Bollinger v. Mungle

• Decision Date: 07 December 1943
• Docket Number: No. 26342.,26342.
• Parties: BOLLINGER v. MUNGLE et al.
• Court: Missouri Court of Appeals

175 S.W.2d 912

BOLLINGER v. MUNGLE et al.

No. 26342.

St. Louis Court of Appeals. Missouri.

December 7, 1943.

Appeal from Circuit Court, Madison County; Norwin D. Houser, Judge.

"Not to be reported in State Reports."

Suit by Sarah Bollinger against Rufus Shell Mungle, Joe Huber, and Shell Oil Company for damages for contamination of a well on plaintiff's land. The plaintiff dismissed her cause as to defendant Shell Oil Company. A verdict was returned in favor of defendant Rufus Shell Mungle. A verdict was returned in favor of plaintiff against Joe Huber, and from an order granting Huber a new trial, plaintiff appeals.

Affirmed and cause remanded for new trial.

J. Grant Frye, of Cape Girardeau, for appellant.

Melvin Englehart, of Fredericktown, for respondent.

McCULLEN, Judge.

Appellant, as plaintiff, brought this suit originally against the three defendants above named for damages for contamination of a well on her land. Plaintiff's petition alleged that defendants negligently permitted gasoline to leak out of a gasoline tank and gasoline pumps and pipes placed by defendants on land immediately adjoining and adjacent to plaintiff's land, and to seep into plaintiff's land and to drain into plaintiff's well from which, for many years, plaintiff had gotten water for drinking and other general purposes; that from and since December, 1940, the water in said well was thereby contaminated and unfit for use. The petition alleged that only a roadway separated the two tracts of land.

At the trial, at the close of plaintiff's evidence, she dismissed her cause as to defendant Shell Oil Company and proceeded against the other defendants. She also withdrew her claim that her well was permanently contaminated, and claimed damages only for the period of a year during which her evidence tended to show the water in the well was contaminated.

The trial resulted in a verdict in favor of plaintiff and against Joe Huber in the sum of $100. The verdict was in favor of defendant Rufus Shell Mungle. Joe Huber filed a motion for a new trial, which was sustained by the court "for insufficiency of evidence of negligence." Plaintiff duly appealed from said order granting Huber a new trial.

The evidence shows that appellant owned a parcel of land in the village of Patton in Bollinger County, Missouri, on which she had her home; that she was postmistress, and the post office was in her home; that in 1933 she had a well drilled on her land fifty-five feet deep; that the well was drilled through limestone and was cased only for the first five feet thereof. Appellant's property was on the west side of State Highway No. 51, which runs in a north and south direction. The highway was sixty feet wide from the eastern to the western boundary thereof. The well on appellant's property was 118 feet from a gasoline pump which was installed by respondent Huber on December 7, 1940, on land owned by defendant Mungle on the east side of the highway. The pump was placed seven feet east of the eastern boundary of the highway, and an underground gasoline tank, installed at the same time, was placed approximately eleven feet from the eastern boundary of the highway. Appellant's well was fifty-eight feet west of the western boundary line of the highway. On Mungle's land, on the east side of the highway, there was also a well forty-two feet east of said gasoline pump. Plaintiff's land sloped to the west and south. In the back part of Mungle's place the land sloped to the south and the east. Prior to December 7, 1940, when the installation of the tank and pump on Mungle's land was completed, there had been no gasoline in either the Mungle well or the well on appellant's land. There was evidence to the effect that on December 18, 1940, gasoline showed up in Mungle's well. From three to five days thereafter gasoline showed up in appellant's well. The tank was installed about one foot under the surface of the ground and was connected with the pump by pipes. It was a 560-gallon tank, 48 inches in diameter and 96 inches long. The pump was approximately 7 feet tall. The tank had three openings on the top at places where connections were made by pipes between the tank and the pump.

A number of witnesses testified on behalf of appellant that during the period from December, 1940, to December 1941, after the installation of the gasoline tank and pump by respondent on Mungle's land, they could taste gasoline in the well water taken from appellant's well; that it wasn't really necessary to taste it because they could smell the gasoline in the water. There was testimony to the effect that the contents of both appellant's and Mungle's well would flame and burn when lighted with a match.

It appears that the last gasoline put in the tank was on March 3, 1941, and that Mungle used the gasoline from the tank up to April 1, 1941, when all of the gasoline was emptied from the tank, and no gasoline was ever placed in the tank after March 3, 1941.

Appellant's testimony was to the effect that her well was contaminated by gasoline as late as December, 1941.

Mungle testified that he owned no interest in the tank; that it was installed on his property by Huber for him, Mungle, to use; that he had nothing whatever to do with the installation of the tank and pump; that when he found indications of gasoline in his well on December 18, 1940, he requested Huber to correct the condition; that when the gas would be pumped into the tank which was in the pump, "it wouldn't hold its prime. The gasoline in the tank at the top stayed right there."

There was evidence to the effect that the tank installed by respondent was a new tank stamped with an underwriter's seal; that all the plumbing involved in the installation of the equipment was done by Gibbar and Baumgartner, plumbers of Perryville, Missouri; that all fittings were especially examined after being installed; that on December 7, 1940, after the tank was installed and all pipes were connected, 511 gallons of gasoline were put in the tank and respondent, Huber, and Gibbar, his plumber, tested all fittings forty-five minutes after filling the tank, and no leaks were found. There also was evidence that a check was made of the gasoline placed in the tank on January 21 or 22, 1941, which showed that no gasoline had escaped from the tank; that the connections and fittings of the tank and pump were examined at that time and all were found to be dry and no leaks; that the tank was not dug up because there were no connections on the bottom of the tank.

Respondent testified that sometime following January 26, 1941, after appellant claimed there was gasoline in her well, he got some water from the well and it did not taste or smell of gasoline; that he put a water meter on the tank but it would not handle gasoline; that in using the water meter he was "trying to bluff Mrs. Bollinger."

Russell Bollinger (not related to appellant) testified in her behalf that he operated a filling station in the village of Patton, north of the post office; that it was about 400 feet from his filling station to the post office; that it was uphill from the post office to his station; that he had tanks and pumps in the ground at his station filled with gasoline and oils and had operated them since 1929, and was at the time of the trial still operating them; that he remembered when the tank and pump were installed on the Mungle property; that "I passed there when they installed it. It looked like an old outfit, rusty, had dirt on it, looked like they had taken it out of some place and installed it there without making changes on the fittings or retreading the pipes."

On cross-examination the witness stated that on the day the tank was installed, "I was there just a few minutes. The tank was laying on top of the ground. I made no particular examination of that tank. I was walking on the street. * * * When I went to the post office I glanced over and saw they were installing something. I saw the tank, looked at it a few seconds, I never went on the Mungle property. I don't think I was there over a minute. I was possibly 15 or 20 feet from the tank when I looked at it. I was on the edge of the road. The tank was back on the Mungle property just off of the road. It looked to be old to me. I noticed the fittings and pump more than I did the tank."

Appellant contends that the court erred in sustaining respondent's motion for a new trial. The ground assigned by the court for granting a new trial was, as heretofore stated, "insufficiency of evidence of negligence." Appellant argues that she made a case by showing that her well was unpolluted for seven years prior to the time respondent installed the gasoline station and that it was polluted immediately thereafter; that the pollution ceased within a reasonable time after the cessation of operation by respondent; that the...