
    The American Bankers Ins. Co. of Florida, Appellee, v. The Standard Oil Co., Appellant.
    (No. 6066
    Decided April 7, 1959.)
    
      Messrs. Collier <& Brannock, for appellee.
    
      Messrs. McAfee, Grossman, Taplin, Hanning & Haslett and Mr. William Tousley Smith, for appellant.
   Miller, J.

This is an appeal on questions of law from a judgment of the Municipal Court rendered in favor of the plaintiff after overruling the defendant’s demurrer to the amended petition. In response to this ruling, the defendant indicated its desire not to plead further; hence, the final judgment was entered.

The error assigned is that the trial court erred in overruling the demurrer. The action is one for damages and requires a careful examination of the amended petition, as the sufficiency of the same is the matter now before the court. We, therefore, quote the same in full, to wit:

“Now comes the plaintiff and says that it is a corporation organized under the laws of the state of Florida and licensed to transact insurance business in the state of Ohio, and under said license they are in the business of writing automobile fire insurance; that on the 12th day of December, 1957, there was in full force and effect a policy of automobile fire insurance with one Paul Elliott, and that by reason of damage to the insured automobile resulting from the negligence of the defendant, the plaintiff was required to and did pay the said Paul Elliott the sum of three hundred and ten ($310) dollars and as a result thereof they have become subrogated to said extent.

“Defendant is, and at the time herein complained of was, a corporation organized under the laws of Ohio, and on or about the 12th day of December, 1957, owned and operated a certain filling station at Country Club Road and East Main Street, in Franklin County, Ohio.

“Plaintiff says that on the aforesaid date Paul Elliott drove his automobile to said station for the purpose of having defendant service the radiator which was frozen solid. The defendant on said date then took the car into custody and was engaged in the task of working on said automobile when he instructed Paul Elliott to get in and start the engine. While the engine was in the process of being started it was suddenly engulfed in flames which spread to the remainder of the automobile and burned the entire automobile.

“The materials being used on the engine, the engine, and the premises were under the exclusive control and care of the defendant at the time the fire occurred. The exact cause of the fire being unknown to the plaintiff, but such cause is known to, or should be known by the defendant.

“As a proximate result of the defendant’s negligence in servicing the radiator of Paul Elliott’s car, plaintiff suffered damage, in that, the reasonable value of the automobile immediately before the fire was three hundred and ten ($310) dollars, and its reasonable value immediately thereafter was sixty ($60) dollars, leaving the plaintiff damaged in an amount of two hundred and fifty ($250) dollars.

“Wherefore, the plaintiff prays for judgment against.the defendant in the sum of two hundred and fifty ($250) dollars, and for costs.

“Keith W. Brannock

“Collier and Brannock

“Attorneys for plaintiff”

It'is urged by counsel for the plaintiff that it has set forth a good cause of action requiring the application of the doctrine of res ispa loquitur. This doctrine has been defined on most numerous occasions by our courts as a rule of evidence which permits the jury, but not the court in a jury trial, to draw an inference of negligence where the instrumentality causing the injury was under the exclusive possession, management and control of the defendant, and the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. Koktavy v. United Fireworks Mfg. Co., Inc., 160 Ohio St., 461, 117 N. E. (2d), 16; Krupar v. Procter & Gamble Co., 160 Ohio St., 489, 117 N. E. (2d), 7; Renneckar v. Canton Terminal Restaurant, Inc., 148 Ohio St., 119, 73 N. E. (2d), 498; 29 Ohio Jurisprudence, 631, Section 153, and cases cited.

It is to be noted that, in passing upon a demurrer, the petition must be liberally construed in favor of the pleader, and also it should be noted that a demurrer searches the record and admits all facts well pleaded. In so doing, we conclude that the petition alleges:

(1) That the instrumentality causing the injury was in the exclusive custody, control and care of the defendant at the time of the accident;

(2) That the plaintiff was damaged in the sum of $250;

(3) That the damage resulted from the negligent acts of the defendant, which was the proximate cause of the plaintiff’s injury.

As stated in Parras v. Standard Oil Company, 160 Ohio St., 315, 116 N. E. (2d), 300:

“The mere happening of an accident gives rise to no presumption of negligence * *

However, it does warrant an inference of negligence if the doctrine of res ipsa loquitur is applicable. Res ipsa loquitur is a rule of evidence which permits the jury, but not the court in a jury trial, to draw an inference of negligence where the instrumentality causing the injury is under the exclusive management and control of one of the parties, and an accident occurs under circumstances where, in the ordinary course of events, it would not occur when ordinary care is observed. It is an evidential inference, not controlling upon the jury, but it is to be considered by the jury under proper instructions. Res ipsa loquitur means that the facts of the occurrence warrant an inference of negligence, not that they compel such an inference (Loomis v. Toledo Railways & Light Co., 107 Ohio St., 161, 140 N. E., 639; Glowacki, a Minor, v. North Western Ohio Ry. & Power Co., 116 Ohio St., 451, 157 N. E., 21, 53 A. L. R., 1486); that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation pr rebuttal, not necessarily that they require it; and that they make a ease to be decided by the jury, and not by the court.

It is said in 29 Ohio Jurisprudence, 636, Section 156:

“* * * All that the rule of res ipsa loquitur means is that the circumstances involved in or connected with an accident may be of such unusual character as to justify, in the absence of any other evidence bearing upon the subject, the inference that the accident was due to the negligence of the one having the possession or control of the article or thing which caused the injury, because, in the absence of explanation, this is the only fair and reasonable conclusion.”

Now, did the accident occur under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed? Does not the answer to this inquiry depend upon the evidence contained in the record and not the allegations contained in the petition? We are referred to the case of Soltz v. Colony Recreation Center, 151 Ohio St., 503, 87 N. E. (2d), 167. But that case was decided not upon the pleadings but upon the record made in the trial of the case.

We note that Judge Taft says at page 512 of the Soltz case, supra:

“In the instant case, plaintiffs have consistently maintained that the process used by defendants was one which did not represent a threat of serious injury or death. While the process did involve use of an inflammable liquid, defendants have argued and the record discloses that it has been generally used safely and without mishap in this hind of business for years. If so, it would follow that there was no threat of serious personal or even property injury involved in its use. There are no other circumstances in the record to indicate that ordinary care on the part of defendants in the use of this process would necessitate a high degree or great amount of care.” (Emphasis added.)

Here we have no evidence in the record indicating whether the accident would or would not have occurred if ordinary care had been observed. In the absence of such evidence, how can it be determined whether the acts being done by the defendant required a high degree of care or only ordinary care ? This is a factual question and not one to be determined on demurrer.

It is our conclusion that the amended petition states a good cause of action and that the trial court did not err in overruling the demurrer and entering final judgment in favor of the plaintiff.

The judgment is affirmed.

Judgment affirmed.

Bryant, P. J., and Dttepy, J., concur.  