Harding v. H. F. Johnson, Inc.

• Decision Date: 29 May 1952
• Docket Number: No. 9053,9053
• Citation: 126 Mont. 70,244 P.2d 111
• Parties: HARDING et al. v. H. F. JOHNSON, Inc.
• Court: Montana Supreme Court

Page 111

244 P.2d 111

126 Mont. 70

HARDING et al. v. H. F. JOHNSON, Inc.

No. 9053.

Supreme Court of Montana.

Submitted Nov. 1, 1951.

Decided April 11, 1952.

As Amended April 15, 1952.

Rehearing Denied May 29, 1952.

Wood, Cooke & Moulton, Bullings, James H. Morrow, Jr., Bozeman, for appellant. F. D. Moulton, Billings, argued the case orally.

Meyer & Meyer, Butte, H. B. Landoe, Joseph B. Gary, Bozeman, for respondent. H. B. Landoe, Bozeman, and William Meyer, Butte, argued the case orally.

Coleman, Jameson & Lamey, of Billings, amicus curiae in support of the petition for rehearing only.

ANGSTMAN, Justice.

This is an action to recover damages caused by a fire. The property involved consisted of a building and its contents used for a garage and residence situated in West Yellowstone, Montana. The building and contents were owned by plaintiffs Hardings on November 27, 1948, at the time of the fire. The plaintiff insurance companies partially insured the building and contents and have each paid the extent of the loss covered by their policy and have been subrogated to the rights of the Hardings to the extent of their payments. The action was orginally brought against the Carter Oil Company and H. F. Johnson, Inc. The jury found in favor of the Carter Oil Company and found in favor of plaintiffs and against H. F. Johnson, Inc. The defendant H. F. Johnson, Inc. moved for a new trial which was denied and it has appealed from the judgment entered against it on the verdict in the sum of $28,000.

Defendant H. F. Johnson, Inc. is a common carrier of petroleum products and on November 27, 1948, was engaged as such in delivering fuel oil and gasoline to the Harding garage at West Yellowstone when the fire occurred. Delivery was made by means of a truck and trailer. On that day defendant H. F. Johnson, Inc. though its driver Calvin Dalley had delivered and unloaded 5,200 gallons of fuel oil and 1,500 gallons of regular gasoline and had nearly completed the delivery of 500 gallons of Ethyl gasoline when the fire stated. The petroleum products were delivered in underground tanks situated under the garage part of the building in question. There were intake pipes to these tanks located outside of the building. From each tank there was also a vent pipe which ran from the tank to the outside of the building and up the outside of the wall to permit the escape of fumes. In front of the garage on the south side there was a 14-foot door. The garage floor consisted of cement which extended out beyond the door about 5 feet forming an apron. The floor of the garage sloped to a drain or sump near the north wall in about the center of the garage. Mr. Dalley who delivered the petroleum products testified he was told by defendant Harding when he arrived at the service station on the morning of November 27th where to put the gasoline and oil but this was denied by Harding. In the process of delivering the regular gasoline Mr. Dalley stated that he screwed the delivery hose onto the intake pipe and noticed it was leaking. He said he thereupon took his pipe wrench and gave the coupling a couple of turns and stopped the leakage. The witness Hall on behalf of the plaintiff testified that the leaking gasoline ran into the garage and that there was about ten gallons of it and when he noticed the leaking gasoline he went out and told Mr. Dalley that, 'We're losing a lot of gas, and is there any chance of stopping it'. He said he walked through the gas on the floor of the garage and then after speaking to Mr. Dalley about it he went to the post office without cleaning up the gas or doing anything else in connection with it. He said too that he observed gasoline escaping freely between the hose and the intake pipe and nothing was done to stop the flow while he was there. Mr. Dalley testified that what gasoline escaped from the pipe before he tightened the coupling sank into the snow and ice around the fill pipe. It appears that Dalley was never in the garage and hence was in no position to dispute the testimony of Hall that the gasoline flowed into the garage.

The evidence is not clear as to just where the fire started. The plaintiffs take the position that the circumstances indicate that it started on the outside of the garage. Witnesses for the defendant, on the other hand, testified to circumstance which would justify a finding that the fire started on the inside of the garage. The evidence does not indicate just what caused the gasoline to ignite. Evidence offered by plaintiffs was to the effect that the stove in the garage had no fire in it on the morning in question and that there was no machinery in operation. Plaintiffs count strongly upon the circumstance that the defendant in delivering the gasoline allowed the motor of the truck to idle in operating a pump to increase the speed of the flow of gasoline and thereby caused a condition likely to produce static electricity. They also contend that the truck and trailer were not equipped with static chains which touched the ground. Defendant points out that if the chains were not touching the ground that fact was and is immaterial here since the truck and trailer were actually grounded by a sealing chain. It contends also that the fact that Mr. Dalley had stepped on and off the truck a number, of times, static accumulations, if any, were thereby grounded.

When the complaint was first filed it contained allegations to the effect that the defendants in disregard of their duty 'continued to transfer said gasoline and oil without first cleaning the gasoline and oil from said apron and floor with the result that a spark of fire flew from said truck striking the gasoline and oil on said floor and igniting it and the resulting fire spread and continued to burn until the said building and contents were destroyed as herein alleged. Plaintiffs further allege that what caused said spark to form is to them unknown.' At the trial the complaint was amended and the foregoing allegations were eliminated and in lieu thereof plaintiffs alleged that defendant 'carelessly and negligently continued to transfer said gasoline and oil without first clearing the accumulated gas and oil from said apron and floor with the result that the defendants negligently caused the gas and oil on said floor to become ignited, resulting in a fire which spread and continued to spread until said building and contents were destroyed as herein alleged. That at the time said gasoline and oil was being delivered as aforesaid, the defendants, their agents and servants, were in the sole and exclusive charge of such delivery and had complete and exclusive supervision, control and management of all operations and work done in connection with such delivery of said gasoline and oil to said Harding's Oval-E Service.'

It will be noted that the complaint as amended seeks recovery under the doctrine or res ipsa loquitur. Whether or not this doctrine is applicable to the facts in this case is the principal question presented by the appeal. Defendant contends that the doctrine is not applicable because the fire started in the garage and that defendant did not have any control over or access to the garage and had no knowledge as to what caused the fire in the garage. Plaintiffs' view is that the fire started outside the garage but that the doctrine has application no matter where the fire started.

The court held that the doctrine has application and over objection gave its offered instruction No. 1, reading as follows: 'You are instructed that from the happening of the fire involved in this case, as established by the evidence, there arises an inference that the proximate cause of the fire was some negligent conduct on the part of the defendants. That inference is a form of evidence, and if there is none other tending to overthrow it, or if the inference preponderates over contrary evidence, it warrants a verdict for the plaintiffs. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendants to rebut the inference by showing that they did, in fact, exercise ordinary care and diligence or that the fire occurred without being proximately caused by any failure of duty on their part.'

The court was right in applying the doctrine. It is clear from the evidence that the cause of the fire was the gasoline which was allowed to escape. Without it the fire would not have occurred. Just where the spark came from to ignite the gasoline is unimportant. Defendant had the exclusive control of the pipes and hose designed to convey the gasoline into the tank. Gasoline is highly inflammable and gives off fumes which are easily ignited. Those handling gasoline are chargeable with knowledge of its inflammable character and must keep it under control and in confinement.

This case is comparable to that of Lober v. Kansas City, Mo.Sup., 74 S.W.2d 815, 819, where the court held the doctrine of res ipsa loquitur had application to a situation where the city allowed water to escape into the premises of another. The court in that case, after stating the tests to be applied in determining whether the doctrine of res ipsa loquitur applies, said: 'Applying these tests to the situation in this case, it is clearly one for the application of the rule of res ipsa loquitur. When the defendant brought to the solidly builtup and much-used street in question as dangerous an element as water under 75 to 100 pounds pressure, it was up to the city to see to it that such water was under control and confined to the pipes and appliances provided for that purpose. To allow it to escape without control was highly dangerous, and speaks negligence of those in charge. This hydrant and the water mains with which it was connected was concededly under the sole and exclusive control of the defendant.'

What the court said with reference to oil in General Accident Fire & Life Ins. Corp. v. Hanley Oil Co., ...