SMITH
v.
GULF OIL CORP.
No. 666.
Supreme Court of North Carolina.
January 29, 1954.*883 J. J. Shields, Greensboro, for plaintiff-appellant.
Hoyle & Hoyle, Greensboro, for defendant-appellee.
PARKER, Justice.
The plaintiff contends that considering the evidence in the light most favorable to him, it makes out a case for the jury that the defendant was negligent in failing to install the pipes so as to prevent leakage. Considered in that light the evidence tended to show these facts: In the middle of April 1950 the defendant installed the pipes, pumps, etc., at his filling station. The pipes were installed in partially filled-in ground, extra rocky soil, and covered with dirt. Automobiles and the Gulf truck frequently drove over the place. The plaintiff had no trouble with the No-Nox pump. When he began operations the pump on the Good Gulf line the first time it was used in the morning would run anywhere from 5 to 6 minutes before it would start to pumping gasoline. When the Good Gulf line was uncovered in February 1952, it had three leaks in it, which would cause the pump to run several minutes before it started to sucking gasoline. In the fall of 1950 the plaintiff first found out there was a difference between the number of gallons of gasoline he paid for and sold. He was under the impression the *884 truck drivers were not delivering to him the number of gallons of gasoline he was buying. In February 1952 the pipes were uncovered and three leaks were discovered in the Good Gulf pipes, and gasoline was found in a branch about 150 feet north of the station. The terrain between his station and the branch slopes downward at about 15 degrees. The equipment installed was not under the exclusive control and management of the defendant.
The evidence tending to show that three leaks were discovered in the Good Gulf line in February 1952, does not raise an inference or presumption that the same state of facts existed in April 1950. Childress v. Nordman, 238 N.C. 708, 78 S.E.2d 757, where numerous cases are cited.
We are of the opinion that the evidence does not make out a case for the jury on this contention, unless the doctrine of res ipsa loquitur applies.
The plaintiff invokes this doctrine. The principle of res ipsa loquitur has been so often stated by this Court, and so recently in Young v. Anchor Co., Inc., N.C., 79 S.E.2d 785, by Devin, C. J., where the cases are assembled, that it needs no restatement. The plaintiff cites in support of his argument on this point these cases from our Reports: Harris v. Mangum, 183 N.C. 235, 111 S.E. 177; Saunders v. Norfolk & W. R. Co., 185 N.C. 289, 117 S.E. 4, 29 A.L.R. 1258; Springs v. Doll, 197 N.C. 240, 148 S.E. 251; Howard v. Texas Co., 205 N.C. 20, 169 S.E. 832; and Covington v. James, 214 N.C. 71, 197 S.E. 701.
The doctrine does not apply when the instrumentality causing the injury is not under the exclusive control or management of the defendant. Harris v. Mangum, supra; Saunders v. Norfolk & W. R. Co., supra; Springs v. Doll, supra; Howard v. Texas Co., supra.
The cases relied upon by the plaintiff are not in point. In Harris v. Mangum, and Howard v. Texas Co., the instrumentalities causing the damage were under the exclusive control or management of the defendants; Covington v. James is a malpractice case; in Saunders v. Norfolk & W. R. Co., it was held that the doctrine did not apply as the thing causing the injury was not under the exclusive control of the defendant; and in Springs v. Doll, it was held the doctrine did not apply to an injury from a skidding automobile. Under our decisions the doctrine of res ipsa loquitur does not apply to the facts of this case.
The plaintiff also contends that the evidence makes out a case for the jury of negligence on the part of the defendant in failing to use due care to discover the leakage.
The contract between the plaintiff and the defendant provides that the plaintiff "shall at his own cost and expense maintain said equipment in good condition and repair so long as he shall continue to use the same."
In support of his contention the defendant cites one case, Andrews v. National Oil Co., 204 N.C. 268, 168 S.E. 228, 231 trial of case by a judge and jury found without error in a per curiam decision in 206 N.C. 900, 172 S.E. 526. In the 204th Report (168 S.E. 228) the case was before this Court on the overruling of a demurrer to the complaint.
The complaint has these words: "The said service station was equipped with three gasoline tanks buried under ground and covered with concrete * * *. Plaintiff had no right to tear up concrete and inspect the tanks which were the property of the defendant, and no duty to do so, and relied upon the assurances made to him by the defendant in continuing to let the defendant put gasoline into the said tanks." The plaintiff in his brief quotes from the case in the 204th Report (168 S.E. 228) as follows: "The defendant was in possession of a gasoline filling station. It had buried underground and covered with concrete three gasoline tanks for the purpose of housing gasoline. In the pipes of one gas tank was a leak which was unknown to the plaintiff. The defendant had sole control of the tanks and pipes. They were installed by and the *885 property of the defendant. The defendant knew or, in the exercise of due care, ought to have known of the leak." This quotation is not verbatim. The opinion shows that the Court used these words: "The defendant was in possession of a gasoline filling station. It had buried underground, concealed in the earth, and covered with concrete, three gasoline tanks for the purpose of housing gasoline. Two of these had one gasoline pump each, and the other had two gasoline pumps, connected with the tank by underground pipes through a T-joint. In the pipe at the T-joint to the gasoline tanks was a leak, which was unknown to plaintiff. Defendant had the sole control over the tanks, pipe, and T-joint. They were installed by and the property of defendant. Defendant knew, or in the exercise of due care ought to have known, of the leak." This case does not support the defendant's contention.
The evidence tends to show that the plaintiff reported to the defendant 12 or 15 times or more the failure of the pump on the Good Gulf line to start pumping gasoline immediately the motor on the pump was put in operation, and each time the defendant sent men out to work on the pump. That when gasoline was found in the branch on a Friday in February 1952, the defendant the same day sent a man out, and on the following Monday the defendant uncovered the pipes, found leaks and repaired them. Under the contract the plaintiff at his own expense was to maintain the equipment in good condition and repair so long as he continued to use it. The plaintiff could have uncovered the pipes by removing the dirt, if he had desired to do so.
We think the evidence is not sufficient to carry the case to the jury that the defendant failed in the exercise of due care to discover the leaks in the pipes. The general rule is that an injury neither raises a presumption nor is it evidence of negligence. There is a well-recognized exception to this rule which has no application to this case. Shaw v. Highland Park Mfg. Co., 143 N.C. 131, 55 S.E. 433; Orr v. Rumbough, 172 N.C. 754, 90 S.E. 911; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S. Ct. 275, 45 L. Ed. 361. "There must be legal evidence of every material fact necessary to support the verdict and the verdict `must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities'". Mills v. Moore, supra [219 N.C. 25, 12 S.E.2d 663]. In Mount Olive Mfg. Co. v. Atlantic Coast Line R. Co., 233 N.C. 661, 65 S.E.2d 379, 386, the Court quotes these words from Poovey v. International Sugar Feed Number Two Co., 191 N.C. 722, 133 S.E. 12: "`The rule is well settled that if there be no evidence, or if the evidence be so slight as not reasonably to warrant the inference of the fact in issue or furnish more than material for a mere conjecture, the court will not leave the issue to be passed on by the jury'".
At the close of the plaintiff's evidence the Court, upon motion of the defendant, required the plaintiff to elect what cause of action he relied upon in seeking damages, breach of contract or for negligence. The plaintiff selected "tort as a cause of action." The purpose of the doctrine of election of remedies is not to prevent recourse to any remedy, but to prevent double redress for a single wrong. The plaintiff having made his election it is final and irrevocable; the underlying basis of the rule being the maxim which forbids that one shall be twice vexed for one and the same cause. Friederichsen v. Renard, 247 U.S. 207, 38 S. Ct. 450, 62 L. Ed. 1075; U. S. v. Oregon Lumber Co., 260 U.S. 290, 43 S. Ct. 100, 67 L. Ed. 261; 18 Am.Jur., Election of Remedies, Sec. 20; 28 C.J.S., Election of Remedies, § 29. "Where he has two remedies, he may choose between them and select that one which he deems the best for him; but he must abide the result of his choice. This is not only legally but morally right." Baker v. J. J. Edwards & Son, 176 N.C. 229, 97 S.E. 16, 17.
The judgment of the Superior Court is
Affirmed.
*886 JOHNSON, J., dissents.
JOHNSON, Justice (dissenting).
The installation here complained of was made by the defendant in the spring of 1950. The evidence discloses that one pump unit did not function properly the first day. The pump would run five or six minutes before it would start pumping gas. This indicated that air was getting in the gas line somewhere below the pump. It is evidence of faulty installation. It would seem that the defendant's repairman should have been put on notice that this condition likely came from a leak in the gas line, and in the exercise of due care he should have sought out the leak and repaired it. Yet, this was not done. The plaintiff repeatedly notified the defendant"12 or 15 times or more"that the pump was not working properly, and each time the defendant sent men out to work on the pump. These repairmen failed to locate and correct the trouble. Finally, the leak was located and repaired in February, 1952. Conceding that under the contract it was the duty of the plaintiff "to maintain the equipment," even so, when the defendant undertook from time to time to correct the faulty installation as reported by the plaintiff, and sent men out to the plaintiff's place to work on the pump, the defendant became chargeable with failure of these men to exercise due care in locating the leak. This assumption of responsibility on the part of the defendant dilutes the legal effect of the contract provision which required the plaintiff to maintain the equipment. It is elemental that the law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise due care and skill in the performance of the undertaking, and for the nonperformance of such duty an action will lie. Nor may a duty voluntarily assumed be carelessly abandoned without incurring liability for injury resulting from the abandonment.
I am constrained to the view that the evidence relied on by the plaintiff is sufficient to support the inference that the defendant was actionably negligent, both in respect to the original installation and for failure to exercise due care in discovering the leak after the plaintiff notified the defendant about the malfunctioning pump. It seems to me the plaintiff made out a prima facie case on each of these grounds, and this, without calling to his aid the principle of res ipsa loquitur. Therefore my vote is to reverse the judgment of nonsuit.