#### PERNAY 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 oí UNION.

Civil laotioin to recover dama-gee for the 'destruction by fire of furniture ini a bouse (allegedly caused by plaintiff is son 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, heard upon asperate 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 amended complaint here is identical with the amended complaint in- the -case of Sheila Mangum Stegall, Administra-trix oif -the Estate .of Coy Lee Stegall, against the same defendants here, the opinion in which is filed this day ante 459, with the single exception that in the case of Sheila Mangum Stegall, Administratrix of the Estate of Coy Lee Stegall, there are allegations as to- the bums and death of Coy Lee Stegall, her qualification iais administratrix of his estate, and- la prayer for -recovery of damages for hiiis death, and that there there 'are allegations1 as to the destruction by fire of plaintiff’s furniture and of the house, and a prayer for recovery of damages for the destruction of his furniture. In each case it is tire same explosion, and allegedly caused the same way.

The separate demurrer oif each -oil company here iis identical with the separate demurrer of each -oil company -in the case of Slheila Man-gum Stegall, Administratrix of the Estate of Coy Lee Stegall, and the judgment here is identical with -the judgment entered in that -case. The briefs in both cases are identical, with the exception that -in the case of Sheila Miamgum Stegall, Administratrix of the Estate of Coy Lee Stegall, the joint brief of tire defendant oil companies contends that on the face of the amended complaint itself contributory negligence o-n the part of plaintiff’s intestate Coy Lee Stegall is is© patent and un*469questionable as to bar recovery by plaintiff. In addition, .counsel in iboith oases are the same.

The judgment ibelow áe affirmed upon authority oí the case of Sheila Miangum 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 is right to move in the court below for leave to .amend ibis amended complaint under the provisions of G.S. 1-131.

Affirmed.