Mullins v. Baker

• Decision Date: 17 February 1959
• Docket Number: No. 10933,10933
• Citation: 107 S.E.2d 57,144 W.Va. 92
• Court: West Virginia Supreme Court
• Parties: Hollis MULLINS v. J. C. BAKER et al.

Page 57

107 S.E.2d 57

144 W.Va. 92

Hollis MULLINS v. J. C. BAKER et al.

No. 10933.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 9, 1958.

Decided Feb. 17, 1959.

Syllabus by the Court

1. A declaration which properly alleges facts, both on the proposition of primary negligence and the doctrine of res ipsa loquitur, is sufficient in law.

2. A proper pleading in partnership cases is by the individual names of the partners.

3. A motion for a more particular statement of a claim rests in the sound discretion of the trial court, and if made at the calling of the case for trial, it comes too late.

4. A motion for a judgment non obstante veredicto is based on the pleading and not on the evidence.

5. A recovery by the plaintiff under the doctrine of last clear chance can be had only where primary negligence on the part of the defendant is proved along with contributory or concurrent negligence on the part of the plaintiff, which, without the application of the doctrine of last clear chance, would bar recovery.

6. 'The doctrine of res ipsa loquitur cannot be invoked if defendant does not have control or management of the premises or operations where the accident occurred; or where there is divided responsibility, and the unexplained accident may have been the result of causes over which defendant had no control.' Point 1, syllabus, Laurent v. United Fuel Gas Co., 101 W.Va. 499, 133 S.E. 116.

7. 'In order to recover in an action based on negligence the plaintiff must prove that the defendant was guilty of negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains.' Point 1, syllabus, Matthews v. Cumberland & Allegheny Gas Co., 138 W.Va. 639, 77 S.E.2d 180.

8. Federal income tax returns are not privileged as a matter of law in civil cases where the returns are material to the claims of the parties. Where a plaintiff places in issue his loss of profits, it is error not to require him to produce a copy of his federal income tax return when the original cannot be produced by the taxpayer.

9. 'When property is completely destroyed, the amount of recovery is measured by the market value at the time of the destruction.' Stenger v. Hope Natural Gas Co., 141 W.Va. 347, 90 S.E.2d 261.

10. Loss of future profits must be proved with reasonable certainty and cannot be based on guess or speculation.

R. A. Clapperton, Summersville, for plaintiffs in error.

Wolverton & Callaghan, Barber & Dunn, Richwood, for defendant in error.

BERRY, Judge.

This is an action of trespass on the case instituted by Hollis Mullins, against J. C. Baker, John Paul Baker and George Baker, doing business as J. C. Baker & Sons, in the Circuit Court of Nicholas County, West Virginia, wherein Mullins sought damages for the destruction of business buildings, merchandise, fixtures and loss of profits as a result of a fire alleged to have been caused by the negligence of Kenneth Lamb, an employee or agent of the defendants, on October 7, 1955, when he was delivering gasoline to the plaintiff's place of business. George Baker was dismissed because the evidence indicated he had nothing to do with the defendants' business. The trial of the case consumed about a week in the Circuit Court and resulted in a verdict for the plaintiff in the amount of $35,000.

The plaintiff had been engaged in the general store business in the vicinity of Dille, Nicholas County, West Virginia, for approximately thirteen years. In connection with this business, he also operated a filling station for the sale of gasoline and other petroleum products. Those businesses were conducted in two buildings located approximately six feet apart. The defendants were distributors of gasoline and petroleum products. They installed, maintained and owned the gasoline storage tanks, dispensing pumps and electrical wiring located on the property and the building owned by the plaintiff. This equipment and wiring had been placed and installed upon the property and in the buildings owned by the plaintiff for approximately ten years prior to the fire. At the time of the installation the defendants and their employees attached a vent pipe to the storage tank where the fire occurred to carry off the fumes along the wall of the filling station building extending about twelve feet from the tank and above the building. The electrical wiring in and about the filling station had some defects after installation, such as lack of insulation or short circuits. Some of the wiring was located within ten feet of the filler pipe.

About ten years before the fire and after the gasoline storage tanks had been installed, the plaintiff extended his store building to within about four to six inches of the filler pipe to the storage tank located between the store building and the filling station. He also installed gas floor furnaces in which he kept pilot lights burning and same were burning at the time of the fire.

On the day of the fire an employee of the defendants, Kenneth Lamb, delivered the gasoline. He was 20 years of age and had been working for the defendants about five weeks. He had been trained or instructed in his duties as truck driver and in delivering gasoline for about two weeks before making deliveries himself. He had worked intermittently in his father's service station for several years before going to work for the defendants.

The store building and filling station were between 4 and 6 feet apart. The storage tanks had a capacity of about 1010 gallons each. The gas floor furnace had been installed in the store building in 1946 and was about 13 feet from the intake or filler pipe of the storage tank between the buildings. This furnace had an open flame pilot light which was located below the floor surface and was left burning continuously. The store building was not underpinned and the space under the store building was open.

The defendants did not know the location of the floor furnaces. The plaintiff had installed a fan on the store building to bring in cool air, and when the storage tanks were being filled the order of gasoline fumes could be detected in the store building, but the defendants were not advised of this.

On October 7, 1955, when defendants' driver arrived to fill the storage tanks he measured the gasoline in the tanks and advised the plaintiff as to the amount of gasoline they would take and proceeded to fill them. When he was filling the tank between the store and filling station an unexplained fire occurred. The driver was not smoking and no one observed any gasoline overflowing the storage tank at the time of the fire. When the driver observed the fire he got a fire extinguisher from the truck and tried to put out the fire but was unsuccessful. He then got in the truck and drove it away from the fire. When the truck was driven away, the hose which had been left in the filler pipe was broken and the automatic valve on the truck closed. The truck was driven about a quarter of a mile from the buildings and parked. The truck driver then came back to the scene of the fire.

The store building and filling station and all their contents were totally destroyed.

The plaintiff and his witnesses testified that on the day after the fire gasoline was coming out of the filler pipe. This was after the building had burned but hot coals were still present on the ground around the storage tanks.

The defendant, J. C. Baker, testified that on November 18, 1955, he measured the amount of gasoline in the storage tank located between the store building and filling station and found it to contain 984.61 galloans and stated that the pumps used to take the gasoline out of the tank had been completely destroyed, thus leaving the gasoline placed in the tank without any means of removal thereof. This evidence over objection was not allowed to go to the jury because of remoteness.

An attempt was made by witnesses introduced on behalf of the plaintiff to prove damages to the buildings as to value, but it appeared that the value in each case was the cost of replacement. It is true that depreciation was mentioned but the answers were what it would cost to build new buildings.

An attempt was made to prove profits by taking 20% of the retail sale price of the merchandise; also by testimony of what profits were for a period of time before the fire in 1954 and 1955.

The defendants filed a demurrer to the plaintiff's declaration stating it was insufficient in law because it did not state facts with definiteness and certainty as to the cause of action against defendants and because it did not properly set forth the relationship between the parties. The declaration alleges duties on the part of defendants and a breach thereof and that the control and operation of the delivery of the gasoline was solely in charge of and conducted by defendants or their agent. We are of the opinion that the declaration alleges facts sufficient in law in this case, both on the proposition of primary negligence and the doctrine of res ipsa loquitur raised by the plaintiff during the trial of the case. See 13 Michie's Jurisprudence, Negligence, § 48.

We are also of the opinion that the pleading properly set forth the relationship of the parties. A proper pleading in partnership cases is in the individual names of the partners and the pleading in this case satisfies that requirement. See Courson v. Parker, 39 W.Va. 521, 20 S.E. 583.

The defendants assign as ground of error the overruling by the court of their motion for a more particular statement of plaintiff's claim. It would appear that the plaintiff's declaration advised the defendants sufficiently of their claim in this case but this matter is within the discretion of the trial court, and in any event, when the motion is made at the calling of the case for trial it comes too late. Code, 56-4-19; Stone v. Safe Ins. Co., 109 W.Va. 739, 156 S.E. 106; 3 Michie's Jurisprudence, Bill of Particulars, § 8.

The...