Ruth v. O'Neill, 48481

• Citation: 245 Iowa 1158,66 N.W.2d 44
• Decision Date: 21 September 1954
• Docket Number: No. 48481,48481
• Parties: Richard RUTH and Emily Ruth, Appellees, v. Patrick O'NEILL and Capitol Implement Company, a Corporation, Appellants.
• Court: United States State Supreme Court of Iowa

Page 44

66 N.W.2d 44

245 Iowa 1158

Richard RUTH and Emily Ruth, Appellees, v. Patrick O'NEILL and Capitol Implement Company, a Corporation, Appellants.

No. 48481.

Supreme Court of Iowa.

Sept. 21, 1954.

D. C. Nolan and William M. Tucker, Iowa City, for appellants.

Tomasek & Vogel, Grinnell and Messer, Hamilton & Cahill, Iowa City, for appellees.

BLISS, Justice.

Plaintiffs are husband and wife. About October 1, 1951, Richard Ruth leased and began operating a rural petroleum products service station about ten miles south of Iowa City, Iowa, on Highway 218. On October 27, 1951 the young couple were married and shortly thereafter moved into the service station and made their home there. In addition to some farm work which the husband did, plaintiffs operated the leased property as a combination grocery store, lunch counter, and service station. They handled petroleum products of the Skelly Oil Company, which were delivered to them by the defendant Capitol Implement Co., a corporation. In making deliveries it used its own General Motors truck on which was mounted a five-compartment tank carrying the various grades of gasoline, fuel oil, and lubricants. The defendant, O'Neill, was employed by his co-defendant to operate the truck and make the deliveries. The Skelly Oil Company was made a party defendant but the jury returned no verdict against it, and it is not a party in this appeal. The appellants had been making their deliveries to plaintiffs from October, 1951 to March 6, 1952. On the latter date, O'Neill delivered the ethyl gasoline which plaintiffs alleged overflowed the tank he was filling and ran into the basement of the service station, and the gas given off from the gasoline was ignited by the pilot light of the hot water heater or a spark from the air compressor motor, and exploded and set fire to the building and its contents. This action is just for the loss of the personal property contents owned by plaintiffs. The loss so sustained by them they alleged was caused by the negligence of the Skelly Oil Company and the two appellants. They prayed judgment for $10,416.16 with interest and costs. The jury found for plaintiffs and against the appealing defendants and assessed plaintiffs' recovery at $4,633.32, for which judgment was entered. The pleadings of defendants for the most part were denials.

Some further description of the property is necessary for a proper consideration of the contentions of the parties. At the location of the service station, Highway 218 is laid out in a north-south direction. The station building was on the east side of the highway and it faced or fronted west toward the highway approximately at right angles. The construction of the building was the handiwork of the owner. It was of frame construction with concrete foundation and basement walls. In 1931 the owner built the first part of the building, 14 feet north and south on the front by 18 feet from west to east with an 'L' 9 feet by 11 feet extending to the north. He constructed a concrete pavement from the front of the building 20 feet west, and placed thereon, about 10 feet from the building, a raised island of cement on which the gasoline pumps were erected. Between the paved surface and the pavement on Highway 218 a crushed rock or graveled driveway was constructed. An open shingle canopy was built from the front of the building out over the pumps.

In 1937 the owner made this structure into an approximately square one-story building about 30 feet by 30 feet, by extensions to the north and east of the part built in 1931.

The only entrance to the building was on the west front by a door somewhat north of the halfway line of the front. There was a basement under approximately the south half of the building. In the southwest corner of the building on the first and only floor thereof was a room used for an office and a lunch room. Along the east side of this room was a lunch counter, on the west side of which were stools for the patrons. There was a window in the south wall of the room. Adjoining and just east of this room was the kitchen, from which there was a stairway to the basement. There was also a window in the south wall of this room. The windows were two or three feet from the floor. Adjoining and just east of the kitchen and in the southeast corner of the building was the living room. These three rooms occupied all of the south part of the building. North of the living room was a bedroom, and west of the bedroom were rest and wash rooms, and rooms for heating and pumping equipment.

At the northwest corner of the building was an underground tank for the regular gasoline, and also a fifty-gallon barrel for fuel oil for heating purposes of the station. Near the southwest corner of the building and south of it was an underground tank for the ethyl gasoline. About eighteen inches east of the southwest corner of the building, was a window in the south basement wall about a yard long and a foot high. Some distance further east was another basement window of the same dimensions. These windows were hinged at the top so that they could be opened inward. They were fitted rather loosely leaving a crack about an eighth of an inch wide at the sides and bottom of each window to better ventilate the basement and eliminate moisture. Outside and in front of these two basement windows was a window well about a foot deep and extending away from the building about the same distance. The bottom of the well was on the same level as the bottom of the window. Earlier in the winter Mr. Ruth had shoveled snow into the westerly window well, which ran in the basement when it melted through the crack below the window. Along the south wall of the basement the foundation was so constructed as to make a shelf-like ledge about four feet from the basement floor, and extending into the basement. On this ledge and part way under the westerly basement window was an air compressor, the pump of which was automatically operated by electricity. When the air pressure in the tank fell the pump was started. There was a large air tank below the compressor.

There were two rest rooms in the basement, and a large room divided by a northsouth partition made of sheetrock which extended from about six inches above the floor to about six inches from the ceiling, so as to permit air circulation. On the east side of this partition was a thirty gallon hot water heater. The fuel for heating the water was bottled gas contained in bottles outside and south of the building. The gas was piped from the bottles to the hot water heater. This heater was automatic, and a pilot light beneath the heater burned continuously even when the heater was not in operation. In the basement was a washing machine, tubs and other laundry equipment. Soft drinks and other lunch room and grocery supplies were also stored in the basement.

The pipe for filling the ethyl gasoline tank and the air vent from the tank were about six feet directly south of the westerly basement window. The upper end opening of the intake pipe was about six inches above the surface of the ground, and was closed by a hinged cap, which could be padlocked, but seldom was. The air vent pipe, above the ground, formed two right angles, with the opening toward the ground to prevent rain from entering. It was about six inches above the ground. Both pipes were close together. The two ends and the outside wall of the window well were of cement. Richard Ruth testified that the tops of these walls of the window well were about flush or level with surrounding surface of the ground, or somewhat lower. Testimony for defendants was that the walls of the window well formed a collar a few inches higher than the ground. The owner of the building, who was a witness for each party, as a witness for defendants testified that he had constructed the window well curbs or walls about four inches above the ground, but later had filled in and graded dirt and gravel about the building. It was undisputed that the ground fromt he air vent, and filling pipes sloped north and somewhat east toward the westerly basement window. Water during rains had run into the basement from this window well.

O'Neill arrived to make his delivery to plaintiffs' station about 10:00 A. M. of March 6, 1952. There was about two inches of snow on the ground, and the outside temperature was about 32 degrees Fahrenheit above zero. Mr. Ruth was not at the station. His wife was the only one in charge. It is undisputed that O'Neill stopped his truck at the northwest corner of the station and filled the fuel barrel and the regular gasoline tank. He then took the truck to the southwest corner of the building and put the nozzle of the hose from the ethyl gasoline compartment of the tank, into the intake pipe of the underground tank. The gasoline did not flow by gravitation, but was pumped in by the motor of the truck. The speed of the filling could be regulated either by a device in the nozzle or by the motor. The usual delivery to this tank was 150 or 200 gallons. It ordinarily took from ten to fifteen minutes to fill this tank. It is undisputed that O'Neill after starting the gasoline to flow went into the lunch room for something to eat and drink and to chat with Mrs. Ruth. She was behind the counter and O'Neill sat on a stool on the west side of the counter. Mrs. Ruth testified: After he came into the station, he smoked several cigarettes, ate two cups of ice cream and a candy bar, and talked with me and we looked at snapshots and he must have been there I suppose ten or fifteen minutes. After he ate the ice cream, he shouted, 'Oh, my God, the tank's overflowing.' He jumped up and ran out, and I looked out the double window on the south side of the west side of the counter. When I looked out the window to the south I saw red gas flowing all around the ground on the snow. Sitting on the stool I could not see the ground clear up to the wall of the building. I...