Megee v. Reed

Carleton Harris, Chief Justice. Just prior to March 19, 1971, appellee, R. G. Reed, took his Pontiac automobile to the repair shop of appellant, Fibber Megee, dba Fibber’s Paint and Body Shop, requesting repairs on the car, and leaving it with Megee for that purpose. During the night of March 19, at approximately 2:00 a.m., Megee’s Shop, which was a brick building with concrete floors, burned, destroying Reed’s automobile. Thereafter, appellee instituted suit against Megee alleging that the fire, and resulting damage to the car, were proximately caused by the negligence of appellant. The Cleveland County Circuit Court, sitting as a jury, held with Reed and awarded damages in the amount of $2,200.00, finding for appellee on two grounds, viz, first, on the grounds of res ipsa loquitur, and second, evidence that the pilot light in the shop was left on, which the court felt caused the fire. From the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that there was no (or insufficient) evidence of negligence to support the verdict and judgment for Reed. The proof reflects that Reed took the car to Megee, leaving it for repairs. William Rgy Jacks, Assistant Fire Chief in Pine Bluff, testified that he conducted an investigation at the body shop for the purpose of determining the cause of the fire, but was unable to do so. He stated that the building was divided, and that the center portion was a paint shop; that the fire started in this area of the building. While he could not say whether Megee had left rags in the wrong place, or near paint containers or volatile liquids, he was throughly convinced that arson was not involved. Megee testified that, as usual, “I just checked the doors and fires1 to see that everything was locked up and all the lights were out.” He said that he kept flammable fluids, rags, and paint in the building; also welding equipment. He did admit that there was a pilot light on top of the oven in the paint department. The necessary conditions for the invoking of res ipsa loquitur are (1) that it is the kind of accident which ordinarily does not occur in absence of someone’s negligence (2) that it was caused by agency or instrumentality in the exclusive control of the defendant; (5) that the accident was not due to any voluntary action on the part of the plaintiff. See Chiles v. Fort Smith Commission Company, 139 Ark. 489, 216 S.W. 11; Moon Distributors v. White, 245 Ark. 627, 434 S.W. 2d 56. The case before us is almost a perfect example of one in which the doctrine of res ipsa loquitur is applicable. In 8 ALR 3d Res Ipsa Loquitur — Fires, § 26, p. 1024, there is a discussion of the doctrine as it applies to garages, filling stations, or repair shops, including on p. 1025 a concise resume of a California case bearing much similarity to the case at hand. We quote as follows: “In Horner v. Barber (1964) 229 Cal App 2d 829, 40 Cal Rptr 570, 8 ALR 3d 966, the plaintiff and the defendants occupied separate parts of the same building, the defendants conducting a garage, automobile repair, and automobile parts business in their portion. A fire which originated in the portion occupied by the defendants caused a fire loss to the plaintiff. In the -garage portion the defendants had stored several vehicles, some with gasoline in the tanks. This garage was separated from the defendant’s office by a partition, the windows in which were closed the night of the fire, and a door which had a small open space underneath. The fire chief testified that it was probable that a slight draft created by either the pilot light of the heater in the office or its burner, or both, drew gasoline vapors from under the stored automobiles along the floor of the garage under the door in the partition to the heater in the office, causing a flashing ‘explosion’. It was found that the evidence preponderated against the probability that the origin of the fire was incendiary, and that the stored vehicles, the proximity of the office to the vehicles, the installation of the heater, and the absence of safety devices properly could lead the trial judge to conclude that these were instrumentalities in the exclusive control of the defendants, as were the premises themselves, that the accident was not due to any voluntary action on the part of the plaintiff, and that the fire was one which ordinarily does not occur in the absence of someone’s negligence, absent some evidence that it was indendiary in nature. Res Ipsa Loquitur, it was held, may apply where the cause of the injury is a mystery, if there is a reasonable and logical inference that the defendant was negligent and that such negligence caused the injury. Judgment for plaintiff was affirmed. In the case now before us, there is no evidence of arson, nor was there any evidence of an electrical storm, but the proof did reflect that the area where the fire occurred contained flammable fluids, rags, paint, and there were cars stored in the building which contained gasoline; in other words, we have an area containing substances that are highly flammable and combustible. Admittedly, the pilot light was left on. As in Horner, “these were instrumentalities in the exclusive control of the defendants, as were the premises themselves”; “the accident was not due to any voluntary action on the part of the plaintiff”; and, “the fire was one which ordinarily does not occur in the absence of someone’s negligence, absent some evidence that it was incendiary in nature.” We conclude that there was substantial evidence that appellant was negligent and that the trial court was justified in finding that this was the proximate cause of the fire. Affirmed. Byrd and Fogleman, JJ., dissent. Footnotes [1] Subsequently, he stated that he was not burning a fire in March.