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District Court of Appeal, Fourth District, California.

Raymond V. RUDOLPH, Plaintiff and Respondent, v. Allen TUBBS, Chas. S. Ehrhorn, and Chas. S. Ehrhorn, doing business under the fictitious name and style of Navy Gas Co., Defendants and Appellants.

Civ. 4937.

Decided: May 31, 1955

Crowe, Mitchell & Hurlbutt, Visalia, for appellants. Walch & Griswold, Hanford, for respondent.

Plaintiff and respondent Raymond V. Rudolph leased a general store, and certain adjoining quarters in the store building, in Farmersville. He owned the stock and fixtures. Several gasoline pumps were located in front of the store building. One of the other rooms, in the form of a leanto (14 x 14 ft.) connected with this store building, was used for the storage of oil supplies in connection with the oil station business. Defendant Mack Langford leased from defendant and appellant Ehrhorn, the oil station portion of the premises, including an office room (12 x 14 ft.) which adjoined the oil store room and which was used in connection with the filling-station business. Langford kept his ‘white gas' in a 50-gallon oil drum in the rear portion of this store room on a frame rack near the wooden partition wall. A battery charger was located on a bench, and a car battery was on the ground near the door and had just been placed there by Langford. There was an automatically controlled electric air compressor located just outside of the north store room wall which wall was composed of corrugated iron. The west wall and the roof of the entire store building was of the same material. The oil room doors consisting of two parts, were open to the street.

Appellant Allen Tubbs, employed by appellant Ehrhorn, doing business under the fictitious name and style of Navy Gas Co., was delivering some white gasoline to this station. He drove his truck to a place near the front of the oil store room, pulled the hose and nozzle from the truck to the oil drum, a distance of about 20 feet, and filled it with 40 gallons of gasoline. Afterwards, he reeled up the hose to the tank truck.

The testimony of plaintiff shows that he was in his store on June 25, 1951, about 10 a. m. and Langford's son ran in and told him of a fire in the oil storage room; that at a point about 4 feet from the entrance to that room plaintiff saw fire around the gasoline drum, about the height of the ceiling, and made considerable effort to extinguish it, without avail. The fire department was called. Plaintiff testified that about that time (about 10 minutes after he learned of the fire) he saw appellant Tubbs standing about 10 or 15 feet from the oil room, smoking a half-smoked cigar, and talking to Langford, Jr. However, on a previous trial he indicated he saw Tubbs for the first time with the cigar fully 20 minutes or more after the fire started, and at that time the oil truck had been moved away by Tubbs. There was practically a complete loss of the building and contents by the fire. Plaintiff estimated the value of his stock in trade at around $6,000; that he salvaged about $1,300 of that amount, and that the fixtures and furnishings were valued at about $12,473.

Langford, Sr., testified that as he stepped out of the oil station office into the open to obtain a battery carrier in the oil room, he lit a match to light a cigarette, and that he then noticed a fire in the back end of the oil room about 21 feet from where he was then standing; that there was no explosion but the fire was about three feet high and three feet wide; that Tubbs was then standing by the side of the cab of his truck near the oil room talking to young Langford; that he told them there was a fire in the oil room and then went to see Rudolph about a fire extinguisher. He testified that if Tubbs was then smoking he did not notice it.

The son testified he was talking to Tubbs when his father came out of the office, and that he said ‘there is a fire’ in the oil room; that Tubbs was ‘doing something with the hose’, and that he stopped and looked for a fire extinguisher on Tuggs' truck but did not find one; that he looked in the oil room and the fire was near the oil drum up against the back of the building and was three or four feet in diameter and four feet high; that he secured a fire extinguisher bomb from Rudolph's store and tried to extinguish the fire, without success.

Appellant Tubbs testified the front end of his truck was parked three or four feet from the oil room; that the hose was kept on the truck about 16 inches back of the cab; that the hose nozzle was carried to the oil drum about 25 feet away from the truck; that the barrel was partly filled with gas and the cap replaced in the drum; that the supply of gas was shut off at the brass nozzle and that he walked back to the truck with the nozzle in his hands, hung it in position on the truck, and then reeled up the hose by hand; that no one was with him while he was in the oil room; that he smoked cigars or cigarettes but did not light one on that occasion until after the fire was about out, when he walked over to the cafe, bought a cigar, lit it, and then stood by the burned building; that the first time he saw a fire was when Langford, Sr. told him there was a fire in the oil room; that he then saw the fire in back of the oil room about three feet west of the oil drum blazing from the ground and no flash or explosion from the gasoline was seen or heard; and that there was no singeing of his hair or clothing, or any evidence of burn marks on him.

Another witness testified he was buying a new battery from Langford; that he took the old one and placed it just inside the oil room and went into the office; that he came out of the office with Langford, Sr., and when he was about five feet from the entrance to the oil room Langford discovered a fire and Tubbs was at that time standing near his truck; that the fire was burning at the back end of the oil room.

Another witness testified that when he first saw the fire he observed smoke coming from the ‘back of the building’ near a tree by the compressor, which he indicated, and also ‘coming out of the back of the oil room’ above the roof. One witness stated that there was a bigger fire in the store room adjoining the oil room than there was in the oil room.

A duly qualified expert testified that to ignite gasoline it took either a flame, spark, high pressure or high temperature; that immediately after filling a tank, such as that here involved, vapors will rise out of it and, being heavier than air, will settle down to the surface of the ground and may even go through cracks in the wall, and if there is no breeze to dissipate them it is dangerous to smoke or light matches around such an area at that time; that under these circumstances the vapors would ignite with a ‘swish’ or ‘flash’ and the action would be immediate and spontaneous and the person present would definitely know that such vapors had been ignited, but if the cap was off the tank, as indicated, after the building burned, there would be no explosion; that a lighted cigarette would ignite vapors, but put directly into a liquid it would not, it would drown, but the flipping of a lighted match or lighted cigarette into gas vapors might cause them to become ignited, but it would probably be instantaneous; that if vapors were ignited by lighting a match or cigarette the flash would probably singe or burn the hair, eyelashes and clothes of a person standing near the vapors; that if gasoline was poured on the ground and thus lighted a different effect would result and no explosion would result from this type of fire.

The claimed acts of negligence charged in plaintiff's complaint against these defendants are enumerated therein as follows: that the 50-gallon tank was the property of Ehrhorn and was placed in the above location by said appellant Ehrhorn, with the knowledge and consent of the defendant Mack Langford; that the placing and maintaining of that tank in that location was dangerous, careless and negligent on the part of each defendant; that Tubbs negligently filled the tank with gasoline ‘in that he allowed gasoline to overflow from said tank’, failed to secure the top on said tank after having filled the same, failed continuously to man the nozzle with which said tank was filled; and from the outside of the building adjacent to his tank truck wound up the hose used in filling said tank by dragging the same, with nozzle attached, along the floor of such building across a live battery; and failed to have in his tank truck from which he was filling the aforesaid tank, a fire extinguisher of any kind; that plaintiff is informed and believes and alleges that Tubbs was ‘smoking a cigar at the time and place above set out’. Then follows an allegation that defendant Langford was in the vicinity where the tank was being filled with gasoline and that at that time and place negligently and carelessly lighted a cigarette; and that as a result of the negligence, carelessness and recklessness of the defendants ‘as above alleged’, ‘a fire was ignited’ at or in the immediate vicinity of the aforesaid tank in the oil room above described, which destroyed plaintiff's equipment, etc., to his damage in the sum of $19,238.42. Plaintiff claimed loss of profits from the operation of the business at $700 per month, totaling $84,000. Apparently, at a former trial on these issues, plaintiff obtained a judgment for $5,000. A new trial was granted, upon the grounds of insufficiency of the evidence to sustain the verdict. On a retrial the jury found in favor of the defendant Mack Langford, but found a verdict against appellant Ehrhorn individually, and as doing business under the fictitious name and style of Navy Gas Co. in the sum of $22,000, for loss of stock in trade and furnishings and fixtures. It was conceded at the trial that there was no proof of loss of profits. To the astonishment of all parties concerned, including the trial judge, the verdict exceeded the proof of the amount od damages thus sustained by approximately $5,000, whereupon, counsel for defendants moved for judgment in favor of the defendants notwithstanding the verdict. After the jury was polled and was excused, and before the verdict was recorded, counsel for plaintiff moved the court to reduce the acount of the verdict to the proven amount of damage, to wit, $17,173. Accordingly, the court reduced the amount and ordered the verdict recorded in accordance with the reduction. Counsel for defendants again moved for a verdict in favor of the defendants notwithstanding the verdict as recorded, which motion was again denied. A motion for new trial on all statutory grounds was subsequently denied.

While the irregularity of such proceedings is not raised in the briefs, it appears to us that the ordinary and usual procedure of reducing an excessive verdict by motion for new trial on the ground of insufficiency of the evidence to support the verdict was not followed. Appellants would, under these circumstances, have been in a much different position than they now find themselves. Hansen v. Bledsoe, 130 Cal.App.2d 70, 278 P.2d 514. The verdict, as recorded, was not the one returned by the jury. In effect, the trial judge has substituted his judgment for that of the jury as to what damages plaintiff actually suffered. The evidence might well support an amount less than that awarded by the trial court. Whether the trial court could have ordered the jury again to retire and fix an amount in accordance with the evidence produced is, at the present time, problematical. See Crowe v. Sacks, Cal.App., 275 P.2d 589. Hearing granted by the Supreme Court.

The real question for determination on this appeal is the sufficiency of the evidence to show negligence on the part of these appealing defendants to justify any verdict for plaintiff.

The evidence in respect to placing the oil drum in the position indicated is that the drum formerly belonged to Ehrhorn, and when he maintained that station he kept the drum and gasoline contained therein out in the open by an ice house; that when he surrendered the premises to Langford the empty tank was placed in this oil room for safe keeping. The evidence is silent as to who placed it on the rack in the position it was at the time of the fire. At least there is no evidence that appellant Ehrhorn placed or maintained the tank in that location at the time of the fire. From a mere examination of the testimony in this respect, no act of negligence is indicated which would support the verdict.

There is no indication that Tubbs recklessly filled the tank with gasoline or allowed it to overflow from the tank. In fact, the evidence is that he only placed 40 gallons in the 50-gallon empty tank. The claimed failure of Tubbs to secure the cap on the tank after having filled it arises from the fact that after the fire the cap could not be located. There is no indication that the failure to secure the cap on the tank after it was thus filled was the proximate cause of the ‘fire being ignited’ at or in the immediate vicinity of the aforesaid tank. Counsel for plaintiff argues in this connection in his brief that even though Tubbs did not light the fire, it might well be that the actual cause of the entire store building burning was proximately caused from leaving the cap off of the gasoline drum, and accordingly Tubbs was negligent in this respect. It is appellants' contention that the cap was not screwed in tightly because it would aid in drawing off the gasoline from the spigot when placed in use by Langford.

It will be noted that the complaint charged Tubbs with the specific act of ‘igniting’ the fire which destroyed plaintiff's property, and there is no suggestion in the complaint that this appealing defendant was negligent because after the fire was ignited he did or failed to do anything that caused the fire to spread to and damage plaintiff's property. There is no evidence that this appealing defendant failed continuously to man the nozzle or that he wound up the hose to the tank truck by dragging it with the nozzle attached, along the floor of the building across a live battery. In fact, there is no evidence the battery was live. It was taken from a car and was replaced by a new battery. There is no evidence that any sparks came from it, and in fact the testimony of the expert witness indicates that if the gas fumes had been lighted by live sparks there would have been a ‘swish’ or flash of fire instead of the character of the fire indicated by the wintensses. The claim that this appellant failed to have on his tank truck a fire extinguisher was not negligence in itself, and it does not indicate that the failure to have such a fire extinguisher was a proximate cause of the ignition of the fire as pleaded.

The last claim that Tubbs was smoking a cigar is not necessarily indicative of negligence unless such act was a proximate cause of the ignition of the fire, as pleaded. The only evidence bearing on this subject is the testimony of the plaintiff at the last trial that he saw Tubbs somewhere between ten minutes after he was notified of the fire and a half hour thereafter, smoking a half-burned cigar while he was standing outside near his truck. This appellant endeavors to account for his half-smoked cigar by stating that he secured it and first smoked it when the fire was about subdued, and after he had moved the gasoline truck away from the premises. He positively stated he was not smoking it while in the oil room or while engaged in the act of filling the tank, which took only about two minutes of that time. Considering this evidence in connection with the testimony of the expert witness, had the gasoline fumes ignited from the lighting of a match or cigar in the oil room while these fumes were predominant, there would have been a flash or splash and there would have been some evidence of the burning of the person or his clothing. There concededly was no evidence of any such burning or that the cigar ignited the gasoline fumes causing the fire.

The was considerable evidence offered by the appellants indicating that the fire may have started from a spark from the compressor located just outside of the north end of the oil room, or combustion from the storage room of plaintiff adjoining the oil room. The actual cause of the ignition of the fire was problematical. Counsel for plaintiff took great pains in not indicating to the jury what he believed was the cause of the fire, but left it to the jury to determine that fact, arguing that the plaintiff's property was burned and someone must have been negligent in starting the fire. As will be noted, the pleadings do not indicate that plaintiff was seeking a recovery upon the theory of res ipsa loquitur. The cause was not tried on that theory. No instructions were offered or given on the subject matter, and for the first time on appeal it is now claimed that the judgment can be supported upon that theory, citing such cases as Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 247 P.2d 344; Rose v. Melody Lane, 39 Cal.2d 481, 247 P.2d 335; Knell v. Morris, 39 Cal.2d 450, 247 P.2d 352; and Gish v. Los Angeles Ry. Corp., 13 Cal.2d 570, 583, 90 P.2d 792.

Since there is no substantial evidence supporting the specific allegations of negligence set out in the complaint, the question then arises whether or not, under the pleadings and the evidence, plaintiff is entitled to have the doctrine of res ipsa loquitur applied in order to support the judgment.

The principles of the rule are stated in the case of Zentz v. Coca Cola Bottling Co., supra [39 Cal.2d 436, 247 P.2d 347], to be that:

‘* * * it must appear, either as a matter of common experience or from evidence in the case, that the accident is of a type which probably would not happen unless someone was negligent. In the absence of such a probability there would be no basis for an inference of negligence which would serve to take the place of evidence of some specific negligent act or omission. The defendant, of course, should not be liable unless it appears from all the facts and circumstances that there is a sufficient causal connection between his conduct and the plaintiff's injury, and it has been held that res ipsa loquitur will not apply if it is equally probable that the negligence was that of someone other than the defendant. * * * the doctrine is not applicable where it is ‘at least equally probable that the accident was caused by some fault * * * for which defendants were not liable’ and where ‘it cannot be said that it is more likely than not that the accident was caused by the negligence of defendants'. * * * In dealing with this problem the courts have usually said that the defendant must have ‘management’ or ‘control’ of the agency or instrumentality which caused the injury. * * * the purpose of this requirement is to eliminate the possibility that the accident was caused by someone other than the defendant.'

Applying this rule, it may be very well granted that fires do start in or about service stations under a number of circumstances such as faulty wiring, sparks emanating from motors, or combustion, as well as by smoking or lighting cigarettes or cigars, and the cause of the fire here in question may have been from one of these origins. At least the evidence in that respect is conflicting and open to several possibilities. The extent of control appellants exercised over the instrumentality which may have caused the fire is also open to question. Regardless of these questions, we are impelled to hold that the doctrine cannot be here considered for the first time on appeal due to the fact that plaintiff did allege in his complaint seven specific acts of claimed negligence of these appellants, and made no general allegation of negligence or allegation of general negligence. The case was not tried upon the theory of res ipsa loquitur, and the jury was not instructed on the application of that doctrine nor in regard to the necessity of establishing proof of all the required elements before it could be applied.

In the case of Leet v. Union Pacific R. Co., 25 Cal.2d 605, 155 P.2d 42, 158 A.L.R. 1008, relied upon by plaintiff, after discussing the holdings in many cases, the court concluded (quoting from the syllabus) that:

‘If plaintiff alleges negligence specifically and generally he may rely on the doctrine of res ipsa loquitur, and the general inference of negligence flowing therefrom, without limitation to the particular acts of negligence alleged, inasmuch as by the general allegation of negligence defendant is notified that he must meet such a broad inference.’

It adopts the holding in Marovich v. Central California Traction Co., 191 Cal. 295, at page 306, 216 P. 595, at page 600, wherein it is stated that: ‘* * * where the plaintiff in his complaint makes no general allegation of negligence or no allegation of general negligence, instructions applying the doctrine of res ipsa loquitur should not be given. This must be so, for the reason that in such case the plaintiff can recover only upon proof of one or more of the specific acts or omissions alleged in his complaint.’

Accordingly, the judgment must be and is reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.