Davis v. Cities Service Oil Co.

• Citation: 131 S.W.2d 865
• Decision Date: 03 October 1939
• Docket Number: No. 25041.,25041.
• Parties: DAVIS v. CITIES SERVICE OIL CO. et al.
• Court: Missouri Court of Appeals

131 S.W.2d 865

DAVIS v. CITIES SERVICE OIL CO. et al.

No. 25041.

St. Louis Court of Appeals. Missouri.

October 3, 1939.

Rehearing Denied October 17, 1939.

Appeal from Court of Common Pleas, Cape Girardeau County; L. L. Bowman, Judge.

"Not to be reported in State Reports."

Action by Nadine Davis, a minor, by her guardian, Ida M. Slinkard, against the Cities Service Oil Company and others to recover damages for the death of Truman Davis, plaintiff's husband. From a judgment sustaining named defendant's demurrer to the petition, plaintiff appeals.

Affirmed.

Homer F. Williams, of Marble Hill, and Dearmont, Spradling & Dalton, of Cape Girardeau, for appellant.

Oliver & Oliver, of Cape Girardeau, and R. F. Baynes, of New Madrid, for respondent.

BECKER, Judge.

Plaintiff, a minor, by her guardian brought suit under the wrongful death statute, Rev.St.1929, § 3262 et seq., Mo.St.Ann. § 3262 et seq. p. 3353 et seq., for the death of her husband. The defendants were L. R. Campbell and G. M. Campbell, operators of a gasoline service station, and the Cities Service Oil Company, the lessor of the said property.

The appeal was taken by plaintiff from the final order and judgment of the court sustaining the separate demurrers of the defendant Cities Service Oil Company to each of the two counts in plaintiff's petition and after plaintiff had dismissed as to the said defendants Campbell.

The petition alleges that the plaintiff's husband was an employee of defendants Campbell, engaged in servicing automobiles at their oil and gasoline station, and that while at his work about a certain lift, hoist and compressor on the premises, used for raising and lowering automobiles for the purpose of greasing them, an automobile fell off said lift and upon plaintiff's husband, injuring him so that he shortly thereafter died.

The petition, as amended by leave of court, contains two counts, the first seeking to predicate liability for injury resulting from alleged nuisance, and the second count on alleged liability resulting from negligence.

In the first count of her petition plaintiff states that Ida M. Slinkard is the duly appointed, qualified and acting guardian of the estate of plaintiff Nadine Davis, a minor, and that Nadine Davis was the wife and is now the widow of Truman Davis, who was injured on May 28, 1937, and died June 22, 1937, as a direct and proximate result of his injuries; that the defendant Cities Service Oil Company, a corporation, was the owner of property located at the intersection of highways 61 and 25 in Cape Girardeau county, Missouri, upon which premises there was a hydraulic lift or hoist used and intended to be used for the purpose of raising automobiles to be serviced, and upon which automobiles were placed and raised to facilitate changing the oil and greasing them; that prior to March 10, 1937, defendant Cities Service Oil Company was in the possession, control and management of said premises and said lift; that on said day the said Cities Service Oil Company leased said premises, including said lift, to the defendants L. R. Campbell and G. M. Campbell, a co-partnership, for the purpose of maintaining a service station thereon and selling Cities Service Oil Company products; that for a long period of time on and before March 10, 1937, and continuously thereafter up to and including the 28th day of May, 1937, the lift upon said premises was old, dangerous and unsafe, and in a worn and dilapidated condition; that said lift was dangerous to be operated and dangerous to persons in and about the same while the same was in use; that the right rear side beam and the left side beam "were sprung down; that the rear part of the lift would not set down squarely when the lift was lowered; that the lift would wobble and drop irregularly when being lowered; that in placing automobiles upon said lift it was absolutely necessary at all times to have the said automobiles placed thereon perfectly balanced while being raised and lowered upon said lift, otherwise the said automobiles would fall off, tilt to one side, or slip off the said lift"; and that when the compressor was turned on the "lift would not start raising at once, and when it did begin to raise it would raise suddenly and irregularly; that the compressor operating said lift was out of repair and leaked and would not hold the lift steady; that the lift lowered irregularly as well as raised irregularly while in use and tended to cause automobiles to tilt and become unbalanced while being raised and lowered thereon; that the maintenance of said lift or hoist in its then condition, and with the said compressor in connection therewith in its said condition, was inherently dangerous and unsafe when used for the purposes for which it was constructed, maintained and intended to be used; that it was dangerous not only to the employees but to persons in and upon said premises and about the same while it was in use; that such inherent dangers existed regardless of the exercise of a reasonable degree of care in its operation; that the defective, dangerous and unsafe and out of repair condition of said hoist or lift and compressor was fully known or by the exercise of ordinary care could have been known to the defendants at all times herein mentioned; that said defendants failed to correct, repair, reconstruct or replace the same; that on May 28, 1937, Truman Davis, husband of plaintiff, while then and there employed by the defendants Campbell, and while engaged in the course of his employment using said lift for the purpose of lifting and handling a certain automobile thereon for the purpose of draining and changing the oil and greasing said automobile, and while said automobile was on said lift, and as a direct and proximate result of the inherently dangerous, defective, and unsafe condition of said lift and compressor, and of the existence of said nuisance, as aforesaid, the automobile thereon tipped off and fell off of the said lift and upon said Truman Davis, crushing and injuring him so that thereafter, as a direct and proximate result of his said injury, he died on June 22, 1937."

Plaintiff's damages are alleged to be $7,500, for which she asks judgment, together with her costs against defendants.

Plaintiff, here on appeal, assigns as error that the trial court sustained defendant's Cities Service Oil Company separate demurrer to the first count of plaintiff's petition, holding that said count fails to state facts sufficient to constitute a cause of action. Plaintiff insists that the allegations in said count are sufficient to state a cause of action for damages resulting from nuisance.

In analyzing the first count of plaintiff's petition we have in mind that plaintiff took a voluntary nonsuit as to defendants L. R. Campbell and G. M. Campbell, and that we are only reviewing the action of the trial court in sustaining the separate demurrer of the defendant Cities Service Oil Company. It is true that this count sets out at great length defects which allegedly existed in the lift or hoist and which defects the defendant lessor knew or should have known of, and which defendant lessor failed to repair or correct. The petition also alleges that by reason of the alleged defects the lift was inherently dangerous and constituted a nuisance, and that plaintiff's husband was injured and met with his death as the result of such nuisance.

As we view these allegations they make a charge of negligence in the maintenance of the lift, rather than a case of maintaining a nuisance. Certainly the maintenance of a lift of the kind in question, when properly constructed and installed, is not inherently dangerous. Each of the defects in the condition of the lift which are alleged to have existed at the time plaintiff's husband met with the injuries which caused his death could have been repaired or remedied, but instead were permitted to exist by reason of the failure to exercise ordinary care to make such repairs. It is therefore clear that the facts alleged in count one of plaintiff's petition do not make out a cause of action for plaintiff and against defendants for damages sustained through maintaining a nuisance by defendants.

"A distinction has been made between acts lawful in themselves done by one upon his own premises which may result in injury to another if not properly done or guarded, and those which in the nature of things must so result; in the former cases a person could only be made liable for actual negligence in the performance of the act or mode of maintaining it, while in the latter he would be liable for all the consequences of his acts, whether guilty of negligence or not. The one can only become a nuisance by reason of the negligent manner in which it is performed or maintained, while the other is a nuisance per se." 46 C.J. 664, sec. 28. See also Schindler v. Standard Oil Co. 207 Mo.App. 190, 196, 232 S.W. 735; Pearson v. Kansas City, 331 Mo. 885, 55...