Gadde v. Michigan Consol. Gas Co.

• Decision Date: 08 February 1966
• Docket Number: Nos. 9,10,s. 9
• Citation: 377 Mich. 117,139 N.W.2d 722
• Parties: Viola GADDE, Plaintiff and Appellant, v. MICHIGAN CONSOLIDATED GAS COMPANY, a Michigan Corporation, Defendant and Appellee. Elmer A. GADDE and Camden Fire Insurance Association, a New Jersey Corporation, Plaintiffs and Appellants, v. MICHIGAN CONSOLIDATED GAS COMPANY, a Michigan Corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 722

139 N.W.2d 722

377 Mich. 117

Viola GADDE, Plaintiff and Appellant, v. MICHIGAN CONSOLIDATED GAS COMPANY, a Michigan Corporation,

Defendant and Appellee.

Elmer A. GADDE and Camden Fire Insurance Association, a New

Jersey Corporation, Plaintiffs and Appellants, v. MICHIGAN CONSOLIDATED GAS COMPANY, a Michigan Corporation,

Defendant and Appellee.

Nos. 9, 10.

Supreme Court of Michigan.

Feb. 8, 1966.

Maples, Jones & Mehling, Detroit, for plaintiffs and appellants.

A. D. Ruegsegger, Dyer, Meek, Ruegsegger & Bullard, Detroit, for defendant and appellee, Michigan Consolidated Gas Co.

Before the Entire Bench.

ADAMS, Justice.

These consolidated cases seek damages for personal injuries and expenses arising out of the explosion of a gas stove. Plaintiffs are Mrs. Gadde, who received the injuries, her husband, suing for expenses and loss of consortium, and their insurance company which indemnified the property damage.

On the morning of January 26, 1959, Albert Getsoian, a serviceman for defendant who held the lowest of four ratings, called at the Gaddes' home. Mrs. Gadde wanted the over flame of her stove increased so that it would broil steaks. The stove was 18 years old, had been in constant use, and had never had a leak.

Getsoian started to work. Mrs. Gadde watched him momentarily before leaving the kitchen. To the extent that she did observe his actions, there is a dispute as to whether he went into the stove's gas line. She testified:

'* * * and he started working on the oven, and I said to him, 'Is it necessary for you to go into the gas line?' and he said, 'Yes'. * * * I said, 'I don't like that, but I guess you know what you are doing, go ahead and do it."

Getsoian regarded any gas leak as a 'dangerous situation.' He tested Mrs. Gadde's oven for a leak. He did this by his sense of smell, although he admitted that a meachanical detector he had with him would have been more sensitive. He found no leak. When he was through, he showed Mrs. Gadde the flame and she was satisfied with it.

From this point, until the explosion, Mrs. Gadde was the only person to touch the stove. Half an hour after Getsoian left, she used the oven to broil a steak. Mrs. Gadde noticed that the oven not only 'grabbed' or 'poofed' when she attempted to light it, but that she was unable to cut the flame back or control it with the central control dial as she had previously been able to do.

About 4:30 p. m., Mrs. Gadde lit the front burners to heat some food for the evening meal. She opened the oven door to light the oven. Before she could strike a match, a big flash of flame came from the oven. Mrs. Gadde suffered serious injuries.

Bassett, defendant's serviceman of 35 years' experience, called at the Gadde home the following morning. According to Mrs. Gadde, Bassett placed a gas detector in the oven and instantly discovered a substantial leak. Bassett testified he ran several tests before he discovered there was sometimes a leak. This happened when the central control dial did not seat properly in the offposition because it was binding on the panel. He did find a 'substantial' leak. He determined the stove was not damaged by the explosion, advised Mrs. Gadde not to use it, and made the oven inoperative.

The above events constituted plaintiffs' cases. Defendant moved for directed verdicts. The trial judge held that Mitcham v. City of Detroit, 355 Mich. 182, 190, 94 N.W.2d 388, established a Michigan doctrine of res ipsa loquitur and that a condition to the operation of the doctrine is exclusive control of the instrumentality by the defendant. Because this condition was not met, he granted the motions. In doing so, he erred.

I.

In 1863, in a case in which a barrel of flour rolled out of a warehouse window and fell upon a pedestrian, Baron Pollock uttered the Latin phrase res ipsa loquitur. Byrne v. Boadle, 2 H & C 722, 725, 159 Eng.Rep. 299, 300; Prosser, Torts, 3d ed., § 39, p. 217. This is generally considered to be the beginning of that doctrine. Prosser, The Rpocedural Effect of Res Ipsa Loquitur, 20 Minn.L.Rev. 241.

In 1884, in the case of Alpern v. Churchill, 53 Mich. 607, 613, 19 N.W. 549, 552, Justice Cooley observed:

'Negligence, like any other fact, may be inferred from the circumstances, and the case may be such that, though there be no positive proof that defendant has been guilty of any neglect of duty, the inference of negligence would be irresistible.'

In 1919, res ipsa loquitur had made such progress as to cause Justice Fellows to observe:

'This court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we has as uniformly held that negligence may be established by circumstantial evidence, and that, where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts, that at least a prima facie case is made.' Burghardt v. Detroit United Railway, 206 Mich. 545, 546, 547, 173 N.W.2d 360, 361, 5 A.L.R. 1333.

Justice Fellows employed 'the rule res ipsa loquitur' to mean the happening of an accident alone could be sufficient evidence of negligence to make a case for a jury, a proposition he and the Court were unwilling to accept. Yet he referred with approval to Barnowsky v. Helson (1891), 89 Mich. 523, 524, and 526-527, 50 N.W. 989, 15 L.R.A. 33, quoting this passage from the earlier case:

"In this case the falling of the roof was in and of itself some evidence that the work of raising it was not being done with the originary care and skill. It is true that the mere fact of any injury does not impute negligence on the part of any one, but, where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence in some one. * * * 'This roof not properly supported would fall as a natural result of the laws of gravitation, but if properly braced there would be no reason for its falling from that cause, and it would not fall from any other cause without the interposition of the elements or some human agency. Therefore, without any other showing than that it suddenly gave way, slipped or tipped to one side, and fell, the presumption is almost conclusive that it fell because it was not sufficiently braced or stayed." Burghardt v. Detroit United Railway, supra, 206 Mich. 547, 173 N.W. 361 (Emphasis supplied).

So, as early as 1891, the dangerous potentiality of the force of gravity, whether in relation to barrels or roofs, had come to the attention of the Michigan Court even to the extent of an 'almost conclusive' presumption. The dangerous nature of gas was later in coming to the Court's attention. In Fleegar v. Consumers' Power Co. (1933), 262 Mich. 537, 544, 247 N.W. 741, ¹ the Michigan Court first ² recognized the high standard required to those dealing with the substance.

Justice Voelker in Mitcham v. City of Detroit, supra, 355 Mich. 188, 94 N.W.2d 391, upon review of Michigan cases, was moved to say:

'Ironically enough, the Michigan version of the doctrine of res ipsa loquitur in some respects plainly 'out ipsas res ipsa,' as it were; and thus we find that in some of our cases we speak boldly of a 'presumption of negligence' (see Barnowky v. Helson, 89 Mich. 523, at page 525, 50 N.W. 989, 15 L.R.A. 33, where we said 'the fact of such happening [the falling of a roof] raises a presumption of negligence in some one') whereas many out-and-out 'res ipsa' jurisdictions speak more softly (as we ourselves usually do) only of an 'inference of negligence.'

In Mitcham, Justice Voelker did not define a Michigan doctrine of res ipsa loquitur. Rather, as has been done numerous times, he analyzed a fact situation to determine whether it was sufficient to allow plaintiff to go to the jury.

Whether Michigan has or has not a doctrine of res ipsa loquitur, in spite of many attempts to clarify the situation, continues to perplex the legal profession. The use of the rule elsewhere has been such as to move Prosser to say:

'The Latin catchword is an obstacle to all clear thinking. It is the illegitimate offspring of a chance remark of an English judge eighty-six years ago, hybridized with the carrier's burden of proof. There is no case in which it has been anything but a hindrance.'--Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 234.

The doctrine of res ipsa loquitur is generally held to involve some or all of the following conditions:

1. The event must be of a kind which ordinarily does not occur in the absence of someone's negligence.

2. The event must have been caused by an agency or instrumentality within the exclusive control of the defendant.

3. The event must not have been due to any valuntary action or contribution on the part of the plaintiff.

4. Evidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff.

The meaning of each condition, its applicability to a given case, and whether the condition is an appropriate part of the doctrine, has led to endless dispute. In the present case, defense counsel argue vigorously that the second condition has not been satisfied, but plaintiffs' counsel counter that in cases involving bottled beverages, as well as in other situations, there is an exception as to this requirement.

Suffice it to say that under some circumstances the fact of exclusive control by the defendant may lead to an inference of negligence, but negligence may exist on the part of a defendant without exclusive control depending upon the total circumstances of a given case. ³

Formal adoption of the doctrine of res ipsa loquitur, whomsoever's version might be chosen, would add little to the jurisprudence of this State or to the attainment of justice. This is not to in any way overrule our past decisions or to say that in some cases, even possibly this one, the facts...