Feldewerth v. Great Eastern Oil Co.

• Citation: 149 S.W.2d 410
• Decision Date: 08 April 1941
• Docket Number: No. 25638.,25638.
• Parties: FELDEWERTH v. GREAT EASTERN OIL CO.
• Court: Missouri Court of Appeals

149 S.W.2d 410

FELDEWERTH v. GREAT EASTERN OIL CO.

No. 25638.

St. Louis Court of Appeals. Missouri.

April 8, 1941.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action by Lou Feldewerth against the Great Eastern Oil Company for personal injuries. From a judgment for plaintiff, defendant appeals.

Reversed.

Albert I. Graff, Lawrence G. Lally, and Moser, Marsalek & Dearing, all of St. Louis, for appellant.

Morris A. Shenker and Glenn L. Moller, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff on September 30, 1937, while undertaking to repair a gasoline pump owned by defendant, the Great Eastern Oil Company, but located on the premises of the Chapman Dairy Company at 3912 Easton Avenue, in the City of St. Louis.

Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $3,000. Judgment was entered in accordance with the verdict; and defendant's appeal to this court has followed in the usual course.

Defendant is a concern engaged in the business of selling and distributing gasoline and oil products to its customers, among whom, at the time in question, was the Chapman Dairy Company, whose volume of purchases was such that defendant, following its regular course of dealing in the case of such accounts, had installed a pump on the dairy company's premises for the latter's convenience in supplying its trucks and other motor vehicles with gasoline. Under the arrangement with the dairy company, defendant obligated itself to keep the pump in good condition; and whenever anything would go wrong with the pump, the dairy company would merely call up, and defendant would then take care of the matter in accordance with the agreement.

Plaintiff, a man thoroughly experienced in the installation, maintenance, and repair of gasoline pumps and other filling station equipment, was in business for himself at the time in question, holding himself out independently as available for employment by any person or oil company that might have need for his services on repair or installation jobs at locations in and around the City of St. Louis. In short, he carried on his business as an independent contractor, bidding in and taking on jobs from different contractees, among whom was defendant, for which he had done work from time to time over a period of six months prior to his injury on September 30, 1937.

On that date, while plaintiff was working out in Clayton at a Conoco filling station, someone from defendant's office called him over the telephone and requested that he go out to the place of business of the Chapman Dairy Company and repair a pump that had something wrong with it.

Arriving at the dairy company's plant with his two helpers, plaintiff identified himself as the repairman who had been sent out by defendant, and upon making inquiry as to what seemed to be wrong with the pump, was told that no gasoline could be gotten out of it.

Upon being so advised by the employee of the dairy company, plaintiff and his helpers removed the upper and middle sections of housing from around the pump; took out a plug from a half-inch return pipe extending down into the underground tank; and with the hose closed, turned a lever to put the pump in motion so as to cause the gasoline to be delivered through the unplugged hole into a can which one of plaintiff's helpers held to catch it. Air and dirt, and finally gasoline, came out; and as the gasoline poured out of the hole under the pressure of the pump, some of it unavoidably missed the can which was being held for it, and spilled out upon plaintiff, as well as down upon the pump and the concrete around it for a distance of three or four feet.

Finding that gasoline would come through the line, plaintiff shut off the pump and plugged up the hole he had previously opened, but before undertaking to put the sections of housing back in place, tried out the pump once again to make sure that it would deliver gasoline through the hose. Satisfied that it was operating properly he said, "It is O. K. now", and was making ready to replace the housing when one of the dairy company's employees who was standing by observing the proceeding informed him that he wasn't through yet, and that for several weeks there had been a leak in the bottom of the pump which needed to be repaired.

Plaintiff agreed to see about the leak, and started to take off the lower housing, which was the only section of housing left upon the pump. As he reached down to pull the housing apart, the pump burst into flames, catching plaintiff's clothing on fire and causing him to be burned severely before the flames could be smothered and extinguished with a sack which one of his helpers procured from their truck and threw over him as he rolled upon the ground.

After the fire had been put out, plaintiff went back to the pump to see if he could find out what had been responsible for the occurrence, and while he was standing looking down into the pump, the employee of the dairy company reached in with his foot and touched an open junction box, which immediately burst out in a big arc. Over defendant's objection, the court permitted plaintiff to testify that as this happened, the dairy company's employee said, "Here is the thing that caused your trouble."

It appears that the open junction box in question was the part of the pump's electrical equipment through which connection was made with an outside main wire coming up out of the concrete beneath the pump through a flexible conduit which had been employed, rather than a rigid conduit, so that the wire might be bent in any shape as it was fastened onto the wires in the junction box. The connections thus made were wrapped with friction tape, which, in time, has the tendency to dissolve if exposed to contact with gasoline. Indeed, plaintiff testified that when he examined the contents of the open junction box, he observed that the wires were ragged and burned; and, assuming that such condition of the wiring had existed before the fire, an expert in matters of gasoline equipment testified that it would have been "possible", when plaintiff attempted to remove the lower housing, for the same to have scraped against the bare wires and have caused a flash and the resulting fire.

All other junction boxes in the pump were of the explosion-proof variety; and it was shown than an open junction box is not approved equipment for use in a gasoline pump on account of...