#### BOYCE STEGALL v. CATAWBA OIL COMPANY OF N. C.; SHELL OIL COMPANY and ROY BROOME.

(Filed 20 November 1963.)

Appeal by plaintiff from Johnston, J., May 1963 Mixed Session of UNION.

Civil .action ,to recover damages for the destruction by fire of a house .allegedly .caused by Coy Lee Stegall pouring a mixture of gasoline and kerosene or a mixture of kerosene .and another highly explosive substance ¡on a live fire in a wood, stove, which resulted in an. explosion, beard upon separate demurrers filed to the 'amended complaint by defendants Catawba Oil Company of North Carolina and Shell Oil Company.

From a judgment sustaining the separate demurrer of each oil company, plaintiff appeals.

J. Max Thomas for plaintiff appellant.

Smith '& Griffin by C. Frank Griffin and Richardson & Dawkins by O. L. Richardson for defendant appellees Catawba Oil Company of N. C. and Shell Oil Company.

PARKER, J.

The explosion and fire here is the same explosion and fire as alleged in .the amended complaint in the case of Sheila Mangum Stegall, Administratrix of Coy Lee Stegall, against the same defendants here, the opinion in which is filed this day ante, 459, and the same explosion and fire .as alleged in .the amended complaint in the case of Pernay Stegall .against the same defendants here, the opinion in which is filed this day ante 468. The explosion and fire caused the *470death of Coy Lee Stegall, the destruction, in the house of the furniture of Bemay Stegall, and the destruction of a 'house owned 'by the plaintiff, in which his brother Perniay Stegall lived as his tenant.

The amended complaints in -all three oases are identical, with the exception that one alleges the death of Coy Lee Stegall, and the other two property damage. The demurrers filed in all three eases are identical. The single judgment in all three cases is identical. The briefs filed )by counsel in .all three cases .are identical, with the exception that in. the death case defendants’ joint brief contends that on the face of the amended complaint itself contributory negligence on the part of plaintiff’s intestate Coy Lee Stegall iis so- patent and unquestionable as to b>ar recovery by plaintiff. In addition, counsel in all three cases are the same.

The judgment below is affirmed upon authority of the case of Sheila Mangum Stegall, Administratrix of Coy Lee Stegall v. Catawba Oil Company of N. C., Shell Oil Company and Roy Broome, ante, 459. This is without prejudice to plaintiff’s right to move in the court below for leave to amend his amended complaint under the provisions of G.S. 1-131,

Affirmed.