Gaddy v. Skelly Oil Co.

• Decision Date: 13 July 1953
• Docket Number: No. 43165,No. 2,43165,2
• Parties: GADDY v. SKELLY OIL CO
• Court: Missouri Supreme Court

Page 844

259 S.W.2d 844

364 Mo. 143

GADDY v. SKELLY OIL CO.

No. 43165.

Supreme Court of Missouri, Division No. 2.

July 13, 1953.

Norris H. Allen, Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, Eugene E. Northern, Breuer & Northern, Rolla, for appellant Skelly Oil Co.

Llyn Bradford, Rolla, Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Springfield, for respondent.

BARRETT, Commissioner.

Skelly Oil Company is the appellant from a $15,000 judgment in favor of Mrs. Julia Gaddy for the death of her husband, Clarence Gaddy. Mack Waldron and Clarence Gaddy were employed by the Rhodes Hardware Company in Rolla as deliverymen, repairmen and installers of gas hot water systems and other appliances. Rhodes Hardware was a distributor of 'Skelgas' (liquefied petroleum gas, known as propane) and 'Skelgas' appliances, and on August 28th, 1950 entered into an agreement to supply cylinders of propane and the necessary appliances for the hot water heater in Mrs. Crane's apartment house at 688 Salem Street. On Monday afternoon, October 2, 1950, about 3 o'clock, Waldron and Gaddy, in attempting to light the extinguished pilot light on the hot water heater in Mrs. Crane's basement, ignited a cigarette lighter and immediately there was an explosion and flash fire which resulted in serious personal injuries to Waldron and eventually in Mr. Gaddy's death. This is a companion case to Waldron v. Skelly Oil Company, 257 S.W.2d 615, and, except for certain notable differences in the testimony, the facts in the two cases 'are substantially the same.' The sole question upon the appeal in this case, as in the Waldron case, is whether the evidence adduced by Mrs. Gaddy in support of her claim is of such substantial probative force that a jury should be permitted to draw the necessary inference of negligence and consequent liability on the part of Skelly Oil Company for Mr. Gaddy's death.

The hot water heater and its mechanism in the basement belonged to Mrs. Crane. It was a 'Servel' heater which she had purchased from the Rolla Uregas Company. Under its agreement with Mrs. Crane, the cylinders and appliances outside the house belonged to Skelly Oil Company. In addition to the cylinders these appliances consisted of a stand for the tanks, the necessary connecting pipes and a regulator, which the plaintiff claims was defective. The outside appliances had originally been installed at another of Mrs. Crane's properties on East Sixth Street on August 28, 1947. On direct examination Mrs. Crane said that they had been standing there (on Sixth Street) unused for several months. On cross-examination she said that the equipment had been in use at the Sixth Street property from September 28, 1947 until the day she requested Rhodes Hardware to transfer it to 688 Salem Street. In any event, prior to the 1st day of September 1950, the outside appliances were transferred from Mrs. Crane's Sixth Street property to 688 Salem Street and connected with the hot water heater. Skelgas was delivered and attached and the heater worked satisfactorily during the month of September 1950. In addition to the hot water heater Mrs. Crane's apartment house was equipped with other gas appliances requiring liquefied petroleum gas, stoves for cooking and individual heating units. These appliances were supplied with gas by another dealer in liquefied petroleum, the Rolla Uregas Corporation.

Initially there were four defendants to Mrs. Gaddy's action for the negligent death of her husband, William E. Rhodes, doing business as Rhodes Hardware Company, Rolla Uregas Corporation, Uregas Service Incorporated of Moberly, and Skelly Oil Company. It was alleged that her husband was fatally injured 'as a result of the negligence of all of the defendants and each of them combined with the negligence of each other in that said defendants and each of them wholly failed to act with a high degree of care in the installation of safe equipment and in the distribution and delivery of Skelgas and Uregas to said premises * * *.' As to Rhodes Hardware Company, it was alleged that the hardware company was an authorized distributor of Skelly Oil Company's products and that the hardware company negligently delivered liquefied petroleum not effectively odorized as required by law. It was alleged that Rolla Uregas and Uregas Service were engaged in the distribution of liquefied petroleum products and appliances and that they had agreed to supply Mrs. Crane's apartments with gas. It was alleged that these companies sold Mrs. Crane the 'Servel' hot water heater and that it was defective and caused a leakage of gas into the basement. It was also alleged that certain other equipment sold by these defendants was defective and dangerous, and that they sold and delivered liquefied petroleum not odorized as required by law. As to Skelly Oil Company it was alleged that through its agent and distributor, Rhodes Hardware Company, it 'negligently installed defective equipment' and that it had 'actual knowledge' that its unodorized propane had leaked into and permeated the basement. At the opening of the trial the plaintiff voluntarily dismissed her cause as to Rolla Uregas and Uregas Service and the court required that the dismissal be with prejudice. At the close of all the evidence the court sustained Mr. Rhodes' motion for a directed verdict. The liability of Skelly Oil Company was submitted upon the sole hypothesis and specification that 'there was a defect in the regulator,' a part of its equipment outside the house, and that Skelly Oil Company knew or should have known that its regulator was defective. Thus it comes about that the specific question upon this appeal is whether there is any evidence that the regulator on the equipment outside the house was defective as hypothesized and submitted in Mrs. Gaddy's principal instruction.

Certain preliminary information is necessary, however, to an understanding of the specific question. As we have said, Skelly's outside equipment, including the regulator and a cylinder, or cylinders, of gas were transferred and attached to the 'Servel' heater in Mrs. Crane's basement on or before September 1, 1950, and they operated satisfactorily throughout the month of September. Three or four days prior to September 30th, perhaps as early as September 24th, the tenants noticed that there was no hot water and on Saturday morning, September 30th, 1950, Mrs. Crane Ordered another cylinder of 'Skelgas' from the Rhodes Hardware. That afternoon, about one o'clock, Mack Waldron and Gaddy delivered another cylinder of gas to 688 Salem Street. Waldron said that he knocked on the door but there was no one at home and neither he nor Gaddy knew what appliance the cylinder was connected with in the basement. Nevertheless he and Gaddy disconnected the empty cylinder, hooked on the newly delivered one, and turned the gas on by turning on the valve on the cylinder outside the house. That night and Sunday, for the first time, the tenants began to smell the odor of gas and on Monday morning reported the fact to Mrs. Crane and she in turn reported to Mr. McWhorter at Rhodes Hardware. About one o'clock McWhorter and George Moser went to the apartment to check what was said to be a gas leak. Moser, a plaintiff's witness, said that he smelled no gas until he got his head down within ten inches of the heater. He did not know who had turned it, but the unitrol device on the heater was then turned 'off.' Moser said that McWhorter told him that he smelled gas but, since he was not a serviceman, they wouldn't do anything about it. McWhorter turned the gas 'off,' on the cylinder outside, and they left without checking further. After they returned to the hardware, McWhorter told Waldron and Gaddy to go to Mrs. Crane's 'to light the water heater.' Waldron says that McWhorter did not say anything about a gas leak or the odor of gas, they were just to light the heater--the pilot light.

It was about 3 o'clock in the afternoon when Waldron and Gaddy arrived at Mrs. Crane's apartment. Upon arrival they turned the gas on at the cylinder outside, knocked at an apartment door to inquire the way to the basement and were directed to an adjoining apartment for the stairway to the basement. They knocked at Mrs. Foran's door and she admitted them to the basement. Waldron says that he and Gaddy did not smell the odor of gas and he denies that Mrs. Foran or anyone else warned them of gas in the basement. Five, six, seven, eight or ten minutes elapsed from their turning the cylinder on outside until their attempt to light the burner. They did not turn the unitrol valve 'on' or the pilot light. Waldron 'hunkered' down in front of the heater and struck four matches but they would not ignite. Gaddy handed him a cigarette lighter and as soon as he ignited the lighter there was an explosion and a flash fire which extended up into the living room in the apartment above.

No plaintiff's witness examined the basement or the appliances following the explosion and fire. Defendant's witnesses, a state oil inspector, a mechanical engineer from the Rolla School of Mines and Mr. Rasmussen, the manager of Rolla Uregas, did examine the appliances and they found, when the gas was turned on outside, that gas was escaping through the unitrol device, the 100% safety valve, on the heater. Mr. Rasmussen, whose company sold the heater to Mrs. Crane, testified in detail to the defect in the unitrol device. In fact all the witnesses who gave evidence concerning this device said that it was defective. As will be noted, however, one of the plaintiff's witnesses explained that the defect in this device had nothing to do with the explosion. On December 1, 1950, at the request of those representing Skelly Oil Company, the cylinder of Skelgas, the outside appliances, including the regulator and the unitrol device were disconnected from Mrs. Crane's heater and stored in Mr. Courson's warehouse and they were...