Buchholz v. Standard Oil Co.

• Decision Date: 01 May 1922
• Docket Number: No. 14202.,14202.
• Citation: 244 S.W. 973,211 Mo. App. 397
• Parties: BUCHHOLZ et al. v. STANDARD OIL CO. OF INDIANA.
• Court: Missouri Court of Appeals

244 S.W. 973

211 Mo. App. 397

BUCHHOLZ et al. v. STANDARD OIL CO. OF INDIANA.

No. 14202.

Kansas City Court of Appeals. Missouri.

May 1, 1922.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by John Buchholz and another against the Standard Oil Company of Indiana. From a judgment in favor of plaintiffs, defendant appears. Affirmed upon condition that plaintiffs remit $1,000 from the damages awarded.

John H. Lucas and William C. Lucas, both of Kansas City, for appellant.

E. A. Rea, of Hays, A. G. Knight, of Trenton, and Kelly, Buchholz, Kimbrell & O'Donnell, all of Kansas City, for respondents.

BLAND, J.

This is an action for the wrongful death of plaintiffs' daughter brought under the statutes of Kansas. Sections 6014, 6015, Kansas General Statutes 1909. These sections, together with sections 2935, 2953, 2904, and 9037 of the Statutes of Kansas, are pleaded in the petition. There was a verdict and judgment for plaintiffs in the sum of $7,000 and defendant has appealed.

The facts show that for a number of years prior to November 17, 1919, defendant maintained in the city of Hays, Kan., a station, plant and equipment for the storage and distribution of gasoline and coal oil and the by-products of petroleum. The plant consisted of three large tanks placed side by side and 3 feet apart, each having a capacity from 10,000 to 14,000 gallons; one of these tanks was placed adjacent to and practically against a frame shed. In the north portion of this building were stored barrels and cases of lubricating oils and greases. The frame shed had a driveway running through it. The plant was upon ground owned by the Union Pacific Railway Company and its nearest point was about 7 feet from the railroad tracks. Coal oil and gasoline were pumped from tank cars into the storage tanks by means of small gasoline engines operated inside of the frame building. The floor of the building was constructed of pine timber. For a period of 15 years or longer gasoline and oil were spilled upon the floor. The floor had not been rerewed or scrubbed, but was swept up with charcoal. It had a discolored appearance, and, of course, had been soaked with oil and grease. The gasoline and coal oil were distributed from this plant through two tank-bearing automobile trucks. Each tank had three compartments for gasoline and coal oil; each of these compartments had a capacity of 105 gallons. These trucks were driven into the frame building where coal oil and gasoline were pumped by hand into the proper receptacles. One of these trucks was stored in the building at night, and in the early morning would be filled with gasoline and coal oil before it was removed from the building.

On the Thursday prior to the explosion causing the death of plaintiffs' daughter on Monday, John J. Love, local agent of the defendant, discovered a leak in one of the delivery tanks. This leak resulted from ordinary wear and tear upon the tank and was In the bottom of the tank where a lead pipe was screwed into it. Defendant's local agent, Love, had employed one Wehner to drive one of the tank trucks, and he called the latter's attention to this leak. Love and Wehner repaired the truck on Saturday, and fixed a leak in the carburator, but for lack of time did not repair the leak in the tank, but the compartment of the tank containing the leak was not thereafter used. On Monday morning Wehner started to fill his tank preparatory to starting out on his delivery route. Pie allowed the gasoline to overflow and to run over the sides of the tank and on to the floor. He then cranked the car.

There is evidence that the exhaust from the engine of this truck would spit fire at times. Wehner did not testify, but the witness who saw what happened that morning stated that, as he went to his place of business, and within a few minutes after he passed the building, he saw flames coming out of the driveway door, and that the truck "seemed to be all in flames." The whole frame building was soon on fire, and shortly afterwards the tank being filled by Wehnor exploded. County and city officers and many citizens assembled and attempted to extinguish the fire, but were unable to make any headway and the flames soon spread to the large coal oil and gasoline storage tanks. The coal oil tank seemed to press apart at the riveted joints, from which points the coal oil ran out in streams, catching fire and sending up great columns of smoke. There was testimony that there were as many as five explosions, the fifth being of the largest storage tank, which held many thousand gallons of gasoline. When this 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, traveling close enough to the ground to overturn telephone poles, iron posts, and small trees which were in its course, and landed in the rear of a house which stood about 500 feet distant. It passed through a crowd of people who were watching the fire, killing a number of them, including plaintiffs' 16-year old daughter; 11 people were killed by the explosion, and many others burned and injured.

It was about three hours from the time the fire started until the explosion of the huge gasoline tank. During that time a large percentage of the population of the town, a city of 3,500 people, assembled to watch the conflagration, a great many of them taking part in fighting the fire. The fire was communicated to two small residences to the north and some small outbuildings. A grain elevator 80 feet away was burned as well as the flourmill. Defendant's plant stood one block distant from the business center of the town, four cottages were located 75 feet away, and there were six or seven residences in the same block separated from the plant by a dirt road. On at least three sides of the fire were gathered crowds of people. The county and city officers and others from time to time ordered the crowd back and warned them of the danger. It is apparent that deceased did not hear all of these warnings, but there is evidence of such a nature as to convince us that she heard some of them. However, it seems that there were conflicting reports made to the crowd in reference to the danger; members of the crowd heard one of those in charge of the fire say at one time, "There won't be any danger at all." The chief of the local fire department had threatened to arrest persons if they did not help to fight the fire. As already stated, there were four explosions prior to the explosion of the big gasoline tank which caused the death of the deceased.

Deceased lived with her parents in the city of Hays, but was working as a servant in the house of one Miller, which was situated about 1,200 or 1,400 feet from the scene of the fire. Some time after the fire started she, together with her employer, Mrs. Miller, and the latter's two children went to the fire, and were standing about 325 feet away at the time of the explosion of the large tank.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given; that defendant owed no duty toward deceased, and that deceased was guilty of contributory negligence as a matter of law; that her going from the Miller home, a place of safety, to a point near the fire which was dangerous, was the proximate cause of the injury. In this connection defendant contends that if there was any negligence, it was the act of a third person, who did not stand in such relation to the defendant as to render the doctrine of respondeat superior applicable.

We think that there was ample evidence from which the jury could find that the acts of the local agent, Love, were the acts of the defendant, and that such relation did obtain. The evidence shows that the general offices of the defendant were at Wichita, Kan. Defendant appointed Love as district agent for three counties, which included the one in which Hays was the county seat. Love testified that he was the subagent of the Standard Oil Company at Hays. The evidence shows that Love was paid a commission of 1¼ cents per gallon on gasoline and coal oil sold inside the city limits of Nays, and 1¾ cents for that sold outside the city. The chassis of the two motor trucks belonged to Love, which he had purchased secondhand, but the tanks upon the same belonged to the defendant, and had defendant's name painted upon them. Defendant furnished all of the material, utensils and. instruments used in the sale, storage and delivery of coal oil and gasoline, and owned the building, tanks, and improvements and their contents. In fact, with the exception of the chassis, the company owned everything, furnished its own stationery, with its name printed thereon, and kept the books and accounts of all money collected. Love sent all money collected to the office at Wichita, and defendant would return to him his compensation. When the agent wanted a new bucket or funnel he had to get it from the defendant at Wichita. The company furnished ticket books, on which memoranda of sales were made. These contained information as to the place and date of each sale, to whom sold, what kind of oil or gasoline, and the number of gallons purchased. In case payment of the gasoline and coal oil sold was not made in cash, the agent received checks made payable to the Standard Oil Company. The defendant had a repairman which it would send around to keep the equipment in repair, but the local agent had authority to make repairs himself such as the leak in the tank referred to, where it could be done easier and quicker than to send for the company's repairman. The agent employed Wehner and paid his wages out of his own funds.

The facts in relation to the agency in this case are not essentially different from those in the case of Magnolia Petroleum Co. v. Johnson, 149 Ark. 553, 233 S. W. 680, where It was held that both the agent and the...