Moore v. Beard-Laney, Inc., BEARD-LANE
| Citation | 263 N.C. 601,139 S.E.2d 879 |
| Decision Date | 29 January 1965 |
| Docket Number | No. 26,BEARD-LANE,INCORPORATED,26 |
| Court | United States State Supreme Court of North Carolina |
| Parties | Troy MOORE, Dewey Pannell and Herbert Pannell, t/a Moore's Service Station and Grocery, v., and Lewis Joe Taylor. |
J. H. Burwell, Jr., Rutherfordton, and Carroll W. Walden, Jr., Forest City, for plaintiff appellants.
No counsel for defendants.
These facts are alleged in the complaint and admitted in defendants' answer: The corporate defendant is a South Carolina corporation, which does business in North Carolina. The defendant Lewis Joe Taylor on 28 August 1962 was an employee of the corporate defendant, and was at all times here relevant acting as agent and employee of the corporate defendant. The plaintiffs operate a retail service station, grocery store and a wholesale petroleum products business near the village of Avondale in Rutherford County, North Carolina. They operate this business under the trade name of Moore's Service Station and Grocery. The corporate defendant is engaged in the business of transporting gasoline and other petroleum products, and that at all times here relevant the defendant Taylor was employed by the corporate defendant as a truck driver to drive its truck and deliver gasoline and other petroleum products transported by it. On 28 August 1962 the corporate defendant, acting by and through its agent and employee, the defendant Taylor, was making a delivery of gasoline to the premises of plaintiffs.
Plaintiffs' evidence, considered in the light most favorable to them, would permit a jury to find the following facts and draw these reasonable inferences therefrom: In front of plaintiffs' service station were three retail gasoline pumps erected on a concrete island. Some distance from the retail gasoline pumps (the map mentioned in the evidence showing the distances is not before us) plaintiffs had large gasoline wholesale tanks. The total capacity of all tanks on plaintiffs' premises was 22,000 gallons. On 28 August 1962 Taylor drove the corporate defendant's tractor-tank trailer loaded with gasoline to plaintiffs' place of business to deliver to them 7,000 gallons of gasoline. He went in the store and Troy Moore told him, when he hooked up the tank trailer with the storage tank, to watch closely the last compartment of his tank trailer, that it was possible that it would overflow the high-test tank of gasoline. Taylor went out of the store, hooked up the tank trailer to the storage tanks, and started pumping gasoline. He then came back in the store.
There was an air vent on top of the storage tank to indicate whether or not it was overflowing, and whether it was overflowing or not could only be determined by watching it. The storage tank had no gauge to indicate its contents. There was an electric switch in a box on the pump which pumps the gasoline into the storage tank. This electric switch was about three feet from the gasoline storage tanks, and about eight inches from the ground.
There was a safety device on the front of the tank trailer. When the safety lever of this device is pulled, all flow of gasoline out of the tank trailer is stopped. It takes about two seconds to pull the safety lever. The tank trailer had two signal lights on blinking, when the fire occurred. The custom is that the driver of an oil tanker should be with his tanker watching the lever valves, when he is delivering gasoline, so that if anything goes wrong, he can cut off the flow of gasoline.
Dewey Moore Pannell, one of plaintiffs, arrived at the scene at 7 p. m. At that time the tank trailer was unloading premium gasoline into a storage tank through a three-inch hose which led from the rear of the tank trailer to the storage tank. He saw Taylor in the store. Percy Prince drove up in a car and stopped at a retail pump for gasoline. He went to the retail pump and was putting gasoline in Prince's car. While doing this, he saw gasoline coming out of the air vent on top of the storage tank in which gasoline was being pumped. At that time he did not see Taylor. He went to the electric switch on the pump which pumps gasoline into the storage tank and cut it off, and a fire started. His clothes caught fire. There was no raw gasoline on the ground around the switch at the time he cut it off. Taylor got in his tractor when he saw Pannell on fire, and drove his unit off without disconnecting the hose of the tank trailer leading to the storage tank, and it pulled in two. Gasoline continued to flow from the broken hose on the tank trailer, and it caught fire as it came out. The fire spread from the back of the tank trailer to the gasoline retail pumps, the store, and filling station. A considerable amount of plaintiffs' property was burned or damaged by the fire. Fire followed the tank trailer as Taylor drove it into the road. Taylor stopped his unit, jumped out, and stopped the gasoline from pouring out of the broken hose. Taylor disconnected the tractor and drove it away. The tank trailer was destroyed by fire.
A reasonable inference to be drawn from the evidence is that the gasoline overflowing from the storage tank was ignited by a spark created when Pannell cut off the electric switch on the pump which pumps gasoline in the storage tank.
We take judicial notice that gasoline is a flammable commodity. The basic duty to use ordinary or reasonable care under the circumstances requires a person handling an inherently dangerous instrumentality or commodity, like gasoline, to use care commensurate with the known exceptional danger. Stegall v. Catawba Oil Co. of North Carolina, 260 N.C. 459, 133 S.E.2d 138; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R.2d 881; Rea v. Simowitz, 225 N.C. 575, 35 S.E.2d 871, 162 A.L.R. 999.
In the 1964 Cumulative Supplement, p. 100, to 24 Am.Jur., Gas and Oil, § 129, it is stated: 'Clearly, it is negligence in one delivering fuel oil to overflow the receiving tank through inattention to the amount of fuel being delivered.' In support of the text is cited the case of J. J. Mayou Mfg. Co. v. Consumers Oil & Refining Co., 60 Wyo. 75, 146 P.2d 738, 151 A.L.R. 1243. In this case defendant appealed from a judgment in favor of the plaintiff in an action for damages for the destruction of plaintiff's property by fire alleged to have been caused by defendant's negligence. The judgment was affirmed. The first headnote in this case published in A.L.R. correctly states the holding of the Court, and reads as follows:
'The evidence is sufficient to support a finding of the jury that a seller's servant was guilty of negligence in delivering oil into the buyer's fuel tank causing the tank to overflow and setting fire to the buyer's plant, where it is shown that the servant, after he had started to pump the oil into the tank, left and went into the building to have the bill of lading receipted, although he did not know how much oil he had in the truck and had been warned not to overflow the fuel tank, and that the fuel tank was located partly over a drier operated at a high temperature, which became ignited when it came in contact with the overflow of the oil.'
In its opinion, the Supreme Court of Wyoming said: 'The testimony, accordingly, shows that the jury were clearly justified in finding that the fire was caused by reason of the negligent acts of Millhouse in permitting the fuel tank to overflow.'
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