Bartels v. Continental Oil Co.

• Decision Date: 09 November 1964
• Docket Number: No. 2,No. 50254,50254,2
• Citation: Bartels v. Continental Oil Co., 384 S.W.2d 667 (Mo. 1964)
• Parties: Thomas E. BARTELS, Kathleen M. Bartels, Judith A. Bartels and Georgine L. Bartels, minors, by their mother and next friend, Kathleen P. Bartels, and Kathleen P. Bartels, Widow of George E. Bartels, Respondents, v. CONTINENTAL OIL COMPANY, a corporation, Appellant
• Court: Missouri Supreme Court

Page 667

384 S.W.2d 667

Thomas E. BARTELS, Kathleen M. Bartels, Judith A. Bartels and Georgine L. Bartels, minors, by their mother and next friend, Kathleen P. Bartels, and Kathleen P. Bartels, Widow of George E. Bartels, Respondents, v.CONTINENTAL OIL COMPANY, a corporation, Appellant.

No. 50254.

Supreme Court of Missouri, Division No. 2.

Nov. 9, 1964.

Motion for Rehearing or for Transfer to Court En Banc Denied

Dec. 14, 1964.

William W. Shinn, Kansas City, for respondents, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.

J. D. James, Thad C. McCanse, Dwight L. Larison, Houts, James, McCanse & Larison, Kansas City, for appellant.

BARRETT, Commissioner.

George E. Bartels died as a result of injuries sustained while engaged in the performance of his duties as a captain in the Kansas City, Missouri, fire department.In this action to recover damages for his negligent injury and death his widow and four minor children have recovered a judgment of $25,000.The defendant-appellant, Continental Oil Company, operated a bulk storage plant and filling station on the northwest side of Southwest Boulevard at 31st Street in Kansas City, Kansas, abutting the Missouri-Kansas state line.On the front of the lot, facing Southwest Boulevard, there was a filling station and to the rear of the station on concrete saddles there were four 21,000 gallon capacity storage tanks.Tank number one contained 6,628 gallons of kerosene, tank number two contained 14,307 gallons of regular gasoline, tank number three contained 3,051 gallons of regular gasoline and tank number four contained 15,555 gallons of premium gasoline.

On August 18, 1959, about eight o'clock in the morning, Fred Berry, one of the appellant's tank-truck drivers was engaged in loading his truck from storage tanks two and four.Hoses from these two tanks were open at the same time, filling truck compartments three and five.Berry was on the truck's catwalk when Jim Mitchum, another tank-wagon driver on vacation, climbed up the side of the truck to show Berry his new cigarette lighter.Almost immediately (possibly when Mitchum flicked his lighter) flames flashed from the tank-truck's fifth compartment.Berry cut off the hose from one of the storage tanks but ran from the blazing flames and did not cut off the hose from the other storage tank and throughout the ensuing fire that open hose continued pouring gasoline into the flames.Firemen from both Kansas City, Missouri, and Kansas City, Kansas, responded to the alarm and with hand lines, almost wholly from Southwest Boulevard, fought the fire with water.The streams of water were employed to confine the burning gasoline to the area of the storage tanks thereby preventing the gasoline from running down Southwest Boulevard and into the sewers of Kansas City, Missouri, endangering larger areas.About 9:15 storage tank number one ruptured at its rear and the area was engulfed in flaming kerosene intensifying the heat in the area of the other three tanks.In the next half hour tanks two and three ruptured, and about 9:40 tank number four left its concrete cradle and 'rocketed' or was catapulted 75 to 100 feet over the filling station into Southwest Boulevard and 'a ball of fire' engulfed the several crews of fire fighters in the street, killing one bystander and five firemen, including Captain Bartels, and injuring twenty-three people.

Since, as a general rule, 'the duty of a possessor of land to firemen is the same as to licensees'(Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 447, 55 A.L.R.2d 516), it is urged that upon this record there is no evidence of a violation of duty by Continental.It is said that the appellant's duty was not enlarged by the fact that Bartels was in the street when injured, that '(t)here was no unusual, hidden hazard that was unknown to the deceased and known to the defendant' and therefore there was no duty to warn that the tanks might repture.In this connection it is urged that there was 'no duty to warn deceased that the storage tank in question might rocket onto the street because (1) that fact was not known by the defendant(Continental); and (2) even had such a duty existed, there was no evidence that defendant had an opportunity to give such a warning.'Further precisely pointing up the appellant's contention that its motions for a directed verdict should have been sustained is its claim that the respondents' instruction one was 'reversibly erroneous' in several respects, but particularly in that it 'was not supported by the evidence.'

It is not necessary to a disposition of this appeal to enter upon an extended discussion of the general rules or to determine Bartels' status.The general rules are set forth and the applicable cases collected in Anderson v. Cinnamon, supra, and its annotation, 55 A.L.R.2d 525, 'Duty of a possessor of land to warn adult licensees of danger,' and see more recently 86 A.L.R.2d 1205, 'Duty and liability of owner or occupant of premises to fireman or policeman coming thereon in discharge of his duty.'And upon the merits of the cause there are no precisely applicable and governing Kansas cases.Nevertheless it is safe to say that Kansas applies the general rules both as to the status of firemen and the duties of landowners, particularly in the maintenance of gasoline storage facilities.Buchholz v. Standard Oil Co.(1922)211 Mo.App. 397, 244 S.W. 973;Pinson v. Young, 100 Kan. 452, 164 P. 1102, L.R.A.1917F, 621.In the Buchholz case gasoline storage tanks at Hays, Kansas, (an installation comparable to that of Continental's here) burned and exploded and when the larger tank exploded 'one end of it was shot southward across the railroad tracks and against a flourmill which was about 200 feet away, the other end, like a torpedo, went toward the north, * * * and landed in the rear of a house which stood about 500 feet distant.'

Under these general rules, admittedly, an experienced fire captain would of course accept the presence of kerosene and gasoline as a known hazard of a fire in a gasoline storage facility.Anderson v. Cinnamon, supra;Gannon v. Royal Properties, 285 App.Div. 131, 136 N.Y.S.2d 129;Wax v. Co-Operative Refinery Ass'n, 154 Neb. 805, 49 N.W.2d 707.But the law does not compel firemen in fighting a fire to assume all possible lurking hazards and risks (Gannon v. Laclede Gas Light Co., 145 Mo. 502, 46 S.W. 968, 43 L.R.A. 505); it may not be said that a 'fireman has no protective rights whatever.'Campbell v. Pure Oil Co., 15 N.J.Misc. 723, 194 A. 873, 875;Wainscott v. Carlson Const. Co., 179 Kan. 410, 295 P.2d 649.As indicated, the majority of cases, including Anderson v. Cinnamon and other cases relied on by the appellant, recognizes certain modifications or exceptions to the general rules relating to landowners and firemen and it is these principles upon which the respondents rely,--'that an owner or occupant of premises which firemen enter upon in the discharge of their duty may be held liable to a fireman injured by a hidden danger on the premises, where the owner or occupant knew of the danger and had an opportunity to warn the fireman of it.'86 A.L.R.2d 1. c. 1214, 55 A.L.R.2d 1. c. 526.And the essentially meritorious question upon this appeal is whether there was upon this record evidence to support the inference and finding of a hidden danger known to the appellantContinental Oil Company for '(c)ertainly, no meritorious reason can be advanced to justify the view that a property owner, with knowledge of a hidden peril, should be allowed to stand by in silence when a word of warning might save firemen from needless peril.* * * Although firemen assume the usual risks incident to their entry upon premises made dangerous by the destructive effect of fire, there is no valid reason why they should be required to assume the extraordinary risk of hidden perils of which they might easily be warned."Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 401, 45 N.W.2d 549, 553;Jenkins v. 313-321 W. 37th St. Corp., 284 N.Y. 397, 31 N.E.2d 503.

Continental's four storage tanks, constructed of quarter-inch steel, were installed in 1924.They were 30 feet long, eleven feet in diameter, with flat ends, and when installed as well as 35 years later 'were fitted with two-inch pressure valves.'Originally the tanks were installed perpendicularly but in 1958 Continental Oil Company dismantled the storage facilities, removed the two-inch vents, and installed the four tanks horizontally on the concrete saddles.But in changing or replacing the installation Continental again placed two-inch vents on the tops of the storage tanks.And in response to interrogatories and 'requests for admissions' Continental stated that the 'four tanks was (sic) vented only by a single A. Y. McDonald 2-inch Plate 925 combination gauge hatch and P & R valve, known as a 'breather valve.' * * * that these said four tanks had no vent or mechanism designed to relieve pressure (such as might occur during a fire) other than whatever relief was provided by the single 2-inch diameter breather valve on each tank.'The appellant has made unnecessary further recitation of the facts in connection with these valves because in its brief there are these further concessions; '(t)he four tanks in question were vented with 2"' pressure and relief valves, which were admittedly (and obviously) not adequate to keep these tanks from rupturing;' and, 'we will concede for the...