Elkton Auto Sales Corporation v. State of Maryland

• Decision Date: 12 October 1931
• Docket Number: No. 3172.,3172.
• Citation: 53 F.2d 8
• Parties: ELKTON AUTO SALES CORPORATION v. STATE OF MARYLAND, to Use of FERRY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

53 F.2d 8 (1931)

ELKTON AUTO SALES CORPORATION v. STATE OF MARYLAND, to Use of FERRY et al.

No. 3172.

Circuit Court of Appeals, Fourth Circuit.

October 12, 1931.

Ogle Marbury, of Baltimore, Md. (Webster C. Tall, of Baltimore, Md., on the brief), for appellant.

Wm. Pepper Constable and John D. Alexander, both of Baltimore, Md. (Wm. L. Rawls, of Baltimore, Md., and Wm. T. Fryer, of Washington, D. C., on the brief), for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.

CHESNUT, District Judge.

On July 16, 1930, one George Bradford Ferry, while on the premises of the appellant in Elkton, Md., received accidental and fatal burns in consequence of a gasoline fire. His death having occurred a few days thereafter, his widow and minor children, then citizens of the state of Delaware, brought suit as equitable plaintiffs (now appellees) against the appellant, a Maryland corporation, to recover damages for his alleged negligent death. The suit was brought under the Maryland act (Bagby's Annotated Code, article 67, commonly referred to as Lord Campbell's Act), which authorizes a suit in the name of the state of Maryland for the use of certain classes of surviving dependents (including the equitable plaintiffs in this case) in the event the death of the decedent was caused by the negligence of the defendant. In due course the case was tried to a jury and resulted in a judgment for $11,000 in favor of the equitable plaintiffs and apportioned among them as required by the act. The defendant has appealed.

The defendant was engaged in Elkton, Md., in the business of selling new and used automobiles and supplies pertaining thereto, and in the repair and servicing of motorcars. The premises occupied and used by it consisted of a show or display room facing on North street, together with a repair shop situated in the rear thereof and about 100 feet distant therefrom, the intervening space consisting of an open yard in which used cars for sale and customers' cars awaiting repairs were temporarily stored. The fire occurred in the repair shop and originated from the ignition of gasoline vapor flowing from an open bucket of gasoline. Ferry was a cabinet maker and upholsterer by trade whose residence and place of business was just across North street from the defendant's premises. While not an employee of the defendant, he had on one or more occasions shortly before the day of the fire done repair work for it on automobiles. At the immediate outbreak of the fire he had been in the repair shop for a few minutes in conversation with defendant's mechanic who was then working on the cleaning of spark plugs for an automobile.

At the trial the plaintiffs submitted testimony with regard to the nature and character of the defendant's business, with particular reference to the repair shop, and also apparently all available testimony as to the origin of the fire. At the conclusion of the plaintiff's testimony the defendant declined to submit any testimony whatever but requested the court to direct a verdict for the defendant on the grounds that (1) the plaintiff's testimony was insufficient to show defendant's alleged negligence; or (2) if the defendant was negligent, plaintiff was not entitled to recover because (a) Ferry was guilty of contributory negligence or (b) if not, nevertheless the evidence showed that the status of Ferry on the premises was that of a licensee only and not an invitee; and therefore the plaintiffs were not entitled to recover, there being no evidence to show that Ferry's injuries were caused willfully and intentionally by the defendant. The District Judge declined to direct a verdict for the defendant and charged the jury in substance that if they found that the defendant had been guilty of negligence and Ferry had not been guilty of contributory negligence, and if they further found that the defendant's repair shop and character of business conducted therein was such that the public had been invited by the defendant to freely enter it, then they should find a verdict for the plaintiffs; but conversely, if the jury did not find negligence or did find contributory negligence on the part of Ferry, or if the jury found the character of the repair shop was such that the defendant had not given an invitation to the public to enter it, and that Ferry on the particular occasion was present on the premises for some private and personal reason only, then the jury should find a verdict for the defendant.

The assignments of error are based on the defendant's exceptions to the refusal of the court to direct a verdict for the defendant and to that portion of the judge's charge which defines the circumstances under which the jury might find the status of Ferry on the defendant's premises as that of an invitee as contrasted with a licensee. During the argument appellant's counsel conceded that the defendant's contributory negligence was properly treated as a jury question and, as we think the evidence compels this view of that defense, it will not be necessary to further consider it as a ground for a directed verdict. The questions remaining for consideration are thus narrowed to the following points: (1) Was there legally sufficient evidence of the defendant's negligence as the proximate cause of Ferry's injuries; (2) was the evidence sufficient to justify the jury in finding that Ferry had the status of an invitee on the defendant's premises at the time of his injuries; and (3) did the trial judge with substantial correctness instruct the jury as to what facts in this case would justify the finding that Ferry was an invitee? In the charge the jury were left at liberty to find that Ferry's status was that of a licensee and not that of an invitee and if they so found they were charged to render a verdict for the defendant.

There was no controversy between the parties at the trial, and is none now, as to the measure of duty owing by a property owner to an invitee and a licensee respectively. The general rule of law is that to an invitee a property owner owes the duty of ordinary care and is legally responsible for his negligence in that regard, while the property owner is not legally liable to a licensee unless he is guilty of some intentional, wanton or wilful injury. Bennett v. Railroad Co., 102 U. S. 577, 26 L. Ed. 235; Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436; Thompson's Commentaries on Law of Negligence, vol. 1, §§ 948, 968.

With regard to the issue of negligence, it is our opinion after careful consideration of the evidence as disclosed by the record, that this question was properly submitted for the jury's determination. It is unnecessary to state in detail all the evidence bearing upon the origin of the fire. The dominant fact is that while Ferry was in the defendant's repair shop conversing with defendant's mechanic regarding the automobile in defendant's charge on which Ferry desired to obtain a job for repair work in his line, the gasoline vapor flowing from an open bucket of gasoline became ignited and in consequence thereof Ferry received fatal burns. This open bucket of gasoline containing a little less than a gallon in quantity was in use by defendant's mechanic for cleansing automobile parts and washing his hands, pursuant to similar and customary practice in defendant's repair shop. It is now general, if not common, knowledge and was also affirmatively shown by the testimony of an expert in this case, that it is a careless and dangerous practice to allow gasoline to be exposed to the air. Volatility of the liquid causes its rapid vaporization and the resultant mixture of air and vapor in certain proportions is highly inflammable and will cause fire, and, if closely confined, an explosion, wherever there is present an igniting factor. In many, if not most, instances of gasoline fires or explosions it is very difficult to ascertain what was the actual factor of ignition. The striking of a match or other open flame or a very small electric spark generated by friction or created by the dropping of some metallic instrument on a stone or cement floor may cause ignition if it comes in contact with the mixed vapor and air. In this case, as in most others, there is no direct evidence as to what was the igniting factor. There was no artificial fire in the repair shop. Its equipment consisted of work benches and some electrical devices which were not shown to have been in use at the time. The only persons in the shop were the mechanic and Ferry. Both were looking out the window at an automobile in the adjacent yard awaiting repairs. The defendant had not posted any "No Smoking" signs in the shop. The mechanic was not smoking nor was there any evidence that Ferry was smoking, although the mechanic testified that immediately prior to the fire Ferry had taken a pipe out of his pocket, rapped it on a nearby iron stove, which had no fire in it, to knock out the dottle, and was, when last noticed by the mechanic, refilling his pipe. Neither the mechanic nor any one else either saw or heard Ferry strike a match or light his pipe. Both men were looking out the same window at the same automobile while it was under discussion, with the open bucket of gasoline between them a few feet only from each, the mechanic in front of the bucket and...