Donald v. Home Service Oil Co.

• Decision Date: 09 September 1974
• Docket Number: No. 58525,58525
• Citation: Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo. 1974)
• Parties: 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.
• Court: Missouri Supreme Court

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.

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 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, supra, we said: (465 S.W.2d l.c. 533): '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.'

The case before us is still in the pleading stage. All we have is plaintiff's res ipsa loquitur petition and the general denial of defendant C.E.S., together with C.E.S.'s cross claim for indemnity against co-defendant Home Service Oil Company, along with Home Service's motion to dismiss the cross claim for failure to state a claim upon which relief can be granted. The jury might accept as true the claim of C.E.S. that the accident was caused by the acts of Home Service in overfilling the tank, racing the engine on the truck and thereby igniting the fumes and causing the fire. Yet at the same time, the jury could find both defendants liable to plaintiff, ¹ with liability on the part of C.E.S. based on its right of control over the premises, Crystal Tire Co. v. Home Service Oil Co., supra. Thus, the allegations which defendant C.E.S. sets up in its cross claim, even if true, do not necessarily free defendant from any and all liability to the plaintiff. See Feinstein v. Edw. Livingston & Sons, Inc., 457 S.W.2d 789, 793 (Mo.1970), where the court, ruling on a motion to dismiss an indemnity claim, used a similar approach with respect to considering what the pleadings would permit when given all their reasonable intendments.

Barb v. Farmers Insurance Exchange, 281 S.W.2d 297 (Mo.1955) is similar in some respects. In that case there was a res ipsa loquitur pleading and submission by the plaintiff against two co-defendants with a verdict against both defendants and a successful cross claim for indemnity by one co-defendant against the other. Plaintiff was injured when she was struck by falling boxes stacked in a public passageway in a building...