Jones v. Garney Plumbing Co.

• Decision Date: 12 December 1966
• Docket Number: No. 1,No. 51779,51779,1
• Citation: 409 S.W.2d 637
• Parties: Alf A. JONES, Pauline E. Jones, W. B. Jones and Ann P. Jones, and Jack Jones Lumber Company, a Corporation, and Jack Jones Sash and Door Company, a Corporation, Appellants, v. GARNEY PLUMBING COMPANY, a Corporation, and Ernest Miller, Respondents
• Court: Missouri Supreme Court

Page 637

409 S.W.2d 637

Alf A. JONES, Pauline E. Jones, W. B. Jones and Ann P Jones, and Jack Jones Lumber Company, a Corporation, and Jack Jones Sash and Door Company, a Corporation, Appellants, v. GARNEY PLUMBING COMPANY, a Corporation, and Ernest Miller Respondents.

No. 51779.

Supreme Court of Missouri, Division No. 1.

Dec. 12, 1966.

Motion for Rehearing or for Transfer to Court En Banc Denied

Jan. 4, 1967.

John C. Risjord and Gordon, Adams, Niewald & Risjord, Kansas City, for appellants.

David R. Hardy, Lane D. Bauer, Kansas City, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel, for respondents.

HIGGINS, Commissioner.

Action for $55,000 damages resulting from a fire at plaintiffs' lumberyard occupied in part by defendants. Plaintiffs appeal from judgment entered upon a verdict directed for defendants at the close of plaintiffs' case.

Plaintiffs based their action on res ipsa loquitur and alleged that on October 23, 1963, defendant Garney Plumbing Company was the lessor of a part of plaintiffs' premises, thus having complete and exclusive control and custody of a garage stall on plaintiffs' premises which they used to house and repair trucks; that defendant Garney was further in complete and exclusive control and custody of an acetylene torch used by defendant Ernest Miller as the agent, servant, and employee of defendant Garney in the maintenance of a truck; that, as a result of negligent handling and operation of the torch by Miller, a fire was started; that plaintiffs had no knowledge of the specific acts of negligence which caused the fire; that, as a result, plaintiffs sustained $50,000 damage to their property and $5,000 damage for interruption of their business.

Plaintiffs' buildings were located at 306 West 78th Terrace, Kansas City, Missouri. They consisted of two office buildings and two lumber sheds, 20 years old, used for lumber storage and as rental property. One office building containing four offices was located on the north side of 78th Terrace. Directly to the north were two lumber sheds which ran north and south, side by side, separated by an alley or aisle. Both sheds had large sliding doors on their east and west sides. The west shed was a 2-story wooden building 36 96 feet, with six stalls or bins each 16 feet wide. It had a concrete floor. Still farther to the north was the other office building. It faced on 78th Street and was occupied by Alber Electric Company. On its south or rear side was a large overhead garage door which opened into the aisle between the lumber sheds. The first stall beginning at the south end of the west shed was used for storage of moldings and mahogany lumber. The second or next stall to the north of it was the one occupied by Garney Plumbing Company for storage and repair of trucks. The remaining stalls contained only lumber. There were no flammable liquids, solvents, or paint stored anywhere on the premises by the owners; there were no heating appliances in the west shed; and, prior to Garney's occupancy, there was no electrical service to the west shed.

In late September, 1963, Mrs. Garney and W. B. 'Jack' Jones made arrangements for rental of the stall to Garney, including provision for installing electrical service. Robert Alber, journeyman electrician employed by his father, did the electrical work about October 10, 1963. To obtain electrical service he attached new wiring to an unused available fused circuit at the fuse panel on the south wall of the south office building and ran wire 15 to 16 feet aboveground to a service head at the Garney stall. Number 12 insulated wiring was used and enclosed in metal conduit. The installation included an electrical outlet and light in the Garney stall. A 4-inch steel box was used for the receptacle and it was located above the workbench in the southeast corner. An overhead light was installed using an octagonal metal box covered by a 4-inch porcelain receptacle, affixed to a ceiling joist. The switch was placed in the southwest corner at the west entrance. It, too, was enclosed in a metal box. Connections were made with screw terminals and splice nuts. When the job was completed Mr. Alber tested it and found it operating properly. According to him, the installation met approved standards.

Mr. Alber noted the location of the stall doors on the east and west sides. The doors were 12 to 14 feet wide, virtually as wide as the stalls. The north and south walls were of fiberboard and they contained no openings. The 7 1/2 or 8-foot ceiling was made of wood decking over wood joists. Approximately six days before the fire, Mr. Alber was in Garney's stall and noted oil spots on the floor where trucks had stood. There was some grease on the floor, and there was a pan of solvent, presumably gasoline, for cleaning truck parts, on the floor at the west end of the workbench. There were some shop towels and rags lying about and the stall had the appearance of a shop used for repairing trucks. Mr. Miller was present at the time of this visit.

By way of deposition, Ernest M. Miller testified that he had worked as a mechanic at the lumberyard stall for two or three weeks before the fire. During that time he worked on several Garney trucks. He had grease rags and a five gallon can of gasoline which he had used to wash grease from engine parts. He did not keep his gasoline can in any particular place. He overhauled truck engines and the trucks dripped grease and oil onto the floor. In overhauling engines, he would take them apart and that also produced grease and oil. Although he had a box for grease rags, he did not have a container for trash or any compound or material with which to clean up grease. He also performed cutting and welding operations in the stall. The acetylene equipment he used included oxygen and acetylene bottles with rubber hoses connecting them to his torch. Each bottle had a valve and a gauge, both of which operated easily with a wrench. He wore protective goggles but did not use asbestos gloves, nor were there any guards, shields, or other devices to protect against hot metal sparks which resulted from cutting operations and can fly as much as 8 or 10 feet. Mr. Miller never experienced any difficulty with any of his electric equipment or supply prior to the fire. On the morning of the fire he was at work at 6:15 and was the only person employed there by Garney to work on trucks. His acetylene torch equipment was on the premises, including oxygen and acetylene bottles, torch, rubber connecting hoses, valves and gauges. He customarily did not work with the light on and did not turn it on this morning. He worked by the daylight from the open doors which were approximately 12 18 feet. He had his electric impact wrench plugged in; he had no other electric appliances that day. The wrench worked properly and he had no electrical shorts or sparking. Defendants admitted that Mr. Miller's work on that date was in the scope of his employment; they denied he used his torch on that day.

Mrs. Evelyn Alber did general office work, including typing and invoicing, for Alber Electric Company which was owned by her husband, Dan R. Alber. She knew Ernest Miller and knew about acetylene torches, having seen her husband use one in his business. She had seen Mr. Miller using an acetylene torch in the Garney stall in the repair of and to burn paint off Garney trucks. She described Miller's equipment as two bottles of gas and a torch about 12 inches long. On the morning of October 23, 1963, the day of the fire, Mrs. Alber drove along the west side of the shed and noticed a Garney truck in the Garney stall but did not see Mr. Miller. She arrived at her office about 8:50 A.M., made a pot of coffee, and sat down at her desk. The overhead garage door at the back of her office building was the nearest part to the west shed. To the north of that door was a garage, the length of which was at least that of two trucks. The garage was then separated from the office proper by a wall with a door in the center. Mrs. Alber's desk was about four feet north of that wall facing east and west. She was in a direct line with the door in the wall to the garage. She sat at her desk in a swivel chair which enabled her to look out the garage door and then on to the south through the overhead door. On occasions previous to the fire she had looked out those doors in this manner and had seen Mr. Miller using his torch at the Garney stall. She had never seen anyone except Miller using a torch there.

As Mrs. Alber looked out the doors on this morning, there was a truck in the center of the aisle between the sheds, a truck in front of the Garney stall facing south on the east side, a car facing north alongside the office building, and a house trailer parked in the aisle. According to her, none of these vehicles interfered with her line of vision to the Garney stall. She could see its east side but not into it. While looking toward the Garney stall, Mrs. Alber saw a man's arm, slightly bent, point an acetylene torch out of the east side of the Garney stall, presumably to adjust it. The flame was at first about 12 inches long, yellow in color, and changed to a shorter flame, bluish in color. Her observation took 'a second or two,' and when she glanced away to pick up her coffee, the torch 'disappeared' into the stall still flaming. Mrs. Alber began typing an invoice and after a short time, two to ten minutes, heard a cracking, jumped up and went back to see what was going on. She saw fire at the rear of the Garney stall with flames coming from the stall. There were no flames coming from the stalls on either side of the Garney stall. She ran back and called the fire department and learned that the fire had already been reported. She ran back outside to start moving cars and saw Mr. Miller on the west side of the shed. She shouted at him to help her, but 'he was kind of berserk * * * he was excited too, and he just mumbled and...