Stanolind Oil & Gas Co. v. Bunce, 1937

Decision Date01 December 1936
Docket Number1937
PartiesSTANOLIND OIL & GAS CO., ET AL. v. BUNCE
CourtWyoming Supreme Court

ERROR to District Court, Converse County; C. O. BROWN, Judge.

Action by Robert Guy Bunce against the Stanolind Oil & Gas Company a corporation, and another. Judgment for the plaintiff and defendant brings error.

Reversed.

For the plaintiffs in error there was a brief by Hagens & Wehrli of Casper, and Donald Campbell, and oral argument by G. R Hagens.

The employer and employee cannot be sued jointly in one action for negligence, where the negligence of the employer is based on the doctrine of respondeat superior. Where no special act or acts of negligence are charged against the principal separate and distinct from those charged against the agent then it appears from the petition that the principal is liable solely upon the doctrine of respondeat superior. The defendant may demur to the petition when it appears on its face (8) that separate causes of action against several defendants are improperly joined. Sec. 89-1006, R. S. 1931. Any person may be made a defendant, who claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of the question involved therein. Sec. 89-514, R. S. 1931. This latter statute was adopted from the Ohio code, and the courts of that state have held that the master and servant cannot be sued jointly. Clark v. Fry, (Ohio) 72 Am. Dec. 590; French v. Company, (Ohio) 81 N.E. 761; Robbins v. Company, (Ohio) 245 F. 435. The statutes having been adopted from the Ohio code after the case of Clark v. Fry was decided, the presumption is that Wyoming adopted the construction placed upon the Ohio statute by the Ohio courts. Company v. Hof, 174 U.S. 1; Mining Co. v. Gardner, 173 U.S. 123; Jennings v. Mining Company, 170 F. 146. See also Kraus v. C. B. & Q. Ry. Co., 3 F.2d 277. The latter case was reversed by the Court of Appeals of the Eighth Circuit, on the ground that the point had never been determined by the Supreme Court of Wyoming. The Court of Appeals held in consequence that the plaintiff was not guilty of fraud in joining as defendants the master and servant together in a joint action, for injuries arising from the negligence of the servant, and therefore the cause was not removable to the federal court. The Wyoming Supreme Court inclines to the same view. Miller v. New York Oil Company, 31 Wyo. 272. The California court holds that such a case is removable as a separable controversy. Stephens v. So. Pac., 16 P.2d 288; Henderlong v. Standard Oil Company of California, 17 F.2d 184; Robbins v. Pennsylvania Company, (Ohio) 245 F. 435. In this controversy, the company's liability, if any, can be based upon nothing else than the rule of respondeat superior, and for that reason the second ground of defendants' demurrer to the plaintiff's petition should have been sustained. Where the petition shows on its face that the plaintiff's own act was the proximate cause of the injury, it did not state a cause of action unless sufficient facts are pleaded to exculpate the plaintiff from the effects of his own negligent act. Armstrong v. Billings, 283 P. 226 and cases cited. Natural gas is a useful article, a great convenience and a common necessity. A gas company is not an insurer against injury. If it uses standard equipment and exercises ordinary care in its installation and operation and nevertheless a leak or explosion occurs, it cannot be held liable for damages unless it has been guilty of specific negligence. 28 C. J. 590, 593; Gas Company v. Wellman, 1 Ann. Cas. 64; Annotation in Ann. Cas. 1914-C, page 345; Gas Company v. Guelat, 150 S.W. 656; Morrow v. Otis, (Mass.) 146 N.E. 363; Okmulgee Gas Company v. Kelly, 232 P. 428; St. Mary's Gas Co. v. Brodbeck, 151 N.E. 323; Fleegar v. Consumers Power Company, (Mich.) 247 N.W. 741; Chester Company v. Power & Light Company, (Wisc.) 247 N.W. 861. The mere fact of an explosion does not make out a prima facie case against the company. Nomath Hotel Company v. Kansas City Gas Co., 223 S.W. 975; Sterk v. Gas Company, 58 S.W.2d 487. Where the defendant did no more than create a condition which, if undisturbed, would have been wholly harmless, but which subsequently caused an injury because of a subsequent independent act of the plaintiff or a third person, such a condition is not the proximate cause of the injury, and the court should instruct the jury to return a verdict for the defendants. Under the evidence, the defendants could be responsible only for creating a condition which was harmless in itself and became dangerous only by the intervening act of Bunce himself. Seith v. Electric Company, (Ill.) 89 N.E. 425; Staff v. Montana Pet. Co., (Mont.) 291 P. 1042; Curran v. Co., (Ill.) 124 N.E. 330; Cole v. Loan Company, 124 F. 113; Jennings v. Davis, 187 F. 703; Galvin v. Old Colony R. Co., 39 N.E. 186; Emmis v. Company, (Wisc.) 232 N.W. 540. It was the plaintiff's own grossly negligent act which caused the explosion and injury. Even ordinary caution on his part, which would generally be used by persons unfamiliar with gas, would have prevented the injury. The lighting of a match or the bringing of a lighted lamp or candle to a place where gas is, is negligence as a matter of law. 1 Thornton's Law of Oil & Gas, page 1467. Where plaintiff was repeatedly warned of the presence of gas in the house and advised to leave, which she refused to heed, it was held that the plea of contributory negligence was established. Gerdes v. Company, 13 P.2d 393; 28 C. J. 598; Fleegar v. Power Company, (Mich.) 247 N.W. 741; Knox v. Company, (Md.) 31 L. R. A. 785. The plea of contributory negligence, following a general denial, does not constitute an admission or confession on the part of the defendant. Defendant need not stultify himself by admitting his own negligence in advance, when he believes he is not guilty, in order to save his right to show that plaintiff's own gross negligence was really the proximate cause of the injury, even though plaintiff produces some evidence of negligence on defendant's part. The plea in effect amounts to the statement that the negligent acts of the plaintiff concurring with some act of the defendant, claimed to be perfectly lawful, caused the accident. 45 C. J. 942; 45 C. J. 1114, 1118; Wallace v. Portland Ry. Light & Power Co., 204 P. 147; Fowler v. Brooks, (Kans.) 70 P. 600; Clamens v. Company, (Okla.) 131 P. 169; Birsch v. Company, (Mont.) 93 P. 940; Day v. Kelly, (Mont.) 146 P. 930; Hoffman v. Southern Pacific Company, (Calif.) 258 P. 397; Friddle v. Southern Pacific, (Calif.) 14 P.2d 568. The doctrine of res ipsa loquitur does not apply to the facts in this case, for the reason that the agency, or agencies, which caused the injury in this case was, or were, not under the exclusive control of the defendants at the time of the accident, but were in the sole control of the plaintiff. Brewing Company v. Schaller, 128 Ill.App. 533; 45 C. J. 1205, 1214; Ingrid v. Central Railroad Company of New Jersey, 216 F. 72; Sullivan v. Ry. Co., (Minn.) 200 N.W. 922; Oil Company v. Torpedo Company, 232 P. 419; Heffter v. Power Company, (Minn.) 217 N.W. 102; Rede v. St. Louis County Gas Company, 254 S.W. 415; Olson v. Whitthorne & Swan, 58 A. L. R. 129. The unexplained escape of gas from a fixture owned by the defendant is of itself no evidence of negligence. Morrow v. Otis, (Mass.) 146 N.E. 363; Applegate v. Gas & Coke Co., 18 P.2d 211. An explosion does not make out a prima facie case of negligence against the company. Hotel Company v. Gas Co., (Mo.) 223 S.W. 975. The doctrine of res ipsa loquitur does not apply to the facts in this case, for the reason that at best the doctrine, when applicable at all, merely raises a presumption of negligence, and when the defendant rebuts this presumption by showing that he used due care, as was done in this case, the presumption falls and the burden is upon the plaintiff to show by competent proof that the defendants were guilty of negligence, which was the proximate cause of the injury. Stearns v. Spinning Co., 39 L. R. A. 842. Where specific acts of negligence are pleaded, the doctrine of res ipsa loquitur is waived. Taylor v. Gas Company, (Mo.) 67 S.W.2d 107; Pointer v. Ry. Co., L. R. A. 1917-B, page 1091; 45 C. J. 1225. Where the owner of premises extends certain privileges thereon to another, the invitee has a right to use the premises only to the extent authorized. If he goes beyond the extent of the authority granted he is a trespasser, as to whom the owner is liable only for wanton or wilful injury. 20 R. C. L. 67; Powers v. Raymond, (Calif.) 238 P. 1069; Stamford Oil Co. v. Barnes, (Texas) 128 S.W. 375; McCucker v. Mitchell, (R. I.) 36 A. 1123; Loney v. Company, 36 Wyo. 339; Means v. Southern Pac. R. Co., 77 P. 1001; Blakesley v. Oil Company, (Ia.) 187 N.W. 28; Locke v. Payne, 124 A. 668; Bonniwell v. Milwaukee, (Wisc.) 182 N.W. 468; Union Pacific Ry. Co. v. Jarvi, 3 Wyo. 376. A person injured through the negligence of another must use reasonable diligence in securing medical or surgical aid, and he cannot recover for suffering or ailment resulting from his own failure to exercise such diligence. McIntosh v. Ry. Co., (Kan.) 198 P. 1084; City v. Hill, (Ky.) 242 S.W. 867; Leitzell v. Ry. Co., 81 A. 543. For the reasons stated and upon the authorities cited, we urge that the defendant's motions for a new trial should be reversed and set aside, with instructions directing the trial court to set aside the judgment against the defendants and to dismiss the plaintiff's case.

For the defendant in error, there was a brief by E. E. Enterline and Madge Enterline of Casper and Kellar & Kellar of Lead, South Dakota, and oral arguments by Kenneth C. Kellar and E. E. Enterline.

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