Emigh v. Andrews

• Decision Date: 10 April 1948
• Docket Number: 37114.
• Citation: 164 Kan. 732,191 P.2d 901
• Parties: EMIGH et al. v. ANDREWS.
• Court: Kansas Supreme Court

191 P.2d 901

164 Kan. 732

EMIGH et al. v. ANDREWS.

No. 37114.

Supreme Court of Kansas

April 10, 1948

Appeal from District Court, Sheridan County; W. K. Skinner, Judge.

Appeal from District Court, Sheridan County; W. K. Skinner, Judge.

Action by J. Z. Emigh and W. H. Lechtenberger against Ted Andrews to recover for destruction of uncut wheat by fire. From an order sustaining general demurrer to the petition, the plaintiffs appeal.

Order affirmed.

SMITH J., dissenting.

Syllabus by the Court.

1. The doctrine of res ipsa loquitur simply means 'the thing speaks for itself.' It is a rule of evidence and not of substantive law.

2. A mere presumption is not a thing that 'speaks for itself.'

3. The established rule is that liability cannot result from an inference upon an inference or from presumption upon presumption.

4. An inference arises only from an established foundation fact. The inference cannot supply the foundation fact from which it arises.

5. When all attending circumstances alleged in a petition to recover damages resulting from destruction of a wheat crop by fire are considered and the inference of defendant's negligence must rest solely on a presumption relative to the cause of the fire the doctrine of res ipsa loquitur should not be applied.

Harry K. Allen, of Topeka (L. M. Ascough, of Topeka, and Ray C Sloan, of Hoxie, on the brief), for appellants.

Phil H Lewis, of Topeka (T. M. Lillard, O. B. Eidson and James W. Porter, all of Topeka, on the brief), for appellee.

WEDELL Justice.

This is an appeal from an order sustaining a general demurrer to plaintiffs' petition in a damage action.

The action was brought by a landowner and tenant. The pertinent portion of the petition reads:

'2. Plaintiffs state to the Court that at all times hereinafter mentioned, plaintiff W. H. Lechtenberger was the owner of South Half of the Southwest quarter and the West Half of the Southeast quarter of section 8, township 7, range 29, Sheridan County, Kansas; that during the crop year 1944-45 wheat was planted on the above desscribed premises by plaintiff J. A. Emigh under an oral rental contract, wherein W. H. Lechtenberger was to receive one-third of the crop delivered to the elevator at Selden, Kansas, without expense to him, and that J. Z. Emigh was to seed, cultivate, harvest and thresh and deliver said crop at his own expense and receive two-thirds of said crop.

'3. Plaintiffs state that on or about the 21st day of July, 1945, the crop of wheat on the above-mentioned land was being harvested by means of a combine harvester-thresher; that the defendant had been employed as an independent contractor by plaintiff J. Z. Emigh to haul said wheat on the defendant's truck away from said combine-harvester-thresher and off of the afore-mentioned tract of land; that said truck was under the sole and exclusive management and control of defendant through his employees whose names are not known to plaintiffs but are known to defendant.

'4. That on said July 21, 1945, at the hour of about 11:30 o'clock A.M., and while said truck was operated by defendant as aforesaid in hauling wheat, a fire was started in the stubble on the above described land; that said fire started at a point on said land over which said truck had passed, immediately after said truck had passed over said point; that no other persons or vehicles were near the point on said land where said fire started at the time the fire started or during the morning of July 21, 1945, aforesaid; that said fire spread over said tract of land and burned sixty acres of uncut wheat, causing the damage herein complained of.

'5. Plaintiffs state that in the locality of said tract of land the common and usual method of hauling wheat away from combine-harvester-threshers and off of the premises where it is raised, is on trucks; that when said trucks are maintained in a proper condition, and are operated in a careful manner and where the occupants of said vehicles conduct themselves in a careful manner, fires do not result from such operation.

'6. Plaintiffs state that the defendant owed a duty to plaintiffs to maintain said truck in a condition which made it safe to drive it through wheat stubble, and to operate it in a careful manner; that the defendant owed to plaintiffs a duty that his employers would conduct themselves in a careful manner with regard to fire while on said premises.

'7. Plaintiffs state that the defendant through his employees was in the sole and exclusive control of the operation of said truck at the time said fire was started; that these plaintiffs have not been informed and therefore cannot allege the specific act or acts of negligence of defendant or his employees which caused said fire, but that the negligence of defendant or his employees was the proximate cause of the fire and of the damage herein complained of.'

The record fails to disclose whether the general demurrer was sustained on the theory the petition was insufficient to state a cause of action on the theory of negligence or on the doctrine of res ipsa loquitur or both. Appellee insists appellants in the district court contended only the petition stated a cause of action on the latter doctrine. In view of the record and some statements made by counsel for appellants in oral argument before this court we shall consider whether the petition stated a cause of action on the theory of negligence apart from the doctrine of res ipsa loquitur. The petition in part reads: '* * * that these plaintiffs have not been informed and therefore cannot allege the specific act or acts of negligence of defendant or his employees which caused said fire, but that the negligence of defendant or his employees was the proximate cause of the fire and of the damage herein complained of.' (Our italics.)

In Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P.2d 1102, we held the petition in that case did not state facts to warrant application of the doctrine of res ipsa loquitur. One of the plaintiffs in that action was Leo Bruening. In Bruening v. El Dorado Refining Co., D.C., 53 F.Supp. 356, an allegation similar to the above quoted one in the instant case was employed. In disposing of the negligence theory of the case that court said: 'While the complaints would have been invulnerable as against demurrers on motions to dismiss upon general allegations of negligence, yet the complainants have committed themselves to the proposition that they do not know what the specific negligence was but that the operator was negligent or the fire would not have occurred. The complaints commit felo de se.' (53 F.Supp. at page 358.)

The motions to dismiss the petitions were therefore sustained in the above case. For the same reason stated in the Bruening case the instant petition is demurrable on the theory of negligence.

Was the instant petition sufficient to warrant application of the doctrine of res ipsa loquitur? While there is conflict in the decisions relative to the application of that doctrine there is no dispute relative to the meaning of the words res ipsa loquitur. They simply mean 'the thing speaks for itself.' And that means the thing or instrumentality involved speaks for itself. It clearly does not mean the accident speaks for itself. It means that when the initial fact, namely what thing or instrumentality caused the accident has been shown then, and not before, an inference arises that the injury or damage occurred by reason of the negligence of the party who had it under his exclusive control. The inference of negligence arising from the initially established fact compels the defendant, in order to relieve himself of liability, to move forward with his proof to rebut the inference of negligence. It therefore quite properly has been said the doctrine of res ipsa loquitur is a rule of evidence and not of substantive law. Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 650, 249 P. 599; Stroud v. Sinclair Refining Co., 144 Kan. 74, 76, 58 P.2d 77.

On the proposition that the inference of negligent operation can arise only after the establishment, without presumption, of the initial or fundamental fact that a certain thing, agency or instrumentality caused the injury or damage see 38 Am.Jur., Negligence, § 301; 1 Shearman and Redfield on Negligence, rev. ed., p. 152; De Glopper v. Nashville Railway & Light Co., 123 Tenn. 633, 134 S.W. 609, 33 L.R.A.,N.S., 913; Benedick v. Potts, 88 Md. 52, 40 A. 1067, 41 L.R.A. 478; Louisville & N. R. Co. v. Grant, 223 Ky. 39, 2 S.W.2d 1063.

The rule is well stated in 45 C.J. 1212, as follows: 'Although the rule of res ipsa loquitur applies, in a proper case, so as to present a presumption or inference of negligence, it has no application to proximate cause and does not dispense with the requirement that the act or omission upon which defendant's liability is predicated be established as the proximate cause of the injury complained of. Furthermore, while the doctrine permits an inference that the known act which produced the injury was a negligent act, it does not permit an inference as to what act did produce the injury, and there can be no foundation for the application of the doctrine where the physical act or thing which caused the injury is unknown or not disclosed.' (§ 779.)

Likewise in the De Glopper case, supra, it was said: 'If the act which caused the injury was shown by direct evidence, and all of the circumstances of the accident were shown in the proof, and if the only reasonable explanation of the accident should give rise to an inference of negligence, then the rule of 'res ipsa loquitur' would apply; but there can be no foundation for the application of this maxim where both the act which caused the...