Barnett v. M & G Gas Co.

• Decision Date: 06 January 1981
• Docket Number: No. 41875,41875
• Citation: 611 S.W.2d 370
• Court: Missouri Court of Appeals
• Parties: Mrs. Virginia BARNETT et al., Appellants, v. M & G GAS COMPANY, William and Beulah Barnett, and Exxon Chemical Company, Respondents.

Page 370

611 S.W.2d 370

Mrs. Virginia BARNETT et al., Appellants, v. M & G GAS COMPANY, William and Beulah Barnett, and Exxon

Chemical Company, Respondents.

No. 41875.

Missouri Court of Appeals, Eastern District, Division Two.

Jan. 6, 1981.

Lawrence O. Willbrand, St. Louis, for appellants.

Edward K. Fehlig, Clayton, Samuel T. Vandover, Ralph C. Kleinschmidt, St. Louis, for respondents.

PUDLOWSKI, Presiding Judge.

Plaintiffs appeal from the judgment rendered in a wrongful death action brought by the widow and six minor children of the deceased, Taft Barnett. Suit was instituted against M & G Gas Co. (hereinafter referred to as M & G), Exxon Chemical Co. (hereinafter referred to as Exxon) and William and Beulah Barnett, the deceased's parents. The cause of action arose out of an explosion and fire at William and Beulah's summer residence in Fredericktown, Missouri in May, 1975. Taft Barnett was fatally injured. The widow's brother, Raymond Purcell, also sustained injuries due to the explosion and joined the action as a plaintiff. Plaintiffs and defendants dispute vigorously the cause of the explosion and fire which resulted in the injuries above. Plaintiffs attribute it to an LP gas leak. Defendants presented evidence that the explosion was caused by the accumulation of gasoline vapors.

At the close of plaintiffs' evidence, the trial court directed a verdict in favor of William and Beulah Barnett. Further, it directed a verdict in favor of M & G and Exxon following the close of all the evidence. Plaintiffs' first three points on appeal alleged that the trial court erred in so directing the verdicts in favor of the defendants since the plaintiffs contend they had made a prima facie case against each defendant for their particular acts of negligence. We do not agree.

We initially note that a directed verdict is a drastic measure. In passing upon the propriety of such a motion, we must apply the fundamental and settled rules that we consider all of the evidence in the light most favorable to the plaintiff, accept it as true where it is not entirely unreasonable or opposed to physical laws, accord to plaintiff the benefit of all favorable inferences deducible from the evidence, reject all unfavorable inferences and disregard defendant's evidence except insofar as it aids plaintiff's case. Joiner v. Kurt's Chip-A-Way Park, Inc., 510 S.W.2d 773, 774 (Mo.App.1974); Cantrell v. Superior Loan Corp., 603 S.W.2d 627, 634 (Mo.App.1980). When challenged on appeal, a verdict directed against plaintiff will fall "unless the facts in evidence and the legitimate inferences to be drawn from such facts, are so strongly against the plaintiff as to leave no room for reasonable minds to differ." Abel v. Campbell 66 Express, Inc., 378 S.W.2d 269, 271 (Mo.App.1964); Braun v. General Motors, 579 S.W.2d 766, 769 (Mo.App.1979).

Viewed in this light plaintiffs' evidence established that William and Beulah Barnett were the owners of a small 5 room house in Fredericktown, Missouri with overall dimensions of 30 X 15 feet. This house contained a kitchen of approximately 9 X 15, a living room of 12 X 15, a bedroom of 9 X 12 and a small utility room and bathroom. There was no basement, only a crawl space under the house. The liquid petroleum (LP) tanks used for heating and cooking were located 30 feet north of the kitchen. The Fredericktown house was a second or vacation residence for William and Beulah. Thus, it was periodically occupied on weekends and frequently used during the summer months. One week prior to the explosion and fire on May 4, 1975, William and Beulah, along with the deceased and two of his children, had been to the house and had used the stove. At that time, there was no indication of any LP gas leakage or any problem with the LP gas appliances. The pilot light on the top burners of the stove had been turned off with a screwdriver so that the burners could only be ignited with a match. The gas line to the space heater was turned off.

Plaintiff, Raymond Purcell, testified that he met the deceased, Taft Barnett, ¹ on May 4, 1975 at about 4 p. m. at Roy's Corral, a tavern in north St. Louis County. Taft and Purcell were friendly as Taft was married to Purcell's sister. After consuming a few beers Taft Barnett convinced Purcell to drive him to the house in Fredericktown. The men ordered a six pack for the road and left for Fredericktown. They each had a couple of beers ² during the drive to Fredericktown. When they arrived, Purcell, who was ready to return immediately to St. Louis, was concerned that he did not have enough gasoline in his automobile for the return trip. Taft told Purcell that there was a full five gallon container of gasoline in the barn. The can was filled to the brim and when Purcell tried to walk with it, the gasoline splashed onto his legs, soaking his pants, shoes and socks. Realizing that he needed a funnel to pour the gasoline into the car, Purcell went into the house and sought Taft's assistance in procuring one. Unable to find a funnel, Purcell returned to the car with the gas can and again spilled gasoline on himself as he tried to pour gas into the tank. Upon emptying the gas can of about half of its contents Purcell returned to the house, set the can inside the kitchen door and was prepared to leave for St. Louis. Purcell spoke briefly with Taft who had set a pot on the stove and was preparing dinner, although the stove was not yet lit. No more than 15 minutes had transpired since they had arrived. As he turned to leave the house, Purcell saw Taft raise his hand to light a cigarette. A tremendous explosion ensued and the house became inflamed. Purcell was thrown out of the house with his clothing on fire. As a result, Purcell was burned over 90% of his body and Taft was killed. The house was entirely destroyed. ³ At 6:55 p. m. Daryl Asher, Chief of the Fredericktown Volunteer Fire Department, arrived on the scene of the explosion and fire. The west wall of the house was completely removed from the building with the curtains intact. Glass fragments unmarked from heat or smoke were found 50 to 60 feet away from the building and unburnt splinters were found 40 feet away. The kitchen gas range as well as the space heater were intact with no evidence of any internal damage, although both were burned on the outside and had sustained some exterior damage due to falling debris.

The Barnetts had experienced problems with their 500 gallon LP gas tank the previous summer. Normally the Barnetts only required 200 gallons of LP gas during the course of an entire year. However, on March 11, 1974, M & G had delivered 200 gallons of LP gas to the Barnetts. On June 18, 1974 another 200 gallons was delivered and by August 24, 1974 ⁴ the tank was empty. Thus, in a period of five months, from March to August, the Barnetts had used 400 gallons. This situation did not go unnoticed. On August 5, 1974, Mr. Barnett reported a leak in the 500 gallon tank to M & G. Thomas Miller, M & G's representative, made a service call to the Barnetts on August 24. A leak was found at the bottom of the 500 gallon tank. For that reason the empty 500 gallon tank was disconnected and replaced with a 100 lb cylinder holding only 24 gallons of LP gas. However, the 500 gallon tank was left in the Barnetts' yard. Miller did not perform a monometer test to determine the presence of leaks in the piping system. Miller felt this test was not required because he had found the source of the problem.

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