitioner-plaintiff sued the respondent-defendant Gas Company to recover the damages sustained by her, as widow and personal representative, on account of the death of her deceased husband allegedly caused by the negligence of the gas company. Following jury verdicts and judgments entered thereon in favor of the defendant, she appealed to the District Court of Appeal, First District, alleging among others that the trial judge erred in denying her motion, made at the close of all the evidence, to withdraw from the jury's consideration the defense of assumption of risk. In the decision brought here for review the appellate court reviewed the evidence and held, among others, (with one judge dissenting) that 'the trial court did not commit error in refusing to withdraw the defense of assumed risk from the jury's consideration. The judgment appealed from is accordingly affirmed.'

Petitioner contends here that the decision of the District Court of Appeal in this respect is in direct conflict with previous decisions of this court involving the defense of assumption of risk, notably City of Williston v. Cribbs, Fla.1955, 82 So.2d 150; Byers v. Gunn, Fla.1955, 81 So.2d 723; and Bartholf v. Baker, Fla.1954, 71 So.2d 480. It is well settled that, if such a conflict exists--either by the adoption of an incorrect principle of law or from the application of a correct legal principle to reach a different result upon substantially similar facts--it is the duty of this court 'to stabilize the law by a review of decisions which form patently irreconcilable precedents.' Florida Power & Light Co. v. Bell, Fla.1959, 113 So.2d 697, 699. We have concluded that the appellate court's decision here reviewed shows on its face a direct conflict with the decisions of this court referred to above, and similar cases.

Plaintiff's decedent, a former city manager of the City of Ocala and a long-time employee in the City's sanitation department, met his death from an explosion which occurred in a sewer lift station during a routine inspection and testing thereof periodically made by him and his helper. The theory of plaintiff's complaint against the gas company was that the company negligently failed to repair a leak in a gas pipe which ran through a sewer main near the sewer lift station in question and allowed liquid petroleum gas to accumulate in the sewer main and lift station, which gas ignited and exploded when the decedent's helper turned on the automatic float switch to see if the starter was in working order. It is conceded that the fatal explosion occurred when the electric motor was started, although the appellate court stated in its opinion that '[T]he evidence tending to prove that the fatal explosion resulted from an accumulation of liquified [sic] petroleum gas in the station is in conflict.'

The appellate court also stated that the evidence adduced by the parties at the trial, when 'viewed in a light most favorable to defendant', revealed that three other explosions had occurred at the same lift station about a year prior to the fatal explosion; that the cause of the prior explosions was never definitely determined, although it was strongly indicated that they resulted from an accumulation of either sewer or liquid petroleum gas; that the plaintiff's decedent knew of these prior explosions and that their origin was accumulated explosive gases of some nature; that the jury could have concluded 'that decedent knew or should have known that subsequent explosions at this lift station might occur unless precautionary measures with which he was familiar were observed;' that for several weeks prior to the fatal explosion the odor of liquefied gas was prevalent in the vicinity of the lift station and that 'whether the existence of this odor was known or should have been known to the decedent was a question for the jury'; that after the three prior explosions plaintiff's decedent had non-explosive-proof electrical equipment installed in the lift station despite advice to the contrary, 'which appliances he knew or should have known might emit sparks that would ignite any accumulated gas in the station, which ignition would inevitably be followed by another explosion'; that plaintiff's decedent 'entered the lift station for the purpose of starting and testing the electric motor located therein without first disconnecting the master switch located on the outside of the station, the disconnection of which was a recommended safety precaution.' (The emphasis in the quotations is supplied.)

The appellate court held that 'from the foregoing evidence, together with other pertinent facts revealed by the record, the jury could have lawfully concluded that decedent, under the circumstances shown by the record, voluntarily exposed himself to the known risk of the explosion which caused his death. It follows that the trial court did not commit error in refusing to withdraw the defense of assumed risk from the jury's consideration. The judgment appealed from is accordingly affirmed.' Cited in support of this holding are the cases...