Schafer v. Wells

• Decision Date: 23 February 1961
• Docket Number: No. 36504,36504
• Citation: 172 N.E.2d 708,171 Ohio St. 506
• Parties: , 14 O.O.2d 439 SCHAFER, Appellant, v. WELLS, Appellee; California Ins. Co., Appellant.
• Court: Ohio Supreme Court

Page 506

171 Ohio St. 506

172 N.E.2d 708, 14 O.O.2d 439

SCHAFER, Appellant, v. WELLS, Appellee California Ins. Co., Appellant.

No. 36504.

Supreme Court of Ohio.

Feb. 23, 1961.

Syllabus by the Court.

1. Res ipsa loquitur, as a rule of evidence permitting but not requiring the jury or, where there is no jury, the trial court to draw an inference of negligence, may be applicable in a case where the instrumentality causing the injury is shown to have been within the exclusive management and control of the defendant and where the circumstances attending the injury were of such a character as to warrant the conclusion that, in the ordinary course of events, such injury would not have occurred if ordinary care had been observed. (Paragraph one of the syllabus of Renneckar v. Canton Terminal Restaurant, Inc., 148 Ohio St. 119, 73 N.E.2d 498, and paragraph one of the syllabus of Soltz v. Colony Recreation Center, 151 Ohio St. 503, 87 N.E.2d 167, approved and followed.)

2. Where a defendant undertook to service and repair an oil furnace of plaintiff by the installation of a different burner in place of the old one and, before the work was fully completed and permanent supports installed, lighted and tested the furnace and left the premises of the plaintiff with the furnace in operation, and about one and one-half hours later fire was discovered in the room where the furnace was located, no one having entered the furnace room since the defendant's departure, it was not error for the trial court, as the trier of the facts, to find that the defendant had exclusive control and management of such furnace, for the purpose of considering the applicability of the rule of res ipsa loquitur.

3. Where plaintiff seeks to invoke the evidentiary rule of res ipsa loquitur, it is not necessary to establish specific evidence of negligent acts or conduct upon the part of defendant to support a verdict or, on trial to the court, a finding of fact in favor of plaintiff, but it is necessary to establish that the circumstances attending the injury were of such a character as to warrant the conclusion that, in the ordinary course of events, such injury would not have occurred if ordinary care had been observed.

4. In such case, where there is evidence of the circumstances attending such injury, it becomes a question of fact for the jury or, where there is no jury, the trial court to determine whether such circumstances were of such a character as to warrant the conclusion that in the ordinary course of events such injury would not have occurred if ordinary care had been observed.

This is an action to recover damages resulting from a fire in the automobile repair garage owned and operated by the plaintiff, John L. Schafer, in Defiance, Ohio. The company insuring the property was joined as a party, having been subrogated for the amount paid out by it under the policy. Gerald Wells, hereinafter called defendant, operated a sheet metal workshop in Defiance, in which business he installed, repaired and serviced fuel-oil fired furnaces and parts, new and used.

The garage was a concrete block building which was heated by an oil furnance located in a wooden shed attached to the middle of the rear wall of the main building. This shed so attached could be entered only through a doorway (having no door) in the rear wall of the main building. There was also a window place opening (without a window in it) in the same wall near the doorway.

Sometime prior to January 16, 1957, the plaintiff contracted with defendant to repair the furnace, which was not heating sufficiently. On the evening of that date, the defendant's employee, his brother, installed a secondhand oil burner after which he lighted and operated the furnace. However, the work was not completed on that date, the permanent burner supports having still to be installed. On the afternoon of the following day, in response to a call from one of the plaintiff's employees, the defendant and his employee brother returned to the plaintiff's garage to install a different nozzle with capacity to inject oil more rapidly and to produce more heat. After the nozzles were changed, the furnace was tested and satisfactorily operated by the defendant and his helper, after which they left the garage around 4:00 p. m. About 5:30 p. m., while people were still in the garage, there was an audible puff and the attached building was afire. One of the two people present in the garage at the time testified that the fire rolled out of the furnace room into the garage. Testimony was given to show that no one had entered the furnace room between the time of departure of the defendant with his employee and the time of the puff or noise when the fire commenced. Other testimony is set forth in the opinion.

The trial court consisted of three Common Pleas Court judges appointed under the provisions of Section 2315.21, Revised Code. They made separate findings of fact and conclusions of law and unanimously concurred in the judgment for plaintiff and the insurance company.

On appeal to the Court of Appeals, that court, all three judges concurring, reversed the judgment of the Court of Common Pleas and entered judgment for defendant.

The cause is before this court on the allowance of a motion to certify the record.

John W. Winn, Defiance, for plaintiff appellant.

Smith, Klein & Blumberg, Toledo, for defendant appellant.

Karl H. Weaner, Jr., Defiance, for appellee.

HERBERT, Judge.

There is no issue raised as to the amounts of damage resulting from the fire, the only question being whether the rule of res ipsa loquitur could be applied on the evidence presented to the trial judges. Among its findings of fact the trial court found:

'3. That the oil burner and accessories furnished by defendant, Gerald D. Wells, had not been fully installed and were in the exclusive management and control of said defendant.

'4. That the cause of the fire cannot be reasonably attributed to anything but the oil burner or its accessories or in the manner of their installation.

'5. That said fire occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care were observed in the furnishing or installation of the oil burner or accessories.

'6. That by reason of the foregoing the defendant, Gerald D. Wells, was negligent and his negligence was the proximate cause of the fire.'

In its conclusions of law, the trial court found, in part, as follows:

'That the rule of res ipsa loquitur is applicable in this case.'

The entry of the Court of Appeals is, in part, as follows:

'Upon consideration whereof, this court finds that in the record and proceedings aforesaid, there is error prejudicial to the defendant-appellant in that there is no evidence contained in the record of any negligent acts or conduct upon the part of said defendant-appellant to support a verdict in favor of plaintiff-appellee and the defendant insurance company, nor is there established by evidence circumstances which make negligence a proper and logical inference. The doctrine of res ipsa loquitur does not apply as the instrumentality in question was not in the exclusive management and control of defendant-appellant * * *.'

Defendant insists that he did not furnish the accessories but furnished only the oil burner, and he disputes the finding by the trial court that accessories 'were furnished by defendant' along with the oil burner. It may be noted that defendant's employee testified that defendant brought over from his shop a flange fitting for the fuel pump on the night of January 16 at his request. Also, a larger nozzle was connected on the afternoon of the 17th as part of the burner which was installed to replace the old one. The fuel pump also came with the newly installed burner.

Actually the distinction between the oil burner and accessories is not important in this case as the finding of fact that they 'had not been fully installed' is fully established by the evidence and, in fact, is admitted both by defendant and his employee brother. On the facts presented to it, the trial court found that the oil burner and accessories not having been fully installed were in the exclusive management and control of the defendant, reaching its conclusion of law from that and the other findings of fact that the rule of res ipsa loquitur was applicable.

In its journal entry, the Court of Appeals found, directly to the contrary, that 'the instrumentality in question was not in the exclusive management and control of the defendant-appellant,' and that, therefore, 'the doctrine of res ipsa loquitur does not apply.'

In the first paragraph of the syllabus in Soltz v. Colony Recreation Center, 1949, 151 Ohio St. 503, 87 N.E.2d 167, 168, it is stated:

'The doctrine of res ipsa loquitur may be applicable where (a) the instrumentality causing the injury was under the exclusive management and control of the defendant and (b) 'the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.' Fink v. N. Y. Central Rd. Co., 144 Ohio St. 1, 56 N.E.2d 456 approved and followed.'

In the case of Koktavy v. United Fireworks Mfg. Co., Inc., 1954, 160 Ohio St. 461, 117 N.E.2d 16, paragraph one of the syllabus states:

'Ordinarily the rule of res ipsa loquitur is not applicable against a party because of an instrumentality causing injury and damage to another unless such party had exclusive possession, control and management of the instrumentality at the time it caused the injury.'

This is the first and only time we find the word, 'possession,' added to the phrase, 'control and management,' in a decision of this court involving the res ipsa loquitur rule, but, upon examination of the Koktavy case, the writer is of the opinion that it does not add any additional requirement to the rule.

There are numerous earlier Ohio decisions cited in the opinions of...