Donald v. Home Service Oil Co., No. 58525

CourtMissouri Supreme Court
Writing for the CourtSEILER
Citation513 S.W.2d 426
PartiesHoward DONALD, Plaintiff, v. HOME SERVICE OIL COMPANY, a corporation, Defendant, Cross-Defendant-Respondent, and C.E.S. Truck Lines, Inc., a corporation, Defendant, Cross-Claimant-Appellant.
Docket NumberNo. 58525
Decision Date09 September 1974

Page 426

513 S.W.2d 426
Howard DONALD, Plaintiff,
v.
HOME SERVICE OIL COMPANY, a corporation, Defendant,
Cross-Defendant-Respondent,
and
C.E.S. Truck Lines, Inc., a corporation, Defendant,
Cross-Claimant-Appellant.
No. 58525.
Supreme Court of Missouri, En Banc.
Sept. 9, 1974.

Page 427

A. G. Holtkamp, Gilbert N. Beckemeier, St. Louis, for respondent.

Louis A. Robertson, Robertson, Ely & Wieland, F. X. Cleary, J. C. Jaeckel, St. Louis, for appellant.

SEILER, Judge.

This case is here on transfer under Art. V, Sec. 10, 1945 Missouri Constitution, V.A.M.S., upon certification by a judge of the court of appeals, St. Louis district, that the majority opinion filed in that court is contrary to the decision of this court in Crystal Tire Company v. Home Service Oil Company and C.E.S. Truck Lines, Inc., 465 S.W.2d 531, 533 (Mo.1971). Under the constitutional provisions, we decide the case as though it were here on original appeal.

The controversy before us arises from an appeal by defendant C.E.S. Truck Lines, Inc. from an order dismissing its cross claim for indemnity against co-defendant Home Service Oil Company on the ground of failure to state facts upon which relief can be granted. The cross claim grows out of an action by plaintiff Donald seeking recovery from C.E.S. and Home Service for damage to his propertry caused by an explosion and fire occurring on C.E.S.'s premises. To determine whether a case for indemnity exists, we must assume that the facts stated in plaintiff's petition and defendant's cross claim are true. Campbell v. Preston, 379 S.W.2d 557, 560 (Mo.1964).

In his petition plaintiff Donald alleged (1) defendant C.E.S. owned and maintained gasoline tanks on its premises which adjoined plaintiff's premises; (2) defendant Home Service owned and operated a gasoline transport truck used to deliver gasoline to the tanks of C.E.S.; (3) the tanks, truck and appurtenances were under the sole care, control, supervision and maintenance of defendants; (4) that defendants carelessly and negligently caused, suffered and permitted the facilities to explode, thereby destroying plaintiff's building and (5) that plaintiff was without knowledge or control of the operation and maintenance of said facilities or cause of explosion.

This petition, under Crystal Tire Company v. Home Service Oil Company, supra, is one proceeding under the res ipsa loquitur doctrine, 465 S.W.2d l.c. 532. See also, Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657 (Mo.1974).

Defendant C.E.S. filed an answer admitting it owned and maintained gasoline tanks on its premises and that Home Service owned and operaed a gasoline truck used to deliver gasoline to the tanks of C.E.S., but denied that the gasoline truck was under its care, operation, supervision, control, maintenance or ownership or that it negligently caused the tank to explode.

Coupled with C.E.S.'s answer is a cross claim alleging that at the time of the delivery the transport truck and storage tanks were under the sole and exclusive control of Home Service; that Home Service negligently overfilled the tank causing a dangerous accumulation of volatile fumes, that Home Service negligently raced the engine of the truck, producing sparks which ignited the fumes causing the explosion and plaintiff's damages, and that if C.E.S. is held liable to plaintiff Donald, C.E.S. is entitled to be indemnified by Home Service to the extent of any judgment rendered against it in favor of plaintiff.

Respondent Home Service Oil Company argued, and the trial court held, as did the

Page 428

court of appeals on appeal, that the allegations made by C.E.S. in its cross claim did not provide C.E.S. with a cause for indemnity, but rather constituted allegations in defense of plaintiff's claim which, if true, would relieve C.E.S. of any liability to plaintiff.

We do not agree that it necessarily follows under the pleadings that the allegations made by C.E.S. in its cross claim for indemnity against Home Service, even if accepted by the jury, would thereby relieve C.E.S. of any liability to plaintiff. In the Crystal Tire Company case,...

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5 practice notes
  • Missouri Pac. R. Co. v. Whitehead & Kales Co., No. 59906
    • United States
    • United States State Supreme Court of Missouri
    • April 28, 1978
    ...to non-contractual indemnity presupposes actionable negligence of both parties toward a third party. Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo.banc 1974); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705 (banc 1951); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); 1 J. ......
  • Bratton v. Sharp Enterprises, Inc., BUCYRUS-ERI
    • United States
    • Court of Appeal of Missouri (US)
    • May 31, 1977
    ...of boxes in the hallway, and they were placed there without the consent or acquiescence of the lessor. In Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo. banc 1974), plaintiff brought suit for property damage against Home Service Oil Co. (Home Service) and C.E.S. Truck Lines, Inc. (C.E.......
  • Cologna v. Farmers and Merchants Ins. Co., Nos. 16153
    • United States
    • Court of Appeal of Missouri (US)
    • February 2, 1990
    ...United States Fidelity & G. Co. v. Safeco Ins. Co. of America, 522 S.W.2d 809, 819-21 (Mo. banc 1975); Butters v. City of Independence, 513 S.W.2d at 426[11, 12]; Eakins v. Burton, 423 S.W.2d 787, 790 (Mo.1968). It could not fairly be said that the judgment in the wrongful death action was ......
  • Kendall v. Sears, Roebuck and Co., No. 63086
    • United States
    • United States State Supreme Court of Missouri
    • June 8, 1982
    ...to non-contractual indemnity presupposes actionable negligence of both parties toward a third party. Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo. banc 1974); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705 (Mo. banc 1951); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); ......
  • Request a trial to view additional results
5 cases
  • Missouri Pac. R. Co. v. Whitehead & Kales Co., No. 59906
    • United States
    • United States State Supreme Court of Missouri
    • April 28, 1978
    ...to non-contractual indemnity presupposes actionable negligence of both parties toward a third party. Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo.banc 1974); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705 (banc 1951); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); 1 J. ......
  • Bratton v. Sharp Enterprises, Inc., BUCYRUS-ERI
    • United States
    • Court of Appeal of Missouri (US)
    • May 31, 1977
    ...of boxes in the hallway, and they were placed there without the consent or acquiescence of the lessor. In Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo. banc 1974), plaintiff brought suit for property damage against Home Service Oil Co. (Home Service) and C.E.S. Truck Lines, Inc. (C.E.......
  • Cologna v. Farmers and Merchants Ins. Co., Nos. 16153
    • United States
    • Court of Appeal of Missouri (US)
    • February 2, 1990
    ...United States Fidelity & G. Co. v. Safeco Ins. Co. of America, 522 S.W.2d 809, 819-21 (Mo. banc 1975); Butters v. City of Independence, 513 S.W.2d at 426[11, 12]; Eakins v. Burton, 423 S.W.2d 787, 790 (Mo.1968). It could not fairly be said that the judgment in the wrongful death action was ......
  • Kendall v. Sears, Roebuck and Co., No. 63086
    • United States
    • United States State Supreme Court of Missouri
    • June 8, 1982
    ...to non-contractual indemnity presupposes actionable negligence of both parties toward a third party. Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo. banc 1974); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705 (Mo. banc 1951); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); ......
  • Request a trial to view additional results

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