Steckler v. Miller & Holmes, Inc.
303 N.W.2d 560
N.D.
1981
Check Treatment

*1 STECKLER, Plaintiff, Sandra

v. HOLMES, INC.,

MILLER & a Minnesota

Corporation, Appellee, Defendant and Line, Inc.,

Northern Tank a Montana

Corporation, Defendant and

Appellant. SAND, Plaintiff,

Leo

v. HOLMES, INC.,

MILLER & a Minnesota

Corporation, Appellee, Defendant and Line, Inc.,

Northern Tank a Montana

Corporation, Defendant and

Appellant. SAND, Plaintiff,

Kenneth

v. HOLMES, INC.,

MILLER & a Minnesota

Corporation, Appellee, Defendant and Line, Inc.,

Northern Tank a Montana

Corporation, Defendant and

Appellant. SAND, Plaintiff,

Thresa HOLMES, INC.,

MILLER & a Minnesota

Corporation, Appellee, Defendant and Line, Inc.,

Northern Tank a Montana

Corporation, Defendant and

Appellant.

Civ. Nos. 9885-9888.

Supreme Court North Dakota. *2 mea-

gasoline was loaded automatic pipeline NTL’s terminal. suring facilities at station, arrived at the When the driver him employee of M & H informed regular storage tank was capacity of the The driver believed this going to be close. the tank capacity of to hold related to the 4,700 gallons. tank, truck with rig straight was a The 4,000 gallons of unleaded which held the fuel, regu- loaded with the pulling a trailer began The driver to unload gasoline. lar pipe into the regular gasoline The driver directed. which he had been four com- of the trailer’s unloaded three gallons in the holding back 500 partments, then unloaded compartment. He fourth unloading his en- After compartment. up rig he backed the regular, tire load of gasoline. unloading the unleaded began by passerby who He was then informed gasoline like gasoline that it looked smelled running down the street. gaso- and washed the then secured a hose Kloster, Mackoff, Kirby & Dic- Kellogg, he fin- property. As line from the station kinson, appellee; argued for defendant ished, at the base- appear he saw flames Kloster, Dickinson. by Paul G. east of the ment of the house windows McDonald, Wheeler, Wolf, Peterson & by and lot were owned station. This house Bismarck, appellant; ar- for defendant The house and M H leased to others. & and Wheeler, by R. W. Bismarck. gued destroyed. contents was measured the regular The ERICKSTAD, Justice. Chief employee of M morning March 15 Line, Inc., Tank appellant, Northern indicated that & H. The measurement judgment entered (NTL) appeals from the 6,926 12,000 gallons gallon tank contained County by the District Court Stark 5,076 gal- capacity of leaving remaining re- that NTL was 75% which determined 12,002 (While figures up add lons. resulting from a fire damages sponsible gallons, figures were the one of its drivers was which occurred when to.) gasoline sold between The amount of Miller filling co-defendant/appellee’s, & the time of the time of measurement Holmes, Inc., storage tank. We gasoline 12,000 gallon fire is unknown. The judgment. affirm the was locat- question regular controversy was submitted to the This which the house was property on ed on par- stipulated facts. The trial court M H station. the east of the & situated to could view agreed the court ties tank was measured of this following fire. The facts the scene of the port lowering stick into a calibrated stipu- which were are taken from the facts comparing the tank and directly above the lated to the court. which convert- inches on the stick to a table gallons re- into 15, 1978, a load ed the inches NTL delivered On was a few port This maining in the tank. by M H. M & H had ordered & surface covered the concrete gas and inches below gallons ordered cover. metal manhole a small gallons gasoline. of unleaded leading proper into the tank was fitted with a and reasonable care to avoid the padlock overflow, lever A locking cap. was available spillage and all proxi- of which hole, lay but was not in use as it mately to the fire contributed and ensu- during tended to freeze winter. up ing damage extent to the of 75%. H That M The measuring port and the fill into *3 using cap a on its which which the NTL driver unloaded are about was or properly either defective not separated 55 apart by feet a rail latched proximately contributed to out, fence. broke After the fire the the ensuing damage fire and to the ex- was the lying measuring port. found beside ” tent of 25%. feet, The measuring port eight was two pipe. inches lower fill than the I. REVIEW SCOPE OF knew that the was east of the fill and he assumed that it was part issues of on the pipe. lower than the After unloading of NTL and M & H were submitted to the three compartments, the driver did not at- trial stipulated court on facts. In such cir tempt to determine how much room was cumstances, the for applying reasons the left in the anyone tank nor did he ask from clearly 52(a) erroneous test of the the before station to do so he unloaded the North Dakota Rules of Civil Procedure are compartment fourth which he appar- present. v. Dolajak State Auto & Cas. back, ently precaution a prevent held as Underwriters, 180, (N.D. 252 N.W.2d 182 an overflow. 1977). We have said 52(a) also that Rule apply does not a judge when substitute reported NTL has 14 cases in loads renders a judgment on the basis of a trial where its have been tankers loaded with transcript judge when the trial died after more by loading the automatic fa- hearing the case but before he could render cility than had been ordered. It has also Lemer, a decision. Krohnke 300 N.W.2d reported loads, 44 cases in of over- 246, (N.D.1980). 247 flowing storage tanks. however, In this although the case In appears it the facts, was stipulated decided on the trial overflowed, such overflow somehow court did view the scene of the ignited, fire. In and its the house contents were Dobler v. Malloy, (N.D. destroyed. of the tenants house sued 1973),we said: NTL property and M & H their for losses. tenants settled claims and NTL “While we have never ruled on whether a and M H their reserved cross-claims jury view a inis itself evidence or against each M other and & H reserved its whether jury view is allowed solely to counterclaim for loss of the house and its jurors enable the better to understand against use NTL. the situation and the evidence in the case Trial pp. C.J.S. § [see Upon stipulated facts and his view of 100-102, for opposing statement scene, years incident, two after the views], we do observe that we believe a trial court found: view by judge the trial serves the same through That NTL its employee that, function jury as a view and at the failing was ob- least, very one provides (in it more reason serve unloading operation, to locate addition opportunity to his to observe the measuring observe on witnesses) demeanor of the why we loaded, to measure and deter- should great weight to mine the of the receiving tank to of the trial court.” N.W.2d at 514- ascertain that it could hold the amount of gasoline he delivering, failing Dobler, exercise care commensurate In judge, with the the trial in addition to warning given possible scene, relative to viewing over- heard testimony flow and in failing otherwise to take the witnesses and as the acted trier of fact. ease, stipu- stop engine was shut To all facts were off. on the present In the lated, parties pump, strap depressed must have believed a metal short but the spark plug. appears would it to It the court enable out view apply resulting spark ignited gasoline vapor understand the situation and better duty As evidence. and a fire resulted. to the the law to view, however, years parties, two after said: only fence incident and after the house and third-par- “Both the defendant and incorporated the lot had been removed and ty duty had a to exercise such defendant M H. It property into of & the station have care reasonable men would exer- accurately more seems that the scene is handling commodity cised scene at captured by photographs potentially dangerous if mis- shortly thereafter the time of the fire and handled, persons non-negligent so that years two later than a view the scene adjacent owning using property on or points were re- important when reference *4 damaged by not be the premises would Therefore, will not the we moved. part to such care on the failure use clearly 52(a), N.D.R. erroneous test of 122 N.W.2d 145. said defendants.” Civ.P., we the court’s but will trial case, overriding factor was In that the in appreciable weight this case. finding unloading parties jointly the acted that gasoline. the II. DETERMINATION OF LIABILITY AND M H BETWEEN NTL & case, In NTL’s present the driver the unload fuel himself undertook to brief, what it In its NTL asserts times after he was he had done other even errors the trial believes to be numerous be capacity would close. warned that the and court in its of fact determina the employee No of M H assisted in responsible tion for the that NTL 75% unloading process, any nor were of the em negligence, proxi damage. The issues of by the driver to assist. The ployees asked contributory mate cause and measuring the and driver knew that questions of fact for the trier of fact. Mos elsewhere and assumed located Wilhelm, (N.D. 840, er 300 N.W.2d 842 measuring port the was lower than the that 1981). Thus, were to pipe. if the tank over M., Chicago, In P. R. Co. v. & P. St. flow, at measuring port it do so the would Liners, Fuel Johnston’s N.W.2d pipe measuring not at unless the and the fill (N.D.1963), a jury we reinstated verdict securely port cap leakproof. on and was the the finding both carrier and however, on cap, was either not or else joint party who received the to be lying was defective as it found beside after trial court entered tortfeasors the port after the overflow. measuring the judgment notwithstanding the verdict against stipulated the carrier In that facts are that there was alone. regular the for fuel in the gallons after the bulk station owner ordered room fuel, tank, the regular storage Johnston’s Fuel Liners’ driver and the and driver gasoline into together gallons regular the owner’s son worked unload loaded facts been coupling missing tanker. A and the the trailer. If both had true, there an necessary piece son obtained the and un- could not have been overflow. also the helped stipulated locked valves the The facts are that driver the and connect up hoses nor son to unload the unleaded pump. rig Neither driver backed Therefore, port. receiving pump- gasoline tank. After into another measured ing gasoline could not be a cause of operations began, the owner arrived unleaded storage tank. questioned left. use overflow the his son The owner any pump, not contain gasoline-powered of the did not facts do but liability may offer we attribute pump. use of own electric Subse- basis measuring quently, pump party the tank overflowed either error storage In tank or the driver notice that measuring of the load tanker.1 storage might not hold all of gasoline. He knew the appear It does fire could not tank were located elsewhere and assumed have not both NTL occurred had and M & negligent. pipe; H been If M & H had were lower than the fill he placed cap upon measuring port did not request assistance measure the securely place, had the remained remaining he dumped before pipe fuel would have overflowed at the fill gallons he back specifically had held where the driver could have seen it and prevent though an overflow. Even shut the flow off. should have agree with NTL’s contention that it was prevent exercised care to overflow after impossible for the driver to maintain a care- the capacity warned that would be ful over both the fill watch and the gallons, close. back 500 He did hold but tank, measuring port over we do not then, any precautions, further without he believe that he exercised care that a simply dumped receiving that into the reasonable man would have exercised in the tank. He could have ascertained the loca- handling potentially dangerous gaso- tion of the and measured it M., line. Chicago, P. & P. R. St. Co. v. himself have or he could asked one of M & Liners, supra, Johnston’s Fuel so, not, employees H’s to do but he did even at 145. warning after the that it would be close. NTL refers us to Fritsch v. Atlantic Re It is also uncertain whether or not fining Co., (1932). 307 Pa. 160 A. 699 *5 cap on the simply was distinction, Except important for one replaced not or was defective. In either facts of that remarkably case are similar to case, negligent M & H was in an Fritseh, the facts of this case. In the driver inadequate failing cap replace or in to filling was tank station’s which was cap. negligence Such would have been ir located in the basement. was relevant had the not been tank overfilled building outside and there was a mea the NTL driver. We do not find suring port that the building. inside The cap had been left off of the driver’s was negligence intervening and an the tank overflowed. In that the Su cause sufficient to relieve M H& of its preme Pennsylvania Court of determined negligence, is as there some basis for the negligent that the driver not filling was in that, adequate contention cap been duty the tank to anticipate and had no securely port, placed upon someone negligently from the station would would not have at overflowed the tank. leave the of the measuring port. off Likewise, believe we do not that M & H’s Corpus to 45 court referred Juris at 705 negligence intervening was an cause suffi and said: cient negligence to NTL of its relieve in duty “One is under a of anticipating not (For overfilling the tank. a discussion of others, but, negligence part of on the in negligence, proximate cause and interven anything gives absence of or ing causes, Liners, see Fuel Johnston’s su to contrary, per- should notice 148; pra, 122 N.W.2d at Knorr v. K- son is entitled assumed to and to act on Corp., (N.D.1980).) Mart assumption, others will exercise We agree apportionment with the

ordinary safety.” neg- care for their own A. ligence at 700-701. court assigned which the trial to trailer, interesting judgment therefore, It is note that to roll interrogatories gallons. contains answers NTL to M & H which indicate that the trailer which capacities We have not considered these compart- contained the fuel had four appeal our determination of this ca- following capacities: ments which had the No. pacities stipulation were not included 1,605 gallons; gallons; No. 2—525 No. 3— 1— the facts. gallons; gallons. No. The total 4— assign- reinstating trial de novo as standard of judgment parties. each of the review, with the use of the agree to 25% M I cannot NTL and to ing responsibility 75% majority opinion: following words in the is& H affirmed. any stipulated facts do contain “The WALLE, SAND PAUL- VANDE may liabili- upon basis which we attribute ” SON, JJ., concur. ty [Emphasis . . .. added.] “. . exercised . we do not believe he Justice, PEDERSON, concurring in the man would care that reasonable only. result ” [Emphasis . have exercised . .. added.] only that I can reach the result way negli- the driver’s “We do not find that Chief Justice Erick- reached ” gence intervening .... cause 52(a), is to NDRCivP. stad [Emphasis added.] findings fact on is- The essential “. do M H’s . . we not believe that proximate negligence, cause and sues cause intervening was an negligence 9-10-07, (§ NDCC), comparative negligence ” . . [Emphasis .. added.] law, conclusionsof order for which the agree apportionment of “We with the rest, are judgment, judgment found in ” [Emphasis .. . . negligence added.] 17 as numbered follows: might well use in These are all words its through employee That NTL substituting if I were a trial de novo. But failing ob- my judgment for that of the trial court unloading operation, serve locate I would not have attributed measuring port on the and observe the on a basis. 75%-25% loaded, to measure and deter- receiving mine it could the amount of

ascertain that hold delivering, failing he was

exercise with the care commensurate

warning given possible relative to over- failing to

flow in otherwise take *6 care to proper and reasonable avoid WAHPETON, OF Plaintiff CITY overflow, spillage proxi- all of Appellee, mately fire and ensu- contributed ing damage to the extent of 75%. negligent in

“17. That M & H was Elroy JOHNSON, Defendant its cap on Appellant. not properly was either defective or Cr. No. 751. proximately latched which contributed to ensuing damage to North Dakota. Supreme the fire and the ex- Court of tent of 25%.” 25, 1981. Although “conclusory” findings, are they adequate necessary are and are

supported to. by facts clearly erroneous.

Accordingly, conclusory findings are

Insofar as based on or un-

“inferences drawn from documents facts, 52(a) ... is

disputed appli- . .. Rule

cable.” States v. United States United Co., 364, 394,

Gypsum 333 U.S. S.Ct.

541, 92 L.Ed. 28-27-32, NDCC, repealed

Since § appellate

1971and rule has been no enacted