Murchie v. Standard Oil Co.

• Decision Date: 20 February 1959
• Docket Number: No. 37,37
• Citation: 94 N.W.2d 799,355 Mich. 550
• Parties: Robert B. MURCHIE and Lulu A. Murchie, his wife, Plaintiffs and Appellants, v. STANDARD OIL COMPANY, a foreign corporation, and William C. Mavety, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 799

94 N.W.2d 799

355 Mich. 550

Robert B. MURCHIE and Lulu A. Murchie, his wife, Plaintiffs and Appellants, v. STANDARD OIL COMPANY, a foreign corporation, and William C Mavety, Defendants and Appellees.

No. 37.

Supreme Court of Michigan.

Feb. 20, 1959.

Murchie, Calcutt & Brown, Traverse City, for plaintiffs-appellants.

Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids (Don V. Souter, Grand Rapids, of counsel), for defendants-appellees.

Before the Entire Bench, except EDWARDS, J.

KAVANAGH, Justice.

Plaintiffs are residents of the city of Traverse City, Michigan, and are the owners of a residence on Peninsula Drive. At the time the alleged cause of action arose. Elizabeth C. Randall, now deceased, was the owner of a residence south of and adjacent to the plaintiffs' residence. Mrs. Randall had a 3,000-gallon underground fuel oil tank which supplied oil for heat and hot water in her residence.

Shortly prior to June 27, 1950, having learned that her fuel oil tank had run dry, Mrs. Randall changed from the Sinclair Refining Company to the defendant Standard Oil Company as a supplier of fuel oil. She instructed the agents of the Standard Oil Company to keep her fuel oil tank full at all times.

Beginning on June 27, 1950, and continuing until May 2, 1952, defendant Standard Oil Company made deliveries of fuel oil to the Randall residence. Said deliveries were made with a truck owned by the defendant William C. Mavety, who was admittedly an agent of the Standard Oil Company. Between June 27, 1950, and May 2, 1952, a total of 26,000 gallons of oil were put in that 3,000-gallon oil tank by the defendants, and paid for without objection by Mrs. Randall despite the fact that in the year 1949 the Randall residence used only 2,648 gallons and in 1950 only 2,890 gallons.

During the month of May, 1952, it was discovered there was a leak in the bottom of the 3,000-gallon fuel oil tank on the Randall property, and that large quantities of the fuel oil delivered by the defendants had escaped from the tank into the ground where it followed a course to the lower levels of the Randall and Murchie properties.

Plaintiffs instituted this action to recover damages to their property, consisting of the destruction of a cedar hedge and other trees, plaints and shrubs in the amount of $2,500.

Plaintiffs alleged that the defendants were guilty of negligence in carelessly, recklessly and negligently delivering excessive amounts of oil to the Randall residence when the defendants knew, or by the exercise of a reasonable degree of care and prudence should have known, that said oil was escaping from said tank, and as a result thereof a dangerous situation was being created and great damage would result therefrom; that as a result of the negligence of the defendants plaintiffs were damaged to the extent of $2,500 to replace the shrubs, plaints, trees and hedges destroyed by said oil; and that the said negligence of said defendants was the proximate cause of the damages.

Defendants deny they had any knowledge as to how much oil was required to heat the residence of Elizabeth Randall and affirmatively aver that they were merely complying with her demands to keep the tank full. Defendants deny that the escaping fuel oil resulted from any negligence on their part.

The case was tried to a jury. A verdict of on cause for action was returned. Plaintiffs made a motion for new trial alleging the following reasons: 1) that the verdict of the jury therein is contrary to law; 2) that the court erred in asking certain questions because they raised the natural implication that the defendants would not be liable unless Mrs. Randall complained of the amount of oil being delivered; 3) that the court erred in first excluding, although subsequently admitting, evidence as to the number of bathrooms and other hot water outlets and the number of persons in the Randall house, the court's ruling in this respect being prejudicial; 4) that the court erred in excluding testimony as to the amount of fuel oil burned in the hot water heater after its removal from the Randall house and its reinstallation in another house unless similar conditions were shown; 5) that subsequent to the rendition of the verdict the plaintiffs discovered new evidence of a material and probably controlling nature consisting of the testimony of E. A. Baxter and Ross Laming who will testify, in substance, that the hot water heater in the Randall house had a maximum capacity for oil consumption, even with the oil adjustment wide open, of one gallon per hour, and with the adjustment as it is set today, and presumably was at that time, a capacity of only three pints per hour as compared with a maximum capacity testified to by defendant Mavety of 35 gallons per day; 6) that the verdict of the jury therein is contrary to the great weight of the evidence in that the sole question involved was whether the defendants were guilty of any negligence, and such negligence was clearly established by undisputed evidence showing the delivery of excessive gallons of fuel oil.

The trial court in a written opinion denied the motion for a new trial on all grounds. Plaintiffs appeal and allege that the court erred in refusing to grant the motion for new trial for substantially the same reasons outlined above.

It is admitted by plaintiffs that there was sufficient evidence to go to the jury, and that the instructions of the court as to questions of law were properly given.

This Court during the last few years has quoted Justice Cooley in Detroit & Milwaukee Railroad Co. v. Van Steinburg, 17 Mich. 99, in which Justice Cooley, quoting from another case, said (at page 123):

"The fact of negligence is very seldom established by such direct and positive evidence that it can be taken from the consideration of the jury and pronounced upon as a matter of law. On the contrary, it is almost always to be deduced as an inference of fact, from several facts and circumstances disclosed by the testimony, after their connection and relation to the matter in issue have been traced, and their force and weight considered."

See, also, Clark v. Shefferly, 346 Mich. 332, 78 N.W.2d 155, and Kaminski v. Grand Trunk Western Railroad Co., 347 Mich. 417, 79 N.W.2d 899.

There can be no question that whether the defendants were guilty of negligence was a question for consideration of the jury. The jury found they were not negligent. Therefore, the question before this Court is whether the trial court erred in not granting the motion for new trial.

The Court has set forth certain rules concerning the review of cases on the ground that the verdict is against the great weight of the evidence. In Van Lierop v. Chesapeake & O. Railway Co., 335 Mich. 702, 713, 57 N.W.2d 431, 436, Justice Sharpe said:

'It is the general rule that the granting of a new trial rests on the sound discretion of the trial court. It is only in cases where the verdict is manifestly against the clear weight of the evidence that a new trial will be granted. See Foster v. Rinz, 202 Mich. 601, 168 N.W. 420; and Wright v. Dwight, 209 Mich. 678, 177 N.W. 209.'

Justice Chandler, in the case of Finch v. W. R. Roach Co., 299 Mich. 703, 713, 1 N.W.2d 46, 50, said:

"'We do not substitute our judgment on questions of fact unless they clearly preponderate in the opposite direction."'

In Molitor v. Burns, 318 Mich. 261, 265, 28 N.W.2d 106, 108, Justice Bushnell said:

'While we might have reached a different conclusion if we had been the triers of the facts, we cannot say, as a matter of law, that the verdict of the jury was contrary to the great weight of the evidence. McDuffie v. Root, 300 Mich. 286, 298, 1 N.W.2d 544.'

While it is true that under the allegation that the verdict rendered is against the weight of the evidence we examine the record in order to determine whether the verdict is so contrary to the great weight of the evidence as to disclose an unwarranted finding, or whether the verdict is to plainly a miscarriage of justice as to call for a new trial, see In re McIntyre's Estate, 160 Mich. 117, 125 N.W. 51; People v. Spencer, 199 Mich. 395, 165 N.W. 921; Patterson v. Thatcher, 273 Mich. 597, 263 N.W. 882, we only grant a new trial when...