Gerald v. Standard Oil Co. of Louisiana

• Decision Date: 08 November 1943
• Docket Number: 37010.,37005
• Citation: 204 La. 690,16 So.2d 233
• Court: Louisiana Supreme Court
• Parties: GERALD et ux. v. STANDARD OIL CO. OF LOUISIANA et al.

16 So.2d 233

204 La. 690

GERALD et ux. v. STANDARD OIL CO. OF LOUISIANA et al.

Nos. 37005, 37010.

Supreme Court of Louisiana

November 8, 1943

Rehearing Denied Dec. 13, 1943.

In No. 37005:

Kemble K. Kennedy, of Baton Rouge, for applicant.

Christovich & Kearney, of New Orleans, and Breazeale, Sachse &amp Wilson, of Baton Rouge, for respondent.

In No. 37010:

Christovich & Kearney, of New Orleans, and Breazeale, Sachse &amp Wilson, of Baton Rouge, for applicant.

Kemble K. Kennedy, of Baton Rouge, for respondents.

HAMITER Justice.

The District Court and the Court of Appeal, First Circuit, disposed of this tort action on exceptions of no cause of action. No trial of its merits has yet been had. It is now before us for consideration on those exceptions pursuant to a writ of certiorari directed to the last named tribunal and issued on the applications of plaintiffs and one of the defendants.

The plaintiffs are David E. Gerald and his wife, Mrs. Inez Mayeaux Gerald, and the defendants are James Alexander Traylor, the Standard Oil Company of Louisiana, and the Baton Rouge Coca-Cola Bottling Company, Ltd.

According to the allegations of fact of the petition, which are to be deemed correct and true for the purpose of passing on the exceptions of no cause of action, plaintiffs were severely injured on the morning of January 15, 1942, as a result of an explosion occurring in a building owned by Traylor. Part of the structure was occupied by plaintiffs, under a lease from the owner, as their residence and in conducting a soft drink and sandwich business; and the remainder was used by Traylor in operating a filling station.

About 8:30 o'clock of that morning, plaintiffs, as they lay asleep in the bedroom situated in the front portion of the building, were awakened by the unloading of gasoline from a tank truck of the Standard Oil Company into the storage tanks of the filling station; and they 'detected the odor of gas fumes to some extent.' Shortly thereafter, and while the gasoline was being delivered, the husband arose from his bed and struck a match to light a cigarette. A tremendous explosion followed, causing injuries to both occupants of the bedroom. Before Gerald acquired his lease on the premises, the owner Traylor permitted the defendant Coca-Cola Bottling Company, Ltd., 'to place advertising signs about the edge of the flat top roof of the station building, which signs extended completely across the front thereof at a distance of about 32 feet in length and approximately 20 inches in height, with similar signs extending along both east and west sides of the roof, a distance of approximately 16 feet in length and about 20 inches in height, all of which signs extended upward from the top of said flat top roof.'

Three vent pipes connected with the underground tanks beneath the concrete driveway in front of the station building, so the petition further recites, 'and then extended upward between the wall of the building, which was constructed of stucco, metal lath and wooden paneling, to the top of the flat top roof at a point in the southwest corner immediately above the small bedroom occupied by your petitioners; that the said vent pipes did not extend beyond the level of said flat top roof; that the openings around the vent pipes on top of the roof had not been caulked or otherwise closed; that the openings about said vent pipes extended downward and led directly to the manhole opening in the ceiling, which said latter opening is situated in the southeast corner of said small bedroom.'

Additionally, it is stated in the petition:

'That petitioners aver that it is impossible to say with any degree of certainty as to what exactly caused the explosion which led to their injuries, but believe and therefore allege, that the same occurred as a result of the joint fault and negligence of James Alexander Traylor, Baton Rouge Coca-Cola Bottling Co., Ltd., and Standard Oil Company of Louisiana, in the following manner, to-wit:

'(1) by the negligence of the said James Alexander Traylor in not extending or causing to be extended the vent pipes beyond the level of the flat top roof, and not caulking or closing the openings around said vent pipes, which negligence caused the heavier-than-air gas fumes to seep and settle downward through said openings by the way of a manhole in the ceiling and thence into the bedroom occupied by plaintiffs; (2) by the negligence of the Baton Rouge Coca-Cola Bottling Co., Ltd., in erecting and placing the advertising signs about the edge of the flat top roof and permitting same to extend approximately 20 inches above and beyond the openings of the vent pipes, thereby botting-up or obstructing on three sides of the roof the escaping gas fumes from the vent pipes leading from the underground gasoline tanks and preventing the normal and natural diffusion of said gas fumes into the open air; (3) by the negligence and improper care of the Standard Oil Company of Louisiana in delivering an inherently dangerous and inflammable liquid, gasoline, to the filling station operated at the time by James Alexander Traylor without having carefully and diligently inspected or caused to be inspected the gasoline pumps, tanks, vent pipes and all attendant appurtenances attached to and made a part of the apparatus used in connection with the handling of gasoline at said station, which inspection would have disclosed the unsafe manner pertaining to the installation of the vent pipes and the failure of said pipes to extend a reasonable safe distance above and beyond the level of the flat top roof, and the failure to caulk or close the openings about said pipes which led directly to the manhole in the ceiling, and thence to the living quarters occupied by plaintiffs, as well as the advertising signs negligently arranged about the said vent pipes by Baton Rouge Coca-Cola Bottling Company, Ltd.

'That if the accident did not result from the negligence herein alleged, your petitioners are without knowledge as to the cause of the explosion.

'That the mere fact that the explosion occurred as herein alleged shows that the installation of the vent pipes by James Alexander Traylor or by his agents in construction of the premises was done in a negligent manner, while the placing and installation of the advertising signs by Baton Rouge Coca-Cola Bottling Co., Ltd., was done in a negligent manner, thereby preventing the escaping gas fumes to become diffused normally into the atmosphere, and the failure and neglect of the Standard Oil Company of Louisiana to inspect or cause to be inspected the safety of the entire apparatus before delivery of gasoline, a dangerous instrumentality, was made to the filling station, likewise constituted negligence; and that your petitioners must rely upon the doctrine of res ipsa loquitur and upon such facts and circumstances as might be developed upon the trial hereof for recovery of the injuries sustained.'

All defendants filed exceptions of no cause and no right of action. The district court sustained the exceptions of no cause of action of the Standard Oil Company and the Coca Cola Company, and dismissed the suit as to those defendants; but the one filed by Traylor was referred to the merits.

On an appeal by plaintiffs to the Court of Appeal, the following judgment was rendered by that tribunal (10 So.2d 409):

'For the reasons assigned, it is ordered that the judgment appealed from be affirmed insofar as it sustained the exception of no cause of action filed by the Baton Rouge Coca-Cola Bottling Co., Ltd.; that said judgment likewise be affirmed insofar as it sustained the exception of no cause...