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JOHNSTON v. DICK. (12/01/60)

December 1, 1960

JOHNSTON, APPELLANT,
v.
DICK.



Appeal, No. 200, March T., 1960, from judgment of Court of Common Pleas of Indiana County, Dec. T., 1958, No. 137, in case of Richard R. Johnston v. Carmen L. Dick et al. Judgment affirmed.

COUNSEL

Dennis C. Harrington, with him Gene K. Lynch, and McArdle, Harrington & McLaughlin, for appellant.

John S. Fisher and George M. Weis, with them William M. Ruddock, and Fisher, Ruddock & Simpson, and Weis & Weis, for appellees.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 401 Pa. Page 638]

OPINION BY MR. JUSTICE BOK

The jury found both defendant and additional defendant negligent and gave plaintiff a reasonable verdict for his burns. The court below granted judgment n.o.v. and plaintiff has appealed.

To complete the procedural posture of the case, plaintiff brought his suit one day before the Statute of Limitations expired, and service was made on the defendant after its expiration. Defendant promptly moved to bring in the additional defendant, but because the statute had already run, the only liability that could be asserted against the additional defendant was its liability over to defendant for contribution. Hence plaintiff has no case against the additional defendant, and if his case against defendant falls the additional defendant has no liability to anyone.

The plaintiff suggests that "the filter which lets through only those lights which color plaintiff's case most flatteringly, which the verdict in his favor has provided, reveals" a certain picture - the familiar rule of Muroski v. Hnath, 392 Pa. 233 (1958), 139 A.2d

[ 401 Pa. Page 639902]

. This doctrine does not apply here. Instead of testing the evidence clustering around the verdict, our task is to discover whether there is any evidence at all that works legally for the plaintiff: Ranck v. Sauder, 327 Pa. 177 (1937), 193 A. 269. The court below decided that the jury had to guess rather than choose, and we agree.

The basic facts are that between 4:30 and 5 o'clock in the afternoon of October 3, 1956, plaintiff was busy at his job for the State Highway Department filling and lighting the type of round lantern that marks the presence of road construction. This was on Route 80 in Indiana County. These lanterns burn kerosene, and after plaintiff blew one out and was filling and lighting it, it exploded and set him on fire. It was later established by test that the liquid which he had put in the lantern was not kerosene, as he believed from long usage, but was a mixture, about half and half, of kerosene and gasoline. The question in the case is how and by whose fault the gasoline came to be mixed with the kerosene.

Plaintiff filled the lantern that exploded from one of two empty five-gallon cans which he had had filled just before by an attendant at the Highway Department's maintenance barn. It was his job to call at the barn with his own truck and cans, to get the cans filled, to sign a slip for the kerosene, to drive to the road construction, and there to fill the lanterns. At the barn there were four pumps, the first holding diesel oil, the second kerosene, and the last two gasoline; the matching tanks were underground. The attendant filled plaintiff's cans from the second, or kerosene, tank, but did not inspect what emerged from the hose. He testified that the kerosene tank held 564 gallons; that defendant delivered only diesel oil and kerosene and the Atlantic Refining Company delivered gasoline; and that the opening of the kerosene tank was at least

[ 401 Pa. Page 640]

    an inch smaller than that of the gasoline tank. He heard of the accident later and on October 6th a supervisor came and tested the kerosene with a match; it lighted explosively, unlike kerosene. On instructions the attendant called defendant, who was the kerosene distributor, and he came and pumped the tank out and replaced it with kerosene.

The Highway Department records show a delivery of 500 gallons of kerosene on October 2nd from the Sherer Oil Company, additional defendant, per Carmen Dick, defendant; also a delivery of 2384 gallons of gasoline by Atlantic Refining Company on October 3rd, which the attendant said arrived between 8 and 10 o'clock in the evening; and 69 gallons of kerosene by Sherer Oil on October 6th. Between October 2nd and 6th there were five withdrawals of kerosene. The kerosene that was used and tested after the accident, all of it drawn from the tank at the barn, did not look or smell or ignite like kerosene. A mechanic testified that shortly after the accident on October 3rd he took a sample from both the gasoline and kerosene tanks at the maintenance barn, that they both had the same pinkish color and ignited explosively, unlike kerosene. This indicates that the mixture had been put in both the gasoline and kerosene tanks at the barn.

Defendant delivered the 500 gallons of kerosene between 2 and 6 a.m. on October 2nd. No one measured or inspected the delivery, nor did anyone know whether the delivery filled the tank. A Highway caretaker requisitioned a 50-gallon drum of kerosene between October 3rd and 5th but was suspicious of its smell and made a fire test of samples, with the result that they flared up and he returned the drum as defective.

Two factual stipulations were made. One, before plaintiff's case went on, was that a delivery was made to the maintenance building of the Highway Department on October 2nd, and that defendant Carmen Dick

[ 401 Pa. Page 641]

    denies that the delivery was anything other than kerosene. The other, at the end of plaintiff's case, was that Sherer Oil Company had an exclusive contract with the Highway Department to supply it with kerosene and fuel oil for the maintenance barn in question.

The foregoing is a resume of the plaintiff's evidence. Had a non-suit been asked for it should have been granted, as there is no shred of evidence impugning the conduct of the defendant. Nothing more than his delivery of 500 gallons of kerosene has been shown, with his denial that it was anything other than kerosene. Between 2 and 6 o'clock on the morning of October 2nd, when defendant delivered the kerosene, until 4:30 to 5 o'clock in the afternoon of October 3rd, when the attendant filled plaintiff's cans, it is as possible that someone else put gasoline in the kerosene tank as it was that defendant did. Two caretakers takers testified to their hours of work at the barn: Adamson, who worked from 8 a.m. to 4 p.m. on October 2nd, and from 4 p.m. to midnight on October 3rd, testified that a delivery of gasoline was made by the Atlantic Refining Co. between 8 and 10 p.m. on October 3rd; and Shireley, who worked from midnight of October 1st to 8 a.m. on October 2nd, and signed for defendant's delivery of kerosene, but was not asked about gasoline deliveries.

It is obvious that there are twenty-four hours, from 4 p.m., October 2nd, to 4 p.m., October 3, not covered by anyone's testimony. Gasoline could have been put in the kerosene tank during those hours by anybody after defendant had put in pure kerosene; there is no evidence in the plaintiff's case that his delivery filled the tank. It is also possible that gasoline was put into the kerosene tank before midnight of October 1st. This in itself would have justified a non-suit.

Binding instructions would later have been justified as well by the uncontradicted testimony of defendant.

[ 401 Pa. Page 642]

He was a commission agent who worked all alone with his truck delivering kerosene and fuel oil for Sherer Oil Co., the additional defendant. He did not make gasoline deliveries. He had two orders for kerosene on October 2nd, 500 gallons to the Highway Department and 130 gallons to a man named Cunkelman. He had a tank truck with four separate compartments in it, and it took three compartments to carry 618 gallons. For some reason best known to himself he didn't put an extra 12 gallons in the fourth compartment on October 2nd, but set out with 618 gallons in three compartments. After delivering 500 gallons to the Commonwealth he drove back to Sherer's base of supplies, took on the few extra gallons he needed, and returned to Cunkelman, where he delivered 130 gallons.

Cunkelman testified that he used the kerosene as furnace oil, regulated by a pilot light, and that he had no trouble with the 130 gallons delivered by defendant. This puts a stopper on the case because Cunkelman's kerosene came from the same bulk as the Commonwealth's, and if defendant delivered innocuous kerosene to Cunkelman he must, out of the same truck, have delivered innocuous kerosene to the Highway Department's maintenance barn.

Defendant specifically said that he drained his truck to make sure it was empty and then loaded it with 618 gallons in three of its compartments; that he had no gasoline on that load and no order for any; that he delivered no mixture of kerosene and gasoline; that before delivery the Commonwealth's janitor measured the kerosene tank and found 64 gallons in it; that defendant ran 500 gallons of kerosene into it at 6:45 a.m., October 2nd, which filled it; and that he went directly from there to fill the Cunkelman order.

The additional defendant offered testimony to show that hauling a mixed load of gasoline and kerosene or fuel oil is not only illegal but virtually impossible. Its

[ 401 Pa. Page 643]

    witnesses described its four distribution tanks holding four combustibles, showing that these products are brought to the tanks by one pipe-line and there put in the right tanks by a complex set of gate valves, and that anyone drawing off the product in any tank would have to climb to its top and manipulate the proper valve handles. It was from the kerosene tank here that defendant drew the kerosene that he delivered to the Commonwealth's barn.

Plaintiff makes two arguments for liability. One is that defendant may have put the mixture of gasoline and kerosene in the Commonwealth's tank. He makes the argument very softly and then runs from it, since it would put all the blame on defendant and none on the additional defendant and hence would let the latter out of the case. The legal answer is that there are too many other possibilities of equal validity, such as other people adding gasoline or kerosene during the twenty-four hours unaccounted for or before the morning of October 2nd, and too many mysteries, such as the testimony of the mechanic indicating a mixture of fluids in both the gasoline and kerosene tanks at the Commonwealth's barn.

Plaintiff has cited Smith v. Bell Telephone Co., 397 Pa. 134 (1959), 153 A.2d 477, and Garber v. Great A. & P. Tea Co., 397 Pa. 323 (1959), 155 A.2d 346, our recent siege guns on circumstantial evidence. The trouble with this reference is that plaintiff is not offering circumstantial evidence in the instant case but only circumstantial supposition, such as the "less useful hypotheses" of Garber. The distinction appears in Giordano v. Clement Martin, Inc., 347 Pa. 61 (1943), 31 A.2d 504, where we said, allowing recovery: "The case is not one of presuming negligence from the happening of the accident, but of inferring negligence from the circumstances from which it apparently arose (Pope v. Reading Co., 304 Pa. 326, 331, 156 A. 106,

[ 401 Pa. Page 644108]

). Plaintiff relies upon the positive evidence produced by him to establish the cause of the accident. Conrad testified that when he looked up, at the moment of the occurrence, the end of the plank held by the colored man was right in the open space where the stone had been before it fell, and, while no one actually saw the plank touch the stone, the conclusion is not only possible, if that testimony is true, but almost irresistible, that the fall of the stone was caused by the plank coming in contact with it. All other human agencies were excluded as causative factors because, according to Conrad, there was no other person around there besides the negro." (Original emphasis)

The best that plaintiff has done is to suppose that defendant may have done all manner of negligent things, without any evidence, direct or circumstantial, that he actually did any of them. As we said in Smith: "Therefore, when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith."

Plaintiff's second argument is that defendant had a duty to inspect, and he cites many things from the Restatement, Torts. The simple answer is that he has shown no need to inspect out of which a duty could arise. He does not argue that the doctrine of res ipsa loquitur or of exclusive control should apply, and hence he must prove, or at least suggest by the legal measure of suggestion, that more than the mere happening of an accident took place. As we said in Fritsch v. Atlantic Refining Co., 307 Pa. 71 (1932), 160 A. 699: "Gasoline is a dangerous substance and persons handling it are held to a high degree of care. But the

[ 401 Pa. Page 645]

    stringency of this rule cannot affect the person handling it where no facts are shown to connect him with a negligent act."

Section 402 of the Restatement reads as follows: "A vendor of a chattel manufactured by a third person, who neither knows nor has reason to know that it is, or is likely to be, dangerous, is not subject to liability for harm caused by the dangerous character or condition of the chattel even though he could have discovered it by an inspection or test of the chattel before selling it."

We see no reason to declare kerosene dangerous as a matter of law. Like most things, it might or might not be, according to use. Nor do we see reason for declaring defendant's use of the kerosene in this case dangerous; it was rather the plaintiff's duty to show factors that would label it so. The system of tanks and valves was adequately described, but it does not show negligence to argue that such a system was capable of negligent use; there must be some showing, directly or circumstantially, that it was in fact abused. These ideas apply alike to ...


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