Supreme Court of Canada
Cone v. Welock,  S.C.R. 494
Arthur L. Cone, Jr. (Defendant) Appellant;
George N. Welock (Plaintiff) Respondent.
1969: November 12, 13; 1970: January 27.
Present: Cartwright C.J. and Judson, Ritchie, Hall and Spence JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION
Negligence—Lodge damaged by fire started by use of gasoline—Belief by guest that substance was stove oil—No duty to take greater care than was taken in identifying fluid.
A hunting lodge operated by the plaintiff was damaged when a fire occurred while the defendant, who was a guest at the lodge, was lighting a small fire in the fireplace in the quarters which had been allotted to him. The plaintiff had established the practice of permitting his guests to pour stove oil on the fires in their rooms and a small container of such oil was provided for each room. The defendant’s container being empty, he carried it outside to a three-gallon can marked “galvanized oil can” where he filled it about half full. The marked can was one of two such cans just outside the lodge, and from a conversation the defendant had had with a guide he believed that they were the source from which to obtain the stove oil. The cans in fact contained gasoline. The defendant stated that when he put his finger in the small container the contents felt oily. He brought the container into his quarters, poured some of the contents which he thought to be stove oil onto the wood and then threw a match into the fireplace. There was an immediate explosion and a fire ensued. The plaintiff’s claim for damages was dismissed by the trial judge, whose judgment, on appeal, was set aside by the Appeal Division. The defendant then appealed to this Court.
Held: The appeal should be allowed and the judgment at trial restored.
The evidence did not justify the inference that the defendant knew he was using gasoline. He thought he was using stove oil and such suspicions as he may have had when he poured the fluid out of the large container were allayed after he dipped his finger in the smaller container and found the substance to be oily.
The defendant acted reasonably and under the circumstances he owed no duty to the plaintiff to take greater care than he did in identifying the nature of the fluid which he put in the fireplace.
APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division, allowing an appeal from a judgment of Barry J. Appeal allowed.
Mark Yeoman, for the defendant, appellant.
D.M. Gillis, Q.C., and G. Fred Nicholson, for the plaintiff, respondent.
The judgment of the Court was delivered by
RITCHIE J.—This is an appeal from a judgment of the Appeal Division of the Supreme Court of New Brunswick setting aside a judgment rendered at trial by Barry J. whereby he had dismissed the claim of the present respondent for damages to the hunting lodge operated by him when a fire occurred while the appellant, who was a guest at the lodge, was lighting a small fire on Wednesday, October 26, 1966, in the fireplace in the quarters which had been allotted to him.
The respondent is the owner and operator of “Loon Bay Lodge”, an establishment catering to hunters and fishermen, which had been visited by the appellant on three occasions previous to the month of October 1966, when he and his wife came there and took quarters in a building known as the “New Lodge”. The guests at the lodge were apparently left more or less to themselves when occupying their private quarters although all concerned assembled at a main dining-room during the meal hours. Each of the guests’ rooms contained a fireplace and for the convenience of the guests wood boxes containing hard wood, soft wood, paper and a small container of stove oil labelled “outboard motor fuel oil” were left on the verandah opposite the door of each room. On the occasion of his October 1966 visit, the appellant requested the services of the same guide that he had had on his former visits, but as this guide was not available, he was allotted a man by the name of Wright whose duties included accompanying the
guests on their hunting or fishing expeditions, preparing a hot lunch for them in the woods, and generally seeing to their needs, which included checking to see that all necessary fuels were always in the wood boxes hereinbefore referred to, and the lighting of a fire when requested to do so.
While the respondent and his wife were staying at the lodge two other guests arrived in a jeep in which they carried spare chains and two three-gallon cans, each labelled “galvanized oil can” and containing an unspecified amount of gasoline. These cans were placed on the ground about six feet from the eastern end of the New Lodge and about fifteen feet north of the eastern entrance to the verandah and were equipped with a spout and removable cap for pouring. The evidence concerning the practice at the lodge with respect to obtaining stove oil for use in the guests’ fireplaces was summarized by the learned trial judge in the following paragraph of his reasons for judgment:
The evidence of the plaintiff would indicate that the guests were not to wait on themselves, especially for the purpose of obtaining stove oil, the reserve supply of which was located seventy-five to one hundred yards away from the New Lodge in another structure but the evidence of the guides Lounder and Wright satisfies me that the guides would obtain such fuel when requested and that in fact no instructions of a negative nature were ever given to the defendant. In fact Wright states that the defendant had wood available on Monday but Wright did not go near the defendant’s fuel supply from Monday until after the fire occurred on Wednesday at 6:00 P.M. It may be as claimed by the plaintiff, that guides were instructed to check the fuel supplies of the guests during the dinner hour each evening, but it is clear that in the case of Cone, such was not done, even where Wright was under the impression that Gone had been unable to light his fireplace since his arrival because of wet wood.
The evidence of the appellant, which was accepted by the learned trial judge, was that he told the guide Wright on Wednesday afternoon when they were preparing lunch in a hunting area, that there was no kerosene left in his quarters and asked him whether the cans “out-
side” the building were the ones used to refill the small container from which to pour it onto the fire. Cone states that Wright replied to this question by saying: “ ‘Uh’ or ‘yes’ or something like that.” Wright’s version of this conversation may be summarized in the following excerpt from his evidence on cross-examination:
Q. Did he ask you anything about oil?
A. He did not ask me anything about oil.
Q. Nothing at all?
A. Nothing at all.
It is clear from the reasons for judgment of the learned trial judge, who saw and heard both these witnesses, that he believed that it was not unreasonable for Cone to have taken from the conversation which he had with the guide on Wednesday afternoon that the cans marked “galvanized oil can” contained the kerosene which was the source of supply from which to obtain the fuel to be placed in the small container for use when lighting the fire in his quarters.
When they returned from hunting, the guide; left Cone at the New Lodge and went on to his supper and shortly afterwards Cone started to light a fire and as he had little or no kindling and his stove oil container was empty, he went outside carrying the small container which had been filled with stove oil and took it over to one of the cans marked “galvanized oil can” where he filled it about half full. Having done this he put his finger in the small container and found it to contain a substance which he said “felt oily”. He then brought the can into his quarters, poured some of the contents which he thought to be stove oil onto the wood and then threw a match into the fireplace. There was an immediate explosion and fire belched out of the fireplace whereupon Cone and his wife tried to smother it with blankets from the two beds and in so doing they upset the small can and the gasoline which remained in it. Cone and his wife immediately left the room to raise the alarm.
The fire which ensued did serious damage to the lodge property and the respondent now claims that the fire was occasioned by Cone’s negligence in failing to use proper care to discover the nature of the substance which he was using to light the fire. When he left his own quarters after the fire had started, Cone ran to find the respondent and when he had done so he said to him:
There is a fire… I started it …there was a mix up. What I thought was kerosene must have been gasoline and this is the result.
Indeed, there can be no doubt that Cone’s mistake in wrongly identifying the fluid which he threw on the fire was the cause of the blaze, but the question to be determined in this case is whether under all the circumstances, Cone was negligent in doing what he did. The respondent had established the practice at his lodge of permitting his guests to pour stove oil on the fires in their rooms and, like the learned trial judge, I do not think that it was unreasonable for Cone to believe that the source from which to obtain this stove oil was the “galvanized oil cans” which were just outside the lodge and which in fact contained gasoline. The conclusion reached by the learned trial judge is summarized in the following paragraph from his reasons for judgment:
While the plaintiff might have me believe that the defendant broke the rules in refilling his own oil container, I do not believe it. He did what most normal men would do. He inquired of Wright and acted accordingly. The word “outside” may have meant different things to Cone and Wright: to Wright “outside” of the room on the verandah, or even in the building 75-100 yards away: to Cone “outside” of the lodge. Herein lies the cause of the accident. If Wright had done what Welock says he was supposed to do, there would have been no fire damage to the lodge. I would think that even using stove oil to start a fireplace would be risky, but the plaintiff had established that practice over a period of years and was satisfied that it was safe. However he never anticipated the events of October 26 nor did Cone. Of course a person using gasoline must use great care but Cone did not know that he was
using gasoline. He used what he thought to be stove oil in his usual manner as he had been doing for several years at the lodge.
Respondent’s counsel placed great stress on an answer given by the appellant in the course of his examination for discovery where he was being asked whether or not he was suspicious of the nature of the contents in the small can before he lit the fire and he said:
I was suspicious enough to take a whiff but actually one hydrocarbon by itself I don’t think I could tell them apart.
On cross-examination the following exchange took place:
Q. Why were you suspicious then of the contents Mr. Cone?
A. Well, when you take something out of an unmarked can it is always a good idea to attempt to check it.
These answers were construed by respondent’s counsel as being tantamount to an acknowledgement that Cone knew that the fluid which he poured onto the wood in his fireplace might not have been stove oil and might have been gasoline. In this regard I adopt the finding of the learned trial judge where he said, speaking of the appellant’s actions after he had partly filled the small container (which was identified as P-3):
He went outside with P-3 and half filled it from the contents of P-4. (One of the larger cans marked galvanized oil can). He then put his finger in P-3 and felt the contents which he stated felt oily. Cone has sinus trouble and claims that his olfactory sense is not acute or even normal. He then went to his quarters… and poured what he thought to be stove oil on the wood in the usual manner and then placed the container P-3 uncapped on the floor…
I do not think that the evidence justifies the inference that Cone knew he was using gasoline and, like the learned trial judge, I am in fact satisfied that he thought he was using stove oil and
that such suspicions as he may have had when he poured the fluid out of the large containers were allayed after he had dipped his finger in the smaller container and found the substance to be oily.
Mr. K.S. Settle, a foreman at the General Laboratory of the Irving Refinery was called by the respondent to give expert evidence as to the properties of kerosene and stove oil on the one hand and gasoline on the other, and in the course of cross-examination he was asked:
Q. Now you will agree though that the smell of stove oil is not very unlike that of gasoline. They both have a petroleum smell.
A. Yes. They both smell—have a petroleum smell.
Q. And it would be easier for a person who was not very familiar with the products to tell them apart if he had them both there, wouldn’t it, to compare?
A. Yes. I think it would make it easier.
In finding the appellant to have been negligent, Mr. Justice Limerick in the course of the reasons for judgment which he rendered on behalf of the Appeal Division, said:
The defendant made use of an unknown fluid to start the fire in his room, he was “suspicious” of the contents of the can and on his own admission uncertain as to whether it was gasoline or stove oil; he smelled it, inserted his finger in the fluid and rubbed it between finger and thumb to determine oiliness of the fluid. He was clearly negligent in starting a fire with an unknown fluid he suspected might be gasoline without more thorough investigation or direct inquiry and on leaving the uncapped container on the floor near the fire and his negligence was the sole cause of the damage to the plaintiff’s property.
With the greatest respect, I am unable to find any evidence of an admission by Cone that he was “uncertain as to whether it was gasoline or stove oil” that he made use of to start a fire in his room, nor can I find any evidence to support the further statement that he started the fire “with an unknown fluid which he suspected might be gasoline”. I think his evidence must be read in
light of the answer which he gave on redirect examination when being questioned as to what he thought the fluid was which he brought into the cabin in the small container for the purpose of starting the fire. His evidence there reads:
Q. And then when you went in the lodge to—or the cabin to light the fire, what was your state of mind then?
A. I had no doubt that it was stove oil.
The question to be determined in light of all the evidence is whether Cone was under a legal duty to the respondent to take greater care than he did in identifying the nature of the fluid which he put in his fireplace. As I have indicated, I agree with the learned trial judge that Cone acted reasonably and this implies that under the circumstances he owed no duty to the respondent to take greater care than he did.
After having considered all the evidence, I am unable to conclude that the respondent discharged the burden, which he assumed under the pleadings, of proving that the appellant did not use reasonable or proper care in starting the fire. As I am satisfied that the evidence is consistent with there having been no negligence on the part of the appellant, it is not necessary to discuss the plea of res ipsa loquitur.
For all these reasons I would allow this appeal, set aside the judgment of the Appeal Division of the Supreme Court of New Brunswick and restore the judgment of the learned trial judge dismissing this action with costs.
The appellant will have his costs in the Appeal Division and in this Court.
Appeal allowed with costs.
Solicitors for the defendant, appellant: Yeoman & Kearney, Moncton.
Solicitors for the plaintiff, respondent: Nicholson & Nicholson, St. Stephen.