Guilford v. Davis

• Decision Date: 02 August 1927
• Docket Number: Case Number: 16913
• Citation: 131 Okla. 148,268 P. 299,1927 OK 238
• Parties: GUILFORD et al. v. FOSTER & DAVIS.
• Court: Oklahoma Supreme Court

1927 OK 238

268 P. 299

131 Okla. 148

GUILFORD et al. v. FOSTER & DAVIS.

Case Number: 16913

Supreme Court of Oklahoma

Decided: August 2, 1927

Syllabus

¶0 1. Negligence--Sufficiency of Proof of Primary Negligence. Where, in an action founded on negligence, and specific acts of negligence are alleged, the plaintiff's evidence is such as will fairly tend to prove such allegations, primary negligence is proved, and it is error to sustain a demurrer to the evidence.

2. Same--Rule of Res Ipsa Loquitur Applicable to Case in Part. Where, in an action founded on negligence, a part of the plaintiff's case is such that the rule of res ipsa loquitur is applicable thereto, the rule will be applied to that part, though other parts of plaintiff's case may be capable of proof by direct evidence of specific acts of negligence alleged.

H. H. Montgomery and Shell S. Bassett, for plaintiffs in error.

Burford, Miley, Hoffman & Burford and Campbell & Ray, for defendant in error.

DIFFENDAFFER, C.

¶1 This action was brought to recover damages for the wrongful death of Mrs. Elizabeth Guilford, the wife of Duke Guilford, and sister of plaintiffs, Josey Huelsebush, Otto Ebbert, and Mary Catherine Noser, alleged to have been caused by the negligence of defendant.

¶2 The petition, in substance, after setting out the relationship of plaintiffs to deceased, alleges that on the 9th day of May, 1923, deceased, with certain other persons, including her husband, went to a gasoline plant owned and operated by defendant, and that there one Jeffries, an employee and agent of defendant in charge of the plant invited Mrs. Elizabeth Guilford and other members of the party to go through and inspect said plant, and placed said parties in charge of one Dunifee, who was an employee of said company, and instructed him to conduct the party through the plant; and in the course of such trip they were conducted into a room, known as the accumulator room, where gasoline was kept in certain tanks under high pressure; that while in the room Dunifee opened certain valves in one of the tanks, thereby allowing large quantities of vaporized gasoline to escape from the tank into the room. This said vaporized gasoline was, and is, a highly inflammable substance, and a dangerous explosive. The petition alleges, further, that the acts of Dunifee, in so opening said valve, allowing the vaporized gasoline to escape into the room, without any adequate provision for its removal therefrom, was carelessness and negligence, and done without due care or regard for the safety of plaintiff's decedent, and without knowledge on her part that the vaporized gasoline was a dangerous and explosive substance; that while Mrs. Guilford and the remainder of the party were standing in said room, Dunifee walked around behind one of the tanks in the room, out of sight of Mrs. Guilford and the other members of the party; that immediately thereafter there was an explosion in said room, and that the vaporized gasoline in the room caught fire to the clothing of Mrs. Guilford, causing severe burns upon her person, from which injury she died on the 12th day of May, 1923, after suffering great pain and agony from such burns; that no administrator of her estate has been appointed; that Mrs. Guilford was of the age of 49 years, and prior to her injury she was in good health; that she was a woman of good business experience, co-operating with, and assisting, her husband in his business affairs, and assisting and working with him in his business; and prays for damages in the sum of $ 50,544.26 which includes $ 544.26 funeral expenses and hospital fees.

¶3 The answer of defendant consists of a general denial, and further specifically denied that either Jeffries or Dunifee invited the party to inspect the plant, or any part thereof, and specifically denied the right of authority of Jeffries or Dunifee to invite the parties to inspect the plant; and alleged that, if the party did visit, inspect, or enter the plant or the premises, such visit, inspection, or entry was without the permission, authority, or invitation of defendant, and was against its will, orders, and rules governing the management of the plant; and, for a further defense, plead contributory negligence; and, as a further defense, that the said Mrs. Elizabeth Guilford was a woman of mature years, familiar with and acquainted with the volatile and inflammable nature of gas and gasoline; that she knew and appreciated the danger, and in addition thereto, that she was advised and informed, on said 9th day of May, 1923, and prior to the visit, of the danger that might arise if fire from any cause should become present, and that she voluntarily incurred the risk when she entered the plant. The case was tried to a jury, and at the close of plaintiff's evidence, defendant demurred thereto, and the court sustained the demurrer and announced his ruling in the following language:

"Gentlemen, I have read the authorities you have submitted to me, and while there are cases that hold both ways, I am constrained to believe that the rule of res ipsa loquitur does not apply in this case, and that the plaintiffs have failed to prove specific acts of negligence, and the demurrer to the evidence will be sustained."

¶4 The plaintiff assigns five specifications of error, namely: Error in overruling motion for new trial; error in sustaining the demurrer to the evidence and instructing the jury to return a verdict for defendant; error in holding, as a matter of law, that plaintiff's evidence was insufficient to make a prima facie case; error in holding, as a matter of law, that the rule of res ipsa loquitur had no application to the facts in the case, upon the pleadings and evidence; and error in refusing to admit certain evidence offered by plaintiff, and permitting defendant in cross-examination to bring out certain evidence of facts, which were not relevant or material. Plaintiffs in their brief present two propositions: First, that the court erred in holding that the plaintiffs had failed to make out a case, without invoking the operation of the rule of res ipsa loquitur. Second, that the rule of res ipsa loquitur should have been applied to this case by the court.

¶5 The first proposition requires an examination of the evidence. The facts, as disclosed by the evidence, are, substantially, that on the 9th day of May, 1923, plaintiff Guilford and his wife were visiting with their cousin, James E. Jones of Cleveland, Okla.; that prior to that time they had lived on a farm in Missouri for a few years; and prior to that time he had conducted a grocery store in St. Louis for a number of years; that on May 9, 1923, Mr. Guilford and his wife, Mr. Jones and his wife and his daughter and young sister, about 5:30 o'clock p. m., drove an automobile from the town of Cleveland to the plant operated by defendant; that when they started from Cleveland they intended to go to another place. Mr. Jones, in whose automobile they were riding, decided, after they had started, that he would go to the plant of defendant, for the purpose of seeing one Mr. Smith, who was the superintendent, on some business connected with some life insurance prospects; that when they arrived at the plant, Mr. Smith was away; that they found Mr. Jeffries in the office at or near the entrance of the enclosure surrounding the plant; that Mr. Jeffries asked them if they wanted to go through the plant; that Mr. Jones replied that Mr. Guilford and his wife were new in the oil fields and might want to go through; that Mr. Dunifee was some distance away on the outside of the enclosure playing ball with some other persons; that Mr. Jeffries called Dunifee and directed him to show the party through the plant; that Dunifee then conducted the party through the plant, first going to the accumulator room, and there advised the party that this was a room where the product was finished; that he would show them through the other parts of the plant first and bring them back to this room afterwards; that after inspecting the engine room and boiler room, Dunifee then conducted the party back to the accumulator room where the tanks containing the gasoline were located; that the floor of the room, in which the tanks were, was a plain concrete floor with a little trough something like a foot wide; that Dunifee entered the room first, followed by Guilford; that Mrs. Guilford next entered the room; that the little girls entered the room and went in front of the first tank; that on each of the tanks there was a glass gauge, at the bottom of which was a valve or pet cock: that while the party was in the room, Dunifee turned a valve on the first tank; that when he opened this valve, the pressure in the tank appeared to be very high, and as the gasoline escaped it formed a froth or ice on the floor; that the gasoline fumes filled the air in the room to the extent that the vapor could be seen; that the little girls started to play with the particles of ice formed by the escaping gasoline, and that Mrs. Guilford inquired of Dunifee if it was not dangerous to permit them so to do; that he informed them that it was not dangerous; that Dunifee then closed the valve and went back behind one of the tanks out of his sight; that while he was behind this tank a noise, described by one of the witnesses as a "sizzle," and by one of the other witnesses as a noise similar to that made by the escaping gas at the first tank, was heard. Other witnesses describe the noise as being similar to that made by the escaping gas at the first tank, and also stated that they heard a hammering or knocking noise, and that immediately thereafter the explosion occurred; that the clothing on most everyone in the room caught fire; that after the explosion Guilford and Jones first put the fire out on the two little girls, and that Mrs. Guilford was lying on the ground outside of the room with her clothing on fire; that Jones...