O'QUINN v. Southard

152 S.E.2d 538 (1967)

269 N.C. 385

J. A. O'QUINN, Plaintiff, v. Ray SOUTHARD and Acme Petroleum and Fuel, Inc., Defendants.

No. 200.

Supreme Court of North Carolina.

February 3, 1967.

*541 Hollowell & Stott, Horace M. DuBose, III, Gastonia, for plaintiff.

Mullen, Holland & Harrell, Gastonia, for defendants.

SHARP, Justice.

This appeal presents the question whether the trial judge erred in overruling defendants' motions for nonsuit, i.e., whether all the evidence, considered in the light most favorable to plaintiff, is sufficient to establish defendants' actionable negligence. Hubbard v. Quality Oil Co., 268 N.C. 489, 151 S.E.2d 71.

Plaintiff offered no evidence as to what ignited the gasoline. Neither Southard, nor plaintiff, nor Messer (the only three persons on the premises) was smoking; no one struck a match; no tool was dropped on the concrete to create a spark. Both plaintiff and Messer insisted most positively that the wheel-balancing machine was not in operation at any time during the delivery of the gasoline. The only evidence with reference to the motors in the two refrigerated drink boxes tended to show that they were on the inside of a dome. The static electricity which had been generated by the movement of the gasoline in transit had been discharged before Southard attempted to deliver any gasoline at all. Furthermore, one tank had been completely filled and the other two were partially filled when the fire started. If the tanker or its equipment used for unloading the gasoline was substandard, the evidence does not so disclose. The driver was at all times in attendance, and no gasoline had been spilled prior to the fire. There is no evidence that Southard himself did anything to cause the fireexcept to fill plaintiff's tanks as usual.

Plaintiff argues, however, that it was negligence to deliver gasoline on a hot, humid day when fumes were collecting at the site. Notwithstanding, he offered no evidence that the temperature at the filling station or the heat from the tanker was high enough to ignite gasoline fumes or that spontaneous ignition was a hazard inherent in the delivery of gasoline on a hot day. If such were the case, it would seem that plaintiff, an experienced filling-station operator, would have known of the danger and have forbidden the delivery. So far as our research can determine, a flame, a spark, or heat of at least 700-800 F. is required to ignite fumes from gasoline such as was being put into plaintiff's tanks. See Robert H. Perry's Chemical Engineer's Handbook (4th Ed.) Table 9-19, p. 9-33, Basic Considerations on the Combustion of Hydrocarbon Fuels, and the third edition of this handbook at p. 1584. See also Moore v. Beard-Laney, Inc., 263 N.C. 601, 139 S.E.2d 879; Hopkins v. Comer, 240 N.C. 143, 149, 81 S.E.2d 368, 373. Patently, neither the heat from the tanker nor the *542 temperature at the filling station reached any such height.

Defendants' explanation of the firethat it was caused by a spark emitted by the motor of the wheel-balancing machine when plaintiff cut it off while the two regular-gasoline tanks were being filledis the only specific solution which the evidence provides. Plaintiff rejects this explication and concedes that he must depend upon the doctrine of res ipsa loquitur to overcome the motion for nonsuit. This doctrine and the rules governing its application have often been stated by this Court: When a thing which causes injury is shown to be under the exclusive management of the defendant and the accident is one which in the ordinary course of events does not happen if those in control of it use proper care, the accident itself is sufficient to carry the case to the jury on the issue of the defendant's negligence. Lea v. Carolina Power and Light Co., 246 N.C. 287, 98 S.E.2d 9; Harris v. Mangum, 183 N.C. 235, 111 S.E. 177; Ridge v. Norfolk Southern R. Co., 167 N.C. 510, 83 S.E. 762, L.R.A.1917E, 215; Stansbury, N. C. Evidence § 227 (2d Ed. 1963). For an itemization of the situations in which res ipsa loquitur does not apply, see Springs v. Doll, 197 N.C. 240, 242, 148 S.E. 251, 252-253.

No inference of negligence arises from the mere fact of accident or injury, Lea v. Carolina Power and Light Co., supra, and, as pointed out in Etheridge v. Etheridge, 222 N.C. 616, 619, 24 S.E.2d 477, 480:

"It (res ipsa loquitur) does not apply where the evidence discloses that the injury might have occurred by reason of the concurrent negligence of two or more persons, or that the accident might have happened as a result of one or more causes, or where the facts will permit an inference that it was due to a cause other than defendant's negligence as reasonably as that it was due to the negligence of the defendant, or where the supervening cause is disclosed as a positive fact * * *."

Accord, 38 Am.Jur., Negligence § 300 (1941); 65A C.J.S. Negligence §§ 220.12-220.13 (1966). The doctrine of res ipsa loquitur, a fortiori, has no application if the fire was due to any voluntary action or contribution on the part of plaintiff, or "if it appears from the evidence that the accident might reasonably have been caused by plaintiff's own negligence." 65A C.J.S. Negligence § 220.13 (1966).

Applying these rules to the evidence in this case, it is clear that the doctrine of res ipsa loquitur is inapplicable. Defendants did not own or control the premises where the fire originated and, taking plaintiff's evidence in the light most favorable to himwhich means that we assume he did not run the wheel balancerits cause remains a matter for divination. "* * * (T)he trier of the fact could only indulge in conjecture as to the cause of the fire. In such case the doctrine of res ipsa loquitur should not be applied." Starks Food Markets, Inc. v. El Dorado Refining Co., 156 Kan. 577, 583, 134 P.2d 1102, 1106. In holding that the doctrine of res ipsa loquitur did not apply to a fire occurring at the plaintiff's filling station while the defendant was delivering gasoline, a Louisiana court said in Bruchis v. Victory Oil Co., 179 La. 242, 257, 153 So. 828, 832, "Here the defendant did not own or control the premises where the fire originated, but owned and controlled only the truck (tanker) and its parts."

In Mullins v. Baker, 144 W.Va. 92, 107 S.E.2d 57, the plaintiff sued for damages which occurred when his filling station was destroyed by a fire which occurred while the defendant's driver was filling his storage tanks. In holding the doctrine of res ipsa loquitur inapplicable, the court said:

"The defendants did not have exclusive control of the premises and buildings where this fire occurred. It may have occurred from causes over which the defendants *543 had no control. * * * `The doctrine of res ipsa loquitur cannot be invoked, if defendant does not have control or management of the premises or operations where the accident occurred, or where there is divided responsibility, and the unexplained accident may have been the result of causes over which defendant had no control.' * * * "It has been held by this Court that the doctrine res ipsa loquitur does not apply unless the only reasonable conclusion is that the accident happened through the negligence of the defendant. * * * "The gasoline had been delivered by the defendants to the plaintiff in the same manner and at the same place for a period of at least ten years and no fire had occurred during this period. Therefore, the gas or gas fumes alone could not have been the proximate cause of the fire and this is another reason why the doctrine of res ipsa loquitur would not be applicable, as the fumes or vapor must have been ignited by some flame or spark. * * * `* * * It is not only necessary to show that the offending instrumentality was under the management of the defendant, but it must be shown that it proximately caused the injury, * * *'. Where an unexplained accident can be attributed to one of several causes, or in a case of divided responsibility and the defendant is not wholly responsible, the doctrine is not applicable." Id. at 99-100, 107 S.E.2d at 62-63.

In Annot., NegligenceDelivery of Petroleum, 151 A.L.R. 1261, 1272, it is said: "Under most circumstances which have attended the delivery of petroleum products, the rule of res ipsa loquitur has been regarded as not applicable." Such holdings are a corollary of the rule that "res ipsa loquitur does not apply in explosion cases unless the thing that exploded was in the exclusive control of the defendant who is to be made liable; and where either of two persons, wholly independent of each other, may be responsible for an injury, the cause is one for affirmative proof and not for presumption." 22 Am.Jur., Explosives § 95 (1939).

Plaintiff's evidence and allegations disclose no negligence on the part of defendants. If Southard was guilty of negligence in unloading the gasoline while plaintiff was running the wheel balancer with its unenclosed motor or in failing to warn plaintiff of the danger in doing so, it is not so alleged. The occurrence of the fire does not support the inference that defendants' negligence was the most reasonable probability, nor does it exclude the idea that it was due to a cause with which defendant was not connected. 65A C.J.S. Negligence § 220.12 (1966). Even if the wheel balancer was not in operation, the refrigerated drink boxes were working. There is no evidence that the controls containing the thermostats (a possible source of sparks) were sealed.

The fire and explosion cases cited by plaintiff in which the doctrine was applied are all cases in which the equipment and premises were in the exclusive control of defendants. Howard v. Texas Co., 205 N.C. 20, 169 S.E. 832; Harris v. Mangum, supra; Newton v. Texas Co., 180 N.C. 561, 105 S.E. 433. Where the gasoline tank which exploded was not under the exclusive control of the defendant, res ipsa loquitur has not been applied. Hopkins v. Comer, supra.

Plaintiff having offered no direct and positive evidence from which it can reasonably be inferred that defendants' negligence proximately caused the fire and resulting explosion, and the doctrine of res ipsa loquitur being inapplicable, defendants' motion for nonsuit should have been allowed. Hubbard v. Quality Oil Co., supra.

The judgment of the court below is

Reversed.