BARKER et ux.
GENERAL PETROLEUM CORP. et al
Opinion Modified on Rehearing July 12, 1951. See 72 Ariz. 238, 233 P.2d 449.
Judgment affirmed as to defendant Simpson, and reversed and remanded as to the corporate defendant.
Morgan & Locklear, of Phoenix, for appellants.
Moore & Romley, Struckmeyer & Struckmeyer and Jack C. Cavness, all of Phoenix, for appellees.
Stanford, Justice. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concurring.
[72 Ariz. 189] This is an appeal from a judgment entered on a directed verdict of the superior court against appellants, and from the court's order denying appellants' motion to set aside the judgment and motion for a new trial.
Appellants, plaintiffs in the action, owned and conducted a service station at Camp Verde, Arizona, and used products of the General Petroleum Corporation delivered to them by its agent, appellee W. F. Simpson, who had a wholesale agent's contract with the appellee corporation to deliver and distribute its products in that territory. In the latter part of 1947, Simpson had a young man working for him by the name of Robert Bland.
For the purpose of selling to appellants, one of the products of the appellee corporation known as stove gas, Simpson installed in the back, or store room of the service station, a certain container. The container belonged to the appellee corporation. In the said store room, at a point about 18 feet from the stove gas container, was an automatic Butane hot water heater with a pilot light which burned continuously.
The container of stove gas was filled by appellee Simpson or his employee Bland, by driving the truck near the door of the store room, then filling a 5 gallon can at the truck and carrying it into the store room and pouring the contents into the container through a square funnel capable of holding several gallons. The funnel was supported by being placed in the bunghole of the container.
Not only had appellant Barker complained to Simpson, but he had often warned Bland of the danger of overflowing the stove gas and letting it run out upon the floor because of the fire that might be ignited by the pilot light in the hot water heater.
[72 Ariz. 190] On the morning of June 3, 1948, Bland made delivery of gasoline and stove gas to the service station of these appellants between the hours of 9:30 and 10:00. He filled the storage tanks in front of the station with gasoline, then drove his truck near the stove gas container and proceeded to fill it. Appellant Barker, who was serving customers at the front of his station, went into the store room for some oil, and found a quantity of stove gas on the floor and Bland was attempting to drain some of the excess out of the barrel. Barker severely criticized Bland and while he was returning to the front of the station, there was a flash and a fire had commenced, in consequence of which the storeroom and station were wholly consumed by fire. Appellants also suffered damages by the loss of their grocery store, the stock therein, the equipment and fixtures, their gasoline pumps and stock and equipment in their service station, a trailer court and other things.
Action was brought against the corporation and Simpson, alleging negligence, on the theory that they were principal and agent. After appellants had introduced their evidence in the cause and rested their case, counsel for the appellees moved for an instructed verdict. Motion was made for the corporation on the ground that there was no evidence showing any relationship between the corporation and Bland which would hold the corporation responsible for the actions of Bland, and likewise that there was shown to be no relationship between the corporation and Simpson which would render the corporation responsible for any negligence on his part, and on the further grounds that there was shown to be no negligence on the part of the corporation. The motion was made in behalf of Simpson on the ground that there was no negligence shown on the part ...