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WEAVER et al. v. SHELL CO. OF CALIFORNIA et al.*
Lincoln Weaver was burned in a gasoline fire and from that injury he died January 22, 1927. His widow and two children commenced this action to recover damages. The jury returned a verdict in the sum of $50,000 and from the judgment entered thereon the defendants have appealed.
In the block located between Second and First streets and Washington and Broadway in Oakland, a private plant is maintained by the Pacific Gas & Electric Company to service its motor vehicles. An alley extends between Second and First streets. That alley is the entrance by which trucks serving the plant enter the premises. On the day of the accident the defendant Alfred H. Bodilly, acting as the servant of Shell Company of California, drove one of the gasoline trucks of the defendant corporation into the alleyway from Second street. He passed along the alley to the front of the oil room which faces the south and there he stopped to make his delivery. He was informed by the decedent, who was in charge of the oil room, that the portable tank, spoken of as the buggy, was to be filled, and he was also informed as to the quantity that was to be put into the sunken tank. The sunken tank extended under the south wall of the oil room. One valve of the tank was inside of the oil room and another valve was at the end of the tank outside of the oil room. They were of the same height. Each valve was covered with a metal cap which screwed on and off. Decedent took off the cap of the inside valve and stuck down a measuring rod, drew it out and handed it over to Bodilly to read. Whether decedent put back the cover on that valve does not appear. There is a plain inference he did not. Bodilly was using a General Motors truck having three compartments or tanks containing gasoline. The front one contained 643 gallons, the middle one 629 gallons and the rear one 438 gallons. All compartments were full. The truck was equipped with a two-inch hose about 15 feet long. It had a metal core encased in rubber with a cloth coating. One end was fitted to screw to the valve on the truck and the other end had an L-shaped metal nozzle. As the nozzle on the hose did not fit the valve on the Pacific Gas & Electric Company tank, a nipple was used. The nipple was inserted in the valve and the nozzle on the hose was placed in it. Having been informed by the decedent as to what quantity was wanted, the defendant Bodilly proceeded to make his deliveries. The truck he was using had attached to it a two-inch hose, whereas the one he ordinarily used had a one and one-half inch hose. Each hose had one and one-half inch attachments and therefore discharged about the same quantity. The foregoing, we think, are uncontroverted facts. In addition there was a great deal of evidence introduced. It contains numerous conflicts. It will be recited as we proceed.
In their first point the defendants claim that the judgment lacks evidentiary support for the reason that the evidence does not establish that any negligence of the defendants was the proximate cause of the death of Lincoln Weaver. Before proceeding, it should be stated that the trial proceeded on two very different theories. It was the contention of the plaintiff that Bodilly, in making his delivery, caused or allowed the gasoline to overflow the intake valve on the outside of the oil room, to spread out over the floors outside, to generate gasoline vapors, and then, by carelessly using apparatus that was not properly equipped, caused and allowed static sparks to be generated outside of the oil room and directly connected with the apparatus which the defendants were using, and allowed said sparks to ignite said gasoline vapors outside of said room and thus caused the fire which injured the deceased. Whereas it was the contention of the defendants that Bodilly spilled no gasoline, that the apparatus of the defendants generated no sparks and that if it did such sparks were properly grounded by a pendant chain attached to the delivery truck, and finally that the fire originated in the oil room of the gas station through causes over which the defendants had no control.
There was evidence that the truck Bodilly was using did not have a chain attached to the metal frame of the truck and extending to and resting on the ground for the purpose of conveying any electricity that might be generated; that he first attached the hose to the valve on the truck, placed the nozzle in position, and then opened the valve of the front tank, thus allowing the gasoline to flow into the sunken tank in the gas station; that in the exercise of ordinary care he should have stood by the valve ready to turn it off; that he did not do so, but left the hose running, and proceeded to fill the tank in the buggy with buckets; that after he had filled the buggy tank he was in the oil room when it was noted that the sunken tank was overflowing; that that tank overflowed outside and inside of the oil room; that at about the time the overflow commenced the decedent called out “Shut it off”; that at about that time a puff or explosion occurred which caused the windows to rattle and which was heard about the premises; that the overflow was of such a quantity of gasoline that it flowed several feet to the south and also to the east outside of the oil room; that the explosion was immediately followed by a fire which commenced outside the oil room and then spread outside and inside of the oil room; then when Weaver called “Shut it off,” Bodilly shut it off and immediately turned and picked up the nozzle but, seeing fire near the end of it, dropped it back into position and hurried to one side to put out the fire on his own shoes and puttees; and that the act of Bodilly in dropping said nozzle under such conditions would tend to generate static sparks, ignite gasoline vapors, and cause explosions and fires. It will be freely conceded that several of the facts recited in this paragraph were controverted by other evidence. Before closing this statement of facts it should also be stated that while Bodilly was making his delivery several motor vehicles operated by the Pacific Gas & Electric Company called to be served. They received about 22 gallons, which was reported to Bodilly, and he increased his delivery to that extent. The last of those cars to be served left the pump only about two minutes before the fire.
That the foregoing evidence showed an act of negligence on the part of the defendants in carelessly allowing the receiving tank to overflow we think is clear. We think it is also clear said act concurred with, and proximately contributed to, the fire which injured the decedent. Whether the overflowed gasoline was ignited by a static spark transmitted by an act of the defendant, or some other act of the defendant, or the act of some other person, did not relieve these defendants from their responsibility for allowing the tank to overflow. Lacy v. Pacific Gas & Electric Co., 220 Cal. 97, 29 P.(2d) 781. We think it is entirely clear that the judgment does not lack evidentiary support.
The defendants complain of three several rulings of the trial court on the admission or exclusion of evidence. In 1924 or 1925 the city council of Oakland enacted an ordinance regulating the installation of tanks at gas stations. Certain articles had appeared in the local press concerning such legislation. The plaintiff called as a witness Samuel Short, who was at the time of the accident chief of the Oakland Fire Department. On cross-examination the defendants, without objection on the part of the plaintiffs, propounded many questions to him concerning the provisions of said ordinance, basing the questions, apparently, on the statements in the newspapers as to its provisions, but the ordinance was not offered in evidence. At one time the trial court was asked to construe the ordinance which had not been offered in evidence. It declined to do so. After the defendants rested, the plaintiffs made a motion to strike out the testimony given by the witness Short as to the provisions of the ordinance. The motion was granted. We see no error in that ruling. If the ordinance had been passed, if it contained anything material to the case of the defendants, competent proof of the facts was at the elbow of the defendants and should have been introduced. When Mr. Short was asked questions by the defendants regarding the ordinance, the plaintiffs were entitled to assume they would connect the proof. But they did not do so.
At a former trial George Fulton was examined and cross-examined. At the last trial the plaintiffs called one witness who testified that Fulton had left the state. Thereupon the plaintiffs offered the evidence given by Fulton on the former hearing. The defendants made a “formal” objection. It was overruled. The ruling was not erroneous. Slight evidence is sufficient to prove a negative.
The plaintiffs called L. L. Roth as an expert witness. Having qualified the witness as an expert, the following occurred:
“Mr. Hallinan: Q. With an oil truck parked and the gasoline being delivered through this hose into a filling stem set into a tank in the ground, the filling stem constituting the part from the red portion down, and this screwed on top of it (indicating), the hose put into it like that (indicating), do you consider that kind of an arrangement would be sufficiently safe to prevent any fire from static electricity?
“Mr. Alexander: To which we object as being incompetent, irrelevant and immaterial, and calling for his opinion as to a matter of safety rather than an opinion of an expert.
“The Court: Objection overruled.
“The Witness: If gasoline is flowing through that pipe line, it will generate static electricity. If there is a proper ground between the pipe, that inside pipe and the other intake or nipple, that will ground the static electricity, but if there is an improper connection between the two, you are apt to have a static spark.”
Technically the ruling was erroneous. However, immediately thereafter the plaintiffs showed by the witness that the answer as given meant that the hookup described in the question offered possibilities for the transmission of static sparks. Such fact they were entitled to prove. The defendants were not prejudiced by the error mentioned.
It is next claimed that the plaintiffs' counsel was guilty of prejudicial misconduct. They make three several attacks. They assert that plaintiffs' counsel, in addressing the jury, accused them of wilfully suppressing evidence and injected the elements of wealth and poverty into the case. Conceding that he did so, the defendants did not at the time assign such act as misconduct, nor did they ask the trial court to direct the jury to disregard the remarks. But of its own motion the court fully performed that duty. Defendants may not now present the point. Olsen v. Standard Oil Co., 188 Cal. 20, 26, 204 P. 393. No one of the attacks may be sustained.
Acting upon the request of the plaintiffs, the trial court gave two instructions, and, acting upon its own motion, it gave another instruction, each of which applied the doctrine of res ipsa loquitur to the facts of the case. The defendants assert that said doctrine was inapplicable because in their complaint the plaintiffs particularized the elements of negligence. The attack solely on that ground is insufficient. Atkinson v. United Railroads of San Francisco, 71 Cal. App. 82, 234 P. 863. Continuing, the defendants make other attacks in which they claim that under the evidence they were not in the exclusive charge of the instrumentalities causing the injuries, and that the evidence did not show others were not also responsible. These assertions are based upon their theory of the case. It will be conceded at once that the defendants did not have the exclusive management and control of the entire gas station nor of the entire oil room. However, it was the contention of the plaintiffs that the defendants allowed the gasoline to overflow and that the defendants caused a static spark to be generated by the manner in which they used the apparatus for filling the tank. Viewing the case as presented by the theory of the plaintiffs, we see no objection to the instructions complained of. The jury was not asked to bring in any special verdicts, and there is no reason to assume that the jury did not base its verdict on the theory presented by the plaintiffs. A further attack was made under the claim that the doctrine is inapplicable because the facts could not be proved without scientific or expert evidence. Defendants cite and rely on Nicholas v. Jacobson, 113 Cal. App. 382, 386, 298 P. 505. It does contain some words to that effect. But it was an action based on malpractice, and a special rule applies in such cases. Perkins v. Trueblood, 180 Cal. 437, 443, 181 P. 642.
The defendants assert that instruction IV, given at the request of the plaintiffs, placed on the defendants the burden of proving its defense by a preponderance of the evidence. If the instruction is read in connection with the other instructions, we think it may not be said it was an erroneous statement of the law.
Instruction VI, given at the request of the plaintiffs, in part was as follows: “The court instructs the jury that a greater amount of care is required in dealing with a dangerous agency than in the ordinary affairs of life or business which involve little or no risk. No absolute standard can be fixed by law, but every precaution suggested by experience and the known dangers ought to be taken.” The defendants complain that the instruction was to the effect that the defendants should use more than ordinary care. When read in connection with the other instructions given, we think the contention has no merit. In many different places the trial court instructed the jury that the degree of care which the defendants should have exercised was ordinary care.
The defendants also complain because the trial court instructed the jury as follows: “I instruct you that under our law the presumption is that evidence wilfully suppressed could (sic) be, if produced, adverse to the party suppressing it, and that higher evidence would be adverse from inferior being produced.” We think the instruction as written was not law, was not addressed to any evidence, and that it should not have been given. However, there was nothing that occurred during the trial and which the jury could have used for the purpose of charging either party with the suppression of any material evidence. The instruction as given was addressed to an incident hereinabove referred to but not fully set forth. At the time the accident happened there was employed by the Pacific Gas & Electric Company a man by the name of Martin Fahey, whose duty it was to investigate the facts regarding accidents. He investigated the facts regarding the accident in the instant case. He took some pictures. He interviewed the decedent and made some notes on that interview and in other respects prepared a report for his employer. That report was for some time among the files of the Pacific Gas & Electric Company. Afterwards Fahey died. At the time of the trial in the instant case witnesses testified that the file was no longer in the possession of the Pacific Gas & Electric Company. What had become of it the record failed to disclose. What was contained in the report that was competent and material evidence on the trial of the issues, the record wholly failed to disclose. The same remark applies to what was contained in the pictures. We find nothing in the record indicating that the Pacific Gas & Electric Company either suppressed or destroyed the file, or that the plaintiffs did so, or that the defendants did so.
When the witness Bodilly was on the stand and had testified as to the amount of gasoline contained in each tank on his truck and the intended use thereof, plaintiffs' counsel asked for an inspection of the records of the past deliveries by the witness. Defendants' counsel stated he would try to furnish the record. He was never asked if it had been obtained. At no time thereafter was the subject brought up until arguments were being made. It was then broached by an intimation of “suppression.” We think even the jurors as laymen could and did see that the record mentioned was wholly immaterial to any issue before the jury. The front tank contained more than enough gasoline to meet the requirements of the Pacific Gas & Electric Company. We are wholly unable to state that in any respect the giving of the instruction complained of was prejudicial error as against either party.
Finally it is asserted that the verdict for $50,000 is excessive. The decedent was on January 22, 1927, the date of the accident, receiving a wage of $150 to $160 monthly and there was no proof that such employment was soon to be terminated. He was 37 years of age, of good habits, in good health, and had a considerable expectancy in years. He was married and was supporting his wife and her two children by a former marriage and Agnes and John, his two children by a former marriage, who were respectively 13 and 8 years of age. He was a kind and loving husband and father. The fact-finding body, the jury, by its verdict, has set the amount of the damages of decedent's widow and his two minor children in the sum of $50,000, as being a reasonable sum. By denying a motion for a new trial, the trial court has approved the award made by the jury. A court of review may not disturb that award “unless the verdict is so plainly and outrageously excessive as to suggest, at the first blush, passion or prejudice or corruption on the part of the jury.” Baker v. Board of Trustees, etc., 133 Cal. App. 243, 249, 23 P.(2d) 1071, 1073. We cannot say under the conditions shown to exist in the case that the verdict is excessive. In this connection the defendants point to the alleged misconduct of counsel and argue that the plaintiffs therein and thereby prejudiced the jury. But we have shown above that we think the record does not support that contention.
The judgment is affirmed.
STURTEVANT, Justice.
We concur: NOURSE, P. J.; SPENCE, J.
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Docket No: Civ. 9609.
Decided: October 04, 1935
Court: District Court of Appeal, First District, Division 2, California.
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