Opinion
No. 37744.
February 12, 1951.
1. Negligence — initial inquiry in negligence cases.
The initial inquiry in every negligence case is not whether the plaintiff was negligent but whether the defendant was.
2. Negligence — duty of reasonable care — when violation actionable.
When the negligence charged against the defendant was a violation of the duty to use reasonable care, the violation to be actionable must cause injury to one to whom the duty was owed.
3. Negligence — defendant acting on assurance of plaintiff that factor which would cause danger did not exist.
When the party to whom the duty of care would otherwise be owed and who was chiefly interested and in a position to know, assured the party sought to be charged that the factor which was the cause of the subsequent consequential damage did not exist, — a damage which could not have occurred had the assurance been true, — the party charged was not required to investigate the truth of the assurance and the assurer could not maintain an action for such damages against the party who, having no independent knowledge, acted in the light of that assurance.
4. Negligence — removal of butane gas tank on the assurance that it was empty.
A sawmill company desired to remove a butane gas tank from its mill premises to a new location and requested the services of the local butane company who in turn secured the aid of a motor company with its wrecker truck. The mill company assured the latter companies that the butane gas tank was empty and the assured parties made no further inquiry, but when it was being moved from the beams upon which it had rested, a protruding tank valve was sheared from its position near the lowest point, and because the tank was in fact nearly full instead of being empty, a large quantity of butane gas spewed out which being wafted towards the mill caught fire and the mill was destroyed: Held that the parties undertaking to move the tank were not liable for the destruction of the mill.
5. Instructions — use of word "accident".
The connotation in law of the word "accident" is technical beyond the popular comprehension and should not be used in instructions for the defendant in negligence cases, but when it is used with the added and saving qualification "and without negligence", the instruction will not be held erroneous.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Newton County; PERCY M. LEE, Judge.
O.B. Triplett, Jr., C.E. Johnson, Lyle V. Corey, and Broach Ethridge, for appellants.
I. The granting of instruction Number 17 to appellee, Newton Butane Gas Oil Company, constituted a reversible error. 21 C.J. Secs. 131, 132, pp. 1129, 1131; 39 C.J. Sec. 1008, p. 802; American Heating Plumbing Co. v. Grimes, 192 Miss. 125, 4 So.2d 890; Scarborough v. Central Arizona Light Power Co., 117 P.2d 487, 138 A.L.R. 866; Richmond v. Virginia Bonded Warehouse Corp., 148 Va. 60, 138 S.E. 503, 54 A.L.R. 1485.
II. The court committed reversible error in granting to the Butane Company instruction Number 9.
III. The court committed reversible error in granting to the Butane Company instruction Number 13. Interstate Life Accident Co. v. Cooley, 150 Miss. 502, 117 So. 267; Teche Lines v. Britt, 176 Miss. 681, 170 So. 294.
IV. The court erred in granting instruction Number 2 requested by Newton Motor Company.
V. The court erred in granting instruction Number 3, requested by the Motor Company.
VI. The court erred in refusing instructions Numbers 2 and 3 requested by appellant.
VII. The court erred in refusing instructions Number 4 and/or 9 requested by appellant.
Conclusion. Here then are the questions submitted to your Honors for decision:
1. Will this Court allow these defendants to take refuge behind a plea of estoppel claiming that they were told that the tank was empty, when
(a) Appellant's treasurer requested the manager of the Butane Company to determine from his records how much gas was in the tank?
(b) The Butane Company owned the tank, its gauge and its cut-off valve; knew where the gauge was and did not read it; and knew where the valve was and did not try to protect it, but instead ripped it off the tank?
(c) The Butane Company was an expert in the gas business and yet sent a freight hauler to supervise the moving of the tank? and
(d) With the means of knowledge right in front of their face — convenient and easily accessible — neither appellee did anything to determine the amount of gas in the tank, but, instead dragged the tank like a log instead of picking it up by its lifting lugs?
2. Will this Court permit the jury to be confused by misleading and inapplicable instructions?
(a) Telling them that they might find that nothing but a simple accident was involved in this case? and
(b) Telling them that Newton Motor Company had a right to rely on information received by them
1. Without limitation or restriction as to the source; and
2. Even though neither partner claimed he was told that the tank was empty?
Leon F. Hendrick, for Newton Motor Company.
1. It is an undenied fact that information was given to the Motor Company that the tank had been disconnected, was empty, and ready to be moved.
2. The Motor Company knew of no alleged conversation between J.M. Griffin, Jr., and Robert Weir in regard to checking records in order to determine how much gas was in the tank.
3. The tank was in possession of the Lumber Company. So far as this appellee knew, it belonged to the Lumber Company.
4. The gauge was in the possession of the Lumber Company and this appellee knew nothing about butane gas systems, tanks or gauges.
5. This appellee did not know that a valve protruded from the bottom of the tank. This was the first tank, insofar as this appellee knew, that was equipped with a valve in such position.
6. This appellee was in the automobile business. It was not an expert and knew nothing about the butane gas business.
7. This appellee even refused to send its wrecker until it was sure that a butane gas man would go along, be present, and (by inference) to supervise the job.
8. This appellee only did what it was instructed to do, attach one end of the chain to the wrecker and at a given signal put the truck in gear and move it smoothly forward.
9. There was nothing wrong with the equipment of the Motor Company. The accident did not occur because of the way the truck was operated.
10. The tank had been in the possession of Griffin Lumber Company for over two years. It had been moved three times before, without the replacement of any valves, threads or anything else, as far as the record shows.
11. When the Lumber Company prepared the tank for moving on the times prior, before "it was ready", it was empty.
12. This appellee had a right, in addition to the information it received, to assume that the tank was ready to be moved because the law requires an inspection to be made, before it is disconnected, by the Motor Vehicle Comptroller. Appellee had the right to assume that an inspection had been made.
And in support thereof cited the following authorities: Gill v. Eakin, 33 So.2d 821; Am. Jur. Sec. 384, p. 722; 55 A.L.R. 1271; 102 A.L.R. 511; Y. M.V. RR. Co., et al. v. Denton, 160 Miss. 850, 133 So. 656; Sec. 18, Chap. 317, Laws 1948; Secs. 5104-18, Supplement, Code 1942; Miss. Public Service Co. v. Bassett, 184 Miss. 6, 184 So. 419; Miss. Public Service Co. v. Cunningham, 195 So. 472; Collins, et al. v. McLain, 40 So.2d 183; Hinds, et al. v. Wheadon, et al., 121 P.2d 724, 7 Negligence Cases 161; 25 A.L.R. pp. 268, 272, 273; 151 A.L.R. 1269; 38 C.J.S. Sec. 42(d) p. 736; Triplett v. Alabama Power Co., 104 So. 248; Fritsch v. Atlantic Ref. Co., 307 Pa. 71, 160 A. 699; Richmond v. Virginia Bonded Warehouse Corp., 148 Va. 60, 138 S.E. 503, 54 A.L.R. 1485; Scarborough v. Central Arizona Light Power Co., 117 P.2d 487, 138 A.L.R. 866.
Snow Covington, for Newton Butane Gas Oil Company.
Cited the following authorities: 25 A.L.R. 268, 272, 273; 151 A.L.R. 1269; 38 C.J.S. Sec. 42, p. 736; Gill v. Eakin, 33 So.2d 821; Hinds, et al. v. Wheadon, et al., 121 P.2d 724, 7 Neg. Cases 161; Miss. Public Service Co. v. Cunningham, 195 So. 472; Miss. Public Service Co. v. Bassett, 184 Miss. 6, 184 So. 419; Richmond v. Virginia Bonded Warehouse Corp., 148 Va. 60, 138 S.E. 503, 54 A.L.R. 1485; Scarborough v. Central Arizona Light Power Co., 117 P.2d 487, 138 A.L.R. 866; Triplett v. Ala. Power Co., 104 So. 248.
Appellant is in the sawmill business. It desired to have a butane gas tank near its mill moved to a new location. To this end it sought the services of the butane company but was by it informed that it did not have suitable facilities but that it would engage the appellee, the Newton Motor Company, to move it with a wrecker truck. The latter company agreed to undertake the job provided a representative of the butane company went along. Under direction of the latter, a chain was attached to a lifting lug on one end of the tank and hoisting operations begun. The effect of this procedure was that the tank was dragged across one of two heavy transverse beams upon which it was cradled, a protruding valve was sheared from its position near its lowest point, and a large quantity of butane gas spewed out, which, being wafted toward the mill, caught fire, totally destroying it. For such damage suit was brought against the butane company and the motor company. From a verdict and judgment for the appellees, the sawmill company appeals.
In recognition of the presumption supporting the correctness of the judgment, we state the following factual background favorably to appellees although there is frequent substantial conflict.
The tank was owned and had been supplied by the butane company. It had filled it to about four-fifths capacity a short while before the fire. At the time it contained about two hundred gallons of fuel and the gauge registered seventy per cent full. This gauge was on top of the tank and visible with slight effort.
A representative of appellant had assured the butane company that the tank was empty. Such information was, in the presence and hearing of an officer of appellant, later conveyed by telephone to the motor company. As stated, this latter company was unwilling to undertake the task unless an experienced butane man accompanied its driver and such condition was met.
The foreman of appellant knew that the tank was not empty and upon observing the appellees in the act of moving the tank, made as if to go to the scene but a mishap in the mill deflected his purpose. Although the contention is made that the foreman had intended to warn them of the presence of gas, his expressed purpose was to suggest that another tank, concededly empty, be first dragged out of the way.
In view of the conclusions we have reached, we find it unnecessary to go further into the testimony.
The question for decision is succinctly, and we think correctly, stated to be whether the appellees were entitled implicitly to rely upon the representation that the tank was empty. Otherwise put, must a defendant who is in the business of selling and distributing butane gas, cultivate an habitual and prudent skepticism of any assurances other than those of his own sense and senses? The negative of such view is presented by several instructions granted on behalf of the appellees. At this point we summarize them as authorizing a verdict for the defendants if the jury believed from the evidence that the sawmill company told the defendants that the tank was empty. This means, of course, that the defendants had a legal right to rely thereon and that they had no legal duty to verify the facts. Variations upon this theme include the equal right of the motor company to rely absolutely upon such assurance even though the information was relayed to it; the absence under such circumstances of any duty to inspect; and that reliance upon such assurance of safety is an acquittal of negligence.
Certainly, regardless of whether the defendants are negligent the plaintiff was clearly so, for its servant and foreman knew the tank contained gas and was aware of the exposure of the defendants and of itself to such danger, and there was a substantial responsibility upon appellant to assure itself that the tank was empty.
No doubts should impair the reasonable view that an assurance of safety by a plaintiff is always a credit upon the obligation owed by a defendant to comply with a duty to use reasonable care. To enact by judicial fiat a universal rule that this debt is thereby liquidated would imprison the functions of the jury within an artificial concept since relevant factors would involve the relative capacity of the parties to know or appreciate the danger or to speak with knowledge; the source from which the assurance comes; and the hazards at stake. Wherefore, we restrict our decision to the particular factual situation here presented, wherein stress is laid upon the incident that the assurances were put forward by the plaintiff.
Granting of the following instructions for the defendants is assigned for error: "The court instructs the jury for the defendant, Newton Motor Company, that if the jury believes from a preponderance of the evidence that the defendant, Newton Butane Gas and Oil Company, had been told that the tank was empty and was ready to be moved, then this defendant, Newton Motor Company, had an equal right to rely on that information."
"The Court instructs the jury for defendant, Newton Butane Gas and Oil Company, that said defendant had the right to rely on any information, if any, given to it by Billie Griffin as to the condition of the tank to be moved, and if you believe from a preponderance of the evidence that Billie Griffin advised Robert Weir at the time he requested the tank be moved, if he so requested, that the tank had been disconnected, was empty, and was ready to be moved, then Newton Butane Gas and Oil Company had the right to rely upon such information and it was not guilty of negligence in so doing."
Both instructions lay down the principle that the defendants were entitled to rely upon the assurances of safety made by the plaintiff. Appellant contends that the assertion that the tank was empty, disconnected, and ready to be moved, was not sufficient to divest appellees of all responsibility to use reasonable care and that they were, under the circumstances, bound to accept such assurance with a degree of skepticism which required a verification of the truth of the guaranty.
As stated in Orr v. Columbus Greenville R. Company, 1950, Miss., 48 So.2d 630, 633, (Hn 1) "The initial inquiry in every negligence case is not whether the plaintiff was negligent, but whether the defendant was." (Hn 2) Assuming that the appellees were under a duty to use reasonable care, violation of this duty must cause injury to one to whom such duty was owed. Here, of course, a duty would initially be owed to anyone lawfully within the area who would be exposed to foreseeable danger. Yet, since a tort is an unlawful violation of a private legal right, it is important to examine whether at the time of the injury appellant had waived such right, or stated conversely, whether appellees had been absolved of their duty.
No legal wrong is done to one who consents. Here, the appellant not only consented that the tank be moved in its then condition but requested that it be done. In no strained sense appellant moved the tank. (Hn 3) The defendants, without countervailing knowledge, were under no duty to protect appellant against the consequences of its own imprudence. The rights of appellant were neutralized by its consent, fortified as it was by a warranty of safety, which, emanating from the appellant itself, furnished a measure of assurance which the normal duty to use requisite care would demand. In other words, the appellees were acquitted of responsibility by the assumption of such responsibility by appellant. It was not unreasonable prudence to rely upon the avowals by the person who was chiefly interested, whose safety was at stake, and who was in a position and under a duty to know the facts.
The risk of this operation was therefore assumed by the appellant. The appellees thereafter acquired no knowledge refuting the information given them. The rationale of such principle appears in cases where a servant has been immunized against a defense of assumption of risk by the assurances of the master as to safety. In such cases, the master, by assuming the responsibility for inspection, takes over also the risk. Compare Pearl River V.R. Company v. Moody, 178 Miss. 1, 171 So. 769. It requires little adaptation of the common law rule that the master is not under a duty to use more care for the protection of the servant than the servant for himself, Priestley v. Fowler, 3 M. W. 1, to charge the appellant with at least as much care for itself as the defendants should exercise for it.
The fact of consent by a plaintiff to conduct of a defendant is not strictly a defense to negligence, but rather negatives the existence in the defendant of any negligence at all. Prosser, Torts, p. 117. The appellant was under this record and the finding of the jury guilty of negligence, but it is not contributory negligence for there is none on the part of the defendants to which it could contribute.
We do not, however, treat this as a case of master and servant. The suggested analogies, however, do point up the principle that a duty of inspection — which was the only existing responsibility — was asserted and assumed by the appellant. The principle has been often applied in such cases. McKee v. Tourtellotte, 167 Mass. 69, 44 N.E. 1071, 48 L.R.A. 542; Brown v. Lennane, 155 Mich. 686, 118 N.W. 581, 30 L.R.A., N.S., 453; Manks v. Moore, 108 Minn. 284, 122 N.W. 5; Denning v. Gould, 157 Mass. 563, 32 N.E. 862; Chicago Edison Company v. Hudson, 66 Ill. App. 639; Chadwich v. Brewsher, 61 Hun. 620, 15 N.Y.S. 598; Warner v. Chicago R.I. P.R. Company, 62 Mo. App. 184, 192.
Whether the appellees were the servants or the agents or the alter ego of appellant need not be delved into for the reasoning is the same. For example, in Miss. Public Service Commission v. Bassett, 184 Miss. 6, 184 So. 419, 422, one Bassett had been employed to erect a building including installation of gas piping. He installed a pipe into the kitchen, which was later thrust back beneath the floor, leaving it open and uncapped. An explosion, to which gas escaping from this pipe contributed, wrecked the building. Bassett and the owner sued the service company which had supplied gas to the building, and one Dill who had connected to the system a gas heating furnace. When gas was finally piped into the building, Dill searched every room to see whether there were any exposed pipes or outlets. He had been informed by Bassett that there were no other outlets than the one in the furnace room. In denying any recovery against Dill, this Court said: "As to the claim for damages made by the appellee Bassett, the contractor, the requested peremptory instruction should have been granted in favor of both of the appellants. He cannot take advantage of his own gross negligence under the circumstances hereinbefore related and complain of the failure of the appellants to find the hidden danger which his act had proximately and primarily occasioned. Knowing that no inspection of the gas piping installed by him had been made as required by the city ordinances, and that the gas was being made available for the use of the owner who was preparing to move into the building, and also knowing that this uncapped and open pipe was exposed beneath the kitchen flooring, his failure to inform either the gas comany, the owner or the appellant Dill that this pipe was still uncapped, he can not be heard to complain of the damages inflicted by the explosion caused as a result of such gross negligence on his part."
Scarborough v. Central Arizona L. P. Company, 58 Ariz. 51, 117 P.2d 487, 138 A.L.R. 866, and Richmond v. Virginia Bonded Warehouse Corporation, 148 Va. 60, 138 S.E. 503, 509, 54 A.L.R. 1485, cited by both parties, support the contention of appellees. In the latter case, the Grinnell Company had been employed by the warehouse to install a sprinkler system. Grinnell made inquiry of the City of Richmond whether the water into the building had been cut off and was advised that this had been done. It also informed the president of the warehouse of the necessity for having the water cut off when final connection was to be made, and the officer assumed the responsibility of having it done. The opinion states: (the president) "`relied on the city to turn the water off,' and the Grinnell Company relied on the report of his superintendent that the city people said `they had cut the water off and to go ahead and make his connection'. This was all the care required of the Grinnell Company. It was not required to exercise meticulous care, but only ordinary care. The city alone had the right to cut the water off, and when its employees reported the water had been cut off, the Grinnell Company had the right to rely upon that report. Business could not be conducted if every one had to act only on personal knowledge of every fact that entered into the basis of his action, or if he had to test or verify the correctness of statements or reports which came from a proper and reliable source."
(Hn 4) At the outset, the appellees owed a duty to appellant and the latter owed an equal duty to itself. Thereupon, the appellant voluntarily undertook to discharge both obligations. Since the appellees had a right to rely on the assurance, they had no duty to do that of which the act of appellant had absolved them. Volenti non fit injuria. (Hn 5) Instruction number thirteen authorized a verdict for the defendants if the jury believed the fire "was the result of a simple accident and without negligence" on the part of the defendants. Use of the word "accident" should be avoided in instructions, for its connotation in law is technical beyond the popular comprehension. Injuries which are damnum absque injuria are safely termed accidents since absence of negligence or legal right is implied. But here the defendant adds the saving qualification "and without negligence on the part of defendants". We find no error here.
We have examined the other assignments, including the refusal of certain instructions, and find no reversible error therein.
Affirmed.
Lee, J., took no part in the consideration or decision.