Govero v. Standard Oil Co.

• Decision Date: 17 December 1951
• Docket Number: No. 14324.,14324.
• Citation: 192 F.2d 962
• Parties: GOVERO v. STANDARD OIL CO.
• Court: U.S. Court of Appeals — Eighth Circuit

192 F.2d 962 (1951)

GOVERO v. STANDARD OIL CO.

No. 14324.

United States Court of Appeals Eighth Circuit.

December 17, 1951.

Will B. Dearing, Hillsboro, Mo. (Dearing & Matthes, Hillsboro, Mo., on the brief), for appellant.

John S. Marsalek, St. Louis, Mo. (Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment for the defendant (appellee) in an action brought by the plaintiff (appellant) to recover for personal injuries and property damage resulting from an explosion which occurred on June 7, 1948, in the basement of the gasoline filling station which the plaintiff was operating in Festus, Missouri. The station was owned by the defendant. The plaintiff was in possession and control of the station at the time of the explosion under a written lease dated February 18, 1948, for the term of one year commencing March 1, 1948.

Briefly and generally stated, the claim of the plaintiff was that the explosion was due to an undiscovered underground leak in one of the underground gasoline tanks of the filling station and the seepage of gasoline from this tank into the basement of the filling station. He claimed that this was attributable to the defendant's neglect in failing to discover and to repair the leak and in leaving the tank in an unsafe condition when in February of 1948 the defendant undertook to have the tank repaired after having received from the plaintiff a complaint about the presence of water in the tank and of gasoline fumes in and about the filling station.

The defendant denied that the explosion was due to its negligence; alleged contributory negligence on the part of the plaintiff; and set up as a defense the following covenant of the lease in effect at the time of the explosion: "Lessor, its agents and employees shall not be liable for any loss, damage, injuries, or other casualty of whatsoever kind or by whomsoever caused, to the person or property of anyone (including the Lessee) on or off the premises, arising out of or resulting from the Lessee's use, possession or operation thereof, or from the installation, existence, use, maintenance, condition, repair, alteration, or removal of any equipment thereon, whether due in whole or in part to negligent acts or omissions of the Lessor, its agents or employees; and the Lessee for himself, his heirs, executors, administrators, successors and assigns, hereby agrees to indemnify and hold Lessor, its agents and employees, harmless from and against all claims for such loss, damage, injury or other casualty."

The case was tried to a jury. At the close of the evidence, the defendant moved for a directed verdict. The motion was denied, and the issues were submitted to the jury. The jurors were unable to agree, and were discharged. The defendant thereafter moved for judgment against the plaintiff in accordance with its motion for a directed verdict; this pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. The District Court granted the motion upon the ground that the above quoted covenant of the lease barred the plaintiff from recovering against the defendant. This appeal followed.

It is unnecessary to state the facts in detail, since all that the District Court has decided is that the covenant in suit barred the plaintiff's claim. We may, therefore, assume for the purposes of this opinion that if the court's decision is erroneous the issues of negligence, contributory negligence and proximate cause would be for a jury to determine. It is only in exceptional cases that this Court will consider questions not ruled upon by a District Court. Trapp v. Metropolitan Life Insurance Co., 8 Cir., 70 F.2d 976, 981 and cases cited.

The evidence disclosed that the tests and repairs which the defendant caused to be made upon the underground tanks were made before the middle of February, 1948, and prior to the date of the lease which was in effect at the time of the explosion; that at the time the repairs were made the plaintiff was occupying the filling station under a prior lease with the defendant which did not contain a covenant such as that in suit; that, under the subsequent lease of February 18, 1948, the plaintiff agreed that he knew the condition of the premises, had received them in good order and repair, and that no representations as to their...