Simpson v. Skelly Oil Company

• Citation: 371 F.2d 563
• Decision Date: 03 March 1967
• Docket Number: No. 18366.,18366.
• Parties: Jerry SIMPSON, Appellant, v. SKELLY OIL COMPANY, a Corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

371 F.2d 563 (1967)

Jerry SIMPSON, Appellant, v. SKELLY OIL COMPANY, a Corporation, Appellee.

No. 18366.

United States Court of Appeals Eighth Circuit.

February 3, 1967.

Rehearing Denied March 3, 1967.

COPYRIGHT MATERIAL OMITTED

Harold T. Beckman, Council Bluffs, Iowa, for appellant and filed brief with Robert J. Laubenthal, Council Bluffs, Iowa.

Emmet Tinley, Council Bluffs, Iowa, for appellee. Jack W. Peters, Council Bluffs, Iowa, was with him on the brief. Also on the brief was Sam C. Oliver, Tulsa, Okl.

Before VAN OOSTERHOUT and GIBSON, Circuit Judges, and NICHOL, District Judge.

NICHOL, District Judge.

This is a diversity action for personal injuries sustained by plaintiff (hereafter Simpson) in Council Bluffs, Iowa, on June 16, 1962, as the result of an explosion which occurred when he attempted to light a gas hot water heater in the basement of his residence. Simpson commenced this action against the defendant (hereafter Skelly), the supplier of the propane gas used as fuel for the gas hot water heater. The complaint was in three counts: I Negligence; II res ipsa loquitur; and III breach of warranty; it sought damages in the amount of $75,000 and costs, and demanded a jury trial on all fact issues.

The trial court, prior to submission of the case to the jury, withdrew counts II and III, and with reference to count I withdrew all specifications of negligence, except that charging Skelly with negligently and carelessly failing to inspect the pipes, connections and equipment after being notified of a leak on or about May 11, 1962. The jury returned a verdict for Simpson' and against Skelly and fixed Simpson's recovery at $45,623.67. On May 18, 1965, judgment was entered thereon.

On May 27, 1965, Skelly filed a motion for judgment notwithstanding the verdict and for new trial, and on June 3, 1965, filed an amendment to the motion for new trial alleging newly discovered evidence. Evidence was adduced at a hearing on the motions on August 9, 1965, and on December 16, 1965, the court ordered that Skelly's motion for judgment n. o. v. be sustained and that the verdict of the jury and judgment thereon be set aside and judgment entered for Skelly. In the alternative, it was ordered that Skelly's motion for new trial be sustained as to paragraphs 1, 5, 6, 14, and 15, and in such event, Skelly was granted a new trial on each ground. Plaintiff filed timely appeal to this court.

The evidence shows the relevant facts to be as follows: Simpson, his wife and children moved into a rented house at 2011 Fourth Avenue, Council Bluffs, Iowa, in September, 1961. He had a cooking stove that used LP gas for fuel, which was connected by Skelly at the time he moved in. In October, 1961, the water heater was converted from natural gas to use propane gas by Skelly and was equipped with a "100% shut-off" valve which closed off the supply of gas whenever the pilot went out. A black iron pipe, known as a "riser," ran from a "drip-tee" at the back of the heater up to a natural gas supply line near the floor joists in the ceiling. Another pipe extended from the drip-tee to the water heater. Skelly's employee changed the orifices and disconnected the riser at the top from the natural gas supply line. He ran a copper line from the riser to the service line which had previously been installed between the propane cylinders and the stove. All fittings, including the drip-tee, were checked for leaks by means of soap suds and a manometer. None were found at that time.

When the fuel supply of LP gas (propane) furnished by Skelly became exhausted, Simpson would turn off the heater until a new supply was furnished. When a new supply was delivered, Simpson would relight the heater.

Several weeks prior to May 11, 1962, Simpson thought he detected the odor of propane around the water heater, although it worked properly when he lighted it. He did not report it at that time. On May 11, 1962, a gas delivery was made to the Simpson residence. Both Simpson and his wife testified: That Simpson was present at that time and that Simpson told the employee of Skelly making the delivery that he thought he had smelled gas in the basement previously and asked him to take a look to see if there was a leak; that the employee asked for a can of pressurized shaving cream which he took to the basement; that he remained there for five or ten minutes; that when he returned upstairs he told plaintiff there was no leak and that the equipment was fine. Later the same day, Simpson lighted the heater.

Skelly's employee, Donald Ginkins, who made the delivery on May 11, 1962, testified that he saw Mrs. Simpson and some children but that he had no conversation with her about the service. He denied that any complaint was made to him about a leak and denied that he ever made an inspection.

The next propane delivery by Skelly was on June 13, 1962. Prior to that date, the supply of propane was exhausted and Simpson had turned the hot water heater to the "off" position. When the employee, Victor McCarthy, made the delivery, he asked Mrs. Simpson if he could light the water heater for her and she told him that Simpson would do it when he came home.

Simpson did not attempt to light the water heater until approximately 7:30 P. M. on June 16, 1962. He testified that he did not smell any propane when he went to the basement. He turned the heater control from the "off" position to the "pilot" position. When he struck a match to light the heater, an explosion occurred.

On June 18, 1962, the explosion was investigated by the Chief and Assistant Chief of the Council Bluffs Fire Department. Their inspection revealed no leaks in the Skelly equipment, pipes or fittings, but old dirt was observed over and around the pipes and fittings in back of the heater. The dirt was then removed from around the "drip-tee," the pipes connected to it, and the heater. A leak was discovered at the connection between the drip-tee and the riser. These were not furnished and the connection was not made by Skelly. The official records of the Council Bluffs Fire Department reveal that the leak was discovered at a tee from a ¾ inch galvanized pipe to the heater and that eighteen inches of dirt around the pipe had to be moved to get to the tee to check the leak.

The contents of the propane cylinder were found to be well-processed, commercial propane of good quality. Both cylinders contained ethyl mercaptan, an odorizing agent, at a ratio of approximately two pounds per 10,000 gallons of propane, or about twice the minimum amount required by applicable state rules and regulations.

An expert witness for Simpson testified that the human olfactory system, or sense of smell, serves as a warning system; that it is so sensitive that it can detect one part of a substance in twenty-three million parts of air; that sensory adaptation is the principle by which the sense organ can be so saturated that it is no longer sensitive; that this is the result of both physiological and psychological factors; that Simpson underwent a sensory adaptation to the ethyl mercaptan that may have existed in the propane gas.

Generally, there are two questions brought before this court. First, whether the trial court erred in granting the judgment n. o. v., and secondly, whether it erred in granting the motion for new trial in the alternative.

There is a difference in the function of a judge when he is ruling on a motion for a directed verdict or a judgment n. o. v. and when he passes on a motion for a new trial. Williams v. Nichols, 266 F.2d 389, 393 (4th Cir. 1959). In the former instance, it is his duty to accept the plaintiff's version as true for the purposes of the motion, notwithstanding the existence of strong testimony to the contrary; the judge is not concerned with the weight of the evidence. On the motion for new trial, however, he has wider, though not unlimited, latitude and he may set the verdict aside where it is against the weight of the evidence, or to prevent injustice. McCracken v. Richmond, F. & P. R. R., 240 F.2d 484, 488 (4th Cir. 1957). The standard applicable to consideration and disposition of a motion for a directed verdict or for a judgment n. o. v. is whether plaintiff's evidence is sufficient to support a burden, ignoring defendant's evidence. Williams v. Nichols, supra, 266 F.2d at 393.

The Iowa and federal tests of sufficiency of the evidence to support a jury verdict are substantially the same. In both there must be substantial evidence to support the verdict. Ozark Air Lines, Inc. v. Larimer, 352 F.2d 9, 11 (8th Cir. 1965). The rule is well established in Iowa as elsewhere that a party against whom a motion for a directed verdict is made is entitled to have the benefit of every legitimate inference that may properly be drawn from the evidence. Little v. Watkins Motor Lines, 256 F.2d 145, 148 (8th Cir. 1958). When the evidence, viewed most favorably from the plaintiff's standpoint, fails to establish a quantity of evidence reasonably supporting the verdict, it becomes a reviewing court's duty to reverse. Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946); Ozark Air Lines, Inc., supra, 352 F.2d at 11-12. In determining the sufficiency of the evidence to submit a case to the jury, each case must be determined on its own facts. Little v. Watkins Motor Lines, supra, 256 F.2d at 150.

The trial court in ruling on the motion for judgment n. o. v. found: that Simpson did not carry his burden of proving Skelly negligent in failing to inspect the pipes and equipment at Simpson's residence for the reason that there was no showing that the leak existed on or prior to May 11, 1962; that there was no foundation for Simpson's expert testimony and no reliance could be placed thereon; that Simpson failed to affirmatively establish freedom from contributory negligence and additionally, that he was guilty of contributory negligence as a matter of law.

Negligence is a broad term not...