Highland Golf Club v. Sinclair Refining Co., Civ. No. 101.

• Court: United States District Courts. 8th Circuit. Northern District of Iowa
• Citation: 59 F. Supp. 911
• Decision Date: 03 February 1945
• Parties: HIGHLAND GOLF CLUB OF IOWA FALLS, IOWA, v. SINCLAIR REFINING CO.
• Docket Number: Civ. No. 101.

59 F. Supp. 911

HIGHLAND GOLF CLUB OF IOWA FALLS, IOWA,
v.
SINCLAIR REFINING CO.

Civ. No. 101.

District Court, N. D. Iowa, Cedar Rapids Division.

February 3, 1945.

59 F. Supp. 912

Leming & Hobson, of Hampton, Iowa, and E. L. Ackerman, of Iowa Falls, Iowa, for plaintiff.

Parrish, Guthrie, Colflesh & O'Brien, of Des Moines, Iowa, and C. A. Bryson, of Iowa Falls, Iowa, for defendant.

GRAVEN, District Judge.

Case involving application of doctrine of res ipsa loquitur. On motion to direct verdict at close of plaintiff's evidence. The plaintiff, an Iowa corporation, on June 16, 1944, owned, operated and maintained a club house on a golf course in the city limits of Iowa Falls, Iowa, which was used by the members of the club for recreational, social and entertainment purposes. On that day the club house with its contents was entirely destroyed by fire. The building and contents had a very substantial value. The plaintiff claims that the fire was caused by the negligence of one

59 F. Supp. 913

of the defendant's servants, a Mr. Nock, in connection with delivering gasoline at the club house. The plaintiff seeks to establish the negligence of the defendant by invoking the doctrine of res ipsa loquitur. The club house building was a substantial building, being approximately 100 feet in length and approximately 45 feet in width. The building was a one story building with a basement under a part of it. The ground on which the building was situated sloped away to the south from the rear of the building, so that entry into the basement on the south end was nearly level with the surrounding ground

The first room of the basement from the south was a room approximately 18 feet by 25 feet. It was used by the plaintiff for a garage, work room and storage room. Immediately to the north of this room was a shower bath room. That room had originally been somewhat smaller, but when shower bath equipment was put in the south wall of the room was moved south several feet for all of the distance except a small portion at the west end. Because all of the wall was not moved south this left a small recess or sort of cubbyhole at the west end. In this recess the plaintiff kept a gasoline barrel resting on its side on a rack. A few feet to the east of this recess in the same room the plaintiff had a gas water heater for the heating of water for shower baths. Whether the pilot light or large burner were on at the time in question, does not appear. There were double doors aggregating around eight feet in width opening into the garage basement room from the south, and because of the ground formation the plaintiff's tractor could be driven directly into it. The tractor was kept in this garage room when not in use, but was not in the garage at the time in question. In this garage room the plaintiff kept its gasoline, oils and greases, and other supplies needed in connection with the operation of its tractor. This garage room was also used for general storage purposes, such as for the storing of commercial fertilizer, and tools and supplies used in connection with the keeping up of the golf course. This portion of the basement was underneath the kitchen of the club house. The floor of the basement was concrete. It appears that the club house was wired for electricity.

Between 2 and 3 o'clock p. m. on June 16, 1944, the defendant's servant, Mr. Nock, delivered approximately fifty-five gallons of gasoline into the plaintiff's gasoline barrel. The gasoline was delivered from a tank truck driven by Mr. Nock. Mr. Nock in making the delivery had backed the tank truck up so that the back end of the truck was close up to or just outside the open double doors leading into the basement from the south. Mr. Nock was called by the plaintiff to testify as to his being an agent of the defendant, but was not examined as to the origin of the fire. Mr. Nock did testify that he had made the delivery of the gasoline, so that it appears that he had put the gasoline into the barrel. It does not appear whether Mr. Nock made the delivery by connecting a hose between the tank truck or the barrel, or whether he had filled the barrel by means of buckets. The plaintiff put on one witness as to the commencement of the fire. This witness, one Dr. Schalk, a member of the plaintiff club, was on a golf green about three rods away at the time in question. He looked up and saw smoke coming out of the basement garage. He ran over to the basement door. He met Mr. Nock running from the back end of the tank truck. While so running, Mr. Nock exclaimed, "My God, I knew it would happen sometime." Mr. Nock drove his tank truck beyond fire range and then returned to the scene of the fire. The witness did not observe any gasoline pails or buckets. The exclamation of Mr. Nock is more enigmatic than enlightening as to what took place. There was no testimony as to any explosion. The plaintiff in its petition stated that the manner in which the fire was started was unknown to it.

This action was originally started in the state court and was then removed to this court because of diversity of citizenship, and is therefore within the scope of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. Under that case the state law as to res ipsa loquitur governs. CocaCola Bottling Co. of Henderson v. Munn, 4 Cir., 1938, 99 F.2d 190; F. W. Martin & Co. v. Cobb, 8 Cir., 1940, 110 F.2d 159, 163; 3 Cyclopedia of Federal Procedure, 2d Ed., Sec. 629. In the instant case the defendant is sought to be held liable for starting the fire that destroyed the club house and contents. Apart from statute, liability for damage caused to others by fire is based upon negligence, and one seeking to recover such damages has the burden of proving the negligence of the party charged. Bushnell v. Telluride Power Co.,

59 F. Supp. 914

10 Cir., 1944, 145 F.2d 950. Res ipsa loquitur is a rule of evidence. Vergeldt v. Hartzell, 8 Cir., 1924, 1 F.2d 633; Peterson v. De Luxe Cab Co., 1938, 225 Iowa 809, 281 N.W. 737, 738; Savery v. Kist, Iowa 1943, 11 N.W.2d 23; Olson v. Cushman, 1937, 224 Iowa 974, 276 N.W. 777. As a rule of evidence res ipsa loquitur assists the party having the burden of proof in establishing the negligence of the party sought to be charged. Whitmore v. Herrick, 1928, 205 Iowa 621, 218 N.W. 334, 337. A party in order to obtain such assistance must first present sufficient proof of the existence of the elements necessary to bring the rule into operation. The essential elements furnishing the foundation for the rule are primary, the proof resulting from the rule is secondary. Whitmore v. Herrick, supra. The rule means that the facts of an occurrence warrant the inference of negligence. Sutcliffe v. Fort Dodge G. & Elec. Co., 1934, 218 Iowa 1386, 1395, 257 N.W. 406. While proof of the essential elements warrants the drawing of such an inference it does not compel it to be accepted as sufficient by the jury. Sutcliffe v. Fort Dodge G. & Elec. Co., supra. While proof of the essential elements does require an explanation or rebuttal of the inference by the party sought to be charged, it does not convert such party's general denial into an affirmative defense, and the burden of proof is not changed. Sutcliffe v. Fort Dodge G. & Elec. Co., supra; Sweeney v. Erving, 1913, 228 U.S. 233, 240, 33 S. Ct. 416, 57 L.Ed. 815, Ann.Cas.1914D, 905. Even where the defendant does not put on any evidence to rebut the inference of negligence, arising under the rule of res ipsa loquitur, a directed verdict in favor of the plaintiff is not justified. See, 153 A.L.R. 1136, and also Anderson v. Ft. Dodge D. M. & S. R. Co., 1929, 208 Iowa 369, 226 N.W. 151, 157. Where the rule of res ipsa loquitur is applicable, this does not change the rule that the plaintiff must plead and prove his freedom from contributory negligence. Blackman v. Iowa Union Electric Co., Iowa 1944, 14 N.W.2d 721. As to distinctions between res ipsa loquitur and circumstantial evidence, see Eickhoff v. Beard-Laney, 199 S.C. 500, 20 S.E.2d 153, 141 A.L.R. 1013. While sometimes in connection with the rule, the term "presumption" is used and sometimes the term "inference" is used, and while technically speaking the terms are of different legal significance, and while the Iowa Supreme Court in its more recent decisions makes use of and indicates its preference for the use of the term "inference", yet the Iowa Court recognizes that they are used interchangeably. Harvey v. Borg, 1934, 218 Iowa 1228, 257 N.W. 190, 192; Savery v. Kist, Iowa 1943, 11 N.W.2d 23, 25. The terms are recognized as being used interchangeably in other types of cases. State v. Hartwick, 1940, 228 Iowa 245, 290 N.W. 523; State v. Crutcher, 1941, 231 Iowa 418, 1 N.W.2d 195; Bridges v. Welzien, 1941, 231 Iowa 6, 10, 300 N.W. 659. As to presumptions or inferences, see 25 Iowa Law Review 817; Heffter v. Northern States Power Co., 1927, 173 Minn. 215, 217 N.W. 102, 103; 153 A.L.R. 1135, 1136; also, Techniques in the use of Presumptions by Edmund M. Morgan, 24 Iowa Law Review 413. Sometimes the term "prima-facie evidence" is made use of in place of the term "presumption" or "inference". Welsch v. Charles Frusch L. & P. Co., 1924, 197 Iowa 1012, 193 N.W. 427. Cases where the plaintiff relies upon res ipsa loquitur, and the defendant moves for a directed verdict, generally fall into two classes. One type of case is where the plaintiff has made sufficient proof of the essential facts to call into operation the rule of res ipsa loquitur but claims that the inference of negligence has been rebutted or overcome as a matter of law. While in the case of Dierks Lumber & Coal Co. v. Brown, 1927, 19 F.2d 732, the Eighth Circuit Court of Appeals held that the defendant had rebutted the inference as a matter of law so as to be entitled to a directed verdict, yet in the later cases of Southern R. Co. v. Hussey, 8 Cir., 1930, 42 F.2d 70, 74 A. L.R. 1172, May Department...