Case involving application of doctrine of res ipsa loquitur. On motion to direct verdict at close of plaintiff’s evidence. The plaintiff, an Iowa corporation, on June 16, 1944, owned, operated and maintained a club house on a golf course in the city limits of Iowa Falls, Iowa, which was used by the members of the club for recreational, social and entertainment purposes. On that day the club house with its contents was entirely destroyed by fire. The building and contents had a very substantial value. The plaintiff claims that the fire was caused by the negligence of one *913 of the defendant’s servants, a Mr. Nock, in connection with delivering gasoline at the club house. The plaintiff seeks to establish the negligence of the defendant by invoking the doctrine of res ipsa loquitur. The club house building was a substantial building, being approximately 100 feet in length and approximately 45 feet in width. The building was a one story building with a basement under a part of it. The ground on which the building was situated sloped away to the south from the rear of the building, so that entry into the basement on the south end was nearly level with the surrounding ground.
The first room of the basement from the south was a room approximately 18 feet by 25 feet. It was used by the plaintiff for a garage, work room and storage room. Immediately to the north of this room was a showеr bath room. That room had originally been somewhat smaller, but when shower bath equipment was put in the south wall of the room was moved south several feet for all of the distance except a small portion at the - west end. Because all of the wall was not moved south this left a small recess or sort of cubbyhole at the west end. In this recess the plaintiff kept a gasoline barrel resting on its side on a rack. A few feet to the east of this recess in the same room the plaintiff had a gas water heater for the heating of water for shower baths. Whether the pilot light or large burner were on at the time in question, does not appeаr. There were double doors aggregating around eight feet in width opening into the garage basement room from the south, and because of the ground formation the plaintiff’s tractor could be driven directly into it. The tractor was kept in this garage room when not in use, but was not in the garage at the time in question. In this garage room the plaintiff kept its gasoline, oils and greases, and other supplies needed in connection with the operation of its tractor. This garage room was also used for general storage purposes, such as for the storing of commercial fertilizer, and tools and supplies used in connection with the keeping up of the golf course. This portion of the basement was underneath the kitchen of the club house. The floor of the basement was concrete. It appears that the club house was wired for electricity.
Between 2 and 3 o’clock p. m. on June 16, 1944, the defendant’s servant, Mr. Nock, delivered approximately fifty-five gallons of gasoline into the plaintiff’s gasoline barrel. The gasoline was delivered from a tank truck driven by Mr. Nock. Mr. Nock in making the delivery had backed the tank truck up so that the back end of the truck was close up to or just outside the open double doors leading into the basement from the south. Mr. Nock was called by thе plaintiff to testify as to his being an agent of the defendant, but was not examined as to the origin of the fire. Mr. Nock did testify that he had made the delivery of the gasoline, so that it appears that he had put the gasoline into the barrel. It does not appear whether Mr. Nock made the delivery by connecting a hose between the tank truck or the barrel, or whether he had filled the barrel by means of buckets. The plaintiff put on one witness as to the commencement of the fire. This witness, one Dr. Schalk, a member of the plaintiff club, was on a golf green about three rods away at the time in question. He looked up and saw smoke coming out оf the basement garage. He ran over to the basement door. He met Mr. Nock running from the back end of the tank truck. While so running, Mr. Nock exclaimed, “My God, I knew it would happen sometime.” Mr. Nock drove his tank truck beyond fire range and then returned to the scene of the fire. The witness did not observe any gasoline pails or'buckets. The exclamation of Mr. Nock is more enigmatic than enlightening as to what took place. There was no testimony as to any explosion. The plaintiff in its petition stated that the manner in which the fire was started was unknown to it.
This action was originally started in the state court and was then removed to this court because оf diversity of citizenship, and is therefore within the scope of Erie R. Co. v. Tompkins, 1938,
In cases where the plaintiff relies upon res ipsa loquitur the- Court must first decide under the well-established rules having to do with the respective provinces of the Court and the jury, whether there is such evidence as to the existence of the foundation facts as to warrant submission of the case to the jury upon the theory of res ipsa loquitur. This, of course, is an entirely different matter than the Court deciding as a matter of law that the inference of negligence arising from the foundation fаcts had been overcome or rebutted. In the case of Heffter v. Northern States Power Co., 1927,
The Iowa rule as to res ipsa loquitur is that where a plaintiff has been injured or suffered damage from instrumentalities in the exclusive management and control of the defendant, and the happening of the occurrence causing the injury or damage is such as in ordinary cases does not ocсur or happen if those in such control and management were not negligent, that the causing of such injury or damage permits but does not compel an inference that the defendant was negligent. Monaghan v. Equitable Life Ins. Co., 1918,
The Iowa Supreme Court has repeatedly referred to the need and necessity of the defendant having exclusive control of all the instrumentalities causing the damage or injury to the plaintiff as a prerequisite to the application of res ipsa loquitur. Larrabee v. Des Moines T. & A. Co., 1920,
The Iowa rule in regard to the necessity of complete and exclusive control is in accord with other authorities. 45 C.J. p. 1214; Transportation Co. v. Downer, 1870,
In the case of Vergeldt v. Hartzell, 1924,
The general run of cases where res ipsa loquitur is relied on are cases where the defendant is the owner or operator in charge and control of a premises and is being sued by a plaintiff who was on the premises for proper reasons. In the. instant case it is the other way around, the owner and operator of a premises is suing the party who (by its servant) came on to the premises.
The question of the applicаtion of the doctrine of res ipsa loquitur to situations where gasoline or oil is being delivered has not squarely arisen in Iowa, but there are a number of cases from other jurisdictions where that question has been involved. In the case of Mondine v. Sarlin, Cal.App.1937,
In the case of Weaver v. Shell Co. of California, 1936,
In the case of Gerald v. Standard Oil Co. of Louisiana, 1943,
The case of Langhoop v. Richfield Oil Corporation, 1940,
The leading case on the question is the case of Starks Food Markets v. El Dorado Refining Co., 1943,
Apparently a number of people were injured or sufferеd damages because of the fire described in the case of Starks Food Markets v. El Dorado Refining Company, supra. Another party who suffered damage by the same fire, brought suit in federal court. Bruening v. El Dorado Refining Co., D.C.Mo.1943,
In the case of Tyreco Refining Co. v. Cook, Tex.Civ.App.1937,
In a case somewhat analogous the Minnesota Supreme Court held in the case of Nelson v. Zamboni, 1925,
It is well settled that one who delivers or handles fuel oil or gasoline is liable for negligence in connection therewith. J. J. Mayou Mfg. Co. v. Consumers Oil & Refining Co., Wyo.1944,
It would'seem clear that when an owner of a premises orders merchandise delivered to such premises, that such owner does not intend to confer or does confer upon the deliveryman control over such premises or any portion thereof, or control over the receptacles or containers in which the merchandise is to be placed, or any other personal property of the owner. It would seem clear that the only things over which such delivery man has control is the delivery vehicle and the appliances used in connection therewith. It might be noted that a delivery man is an invitee, and further noted that the owner of a premises owes to invitees the duty of using ordinary care to keep such premises in a reasonably safe condition so as not to unreasonably or unnecessarily expose them to danger. La Sell v. Tri-States Theatre Corporation, Iowa 1943,
The rule to be deducted from the authorities seems to be that where a vendor delivers gasoline to a premises where all of the premises including the receptacles into which delivery is being made, are under the control and management- of the vendee and not the vendor, and an explosion or fire takes place at or immediately following delivery, that the situation lacks the element of exclusive control of the instrumentalities which is necessary to give rise to the doctrine of res ipsa loquitur.
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In the instant case there is lacking some features which are present in а number of the cases referred to. In the instant case there was no evidence of an explosion. In the instant case there is no evidence that the gasoline was the first substance to be ignited or that the fire started where the gasoline was. From the evidence it is impossible to state whether the fire started somewhere else in the room than where the gasoline was located, or whether the fire crept in from the adjoining room, or thru the floor from the kitchen above. In the instant case there is no evidence of any spilling or overflowing of gasoline, and it would be a mere conjecture to so assume. The material сircumstances from which an inference of negligence is to be drawn cannot be a matter of guess or conjecture. Aita v. John Beno Co., 1928,
There is another feature to be noted in the instant case. There was no evidence of an explosion, there was only evidence that a fire started. In situations having to do with substances like gasoline the line between an explosion and fire is not always distinct and they are sometimes closely connected with each other. Apart from statute, the Courts have been very reluctant and sparing in drawing an inference of negligence from the starting of a fire. Brown v. Standard Oil Co., 2 Cir., 1917,
The courts have seemed less reluctant to apply the doctrine of res iрsa loquitur in explosion cases. See 25 C.J. p. 205; 35 C.J.S., Explosives, § 11. The reason for this is presumably that an explosion is more unusual than a fire, and generally so much more localized as to cause as to be regarded as speaking more clearly for itself.
Statistics show that the fire loss for the United States for 1943 was $373,000,000, and the estimated fire loss for 1944 was $423,458,000, and that the number of fires reported in Iowa in 1944 was 3608 and the amount of fire loss was $4,246,400. Fires generally orginate in buildings which are under exclusive control of either the owner or the tenant, and frequently cause large damage or destruction to adjoining or nearby buildings. The courts recognize that fires are frequеnt occurrences and in a great many cases without any negligence on the part of anyone. Because of this, the doctrine of res ipsa loquitur is applied only in exceptional cases in the cases of fires. If the rule of res ipsa loquitur were to be applied generally in cases of fires, it would be obvious that the owner or tenant in control of a building in which a fire *920 started would in a great many cases be held to a calamitous liability for a non-negligent occurrence.
It is the holding of the Court in the instant case that the plaintiff’s proof is lacking as to the foundation facts upon which res ipsa loquitur can be predicated, and that a verdict should be directed for .the defendant.