Stegall v. Catawba Oil Co. of N. C.
| Decision Date | 20 November 1963 |
| Docket Number | No. 469,469 |
| Citation | 133 S.E.2d 138,260 N.C. 459 |
| Parties | Sheila Mangum STEGALL, Administratrix of the Estate of Coy Lee Stegall, v. CATAWBA OIL COMPANY OF N. C., Shell Oil Company and Roy Broome. |
| Court | North Carolina Supreme Court |
J. Max Thomas, Marshville, for plaintiff appellant.
SMITH & GRIFFIN BY C. FRANK GRIFFIN AND Richardson & Dawkins by O. L. Richardson, Monroe, for defendant appellees Catawba Oil Company of N. C. and Shell Oil Company.
This is a summary of the crucial allegations of the amended complaint:
In April 1961 defendant Roy Broome was operating a country store and service station on N. C. Highway # 205 about seven miles north of Marshville, where he sold, inter alia, kerosene and regular and premium gasoline which were solely sold and delivered to him by Catawba Oil Company of North Carolina, hereafter called Catawba. The underground storage tanks and pumps at Broome's store and service station were owned and maintained by Catawba. Shell Oil Company, hereafter designated as Shell, was, and is, the sole supplier of kerosene and regular and premium gasoline delivered to Catawba.
A few days before 20 April 1963 Pernay Stegall, father of plaintiff's intestate Coy Lee Stegall, bought from Broome's store and service station three gallons of fuel represented by an employee of Broome there as being kerosene. This fuel was pumped by this employee from an underground storage tank used for the storage of kerosene only into an empty five-gallon can brought to Broome's store and service station by Pernay Stegall. This can had never contained any substance other than kerosene. Pernay Stegall carried the can and the fuel poured therein to his home to be used by persons residing there to start fires. At that time Coy Lee Stegall and his family were residing in Pernay Stegall's home as members of the household.
On the evening of 20 April 1961, plaintiff requested her intestate Coy Lee Stegall, who was her husband, to start a fire in a wood stove to heat the house. The stove had had no fire in it that day. After placing several pieces of wood in the stove, he lighted a piece of paper and put the burning paper in the stove. He then took the five-gallon can containing the fuel purchased from Broome's store and service station by Pernay Stegall and started pouring some of the fuel therein into the stove. The fuel in the can exploded, blowing the entire bottom out of the can and throwing burning fuel over his body causing first, second, and third degree burns from his face to his shoe tops, and resulting in his death the following day.
The fuel which was sold to and represented to Pernay Stegall by an employee of defendant Broome as kerosene was not in fact kerosene as defined by the statutes of the State of North Carolina, but was in fact a highly combustible fuel with a flash point far below the minimum set by the statutes of the State of North Carolina, and contained a high percentage of gasoline or other highly explosive substance.
Plaintiff alleges on information and belief that Catawba negligently and unlawfully sold and delivered to defendant Broome the defective fuel or mixture, which was ultimately used by her intestate and proximately caused his death; that defendant Broome negligently and unlawfully sold to Pernay Stegall the defective fuel ultimately used by her intestate contrary to the statutes of the State of North Carolina, and particularly G.S. § 119-34; that Shell was the sole supplier of petroleum products to Catawba, and delivered to it regular and premium gasoline and kerosene or a mixture of both.
The separate acts of negligence of all the defendants concurring together proximately caused the explosion and her intestates death, and for such death she prays for a recovery of damages from the defendants, severally and jointly.
Shell demurred to the amended complaint on the ground that it does not allege facts sufficient to constitute a cause of action against it, in that no facts are alleged to show that Shell was negligent in any respect. Catawba filed a substantially similar demurrer to the amended complaint.
The court entered one judgment sustaining both demurrers on the grounds specified in the demurrers.
Catawba and Shell, in the joint brief they have filed, state that they do each demur to the amended complaint on the further ground that it shows affirmatively on its face that plaintiff's intestate was clearly guilty of contributory negligence.
G.S. § 1-151 requires that the allegations of the amended complaint, challenged by the demurrers here, shall be liberally construed by us with a view to substantial justice between the parties. Lynn v. Clark, 254 N.C. 460, 119 S.E.2d 187. It is a trite aphorism that the demurrers here admit, for the purpose of testing the sufficiency of the amended complaint, the truth of all factual averments therein well stated and such relevant inferences as may be reasonably drawn therefrom, but they do not admit any legal inferences or conclusions of law asserted by the pleader. McKinney v. City of High Point, 237 N.C. 66, 74 S.E.2d 440.
We take judicial notice of the fact that gasoline either alone or mixed with kerosene constitutes a flammable commodity and a highly explosive agent. McLawson v. Paragon Refining Co., 198 Mich. 222, 164 N.W. 668.
This is said in Bradley v. Flowler, 210 S.C. 231, 42 S.E.2d 234: 'The evidence showed, and it is a matter of general knowledge, that gasoline is highly volatile and gives off fumes and vapors which readily ignite when in the proximity of a flame, and at lower temperature or flash point than kerosene, and hence is more inflammable and explosive than is kerosene.'
In respect to Shell we are confronted with the question of the liability of a manufacturer and seller to Catawba, a distributor or middleman, of an alleged defective commodity intrinsically dangerous to life and limb, to wit, a mixture of kerosene and gasoline for the death of a third person, an ultimate consumer of such mixture purchased by his father, in whose house he lived, as kerosene from Broome, a retail merchant, who purchased from Catawba, a distributor or middleman. We are also confronted with the liability of Catawba to the ultimate consumer under such circumstances.
It was the duty of Shell, the manufacturer and seller to Catawba, and of Catawba, the distributor or middleman and seller to Broome, to exercise a degree of care commensurate with the risk of injury from negligence, not to deliver for sale and use as standard kerosene, in lieu of standard kerosene, a mixture of kerosene and gasoline or a mixture of kerosene and other highly combustible fuel with a flash point below the minimum set by G.S. § 119-16.1, 'Kerosene Defined,' which either knows, or, in the exercise of a degree of care commensurate with the risk of injury from negligence, should know, is not standard kerosene, but a more flammable commodity than standard kerosene and a highly explosive agent, and has no reason to believe that those for whose use the commodity is supplied as standard kerosene will realize it is not standard kerosene, but is a more flammable commodity than standard kerosene and a highly explosive agent, without apprising the purchaser of such fact. If either Shell or Catawba failed in the performance of such duty, it becomes responsible if injury or damage proximately results to another, who is free from contributory negligence, by reason of an explosion, when such more highly dangerously flammable and explosive commodity is used by the ultimate purchaser or a member of his household as and for standard kerosene. The liability does not arise out of contract or deceit, but is based upon the fundamental proposition that a negligent act, which was inherently dangerous to the life and safety of an ultimate consumer or a member of his household, has been done or permitted by him who is charged with the duty of exercising a degree of care commensurate with the risk of injury from negligence. One who puts on the market articles inherently or intrinsically dangerous to life and limb owes the duty of due care to all those persons who ought reasonably to have been foreseen as likely to use them. And such an article is a mixture of gasoline and kerosene to be sold as standard kerosene. Ramsey v. Standard Oil Co., 186 N.C. 739, 120 S.E. 331; Waters-Pierce Oil Co. v. Deselms, 212 U.S. 159, 29 S.Ct. 270, 53 L.Ed. 453; Merchants' Bank v. Sherman, 215 Ala. 370, 110 So. 805; Gatliff Coal Co. v. Hohlman, 157 Ky. 778, 164 S.W. 76; Kentucky Independent Oil Co. v. Schnitzler, 208 Ky. 507, 271 S.W. 570, 39 A.L.R. 979; McLawson v. Paragon Refining Co., supra; Kearse v. Seyb, 200 Mo.App. 645, 209 S.W. 635; Fleming v. Arkansas Fuel Oil Co., 231 S.C. 42, 97 S.E.2d 76; Gulf Refining Co. v. Jinright, 6 Cir., 10 F.2d 306; Exhaustive Annotation 80 A.L.R.2d 488-590, entitled 'Liability of manufacturer or seller for injury caused by firearms, explosives and flammables.'
The duty of ordinary or reasonable care under the circumstances lies at the foundation of the law of negligence. It is a legal truism that this...
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