Reynolds v. Murph

84 S.E.2d 273 (1954) 241 N.C. 60

Robert REYNOLDS
v.
John S. MURPH, trading as Building Specialty Company, and J. R. Fordham, trading as J. R. Fordham Service Station.

No. 387.

Supreme Court of North Carolina.

November 3, 1954.

Owens & Langley, Kinston, for plaintiff, appellee.

Barden, Stith & McCotter, New Bern, John G. Dawson and LaRoque, Allen & Parrott, Kinston, for defendant John S. Murph, appellant.

White & Aycock and Whitaker & Jeffress, Kinston, for defendant J. R. Fordham, appellant.

BOBBITT, Justice.

Plaintiff bases his cause of action squarely and solely upon the alleged violation by each defendant of Ch. 425, § 26, Public Laws of 1937, which, as amended, is now codified in G.S. § 119-43 and provides as follows:

"Sec. 119-43. Display required on containers used in making deliveries. —Every person delivering at wholesale or retail any gasoline in this State shall deliver the same to the purchaser only in tanks, barrels, casks, cans, or other containers having the word ``Gasoline' or the name of such other like products of petroleum, as the case may be, in English, plainly stenciled or labeled in colors to the meet the requirements of the regulations adopted by the Commissioner of Agriculture and/or the Gasoline and Oil Inspection Board. Such dealers shall not deliver kerosene oil in any barrel, cask, can, or other container which has not been stenciled or labeled as hereinbefore provided. Every person purchasing gasoline for use or sale shall procure and keep the same only in tanks, barrels, casks, cans, or other containers stenciled or labeled as hereinbefore provided: Provided, that nothing in this section shall prohibit the delivery of gasoline by hose or pipe from a tank directly into the tank of any automobile or any other motor vehicle: Provided further, that in case gasoline or other inflammable liquid is sold in bottles, cans, or packages of not more than one gallon for cleaning and other similar purposes, the label shall also bear the words ``Unsafe when exposed to heat or fire.'"

Violation of the above statute is a misdemeanor. G.S. § 119-51.

The facts alleged in the complaint, deemed admitted by the demurrers, are such as to constitute a violation by each defendant of the requirements of G.S. § 119-43.

Violation of a statute, or ordinance of a city or town, relating to the storage, handling and distribution of gasoline, is negligence per se. Stone v. Texas Co., 180 N.C. 546, 105 S.E. 425, 12 A.L.R. 1297; Newton v. Texas Co., 180 N.C. 561, 105 S.E. 433. This is the rule generally as to statutes enacted for the safety and protection of the public; a fortiori, when such violation in itself is a criminal offense. Aldridge v. Hasty, 240 N.C. 353, 82 S.E. 2d 331. In such case, the sole question is whether such negligence (or wrong) was the proximate cause of the injury for which recovery is sought.

True, proximate cause, even when the violation of such statute is the negligence involved, includes foreseeability as one of its elements. Aldridge v. Hasty, supra. But when such negligence is alleged to have been the proximate cause of plaintiff's injury, this is sufficient, as against demurrer, unless it appears affirmatively from the complaint that there was no causal connection between the alleged negligence and the injury.

The complaint here negatives any inference of negligence on the part of the person who put the blowtorch in close proximity to the unmarked jug containing the white gasoline. The explicit allegation is that he was unaware of the contents of such jug, said contents having the appearance of water or other harmless liquid, and that he would not have so placed the blowtorch had he been warned by label or other marking on the jug giving notice of the fact that the jug contained gasoline. These allegations, together with the general allegations as to proximate cause, deemed admitted by the demurrer and the allegations as to negligence, are sufficient to constitute a cause of action against each defendant.

It is well established that the tort-feasor charged need not foresee the particular consequences ultimately resulting from his negligence, but only that by the exercise of due care he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected. Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, 29 A.L.R.2d 682. As to those who violate a statute, such as that under consideration here, designed to prevent tragic consequences flowing from a failure to label or otherwise identify a dangerous and explosive, yet apparently harmless, liquid, we cannot say as a matter of law that, in a legal sense, an injury such as that received by plaintiff was unforeseeable. Ramsey v. Standard Oil Co., 186 N.C. 739, 120 S.E. 331; Kentucky Independent Oil Co. v. Schnitzler, 208 Ky. 507, 271 S.W. 570, 39 A.L.R. 979; Bradley v. Fowler, 210 S.C. 231, 42 S.E.2d 234; Annotation, 17 A.L.R. 698 et seq. Rather, under the allegations here, it would appear that such injury was unforeseeable by the man with the blowtorch.

In accord, in relation to similar statutes, are decisions in other jurisdictions including Farrell v. G. O. Miller Co., 147 Minn. 52, 179 N.W. 566, and Stone v. Sinclair Refining Co., 225 Mich. 344, 196 N.W. 339.

We are dealing here only with the sufficiency of the plaintiff's pleading; and we notice, of course, that the facts as to the acts, observations and unawareness of danger of the man with the blowtorch are alleged upon information and belief. Even so, positive allegations of fact, upon information and belief, as well as such allegations made on personal knowledge, when denied, raise issues of fact determinable by jury. Linker v. Linker, 167 N.C. 651, 83 S.E. 736; Calahan v. Roberts, 208 N.C. 768, 182 S.E. 657. We note that the complaint is verified, the form of such verification being prescribed by G.S. § 1-145.

The fact that it is alleged that the identity of the man with the blowtorch is unknown to plaintiff does not impair such allegations. We are not now concerned with the source of plaintiff's information or the basis of his belief. He has made his allegations. He must offer competent evidence to prove his case, secundum allegata. If the identity of the man with the blowtorch remains unknown to plaintiff, he may encounter difficulty in establishing that the alleged violation of G.S. § 119-43 was the proximate cause or one of the proximate causes of his injury. But that question is not now before us.

For the reasons stated, the judgment overruling the demurrers is affirmed.

Affirmed.