Starks Food Markets, Inc. v. El Dorado Refining Co.
| Decision Date | 06 March 1943 |
| Docket Number | 35785-35792. |
| Citation | 134 P.2d 1102,156 Kan. 577 |
| Parties | STARKS FOOD MARKETS, Inc., v. EL DORADO REFINING CO. et al. and seven other cases. |
| Court | Kansas Supreme Court |
Rehearing Denied April 17, 1943.
Syllabus by the Court.
A motion to strike a petition on ground that petition did not state facts sufficient to constitute a cause of action was equivalent to a "demurrer".
The doctrine of "res ipsa loquitur" which means the thing speaks for itself is a "rule of evidence" and not of "substantive law", but the elements pertaining thereto may be applied in determining the sufficiency of a petition, which, to be sufficient, must contain allegations which, if proved, would warrant application of the doctrine.
That an accident happens or an event resulting in injury occurs is not sufficient to establish liability, for negligence is not presumed, but must be established by proof, and where direct proof is lacking, the circumstances may be proved, and if they leave no reasonable conclusion to be drawn other than that defendant was at fault, they may be shown to make a prima facie case and to warrant application of the "res ipsa loquitur" doctrine.
If plaintiff proves specific negligence of defendant, the "res ipsa loquitur" doctrine does not apply, nor where it may apply, is defendant precluded from showing an intervening cause, the act of a third person causing the injury, vis major, or other defense.
The "res ipsa loquitur" doctrine is based in part on the theory that a defendant in charge of an instrumentality causing an injury has either knowledge of the cause or best opportunity of ascertaining it, while a plaintiff is without such knowledge and must rely upon proof of circumstances to establish that the injury would not have occurred except for defendant's negligence.
For application of the "res ipsa loquitur" doctrine, it must appear that the instrumentality which produced the injury was at the time of the injury under defendant's sole and exclusive control, and if it appears that two or more instrumentalities, only one of which was under defendant's control, contributed to the injury, the doctrine does not apply.
In action based on res ipsa loquitur for fire damage caused after defendant gasoline truck driver had allegedly permitted ignition of gasoline which he was delivering to a portable tank within buyer's garage, motion to make petition more definite and certain was sufficiently broad, notwithstanding that motion sought no information as to who controlled the portable tank.
A party attacking a petition need not ask the pleader to set out facts without which no cause of action is stated.
Petition charging that defendants' gasoline truck was driven within buyer's garage and that while gasoline was being delivered to a portable tank, truck driver negligently permitted gasoline to ignite and that at time of delivery there was no one in garage except the driver, and that truck and delivery of gasoline were in defendants' exclusive control was insufficient under the "res ipsa loquitur" doctrine, where cause of the fire was left to conjecture and there was no allegation that defendants were in charge of portable tank.
1. The doctrine of res ipsa loquitur which means "the thing speaks for itself" is a rule of evidence and not of substantive law, but the elements pertaining thereto may be applied in determining the sufficiency of a petition. Such a petition, to be sufficient, must contain allegations which if proved, would warrant application of the doctrine.
2. The mere fact an accident happens or an event occurs in which injury results is not sufficient to establish liability. Negligence is never presumed but must be established by proof. Where direct proof is lacking the circumstances may be proved, and if they are such as to leave no reasonable conclusion to be drawn other than that the defendant be at fault, they may be shown to make a prima facie case, and to warrant application of the doctrine of res ipsa loquitur.
3. It is an essential element to application of the doctrine of res ipsa loquitur that it must appear the instrumentality which produced or caused the injury complained of was, at the time of the injury, under the sole and exclusive control and management of the defendant. If it appear that two or more instrumentalities, only one of which was under the defendant's control, contributed to the injury, the doctrine should not be applied.
4. A petition examined in an action in which it was sought to apply the doctrine of res ipsa loquitur, and held, that it does not appear the instrumentalities which produced or caused the injury complained of, were, at the time of the injury, under the sole and exclusive control and management of the defendants.
Appeal from District Court, Wyandotte County; Willard M. Benton Judge.
Actions by Starks Food Markets, Inc., by Safeway Stores, Inc., by Diaper Service Company of Kansas City, by Watters Corporation, by Leo Bruening and Marie Zahner, by Dernard Zahner, doing business under the name and style of The Uptown Garage, by Freeda Coleman and by Raymond A. Brown against the El Dorado Refining Company and others for damages resulting from a gasoline fire occurring while defendants' gasoline tank truck was being used to deliver gasoline to a tank within plaintiffs' building. From order denying motion to strike and overruling demurrers to the petition, defendants appeal.
Reversed.
H. S Roberts, of Kansas City, and H. C. Osborne, of Wichita (Chas G. Yankey, J. G. Sears, Jr., and Verne M. Laing, all of Wichita, and Cowgill & Popham, of Kansas City, Mo., on the brief), for appellants.
James K. Cubbison, of Kansas City, (Blake A. Williamson and Lee Vaughan, both of Kansas City, and Chester L. Smith and John W. Hudson, both of Kansas City, Mo., on the brief), for appellees.
The primary question in the appeals in the above-entitled cases is the sufficiency of the several petitions to state a cause of action based on the doctrine of res ipsa loquitur. In an explanatory way it may be said that a certain building at 3513-3515 Broadway Street in Kansas City, Missouri, was occupied by a public garage known as the Uptown Garage and by other tenants. On March 14, 1939, a gasoline tank in the garage was being filled from a gasoline tank truck and a fire occurred. The owners of the building, various tenants therein, and others claiming injury to property as a result of the fire, commenced actions in Wyandotte County, Kansas, to recover damages.
The only substantial variations in the petitions and amended petitions were with reference to the situation of and the amounts of damages to the several plaintiffs, but in so far as the questions now before us are concerned the pleadings, motions and demurrers, and the rulings of the court, were identical, and the actions have been consolidated on appeal. Only the record in the Stark case is fully abstracted, but reference to it is illustrative of all the cases.
Although complaint is made concerning rulings on motions to quash service, and to make definite and certain, and on demurrers directed to the original petition, in view of our conclusions, we shall confine our attention generally to the amended petition.
The amended petition, after setting forth the status of the plaintiff, alleged that defendant Helling, doing business as Kansas City Motor Fuel Company, hereafter called the Fuel Company, and the defendant Penn Central Oil Company hereafter called the Oil Company, occupied an office in the district known as Armourdale in Kansas City, Kansas, and that defendant Helling was the general manager and vice-president of defendant El Dorado Refining Company, hereafter called the Refining Company, and a resident of Butler County, Kansas; that Helling doing business as the Fuel Company was merely and solely the instrumentality and agency of the Refining Company, and that the Oil Company was merely the instrumentality and agency of the Refining Company, and its business and property were owned, operated, controlled, managed and conducted by the Refining Company as a mere department and as a part, parcel, agency and instrumentality of the businessof the Refining Company. It was further alleged that on March 14, 1939, a gasoline tank truck containing a large quantity of gasoline, then operated by, for and on behalf of the defendants, was driven by the driver into the Uptown Garage for the purpose of delivering gasoline to the tenant operating the garage, he having previously ordered the delivery thereof, and that while delivery of gasoline from the tank...
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