Crystal Tire Co. v. Home Service Oil Co.

• Decision Date: 08 March 1971
• Docket Number: No. 2,No. 53952,53952,2
• Citation: 465 S.W.2d 531,46 A.L.R.3d 794
• Parties: CRYSTAL TIRE COMPANY, a Corporation, Plaintiff-Respondent, v. HOME SERVICE OIL COMPANY, a Corporation, Defendant-Respondent, and C. E. S. Truck Lines, Inc., a Corporation, Defendant-Appellant
• Court: Missouri Supreme Court

Page 531

465 S.W.2d 531

46 A.L.R.3d 794

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

No. 53952.

Supreme Court of Missouri, Division No. 2.

March 8, 1971.

Motion to Modify Decree Denied April 12, 1971.

Earl R. Blackwell, Hillsboro, for plaintiff-respondent.

Dearing, Richeson, Roberts & Wegmann, Roland A. Wegmann, Hillsboro, Holtkamp & Amelung, Alvin G. Holtkamp, Robert A. Wulff, St. Louis, for defendant-respondent, Home Service Oil Co.

Robertson, De Voto, Wieland & Lange, L. A. Robertson, Morton K. Lange, St. Louis, Attorneys for defendant-appellant, C. E. S. Truck Lines, Inc.; Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, of counsel.

DONNELLY, Presiding Judge.

This is an action for damages resulting from an explosion and fire in Jefferson County, Missouri, which occurred July 5, 1966. Plaintiff Crystal Tire sued defendants Home Service and C.E.S. for $394,758.98. Each defendant cross-claimed against the other. Trial was had and a verdict was returned by the jury on March 28, 1968. This verdict was not accepted by the trial court. A second verdict was returned by the jury on March 29, 1968. On plaintiff's claims, this verdict found for Home Service and against C.E.S., and assessed plaintiff's damages at $251,000. On the cross-claims of Home Service against C.E.S., this verdict found for Home Service and against C.E.S., and assessed Home Service's damages at $800. On the cross-claims of C.E.S. against Home Service, this verdict found for Home Service and against C.E.S. After-trial motions were filed by plaintiff and C.E.S., and were overruled. Plaintiff and C.E.S. appealed. This opinion is written on reassignment.

The following facts (related by C.E.S. in its brief) are not in dispute:

Plaintiff's amended petition proceeded on general negligence under the res ipsa loquitur doctrine and alleged that the defendant C.E.S. owned and maintained certain gasoline tanks on its premises in Crystal City, Missouri, which adjoined plaintiff's premises; that the defendant Home Service owned and operated a certain gasoline transport truck, which on the day in question was being used to deliver gasoline to the tanks of the defendant C.E.S. on the adjoining premises as aforesaid; and further alleged that the aforesaid tanks, truck and appurtenances were under the sole care, operation, supervision, control, maintenance and ownership of the said defendants, and were by said defendants exclusively controlled.

It further alleged that it was the duty of the defendants to use care to operate and maintain the aforesaid facilities so that the same should not cause explosions or fire, but that wholly disregarding such duty, the defendants did, on the 5th day of July, 1966, carelessly and negligently cause, suffer and permit said facilities to explode and burn, thereby damaging and setting fire to the premises and property of the plaintiff and destroying same.

The amended petition further alleged that the plaintiff had no knowledge of the maintenance and operation of the aforesaid facilities and had no control whatsoever over the same and that the same were under the sole control, supervision and ownership of the defendants, and prayed judgment against the defendants in the amount of $394,758.98.

We must first determine whether the res ipsa loquitur doctrine is available to plaintiff against these two defendants under the facts and circumstances of this case. All parties agree that Crystal Tire's premises adjoined land owned by C.E.S.; that on the C.E.S. land was located a gasoline storage tank which C.E.S. used to service its fleet of trucks; that on July 5, 1966, as the storage tank was being filled with gasoline from a transport truck owned and operated by Home Service, an explosion occurred; and that the resulting fire spread to Crystal Tire's premises and destroyed them.

We acknowledge the temptation in this case to leave the tortuous and sometimes illogical path of res ipsa loquitur (see The Procedural Effect of Res Ipsa Loquitur in Missouri (1953), Wash.U.L.Q. 464; Application of Res Ipsa Loquitur in Suits Against Multiple Defendants (1954), Wash.U.L.Q. 215; and 2 Harper & James, The Law of Torts, § 19.7, p. 1088), and to attempt to chart a new course which would forthrightly recognize the right of a plaintiff to get to the jury 'if he can show that there is an occurrence which normally would not happen but for negligence on the part of someone, that the defendants were probably connected with the occurrence and are likely to have more information or access to information than the plaintiff.' McCoid, Negligence Actions Against Multiple Defendants, 7 Stanford L.Rev. 480 505. However, such a departure is not necessary in this case.

The Missouri law, as it has developed through the years (McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Barb v. Farmers Insurance Exchange, Mo.Sup., 281 S.W.2d 297; Layton v. Palmer, Mo.Sup., 309 S.W.2d 561, and Willis v. Terminal Railroad Association of St. Louis, Mo.Sup., 421 S.W.2d 220), is that the res ipsa loquitur doctrine only applies when: (a) the occurrence resulting in injury is such as does not ordinarily happen if those in charge use due care; (b) at the time the negligence is committed, defendants have actual joint control, or the right of joint control, of the instrumentalities involved; and (c) defendants possess superior knowledge or means of information as to the cause of the occurrence.

In our opinion, a res ipsa loquitur case was established by the evidence against both defendants: (1) the filling of a tank with gasoline does not ordinarily result in an explosion if those in charge use due care; (2) at the time the explosion occurred, Home Service was in actual control of the instrumentalities (the truck and the tank) necessary for the filling operation, and C.E.S. had the right to control such instrumentalities; and (3) plaintiff was totally ignorant of the filling operation. We hold that plaintiff made a submissible case against both defendants under the res ipsa loquitur doctrine.

Plaintiff first asserts on appeal that the 'trial court erred in not sustaining plaintiff's motion for judgment on the pleadings against defendant Home Service Oil Company with respect to the liability of said defendant * * * for the reason that defendant Home Service Oil Company had filed no responsible pleading denying the averments in plaintiff's pleading as required by law and said averments were therefore admitted by defendant Home Service Oil Company as provided in Section 509.100, RSMo 1959, V.A.M.S., and Supreme Court Rule 55.11, V.A.M.R.; and for the further reason that said defendant Home Service Oil Company did not show good cause or any cause whatsoever for not having filed a responsive pleading; that plaintiff had the right to rely and did in fact rely upon said defendant's failure to file such a pleading as an admission by said defendant of the averments in plaintiff's petition; and that the trial court erred in permitting defendant to file a denial pleading after the trial had begun in violation of statute and prejudicial to plaintiff's right of reliance on said defendant's failure to have denied plaintiff's allegation with respect to said defendant's negligence.'

We have concluded that this point is without merit. Under S.Ct. Rule 44.01, V.A.M.R., the trial court was given the discretion to permit Home Service to file its answer out of time 'where the failure to act was the result of excusable neglect.' On the record in this case, we cannot say that the trial court abused its discretion in this regard.

Plaintiff next asserts that the 'trial court erred in not entering judgment for plaintiff and against both defendants for the sum of $251,000.00, judgment against each defendant on each defendant's cross-claim for damages, and judgment against each defendant on each defendant's cross-claim for indemnity, on the initial verdict returned by the jury.'

This point relates to the verdict returned by the jury on March 28, 1968. It reads as follows:

'We, the jury, hereby award damages in the amount of $251,000 to the plaintiff Crystal Tire Company, of this amount defendant CES Truck Lines, Inc. shall pay $175,700 and defendant Home Service Oil...