Gateway Chemical Co. v. Groves
| Decision Date | 11 July 1960 |
| Docket Number | No. 47585,No. 1,47585,1 |
| Citation | 338 S.W.2d 83 |
| Parties | GATEWAY CHEMICAL COMPANY, Inc., Appellant, v. R. Dinwiddie GROVES et al., Respondents |
| Court | Missouri Supreme Court |
Law Offices Lewis W. Sanders, by Paul H. Niewald, Stubbs, McKenzie, Williams & Merrick, Kansas City, by Jack G. Beamer, Kansas City, for appellant.
Shughart, Thomson, Stark & Kilroy, Harry P. Thomson, Jr., Norman M. Tempel, Kansas City, for respondent, R. Dinwiddie Groves.
Melvin J. Spencer, Kansas City (Watson, Ess, Marshall & Enggas, Kansas City, of counsel), for respondents, Martin's Mid-West Boiler and Welding Co., Inc. and Russell J. Sage.
HOLMAN, Commissioner.
Plaintiff instituted this suit in an effort to recover the sum of $65,000 for damages to personal property and loss of profits resulting from a fire upon premises it occupied as lessee. The trial court entered an order and judgment dismissing plaintiff's cause of action, without prejudice, because of the failure and refusal of plaintiff to make its petition definite and certain in accordance with a prior order of the court. Plaintiff has appealed from that judgment.
The petition alleges the following:
'1. That the plaintiff is a corporation organized and existing under the laws of Missouri; that the defendants, R. Dinwiddie Groves, J. Garner Groves, J. L. Groves, Jr., and Russell J. Sage are residents of the State of Missouri and that the defendant, Martin's Mid-West Boiler and Welding Company, Inc., is a corporation organized and existing under the laws of the State of Missouri.
'2. That the defendants, R. Dinwiddie Groves, J. Garner Groves and J. L. Groves, Jr., were at all times hereinafter mentioned the owners of certain premises located at 1412-14 Walnut Street, Kansas City, Missouri, which premises were at all times hereinafter mentioned leased to the plaintiff, Gateway Chemical Company, Inc., under a written agreement which provides that the lessor shall maintain the heating plant on the premises and that the lessor reserves the right of control over the heating plant.
'3. That defendant owners sought the services of the defendant Martin's Mid-West Boiler and Welding Company, Inc. to do certain remodeling work on the heating plant located in the basement of said premises.
'4. That the defendant Russell J. Sage was at all times hereinafter mentioned the agent, servant and employee of the defendant Martin's Mid-West Boiler and Welding Company, Inc. and that at all times hereinafter mentioned, the said defendant Boiler Company and Russell J. Sage were acting as the agents, servants and employees of the defendant owners of the premises.
'5. That on or about the 17th day of September 1957, the defendant owners by and through their agents, servants and employees were in complete control and custody of the heating plant in the said premises, and of an acetylene torch being used by defendant Sage as agent, servant and employee of the defendant Boiler Company and the defendant owners at said place and time.
'6. That as a direct result of the negligence of the defendant owners and the defendant Boiler Company, by and through their agent, servant and employee, and of the negligence of the defendant Sage, in the handling and operation of said acetylene torch, a fire was started in and about the heating plant, or parts of it, at said time and place.
It will be noted that plaintiff alleged general negligence and obviously sought to rely upon the res ipsa loquitur doctrine. The various defendants filed two separate motions to make the petition definite and certain. Therein it was alleged that the petition should state specifically the acts or omissions of the defendants which constituted negligence and the specific manner in which said alleged acts or omissions caused or started the fire. As heretofore indicated, the trial court sustained the motions and it is therefore apparent that said court was of the opinion that the petition did not allege a factual situation which would call for the application of the res ipsa loquitur doctrine. It is apparent from the briefs that all of the parties are in agreement that the sole question presented for our decision upon this appeal is whether the petition herein discloses a situation to which the res ipsa doctrine is applicable. If that question is answered in the affirmative plaintiff was entitled to proceed to trial under the allegations of general negligence and the court erred in ordering that it allege specific negligence.
Layton v. Palmer, Mo.Sup., 309 S.W.2d 561, 564, 66 A.L.R.2d 1242. We have concluded that the allegations contained in plaintiff's petition disclose a situation which fully complies with the fundamental principles of the res ipsa doctrine heretofore quoted. It will be noted that the petition alleges that defendants 'were in complete control and custody of the heating plant in the said premises, and of an acetylene torch being used by defendant Sage * * * [and] as a direct result of the negligence of the defendant owners and the defendant Boiler Company * * * [and] of the defendant Sage, in the handling and operation of said acetylene torch, a fire was started in and about the heating plant * * *.' We think it is clear that (1) a fire is not ordinarily started by the operation of an acetylene torch if the operator in charge thereof uses due care (subdivision (a) above), (2) the acetylene torch which is alleged to have started the fire and the area where the fire started were unequivocally alleged to have been under the complete control and custody of defendants (subdivision (b) above), and (3) since the offending instrumentality and the area where the fire started were in the custody and under the control of defendants at the time the fire started they possess superior knowledge or means of information as to the cause of the occurrence (subdivision (c) above). Our conclusion is also supported by the case of Automobile Ins. Co. of Hartford v. J. C. Nichols Co., Mo.App., 309 S.W.2d 698. Therein the factual situation shown by the evidence was similar to that alleged in the instant petition. ...
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