Ellerman v. Skelly Oil Co.

• Decision Date: 08 October 1948
• Docket Number: No. 34540.,34540.
• Citation: 34 N.W.2d 251,227 Minn. 65
• Parties: ELLERMAN v. SKELLY OIL CO. et al.
• Court: Minnesota Supreme Court

34 N.W.2d 251

227 Minn. 65

ELLERMAN v. SKELLY OIL CO. et al.

No. 34540.

Supreme Court of Minnesota.

October 8, 1948.

Appeal from District Court, Ramsey County; Albin S. Pearson, Judge.

Action by Mabel C. Ellerman against the Skelly Oil Company and others for injuries sustained by the plaintiff as result of an explosion in a tourist cabin. From an order denying the alternative motion of the Skelly Oil Company for judgment or for a new trial after verdict for plaintiff, the Skelly Oil Company appeals.

Reversed and new trial granted.

Bundlie, Kelley, Finley & Maun and Mandt Torrison, all of St. Paul, for appellant.

Clifford W. Gardner, of St. Paul, for respondent.

LORING, Chief Justice.

Action for personal injuries sustained as the result of an explosion which occurred on January 10, 1942, in a tourist cabin near Forest Lake, and alleged to have been caused by the negligence of defendants.

The jury returned a verdict of $12,500 in favor of plaintiff. From an order denying its subsequent alternative motion for judgment or a new trial, defendant Skelly Oil Company appealed.

In its motion for a new trial and on appeal, appellant assigns as error the following: (1) The evidence does not sustain a finding of negligence; (2) the trial court erred (a) with reference to the admission and exclusion of evidence and in denying defendant's motion to reopen in order to present certain physical evidence in rebuttal; (b) in its instructions to the jury; (c) in denying defendant's motion for a new trial on the ground that the verdict was rendered under the influence of passion and prejudice; and (d) in refusing to instruct the jury, as requested by defendants, to disregard certain remarks made by counsel for plaintiff in his closing argument, with reference to defendants' failure to produce a former employe.

The complaint alleged four specific acts of negligence on the part of defendants, all relating to the installation, maintenance, inspection, and servicing of certain gas tanks, heating equipment, pipes, and other equipment used in connection with heating and to provide cooking facilities in the cabin in which the explosion occurred. In particular, plaintiff relied upon the negligence of the Skelly company, on the morning of the explosion, in filling the storage tank on the described premises with the propane-butane fluid used for heating and cooking in the cabin.

Defendants Robert Roberts and Art Anderson were co-owners of Forlam Inn, near Forest Lake, and maintained and operated in connection therewith six tourist cabins. Cabin No. 5, in which the explosion occurred, was leased to plaintiff and her husband, who occupied it the morning of the explosion. The Skelly company, some months prior to the explosion, had entered into an agreement with the owner of the inn and cabins to sell, install, inspect, maintain, and service certain heating and cooking appliances for the premises, including the cabins thereon. As part of its agreement, it was to keep a storage tank installed on the premises filled with propane-butane fluid to provide the necessary fuel for the heating and cooking equipment. This fluid consists of a mixture of 60 percent butane and 40 percent propane gas, which vaporizes quickly upon contact with air and which will explode when mixed with air in certain proportions. The vapors rising therefrom are not soluble in water and will not penetrate water or ice. They drift downward, and a spark or flame will ignite them, as they are highly inflammable. The tank in which this fluid was stored was some 25 feet west of cabin No. 5. A pilot light for the water heater in the basement was constantly burning in each cabin.

It is plaintiff's contention that on the morning of the explosion the Skelly company's employe, in filling the tank, permitted the fluid to spill over; and that from that point the vapor therefrom seeped through a sewer line with an opening near the tank into the basement of plaintiff's cabin, where such vapors were ignited by the pilot light, resulting in the explosion described. It is not disputed that the explosion occurred shortly after the employe mentioned had completed his task of filling the storage tank with the fluid.

The property upon which the cabins are located is low, swampy ground. In consequence, water continually seeped into and filled a standpipe above the storage tank. In an effort to remedy this situation, the Skelly company had attempted to drain the water away from the tank and for this purpose had installed a two-inch cast-iron pipe, which was to be connected with the sewer near cabin No. 6. An open pipe connecting with the sewer was left unconnected a few inches from the opening of the tank. It did not penetrate the hood or top of the tank from which it was intended to drain the water. This open pipe was then covered over and sealed with dirt. The method of drainage thus attempted was not effective, as the standpipe above the storage tank still had to be bailed out daily thereafter.

On the morning of the explosion, plaintiff, her husband, and her son were seated around the kitchen table when they heard a rumble as of thunder, followed immediately by a blast from the basement. The door from the basement to the kitchen burst open, striking the back of the chair in which plaintiff's husband was seated. The force of the explosion shoved the table against plaintiff, pinning her to the cabin wall. Plaintiff at the time was pregnant, and she presented evidence that the impact above described resulted in a miscarriage.

Defendants submitted testimony to the effect that a standard gooseneck trap with a four-inch water seal therein was installed in the drain of each basement of these cabins, and that it would have been impossible for gas to seep through such water seal. In rebuttal, plaintiff submitted testimony to the effect that there was no such gooseneck trap in the basement of cabin No. 5. Defendants, after such rebuttal testimony, moved to reopen the case to submit in evidence the gooseneck trap taken from cabin No. 5, but the trial court denied their motion to reopen.

Plaintiff's husband testified that almost immediately following the explosion the Skelly company's truck driver told him: "He said he had just filled the tank and had overflowed it two or three gallons, evidently he said it came down this drain."

The truck driver, John Horbal, was not present at the trial. The testimony disclosed that he had been discharged by the Skelly company some four years prior thereto. In the course of the closing argument to the jury of plaintiff's counsel, the following proceedings took place:

"Mr. Gardner: * * * you are deprived of the testimony of one very important witness and that is the testimony of this truck driver. He isn't here, and the only explanation that is made here is that he is discharged from the Skelly Oil Company some four months afterwards.

"Mr. Torrison: If the court please, I am going to object to this line of argument as being highly improper. This witness was discharged as an employee. He is available, he is just as available to the plaintiff as to us; the plaintiff has the burden of proof. There is no occasion to attempt to raise any inference that he would have testified in favor of the plaintiff any better than in favor of the defendant.

"The Court: Overruled.

"Mr. Gardner: * * * There is no effort, ladies and gentlemen, to explain the reason here in this case for the absence of Mr. Horbal; no justification and explanation of his absence at all in this case; the one man that should have been produced, who could have given you more help than anybody else in arriving at the right result so in your discretion you may infer that if Horbal was called in this case he would testify to what he told Ellerman, that he spilt this stuff and if he told Ellerman he spilled two or three gallons of this stuff, who knows how much he did spill of it. If his first explanation was he spilled two or three gallons of it, maybe more. He hadn't hauled to the Forlam Inn, I haven't a present recollection as to whether he was there or not before, but in any event if he told this strange man he spilled two or three gallons why he should have been here. Nobody is more disappointed in his failure to be here than I am.

"Mr. Torrison: I want to be sure I reserve the objection to this line of argument properly. This witness is just as available to plaintiff as to the defendant. He is not an employee of the defendant or under our control and the plaintiff has the burden of proof in this case. Counsel is now arguing that the inference to be drawn from the absence of this witness, whom he should have produced as well as anybody else, that that witness would have testified more than anything in the evidence appears.

"The Court: Overruled.

"Mr. Gardner: Well, we go on. Apparently we are in a position where counsel feels that that argument in the absence of Horbal is a very touchy spot." (Italics supplied.)

Plaintiff testified that as a result of the explosion she was singed about the face and eyebrows, and evidence was presented that she sustained shock or fright as a result thereof. Approximately six weeks thereafter she consulted Dr. Joseph A. Poirier, a practicing physician at Forest Lake. He testified that a few days after this consultation she suffered a miscarriage, and he expressed the opinion that it was the result of fright or shock caused by the explosion. He also treated her for nervousness and anemia. Plaintiff's action was not commenced until March 4, 1946, some four years after the accident. The jury's verdict was for $12,500, and appellant alleges that this was so excessive as to indicate the presence of passion and prejudice.

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