Totten v. Parker

• Decision Date: 15 December 1967
• Citation: 428 S.W.2d 231
• Parties: Alta M. TOTTEN, Administratrix of the Estate of Robert Wayne Totten, Deceased, et al., Appellants, v. Bruce PARKER et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 231

428 S.W.2d 231

Alta M. TOTTEN, Administratrix of the Estate of Robert Wayne

Totten, Deceased, et al., Appellants, v. Bruce PARKER et al., Appellees.

Court of Appeals of Kentucky.

Dec. 15, 1967.

As Modified on Denial of Rehearing May 24, 1968.

Joe G. Leibson, Louisville, for appellants.

Oldham Clarke, James M. Cuneo, Louisville, for Anderson Plumbing Co. Raymond O. Harmon, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for Bruce Parker, d/b/a Parker's Gulf Service.

Carl L. Wedekind, Jr., Lively M. Wilson, Stites, Peabody & Helm, Louisville, for Gulf Oil Corp.

MONTGOMERY, Judge.

Robert Wayne Totten, Richard M. Isham, and Donald Glass received injuries in an explosion at a service station owned by Gulf Oil Corporation and leased to Bruce Parker, doing business as Parker's Gulf Service. Totten and Isham died from their injuries. Gulf, Parker, and Anderson Plumbing Company were sued on the theory that a water heater installed by Anderson caused the explosion. Summary judgment was entered adversely to the personal representatives of the two estates and to Donald Glass, who was temporarily in charge of the station, in Parker's absence, at the time of the explosion. The administrators of the two estates have appealed, but Glass, who received injuries, has not appealed.

The first ground urged for reversal is that summary judgment should not have been granted 'because a party cannot force another party to reveal his entire case merely by making motion for summary judgment.' Appellants rely on Sheppard v. Immanuel Baptist Church, Ky., 353 S.W.2d 212, wherein it was said:

'CR 56 was never intended to be a substitute for a court trial in cases where a party has not had an opportunity to present all the facts which might help lead the court to a just determination of the cause.'

Suit was filed about eleven months after the explosion. Summary judgment was rendered about two years after suit was filed. Numerous depositions of parties and witnesses were taken by all parties. Appellants do not point out in what area they could take further proof. From the record it appears that appellants have had an opportunity 'to present all the facts.' It is concluded that the ruling on the motion for summary judgment was not adjudicated prematurely.

Summary judgment was granted on motion of the defendants, now appellees. In such case the rule is that the movant has the burden of establishing that there is no issue as to the facts. The showing of the movant must exclude reasonable doubt. Robert Simmons Construction Company v. Powers Regulator Company, Ky., 390 S.W.2d 901; Conley v. Hall, Ky., 395 S.W.2d 575; Mooser v. Mason, Ky., 416 S.W.2d 355; Woods Exploration and Producing Company v. Aluminum Company of America, D.C., 36 F.R.D. 107. To sustain a summary judgment, the proof in favor of the moving party must be such as would entitle the party ultimately and inevitably to a directed verdict. See also Fuqua v. Drapo, D.C. 34 F.R.D. 111. The evidence will be reviewed in such light.

Appellants contend that the proof shows that Gulf and Parker were negligent because Parker operated, and Gulf permitted him to operate, the station in a negligent manner; that Gulf and Parker were further negligent because of an improperly installed water heater; and that Gulf and Parker were negligent because each violated the Kentucky Child Labor Act. It is also contended that Anderson was negligent in the improper installation of the heater.

The explosion occurred on Sunday, February 8, 1959. The station was located at 2106 Frankfort Avenue in Louisville. The lessee and operator, Bruce Parker, had taken the day off. Donald Glass had been left in charge. The two boys, Totten and Isham, sixteen and fifteen years of age, respectively, in their spare time had washed cars and had done other small jobs around the station, including the cleaning of the inside rooms.

The station was a typical small service station. The left portion of the front of the building contained the sales room, storage, and rest rooms, and the portion to the right contained the 'lube' and wash areas. The front door opened into a sales room. Plate glass was on the left and front sides of the sales room. At the rear of the sales room there was a wooden louvered door which opened into the storage room.

The storage room contained a space heater suspended from the ceiling in the rear, a compressor, and a hot water heater, which was on the left-hand side. The water heater, which had been installed a few days prior to the explosion, was so situated that its pilot light was approximately four to ten inches from the floor.

On the morning of the accident the two boys had been summoned to the station to wash some cars. Henry Wyatt, a part-time watchman and handy man, had gone into the storage room to be out of the way. He was seated on a chair near the water heater. He was facing the sales room door. Immediately preceding the fire the boys had been engaged in mopping the floor of the sales room. Glass was working on a display in the front window and had his back to the boys and to the area of the 'lube' room and storage room doors. All of the doors were closed.

With the stage set as described above, there was an explosion which filled the sales room with flames. One of the boys fell to the floor; the other remained standing. Each was able to leave the sales room under his own power. The burns received were so serious that they both died. Glass' hands, hair, and face were burned. His injuries were mostly minor.

The appellants insist that the main issue is: 'What ignited the explosion?

Wyatt, at one time, stated that he was blown out of his chair. However, by deposition he testified differently. He deposed that he neither heard nor saw any explosion; that he did hear one of the boys ask for assistance but thought it to be only a joke; that when he heard the boy again he saw flames through the louvered door in the sales room; and that he then left by the rear door of the stock room and ran around to the front of the filling station. Wyatt was not burned.

Appellants contend that the substance which exploded was gasoline fumes from a solution that the boys were using to clean the sales room floor. They claim that the fumes were ignited by the flame of the water heater. The lower court rejected this theory and granted a summary judgment on the basis that the existing facts merely furnished the basis for speculation and did not establish proximate cause with a degree of certainty sufficient to sustain a verdict. It is necessary to determine the proximate cause of the explosion in order to determine what the negligence consisted of and the party or parties responsible therefor.

Appellants seem to concede that Totten and Isham were using gasoline or a gasoline solution. Glass and Wyatt said that they did not know whether gasoline was used. However, the testimony of Major Foster, later State Fire Marshal, and Captain Riley, both of the Louisville Fire Department, is sufficient to establish that gasoline was being used.

Major Foster began an investigation of the fire within a few minutes after it occurred. He testified that when he entered the sales room there was a strong oder of gasoline; that he found a mop in the sales room which had the odor of gasoline and was 'saturated' with gasoline; that there was a scorched place in the sales room floor where the mop had been; and that there were droplets of water and gasoline in the area where the mop was found but that there was no bucket containing gasoline in the sale room. Captain Riley corroborated Major Foster concerning the odor of gasoline in the sales room and on the mop.

The use of gasoline under similar circumstances has been held to be negligent per se and the proximate cause of a resulting explosion and fire. See Home Insurance Company v. Hamilton, E.D.Ky., 253 F.Supp. 752, for a discussion of the applicable Kentucky cases. See also Note, 55 Ky.Law Journal 886.

Appellants insist that the water heater in the storage room ignited the fumes. The heater had been installed about four to ten inches above the floor. It is argued that the fumes from the gasoline used on the sales room floor snaked along the floor under the door and came into contact with the flame in the heater which was six feet inside the storage room from the door. There was no damage to the heater and no damage in the storage room. Wyatt was situated just inside the storage room between the door and heater. He was not injured, saw no fire, and did not realize that there was anything wrong until one of the boys asked for help, and it was then that he saw flames in the sales room. All of the damage occurred in the sales room except some smoke damage on the storage room side of the louvered door. Most of the damage was in the upper part of the sales room, with some blistering of the baseboard and some scorching of the vinyl floor where the mop was found.

Major Foster opined that if the heater had ignited the fumes Wyatt would have been injured and there would have been damage in the storage room. It also was his opinion that the fumes were ignited by someone smoking in the sales room. Captain Riley agreed with him in substance.

From the testimony it seems clear that the water heater did not ignite the fumes. The evidence is insufficient to make Anderson Plumbing Company or Gulf liable on this theory, despite appellants' efforts to explain away all other possible sources which might have caused the fire.

This conclusion also eliminates any need to consider appellant's claim that the heater was defective or had been improperly installed.

Further, appellants contend that Gulf permitted Parker to operate the station in a negligent manner. Parker was Gulf's lessee under a lease which contained the following:

'The Lessee shall keep said premises, buildings, equipment, fixtures, sidewalks, approaches and driveways in good condition and...