Crystal Tire Co. v. Home Service Oil Co.

• Decision Date: 14 July 1975
• Docket Number: No. 57140,57140
• Citation: 525 S.W.2d 317
• Parties: CRYSTAL TIRE COMPANY, Plaintiff, v. HOME SERVICE OIL COMPANY, Appellant-Respondent, and C.E.S. Truck Lines, Inc., Respondent-Appellant.
• Court: Missouri Supreme Court

Page 317

525 S.W.2d 317

CRYSTAL TIRE COMPANY, Plaintiff, v. HOME SERVICE OIL COMPANY, Appellant-Respondent and C.E.S. Truck Lines, Inc., Respondent-Appellant.

No. 57140.

Supreme Court of Missouri, En Banc.

July 14, 1975.

John S. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, Louis A. Robertson, Robertson, Ely & Wieland, St. Louis, for C.E.S. Truck Lines, Inc.

Dearing, Richeson, Roberts & Wegmann, Roland A. Wegmann, Hillsboro, Holtkamp & Beckemeier, A. G. Holtkamp, E. Thomas Liese, St. Louis, for Home Service Oil Company.

HENLEY, Judge.

This case is the sequel to Crystal Tire Company v. Home Service Oil Company and C.E.S. Truck Lines, Inc., reported in 465 S.W.2d 531 (Mo.1971). It involves an appeal by each of the two defendants from an adverse judgment on its cross-claim against the other. An opinion deciding the case was written in Division II, but on a dissenting opinion being filed the case was transferred to the court en banc. Supplemental briefs were thereafter filed by the parties and the case was again argued and submitted, after which the Division opinion failed of adoption and the case was reassigned.

A brief outline of the case is necessary. ¹ Crystal Tire Company (Crystal Tire) sued Home Service Oil Company (Home Oil) and C.E.S. Truck Lines, Inc. (C.E.S.) for damages to its property resulting from a fire and explosion which originated on, and spread to plaintiff's property from, the premises of C.E.S. while Home Oil's transport truck was delivering gasoline to storage tanks of C.E.S. Each defendant filed a cross-claim against the other in two counts, the first count seeking indemnity for any sum the cross-claimant was required to pay the plaintiff and the second seeking damages for injury to the cross-claimant's property resulting from the fire.

Crystal Tire's claim against Home Oil and C.E.S. was based upon, and submitted to the jury on, general negligence under the res ipsa loquitur doctrine. The cross-claim of each defendant against his codefendant was based upon, and submitted to the jury on, specific negligence and, as to the instructions of each on the counts for indemnity, required a finding whether such negligence was active or passive.

Home Oil's cross-claim charged that C.E.S. was negligent (1) in locating and maintaining its gasoline storage tank in close proximity to lot lines; (2) in failing to provide and maintain a dike around the storage tank; (3) in failing to maintain a valve or vent on this tank which would function to allow the escape of vapor and gas therefrom; and (4) in failing to correct information given Home Oil by C.E.S. that it was out of gas. The cross-claim of C.E.S. charged that Home Oil was negligent (1) in allowing gasoline to overflow the storage tank of C.E.S. and spill out over its premises thus causing gas fumes to permeate the air; and (2) in racing its truck motor while undertaking to correct a defect therein when Home Oil knew, or should have known, that sparks would be emitted therefrom and cause the gas fumes to ignite and explode.

The first verdict returned by the jury was refused by the trial court because it apportioned plaintiff's damages between the two defendants. This verdict was in two parts: (1) in favor of Crystal Tire for $251,000 which directed that of this amount C.E.S. pay $175,700 and Home Oil pay $75,300; and (2) against each cross-claimant on his cross-claim. The next day, after further deliberation, the jury returned verdicts: (1) in favor of Crystal Tire and against C.E.S. on plaintiff's claim and again assessed plaintiff's damages at $251,000; (2) in favor of Home Oil and against Crystal Tire on plaintiff's claim; (3) in favor of Home Oil on its cross-claim against C.E.S. and assessed Home Oil's damages at $800; and (4) against C.E.S. on its cross-claim against Home Oil. These verdicts were accepted by the trial court and judgments entered accordingly. As indicated, these judgments were reversed on appeal and the cause remanded with directions. 465 S.W.2d at 535.

In accordance with these directions, the trial court accepted the first verdict which had been returned by the jury and entered a general judgment: (1) for $251,000 in favor of Cyrstal Tire and against both defendants; and (2) against each cross-claimant on its cross-claim. After unavailing post-trial motions, defendants-cross-claimants appealed to this court. Within a few days thereafter, and in accordance with a stipulation between them, each of these appellants paid into the registry of the trial court for the benefit of Crystal Tire one-half of the amount of plaintiff's judgment (with accrued interest), and this money has been disbursed by the circuit clerk to plaintiff. The stipulation provided, inter alia, that acceptance of this money by plaintiff 'shall not waive, alter or affect * * * the right of defendants, on appeal from said judgment, to litigate further all issues remaining between them regarding their respective claims against each other arising out of the subject matter of this action and the tender and deposit herein provided for.' Consequently, the appeals from the judgment in favor of Crystal Tire have been abandoned, leaving for review only the issues relative to the two cross-claims. We will deal with them separately.

HOME OIL'S CROSS-CLAIM

In its first point, Home Oil contends it is entitled as a matter of law to judgment on its cross-claim against C.E.S. for both property damage and for damages awarded Crystal Tire against it, because, as a matter of law, the negligence of C.E.S. was active and the negligence, if any, of Home Oil was passive.

Home Oil at no time moved the court for a directed verdict in its favor on its cross-claim against C.E.S., but joined in submitting its case to the jury on its claim against C.E.S. Accordingly, its point that it was entitled to judgment as a matter of law on its cross-claim was not preserved for appellate review. Stanziale v. Musick, 370 S.W.2d 261, 266(5) (Mo.1963). In any event, had the point been preserved, we would be impelled to find it without merit. Home Oil had the burden of proving its cross-claim. The evidence on which it relied was oral. Assuming, without deciding, that it made a submissible case, it was within the province of the jury to reject the evidence and find against Home Oil. Parsons Construction Co. v. Missouri Public Service Co., 425 S.W.2d 166, 172(7, 8) (Mo.1968).

Home Oil's second point is that 'the court erred in reading to the jury instruction No. 2 immediately after instruction No. 1 and before instruction No. 3, instruction No. 2 being the '(facts no assumed)' instruction (MAI 2.02), which instruction, according to MAI, is to be given to the jury * * * immediately before the form of verdict instruction, which in this case was instruction No. 23.'

The Notes on Use require, as Home Oil asserts, that this instruction be given in every case immediately before the form of verdict instruction. This court has held that it was prejudicial error to fail to give MAI 2.02 (Brannaker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524, 537(17--20) (Mo.1968)) and has required strict adherence to the 'Notes on Use' (Davis v. St. Louis Southwestern Railroad Co., 444 S.W.2d 485, 489 (Mo.1969)). Rule 70.01(d) ² requires, in part: 'Original instructions which are to be given shall be consecutively numbered and shall be given as instructions of the court. Except where otherwise provided in Missouri Approved Instructions, they shall be given in such order as the court shall deem advisable.'

The record is not clear regarding the order in which the instructions were read to the jury. In preparation of the transcript of the record, the reporter did not set out, in their numerical order, the instructions given. They were arranged in four separate groups: (1) those given at the request of plaintiff (Nos. 4, 5, 7, 9 and 10); (2) those given at the request of Home Oil (Nos. 6, 11, 12, 13, 14, 17, 20 and 22); (3) those given at the request of C.E.S. (Nos. 8, 15, 16, 18, 19, 21); and (4) those given at the court's direction (Nos. 2, 3 and 23). ³

If the instructions were given (read) to the jury in this order, then instruction No. 2 was not given 'immediately before the form of verdict instruction,' (No. 23); instruction No. 3 (burden of proof, MAI 3.01, modified) separated the two. If the instructions were given (read) in the order of their consecutive numbering, as required by the Rule, then 20 instructions separated the giving of No. 2 from No. 23. The consecutive numbering of the instructions, except Nos. 2 and 3, follows a logical pattern in submitting the issues presented by the claim of plaintiff and the respective cross-claims of the defendants. We are inclined to the view that the court gave (read) the instructions in their numerical order, as the rule contemplates. In doing so, however, it did not give No. 2 at the point required by the Notes on Use applicable to MAI 2.02. This failure was error, as much so as a failure to give the instruction at all was in Brannaker v. Transamerican Freight Lines, Inc., supra. The number and nature of the several factual issues in this case illustrate the need for the giving of this instruction at the point required by its Notes on Use. Since it has not been made clear that no prejudice could have resulted from the failure to give this instruction at the point required, the error is presumptively prejudicial. The judgment in favor of C.E.S. on Home Oil's cross-claim must be reversed and remanded for this reason if for no other.

This appellant next contends that the court erred in giving instruction No. 16, ⁴ the verdict director of C.E.S. on its cross-claim against Home Oil for indemnity, because (1) it did not require a finding that the negligence of Home Oil was active negligence; and (2) the instruction was based upon damages being sustained by C.E.S. and not damages sustained by Crystal Tire.

The second...