McKinney Supply Co. v. Orovitz

• Decision Date: 03 July 1957
• Citation: 96 So.2d 209
• Parties: McKINNEY SUPPLY COMPANY, Grace Industrial Corporation, Federal Sereen Supply Company, Appellants, v. Max OROVITZ, Ruth Orivitz, Dan B. Ruskin, and Mollie K. Ruskin, d/b/a Public Gas Company, Appellees.
• Court: Florida Supreme Court

Page 209

96 So.2d 209

McKINNEY SUPPLY COMPANY, Grace Industrial Corporation, Federal Sereen Supply Company, Appellants, v. Max OROVITZ, Ruth Orivitz, Dan B. Ruskin, and Mollie K. Ruskin, d/b/a Public Gas Company, Appellees.

Supreme Court of Florida.

July 3, 1957.

Davant, Letts & White, Miami, for appellees.

Wicker & Smith, Miami, for appellees.

HOBSON, Justice.

These are consolidated appeals from three cases which were tried together below. Plaintiffs appeal from judgment entered consequent upon a verdict for defendants in each of the three cases.

The undisputed facts are the following: Defendants (appellees here) are in the business of selling liquefied petroleum gas. In connection with this business, they owned a building or plant wherein liquefied petroleum gas was transferred to cylinders to be hauled away from the plant to customers. Commencing in the early morning hours of June 7, 1953, a fire burned the defendants' plant, spreading to property owned by the plaintiffs and causing substantial damage.

Plaintiffs brought suit on the theory of res ipsa loquitur, making the necessary allegations to support this theory. The defendants, in their answer, admitted that the fire occurred at the time and place alleged, but denied the remaining allegations of the complaint. The cases were tried before a jury and at the close of all the evidence the plaintiffs moved for a directed verdict. The motion was denied, and a verdict was returned for defendants, whereupon plaintiffs moved for judgment notwithstanding the verdict. This was denied, and final judgment was entered for defendants.

Although much space is devoted in the briefs to a discussion of the doctrine of res ipsa loquitur, it appears to be conceded by the parties that there is no real difference between them as to the nature of this doctrine. But appellants contend that the evidence was insufficient to rebut the presumption of negligence which arose from the application of the doctrine, while appellees take the position that the inference or presumption of negligence, if any there was, was clearly rebutted, leaving the disposition of the cases solely within the purview of the jury. On the first point raised by appellants, therefore, our task is restricted to a review of the record.

Certainly it was not established that any of the equipment in the plant was defective in a way which could have caused the fire. The situation conformating us, therefore, is to be contrasted with that which we reviewed in Williams v. Puleo, Fla., 70 So.2d 290, where a gas-fed fire could have been, and the jury apparently found that it was, caused by the defective character of a check valve, from which certain essential parts had been removed by the user.

There was evidence that the safety classification of appellee's plant was excellent or 'above average.' Chief Davis, Miami Fire Marshal, and Chief Willis, Deputy State Fire Marshal, testified at length. Based upon the testimony of these and other witnesses, the jury could have found the plant was well organized; that the many safety devices with which the plant was equipped were in proper working condition and were helpful in rendering the fire less disastrous than it might have been; that the plant had been inspected on March 5, 1952, and found in good condition; and that the management was extremely cooperative with safety officers and disposed to comply with any of their safety suggestions. There was no explosion of the kind which would have occurred if escaping gas had been ignited inside of the building. The investigation conducted by Chief Willis convinced him that the fire originated on the outside of he building.

On this record the jury was authorized to find that the fire had its origin on the exterior of the building, and that it may have been caused by neon lighting equipment located there. Chief Willis testified that fires will sometimes 'start in some unexpected way, regardless of the fire prevention used' and he further testified that neon signs are not 'prominent' causes of fires if properly installed and maintained. From all of his testimony and on the balance of...