Moffatt Brothers et al. v. Imperial Oil Ltd. and Ford's Esso Service Ltd., (1970) 2 Nfld. & P.E.I.R. 82 (NFCA)

• Judge: Furlong, C.J., Puddester and Higgins, JJ.
• Court: Court of Appeal (Newfoundland)
• Case Date: December 18, 1970
• Jurisdiction: Newfoundland and Labrador
• Citations: (1970), 2 Nfld. & P.E.I.R. 82 (NFCA)

Moffatt Bros. v. Imperial Oil (1970), 2 Nfld. & P.E.I.R. 82 (NFCA)

MLB headnote and full text

Moffatt Brothers et al. v. Imperial Oil Limited and Ford's Esso Service Limited

Indexed As: Moffatt Brothers et al. v. Imperial Oil Ltd. and Ford's Esso Service Ltd.

Newfoundland Supreme Court

On Appeal

Furlong, C.J., Puddester and Higgins, JJ.

December 18, 1970.

Summary:

Appeal court dismissed the appeal and affirmed the decision of the trial court dismissing the plaintiffs' action in negligence for the loss of a warehouse by fire. The plaintiff owned a warehouse which was destroyed by fire during delivery of gasoline by the defendant. The gasoline tank had been installed four years previously by the defendant, at which time the filler and vent pipes were placed close to the warehouse. The plaintiff alleged that the delivery attendant was negligent in not tending the filling of the tank and that the vent pipe was installed improperly, resulting in fumes being drawn into the furnace room of the warehouse.

Appeal court reviewed the evidence and concluded that the findings of the trial court should be upheld. The appeal court held further that the maxim res ipsa loquitur had no application where the matter was not in such control of the defendants that the fire could not have happened without negligence on their part.

Compare Valcourt v. Langlais (1971), 3 N.B.R.(2d) 123.

Torts - Topic 4356

Suppliers of goods - Negligence - Warehouse destroyed by fire during delivery of gasoline to premises - Whether negligence in delivery of fuel and in installation of vent pipes - Newfoundland Court of Appeal held the plaintiff's case not proved - Held maxim res ipsa loquitur had no application where the matter was not in such control of the defendants that the fire could not have happened without negligence on their part.

Statutes Noticed:

Contributory Negligence Act, R.S.N. 1952, c. 159.

Fire Prevention Act, S.N. 1954, c. 28.

Counsel:

Douglas C. Hunt, for the Plaintiffs;

John J. O'Neill, for the Defendant Imperial Oil Ltd.;

William W. Marshall, for the Defendant Ford's Esso Service.