Smith v. Associated Oil Co.

WASTE, P. J.

The plaintiff brought this action to recover for damage suffered by reason of the burning" of his dwelling and other buildings, the cause of the fire being attributed to the negligence of an employee of the appellant in spilling a quantity of distillate upon the ground while engaged in filling a fifty-gallon drum placed close to plaintiff’s house. The defendant denied any liability in the matter, and as a separate defense alleged that the destruction of the property was caused by plaintiff’s carelessness and negligence in lighting a match in proximity to the inflammable substance, and that plaintiff alone was at fault in causing the fire. Trial was had by a jury. At the conclusion of plaintiff’s case defendant moved for a nonsuit, which was denied. The jury rendered a verdict in favor of the plaintiff in the sum of $2,283. The appellant moved

[144]

for a new trial on the ground that the evidence was insufficient to support the verdict, and that it was against law, and that the court had made errors in the conduct of the trial which were excepted to by the appellant. The motion was denied, and defendant, appeals from the judgment.

[1]

Appellant’s first contention is that the complaint does not state facts sufficient to constitute a cause of action. The negligence was charged in general terms, it being alleged that the filling of the distillate drum by appellant’s employee was done negligently by him, and caused and contributed to the injury to plaintiff’s property. The demurrer to the complaint was, therefore, properly overruled.

(Hughes

v.

Warman Steel Casting Co.,

174 Cal. 556, 559, [163 Pac. 885].)

[2]

The testimony as to what occurred in connection with the fire which destroyed respondent’s buildings is clear, and presents no material conflicts. The appellant regularly supplied customers in the «vicinity of Fresno with gasoline and distillate. The respondent, a general contractor and builder, was at the time engaged in farming. He had had fifteen years’ experience in the use of gasoline engines and with automobiles. He was familiar with engine distillate and knew that it was volatile, explosive, and highly inflammable. He had three engines on his place, in one of which he was using distillate on the day of the fire. It was supplied from a tank partly buried about ten feet from the engine. A reserve supply of distillate was kept in a drum, placed on a rack about two feet high, situated in a passageway about ten feet wide, between the dwelling-house and tank-house. This space was roofed over 'but open at the ends. The distillate for the engine running low, the respondent drew out all there was in the reserve drum and replenished the engine tank. Just then the appellant’s supply wagon came along, driven by its employee, Thomas. The respondent told Thomas that he had just emptied the reserve drum, and requested him to put thirty-five gallons of distillate in the tank which was feeding the engine, and to put fifty gallons into the reserve drum—“to fill them up.” There was some conversation between the two men as to the exact number of gallons the drum would hold, but the fact remains that respondent directed appellant’s employee to fill both tanks. Thomas proceeded to fill the