Annotate this Case

1935 OK 676
46 P.2d 535
172 Okla. 571
Case Number: 24797
Decided: 06/11/1935
Supreme Court of Oklahoma



¶0 1. Explosives--Truck Load of Gasoline Leaking Near Exhaust From Motor as Dangerous Instrumentality--Care Required of Owner.
A truck load of gasoline leaking and emitting gas vapors near the exhaust from the motor is a dangerous instrumentality. More than ordinary care is required of the owner thereof.
2. Negligence--Rule of Res Ipsa Loquitur Applicable to Part of Plaintiff's Case.
Where, in an action founded on negligence, a part of the plaintiff's case is such that the rule of res ipsa loquitur is applicable thereto, the rule will be applied to that part, though other Darts of plaintiff's case may be capable of proof by direct evidence of specific acts of negligence alleged.
3. Evidence--Sufficiency of Circumstantial Evidence to Sustain Verdict.
Circumstantial evidence in a civil case, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than the one arrived at by the jury.
4. Appeal and Error--Trial--Ruling on Motion to Make Petition More Definite and Certain not Reversed Unless Abuse of Discretion Clearly Shown--Motion for Judgment on Opening Statement not Sustained Where Petition Read Stated Cause of Action.
Trial court's ruling on a motion to make the petition more definite and certain will not be reversed unless it clearly shows an abuse of discretion. A motion for judgment on opening statement of plaintiff will not be sustained where the petition is read as a part thereof and such petition states a cause of action.
5. Negligence--When Question for Jury.
The question of negligence, where there is competent evidence introduced from which reasonable men might draw different conclusions, is one for the jury.
6. Judgment -- Entering JuSt and Overruling Motion for New Trial as Approval of Verdict.
Where the trial court enters judgment on the verdict and overrules the motion for new trial, he approves the verdict.

Appeal from District Court, Delaware County; Ad V. Coppedge, Judge.

Action by A. I. Dunbar against the Ramsoy Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

M. C. Rodolf and E. B. Hunt. for plaintiff in error.
G. W. Goad and E. H. Beauchamp, for defendant in error.


¶1 Defendant in error's petition alleges: Sam Dunbar, Sr., Sam Dunbar, Jr., A. I. Dunbar, and W. M. Dunbar were on the 6th day of March, 1932, engaged in the garage business at Colcord, Okla., keeping a general line of repairs and accessories and owned the one-story stone garage building.

¶2 That plaintiff in error, Ramsey Oil Company, by its agents, Whitt and Wade, drove its gasoline truck in their garage about eight o'clock p. m. that day; said truck had a leaky valve on the rear and was leaking gasoline at time of entering said garage, which facts were known to plaintiff in error' Whitt asked Wade. the driver, to hand him something to stop the valve, the truck moved backwards breaking the garage service light by which Whitt was working on the leaking valve, the gasoline immediately became afire, burned through the entire garage, destroying said building, two cars and certain itemized personal property of the total value of $ 3931.90. That said fire was caused by the carelessness and negligence of said agents of plaintiff in error.

¶3 Plaintiff in error's answer is a general denial and then alleges contributory negligence which was the proximate cause of defendant in error's injury.

¶4 The trial resulted in a verdict and judgment in favor of A, I. Dunbar for $ 2,000.

¶5 Defendant in error, plaintiff below, owned a garage in the town of Colcord, Okla., and certain personal property located therein. Plaintiff in error, defendant below, drove its gasoline truck into this garage about eight p. m. March 6, 1932, and attempted to stop the escape of gasoline therefrom. Gasoline was leaking from the truck prior to and at the time of driving into the garage. There was a Delco light behind the truck which furnished plaintiff in error's employee light while he worked on the leaky valve at the rear of the truck. The leak was near the exhaust from the motor. This employee placed a can under the leak to catch the escaping gasoline. Some of the gasoline escaped onto the floor of the garage. Plaintiff in error entered the garage, used it and its facilities to repair plaintiff in error's leaking gasoline truck and did not employ defendant in error to make such repairs. Shortly thereafter the truck backed up, the Delco light was broken, and immediately the gasoline became aflame, resulting in the damage complained of Said truck was under the control of plaintiff in error during all of this time. Ordinarily a truck load of gasoline which is not leaking will not catch fire from breaking an electric or Delco light, exhaust from motor, spark caused by motor, friction, etc., unless it has an opening from which gas vapors escape.

¶6 A truck load of gasoline leaking and emitting gas vapors near the exhaust from the motor is a dangerous instrumentality. More than ordinary care is required of the owner thereof. One in control of a dangerous instrumentality takes it upon other's property at his peril.

¶7 In Palacine Oil Co. v. Philpot, 144 Okla. 123289289 289 P. 281. loc. cit. 285, which was a ruse of gasoline leakage causing damage, the court there in passing on this point said:

"It is contended that gasoline is not of Itself an inherently dangerous agency. This contention cannot be upheld. * * * It may be safely said that it is almost universally recognized as a more than ordinarily dangerous commodity."

See, also, Oklahoma Gas & Electric Co. v. Oklahoma Railway Co., 77 Okla. 290, 188 P. 331.

¶8 This fire would not have occurred but for plaintiff in error's acts and omissions. Its leaking load of gasoline was brought into the garage for its own purposes and of its own volition. Because the garage owner permitted it to enter without knowing its dangerous condition, or let it remain and allowed his tools and light to be used for the repair of the truck by the owner thereof without compensation to the garage owner, furnishes no reason he should suffer the loss of his property because thereof.

¶9 Plaintiff in error complains that the cause of the ignition of the gasoline is uncertain and that the rule of res ipsa loquitur should not apply. In a very similar case, Guilford v. Foster & Davis, Inc., 131 Okla. 148, 268 P. 299, the same contentions were made and held by the court to be without merit. That was a gasoline case where the cause of the escape was certain and the cause of ignition unknown. The able opinion in that case so fully and carefully covers the facts and law, which conclusions are applicable here, that we adopt the same without repetition.

¶10 Neither pleadings, trial nor the arriving at the verdict of the jury are required to be or can be reduced to a mathematical certainty. The object of the law is to ascertain the truth and do substantial justice. Such end should not be defeated by requiring the innocent injured party to proceed each step with the precision of a highly trained engineer in drawing plans for a skyscraper. Under our statutes technicalities not resulting in an invasion of one's constitutional or statutory rights should be disregarded when substantial justice has been done. Sections 252, 388, and 3206, O. S. 1931. A. B. Rawlins Co. v. Solomon, 171 Okla. 317. 41 P.2d 463; Marland Ref. Co. v. Snider, 125 Okla. 260, 257 P. 797.

¶11 It does not appear that the trial court has abused its discretion in overruling plaintiff in error's motion to make the petition more definite and certain. A further reason is the of t-announced rule of this court that argument unsupported by citation of authority may not require examination of such alleged error by this court. This applies to plaintiff in error's complaint of the court's overruling its motion for judgment on opening statement of the defendant in error. This court has heretofore held that when a petition states a cause of action, it is error to render judgment for the defendant upon the opening statement of plaintiff where the petition is read therein.

¶12 Complaint that the court should have sustained the demurrer to the evidence or directed the verdict for plaintiff in error is not well taken.

¶13 The question of negligence, where there is competent evidence introduced from which reasonable men might draw different conclusions, is one for the jury, and under like circumstances, the question of proximate cause is one for the jury. Cherry v. Arnwine, 126 Okla. 285, 259 P. 232; City of Tulsa v. McIntosh, 90 0kla. 50, 215 P. 624.

¶14 Plaintiff in error finally argues the court erred in overruling the motion for new trial when he did not concur in the verdict. The trial court evidently was in doubt, carefully considered the evidence, verdict, and the questions raised by the motion for new trial, and concluded the verdict should be approved and the motion for new trial overruled. We fail to find he ultimately refused to concur in the verdict.

¶15 The judgment of the trial court is affirmed.

¶16 The Supreme Court acknowledges the aid of Attorneys Frank T. McCoy, Paul N. Humphrey, and Chas. R. Gray in the preparation of this opinion. These attorneys constituted an advisory committee selected by the State Bar, appointed by the Judicial Council, and approved by the Supreme Court. After the analysis of law and facts was prepared by Mr. McCoy and approved by Mr. Humphrey and Mr. Gray, the cause was assigned to a Justice of this court for examination and report to the court. Thereafter, upon consideration, this opinion was adopted.