Bullock v. Benjamin Moore & Co., 8421

• Decision Date: 22 May 1965
• Docket Number: No. 8421,8421
• Citation: 392 S.W.2d 10
• Parties: E. P. BULLOCK, Plaintiff-Appellant, v. BENJAMIN MOORE AND COMPANY, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 10

392 S.W.2d 10

E. P. BULLOCK, Plaintiff-Appellant, v. BENJAMIN MOORE AND COMPANY, a corporation, Defendant-Respondent.

No. 8421.

Springfield Court of Appeals, Missouri.

May 22, 1965.

Rehearing Denied June 8, 1965.

James E. Reeves, of Ward & Reeves, Caruthersville, for plaintiff-appellant.

David E. Blanton, of Blanton, Blanton & Rice, Sikeston, for defendant-respondent.

RUARK, Presiding Judge.

This is an appeal by plaintiff from a verdict-based judgment for defendant-respondent in a suit involving personal injuries in the form of burns which resulted from the explosion of can of paint.

The pleadings: Count I, upon which plaintiff submitted, was based on implied warranty. It alleged that plaintiff purchased two sealed gallon cans of outside white paint from a local supply company. Such paint was manufactured by the defendant and placed for sale with the implied warranty that it was fit and proper for use, but that such implied warranty 'was false and untrue and that said paint was unsound and unsuitable for painting and was in fact highly volatile and inflamable'; that the cans exploded and sprayed flaming paint upon plaintiff's body, causing the personal injuries complained of. Defendant's answer included, among other things, contributory negligence and assumption of risk.

The evidence: Plaintiff, who was a farmer but had previously had about three years' experience in a general country store which sold paint among other things, bought two one-gallon cans of outside white with sealed covers, a gallon of thinner and one quart of enamel. These were placed in a carton and put in the back of his pickup truck. This was on a clear put windy May 3rd, with temperature about eighty degrees. There was no fire around the paint. He parked his truck in the driveway about fifty feet from his house and about thirty feet from a smaller building where he went to clean his brushes. While he was so cleaning brushes, one of the cans of outside white exploded and the lid fell close to where he was standing. The carton caught, or was, afire. Plaintiff seized a spade and ran to the side of the truck, intending, as he said, 'to put it out for my house was right there by it, and of course my truck, I wanted to save it.' At that time the fire was inside the carton, and the outside of the carton was not yet afire. White plaintiff was at the side of the truck, the jug of paint tinner exploded. Plaintiff took the spade and, apparently reaching over the side, attempted to 'swipe' the carton out of the rear end of the truck (the tailgate was down). This being unsuccessful, he ran around to the rear of the truck and put one leg up on the tailgate--'I started to kind of get up in the truck'--in order to swipe out the carton. At that time the second can of outside white. exploded and threw burning paint against plaintiff's leg. On cross-examination he testified:

'Q. So your purpose of going over there was, as a matter of fact, not to safeguard life, your life, or your person, but so safeguard personal property, isn't that correct?

'A. That is right. I didn't think it would amount to too much when I tried to put it out, you know, but it was worse than what I thought it was.'

On behalf of defendant, the Court gave Instruction No. 6 which is as follows:

'The Court instructs the jury that if you find and believe from the evidence that at the time the plaintiff parked the pick-up truck referred to in the evidence in the driveway of the house where he lived, that there was contained in the back end of said pick-up truck a paper or cardboard paint box containing, among other things, paint and thinner, and that after parking said truck as aforesaid the plaintiff was some distance away from said truck and that a fire occurred in the back end of said pick-up truck and that the plaintiff's attention to said fire in said truck was caused by a noise, and by the top of a paint can being thrown into the air and landing in the area where the said plaintiff was then and there standing, and that the plaintiff was then and there in a place of reasonable safety with reference to said truck and the fire therein, and that thereafter the plaintiff approached in close proximity to said truck and the fire burning therein, for the purpose of extinguishing said fire and thereby protecting said pick-up truck and other property, if you so find, and that the plaintiff saw, or knew, or by the exercise of ordinary care, should have seen or known that there was danger of fire and explosion of the other substances and contents of said pick-up truck, if you so find, and if you further find that the plaintiff thereafter attempted to climb into the bed of said truck for the purpose of subduing said fire and removing the burning substance from said pick-up truck, and that there was then an explosion in the pick-up truck and that as a result of said explosion a burning substance was sprayed upon the plaintiff, directly resulting in burns and injuries to the said plaintiff, then you are further instructed that the plaintiff assume[d] the risk of said burns and injuries, and your verdict will be in favor of the defendant and against the plaintiff.'

Plaintiff contends that is practically a peremptory instruction for the defendant since it hypothesizes the facts of plaintiff's case; that such instruction (a) does not require a finding that plaintiff's conduct was voluntary, (b) does not require a finding of knowledge (c) does not relate plaintiff's conduct to any standard of care or require a finding that he acted unreasonably. He contends that the evidence showed that plaintiff was confronted with a choice of attempting to protect his property from destruction due to defendant's tortious conduct and that his conduct was reasonably necessary and therefore not voluntary. Defendant-respondent contends the instruction was proper because (1) defendant was entitled to a directed verdict because plaintiff left a place of safety and entered an area of apparent danger for the sole purpose of protecting personal property, (2) plaintiff assumed the risk in so doing, (3) there was no issue as to whether plaintiff's conduct was 'voluntary,' (4) the instruction submitted the question of knowledge and exercise of reasonable care.

It is our view that defendant's Instruction No. 6 was insufficient because it did not fairly submit the question of whether plaintiff was in the exercise of ordinary care in entering upon the course of conduct which he did enter upon.

We will not compound the confusion surrounding the doctrine of assumption of risk, or of 'incurred risk,' by attempting to wade through the various distinctions and definitions or by considering whether or not (except perhaps for risks expressly assumed) there is any further need in the law of Missouri for doctrine. ¹

Assumption of risk is based upon consent, assent, or 'waiver' of the results coming from the plaintiff's conduct in entering into the place of peril, or upon the course of chosen conduct. Such being the case, this consent must be (a) voluntary, and (b) with knowledge, comprehension, or 'appreciation' of the risks involved. 65 C.J.S. Negligence, Sec. 174, p. 848 et seq., 38 Am.Jur. Negligence, Sec. 173, p. 847; Terry v. Boss Hotels, Inc., Mo., 376 S.W.2d 239; Fletcher v. Kemp, Mo., 327 S.W.2d 178, 183, 186. Where plaintiff claims the defendant owes plaintiff an affirmative duty and a wrong is done in violation of that duty, and as a consequence of that wrong and as a choice of alternatives the plaintiff enters upon a course of conduct which involves a danger, the end product may be what some writers refer to as assumption of risk in the 'secondary sense.' ² In such situation there is considerable controversy and conflict as to whether the conduct of the plaintiff is really contributory negligence. It is said that it is a 'phase' of contributory negligence. It is also said that contributory negligence and assumption of risk overlap at this point. ³ But irrespective of doctrinal nomenclature, all authorities hold that the plaintiff's conduct in respect to 'voluntariness' and 'appreciation' of the risk is to be judged by the standard of that of a reasonably prudent person exercising ordinary care for his own safety under the circumstances existing at the time. 65 C.J.S. Negligence, Sec. 174, p. 851, and citations supra. Respondent recognized the reasonable-person theory by requiring a finding that plaintiff knew 'or by the exercise of ordinary care should have seen and known' the danger of explosion. This is the general rule which is applied in contributory negligence cases. See Fields v. Kansas City, Mo., 383 S.W.2d 543, 547, and cases cited.

The voluntary choice above referred to means one made with freedom of will, with 'more or less deliberation' (82 A.L.R.2d, Annot., p. 1233), and the 'voluntariness' and appreciation of dangers involved in making that choice are somewhat related and interdependent; both involve the exercise of mental processes. The reasonable person when confronted with an emergency not of his own making, or the necessity of making a sudden decision, has less opportunity to 'deliberate' in order to determine what course of action he should (or should not) follow and, in some instances at least, less opportunity to comprehend and 'appreciate' the risk which he faces. 65 C.J.S. Negligence, Sec. 17, p. 408, 412; McCallum v. Executive Aircraft Co., Mo.App., 291 S.W.2d 650, 654; Mayne v. May Stern Furniture Co., Mo.App., 21 S.W.2d 211, 213; Wilson v. United Rys. Co. of St. Louis,...