Nesmith v. Magnolia Petroleum Co., 8107.

• Decision Date: 24 April 1935
• Docket Number: No. 8107.,8107.
• Citation: 82 S.W.2d 721
• Parties: NESMITH et al. v. MAGNOLIA PETROLEUM CO.
• Court: Texas Court of Appeals

Page 721

82 S.W.2d 721

NESMITH et al. v. MAGNOLIA PETROLEUM CO.

No. 8107.

Court of Civil Appeals of Texas. Austin.

April 24, 1935.

Appeal from District Court, Brown County; E. J. Miller, Judge.

Action by W. C. Nesmith and others against the Magnolia Petroleum Company. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

Mark Callaway, of Brownwood, for appellants.

A. S. Hardwicke, of Dallas, and McCartney & McCartney, of Brownwood, for appellee.

McCLENDON, Chief Justice.

W. C., Olen, and J. B. Nesmith sued the Magnolia Petroleum Company for compensatory damages, the result of injuries to their persons and property, caused by the explosion of gasoline. The explosion was due to ignition of gasoline spilled on a motor tractor in the process of filling the supply tank from a drum container by means of a pump supplied by defendant. The latter's liability is predicated upon an alleged defect in the pump consisting of a missing nozzle at the end of the hose designed to fit into the opening in the supply tank. The trial court sustained two special exceptions to the petition, urging that it (1) failed to show that the injuries sued for were "the proximate legal result of the breach of any duty either contractual or as the result of negligence owing by the defendant to the plaintiffs, or either of them"; and (2) that it affirmatively showed that plaintiffs (a) assumed the risk, and (b) were contributorily negligent. Plaintiffs declined to amend, and judgment of dismissal was rendered; from which plaintiffs appealed.

The petition alleges the following:

The three plaintiffs were all interested in the operation of a grain threshing outfit consisting of a tractor and grain separator using gasoline as motor fuel. Two of the plaintiffs were owners of the outfit. Defendant was engaged in the sale and distribution of oil and gasoline. On or about June 20, 1933, defendant agreed to deliver to plaintiffs, at places designated by the latter, gasoline in 54-gallon steel drums to be used in the threshing business during the 1933 season, and (as part of the consideration for the purchase) to furnish plaintiffs with a pump in good working order, and suitable for the purpose for which it was to be used, to pump the gasoline from the iron barrels, or drums, into plaintiffs' tractor tank.

The other relevant portions of the petition read:

"It was agreed and understood at the time between the plaintiffs and defendant that the furnishing of said pump was necessary, on account of the fact that said iron barrels, or drums, weigh about 75 or 100 pounds and when full of gasoline they would weigh about 300 pounds each and are very difficult to handle, and it is impractical to get the gasoline from the barrels into a tractor tank otherwise than by means of the said pump.

"Plaintiffs allege it is well known to the defendant, its agents and employees aforesaid, what constitutes such character of pump in good condition as the defendant agreed to furnish plaintiffs for the purpose of pumping gasoline into the tank of the tractor. That said pump consists in part of a hose some inch and a quarter in diameter and some eight or ten feet long, with a tapering metal nozzle at the outer end thereof, for the purpose of inserting the nozzle into the gasoline tank on the tractor, or such other container as may be used. That such nozzle is very necessary and is the usual and customary equipment supplied for use in connection with said pump and hose.

"That on the day the plaintiffs started to operate the thrashing machine and at the beginning of said thrashing season and when they were ready and prepared to begin said work, the defendant delivered to the plaintiffs six (6) barrels, or drums, of gasoline and at said time attempted to deliver the pump also, which the defendant has agreed it would deliver in a good mechanical condition for the purpose of filling the tractor tank. That the pump, as delivered, was defective and unfit for the purpose for which it was designed and was not the character of pump the defendant had agreed to deliver to the plaintiffs for said purpose, as there was no nozzle on the end of the hose. Defendant's agents and employees agreed that it would immediately send out to the plaintiffs, some fifteen miles in the country, the nozzle which defendant had agreed to furnish.

"The plaintiffs were ready to begin work and the parties, for whom they had agreed to thrash grain were insisting on them beginning work at once, and plaintiffs attempted to use said pump and hose without the nozzle, as aforesaid. There was a metal end, or instrument, on the end of the hose with threads thereon designed for the purpose of screwing the nozzle on, but that said hose and the threaded instrument to be inserted in the hole of the tractor gasoline tank could only be used and the gasoline pumped in the tractor tank at the risk of spilling some of the gasoline and causing a fire or explosion.

"Plaintiffs allege that the defendant carelessly and negligently failed and refused to send out to the plaintiffs the nozzle, as they had promised to do. That defendant's employees, as aforesaid, knew the urgent...