Rivera v. Ancient City Oil Corp.

• Decision Date: 10 September 1956
• Docket Number: No. 6052,6052
• Citation: 302 P.2d 953,1956 NMSC 90,61 N.M. 473
• Parties: Encarnacion RIVERA, Administrator of the Estate of Alice Rivera, Deceased; Encarnacion Rivera, Administrator of the Estate of Russell James Rivera, an infant, Deceased; and Encarnacion Rivera, an individual, Plaintiff-Appellant and Cross-Appellee, v. ANCIENT CITY OIL CORPORATION, a corporation, Defendant-Appellee and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 953

302 P.2d 953

61 N.M. 473

Encarnacion RIVERA, Administrator of the Estate of Alice Rivera, Deceased; Encarnacion Rivera, Administrator of the Estate of Russell James Rivera, an infant, Deceased; and Encarnacion Rivera, an individual, Plaintiff-Appellant and Cross-Appellee, v. ANCIENT CITY OIL CORPORATION, a corporation Defendant-Appellee and Cross-Appellant.

No. 6052.

Supreme Court of New Mexico.

Sept. 10, 1956.

Rehearing Denied Nov. 16, 1956.

Joseph L. Smith, Henry A. Kiker, Jr., Albuquerque, for appellant.

Catron & Catron, Santa Fe, for appellee.

PER CURIAM.

Upon consideration of motion for rehearing, the original opinion filed herein is withdrawn and the following substituted therefor:

COMPTON, Chief Justice.

The plaintiff as an appellant in this Court complains of the action of the trial court in granting the motion of defendant for judgment notwithstanding the verdict on the plaintiff's first cause of action and from the judgment entered pursuant to said order. In his amended complaint upon which the cause was tried four causes of action were asserted against defendant by plaintiff but he neither appeals from the order of the trial court as it related to the third and fourth causes of action, nor from the judgments entered upon the second, third and fourth causes of action. The defendant by cross-appeal complains of the judgments entered against it upon the third and fourth causes of action.

The various causes of action asserted grew out of an explosion and fire which resulted in the death of plaintiff's wife and infant child as well as the destruction of his home and its contents. On September 14, 1952, the plaintiff with his family was living in a two-room frame house near Terrero, New Mexico. His wife was 19 years of age, an elder son, Roland, was two years of age and his infant son, Russell James, was a little more than a month old. A day or two before the tragic explosion and fire the plaintiff had purchased from the Red Arrow Camp Store at Terrero five gallons of kerosene which was placed in a 5-gallon Wesson Oil can which he had brought to the store with him.

The kerosene was kept in a tank or barrel at the store which had been filled by one John Law, a delivery truck driver for the defendant, Ancient City Oil Corporation, only a day or so before the plaintiff's purchase. The proprietor of the store had obtained the kerosene from a tank of defendant corporation at Santa Fe, New Mexico. After the oil purchased as kerosene was taken to his home by the plaintiff in the Wesson Oil can, he stored it in a shed adjacent to his house.

On the day of the fatal fire at about six or seven in the evening, the plaintiff drove to the Red Arrow Camp Store to make some purchases, taking along with him his little son, Roland. He spent, perhaps, an hour or longer visiting with the wife of the proprietor of the store and her sister, and then returned to his home. Immediately after his arrival the wife made ready to serve the evening meal. Before doing so, however, she decided to start a fire to warm the room. Placing some kindling in the stove she then proceeded to the store room or shed adjacent to the house and after taking some kerosene from the 5-gallon Wesson Oil can by pouring it into a 1-gallon can, she returned to the house with it. The plaintiff, an eyewitness, testified that he was present and saw no smoke which might indicate that the kindling had begun to burn as she began pouring the contents of the 1-gallon can into the stove. There was an immediate flash and explosion which completely destroyed plaintiff's house in a matter of thirty minutes, this despite the efforts of the Pecos, New Mexico, Fire Department. The plaintiff's wife, Alice Rivera, suffered second and third degree burns which completely covered her body, with the exception of her feet. She died five days later. No trace of the infant child, Russell James, was ever found, establishing rather conclusively, it seems to us, that he perished in the fire which destroyed the house. It thus became the plaintiff's theory in the trial of the cause that the baby had been totally cremated in the fire, a fact he was unable to prove definitely by reason of the fact that he did not see the baby when he returned to his house from the Red Arrow Camp Store, although they had left it in the bedroom when he started to the store.

As already indicated, the plaintiff asserted four causes of action against the defendant, Ancient City Oil Corporation. In the first cause of action he sought damages in the sum of $128,520 for the death of his wife; in his second cause of action, $15,500 for the death of his infant son; in his third cause of action, $1,802 for the loss of certain personal property in the destruction of his home by fire; and, in his fourth cause of action, $10,000 on account of personal injuries received by plaintiff, individually, in the explosion and fire which followed. In his original complaint, Mr. and Mrs. E. J. Patterson, proprietors of the store at which the kerosene was purchased, had been joined as defendants but they were dismissed out at the commencement of the trial, leaving Ancient City Oil Corporation as the sole defendant.

After trial, the jury returned verdicts for the plaintiff against the defendant, assessing damages at $25,235 on the first cause of action; $1,802 on the third cause of action and $550 on the fourth cause of action. The verdict on the second cause of action claiming damages on account of the death of the infant was in favor of the the defendant. Following the return of these verdicts into court, the defendant filed a motion for judgment notwithstanding the verdict as to such of the verdicts as were unfavorable to it.

The trial court thereafter entered an order granting appellee's motion for judgment notwithstanding the verdict as to the first cause of action; also, as to the third cause of action in so far as the verdict on that cause of action exceeded the sum of $650. In the same order, the trial court denied appellee's motion for judgment notwithstanding the verdict with respect to the fourth cause of action; denying, also, appellee's motion for a new trial as to the first, third and fourth causes of action.

Judgments were thereafter entered in conformity with the trial court's order, granting defendant judgment notwithstanding the verdict as to the first cause of action and for the reduced sum of $650 on plaintiff's third cause of action in conformity with action by the trial court on defendant's motion for judgment notwithstanding the verdict as to this cause of action. Judgments in conformity with the verdicts of the jury, in defendant's favor, as to the second cause of action and against defendant for $550 on fourth cause of action were duly entered by the court.

Plaintiff has lodged this appeal from the order of the trial court granting appellee's motion for judgment notwithstanding the verdict on the first cause of action, and from the judgment entered pursuant to the said order. The plaintiff has not prosecuted an appeal from the order of the trial court as it relates to the third and fourth causes of action, nor from the judgments entered upon the second, third and fourth causes of action. The defendant by cross-appeals has challenged correctness of the judgments entered against it on the third and fourth causes of action, about which more will be said later.

This leaves for consideration and decision by us on the main appeal the single question of whether the trial court erred in granting the defendant's motion for judgment in its favor notwithstanding the verdict on plaintiff's first cause of action, namely, an award of damages in his favor for $25,235 for the death of his wife by reason of injuries suffered in the explosion and fire following it.

The evidence in the case disclosed that the supposed standard kerosene purchased at the Red Arrow Camp Store had been contaminated by the addition thereto of from 7% to 8% gasoline, by volume. Whereas the flash point of standard petroleum required by law is 115~, examination disclosed that the flash point of the fluid purchased by plaintiff was 52~ Fahrenheit, as compared to the 115~ required by law. This fact and other evidence in the case left no doubt of its sufficiency to establish actionable negligence on the part of the defendant, Ancient City Oil Corporation, whose delivery truck had furnished the fuel or liquid from which plaintiff's purchase was supplied by Red Arrow Camp Store, leaving only for determination whether or not contributory negligence on the part of plaintiff's deceased wife in pouring kerosene onto live coals, or hot ashes, in the stove presents a bar to recovery.

Appellee had the burden of proving that plaintiff's wife failed to exercise reasonable care for her own saftey and that she contributed to her fatal injuries by her own negligence. The test in this regard is whether she used that degree of care for her own safety as would be exercised by an ordinarily prudent person under the same or like circumstances. We start with the proposition that it is common knowledge that standard kerosene may be used safely for illumination, heating, cooking, kindling and building of fires. Goode v. Pierce Oil Corporation, 171 Ark. 863, 286 S.W. 1009; Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 123 A.L.R. 761. In this light, we must consider the evidence.

William Chaffee, a petroleum chemist for the Bureau of Revenue, an expert in that field, testified that when kerosene with a flash point in excess of 52 or 53 degrees Fahrenheit, is poured on live embers, the spark or flame would burn rapidly and progressively and should the flame make contact with the spout of a can, there would be an explosion of the vapors in the can; but if the kerosene were not in excess of the statutory flash point, danger of an explosion would be remote. We quote briefly from his testimony:

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