Greiving v. La Plante

• Decision Date: 12 December 1942
• Docket Number: 35703.
• Citation: 131 P.2d 898,156 Kan. 196
• Parties: GREIVING v. LA PLANTE et al.
• Court: Kansas Supreme Court

131 P.2d 898

156 Kan. 196

GREIVING v. LA PLANTE et al.

No. 35703.

Supreme Court of Kansas

December 12, 1942

Syllabus by the Court.

In action for injuries suffered by 10-year old boy as the result of igniting of gasoline negligently sold by filling station attendant to 9-year old boy, burden was upon plaintiff to establish by direct proof or by circumstances from which reasonable inferences of agency could be drawn that defendant exercised some control over attendant who sold the gasoline.

The relationship of landlord and tenant is not in itself sufficient to make landlord liable for tortious acts of the tenant.

That merchandise advertised under trade name of owner of land on which filling station was built was sold at retail on the property was not alone sufficient to establish "agency" as between owner of realty and tenant who operated station thereon so as to render owner liable for tortious acts of station attendant.

Negligence is ordinarily a question for jury, but where the facts are undisputed, it is the province of trial court to say, as a matter of law, whether upon the facts, viewed most favorably to the plaintiff, actionable negligence can be inferred.

Upon defendant's demurrer to the evidence, plaintiff's evidence is accepted as true.

In action against seller for injuries suffered by 10-year old boy when gasoline purchased at his direction by 9-year old playmate ignited when poured on fire by 10-year old boy, it was immaterial that gasoline was delivered in a can not painted red or labeled gasoline, where both boys knew they were handling gasoline so that there could be no causal connection between absence of such markings and the accident.

In appraising the conduct of a child on a question of negligence, a very different standard is to be applied than in the case of adults, but such rule had no application in determining actionable negligence of filling station attendant in selling to a 9-year old boy gasoline poured on a fire by 10-year old boy who was injured as a result thereof.

In order for negligence to be the "proximate cause" of particular injury complained of, the injury must be something within the reasonable contemplation of the ordinarily prudent man or the legitimate consequence of the wrong done.

Between the particular injury complained of and the "proximate cause" thereof there must be a natural continuous sequence unbroken by any new and independent cause.

Evidence that filling station attendant sold gasoline to 9-year old boy who at suggestion of 10-year old playmate said his mother wanted the gasoline for cleaning, and that 10-year old playmate realizing the danger of pouring gasoline on fire but believing fire with which they had been playing was out poured gasoline on the coals and as a result was burned failed to establish as a matter of law that attendant's negligence, if any, in selling gasoline to child was the "proximate cause" of playmate's injuries.

1. The relationship of landlord and tenant is not in itself sufficient to make the landlord liable for the tortious acts of the tenant.

2. The fact that goods and merchandise, advertised under the trade name of the owner of property, are sold at retail on the property is not alone sufficient to establish agency as between such owner and the seller who occupies the property.

3. A question of negligence is ordinarily one for the jury, but where the facts are undisputed, it is the province of the court to say, as a matter of law, whether upon the facts viewed most favorably to the plaintiff, actionable negligence can be inferred.

4. The record examined in an action for damages for personal injuries suffered by a minor in using gasoline which had been bought by another minor, and held that under the facts and circumstances stated in the opinion plaintiff's evidence established no cause of action against the operator of the filling station where the gasoline was bought.

Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.

Action by Lee Donald Greiving, a minor, by his father, Victor Greiving, and next friend, against Paul LaPlante and the Phillips Petroleum Company, a Delaware corporation, for personal injuries resulting from the igniting of gasoline purchased at a filling station. From a judgment for plaintiff, defendants appeal.

Judgment reversed with direction to enter judgment for defendants.

Edward F. Arn, of Wichita (W. E. Holmes and Howard L. Baker, both of Wichita, on the brief), for appellant Paul LaPlante.

George Siefkin, of Wichita (Robert C. Foulston and John F Eberhardt, both of Wichita, and Don Emery, H. P. Robinson and Rayburn L. Foster, all of Bartlesville, Okl., on the brief) for appellant Phillips Petroleum Co.

L. M Kagey, of Wichita (Carl O. Bauman, of Wichita, on the brief), for appellee.

HOCH Justice.

A minor recovered damages for personal injuries resulting from the igniting of gasoline which had been bought by another minor, at a filling station. Defendants appeal from orders overruling demurrers to the evidence and motions for judgment "upon the undisputed and uncontradicted evidence in the case," notwithstanding the general verdict. The issues presented are whether the person who sold the gasoline was shown to be the agent or employee of defendants or either of them; whether the evidence supported any findings of actionable negligence and if there was such negligence whether the evidence compelled a finding of contributory negligence on the part of the plaintiff.

The essential facts may be briefly stated. The plaintiff, Lee Donald Greiving (hereinafter referred to as Lee), a boy ten years old, was playing near his home with another boy, Donald Kirkpatrick, (hereinafter referred to as Donald), who was nine years old. They had a fire in a little can and had used some coal oil to make the fire burn better. According to Donald's testimony Lee told him to go across the street to the filling station and buy some gasoline and "to say that his Daddy wanted it to clean out spots on a hat." Donald went over and bought two cents worth of gasoline and gave it to Lee. Lee poured the gasoline on the fire and in some way not entirely clear from the testimony his leg was severely burned. Action was brought against the Phillips Petroleum Company and Paul LaPlante the allegation being that they individually and jointly owned, operated and controlled the filling station. Two principal acts of negligence were alleged,--(a) selling gasoline to a minor nine years of age who did not appreciate the dangerous qualities of gasoline and who was likely to be injured by it, and (b) delivering the gasoline in an open can which was not painted red or labelled "gasoline" as required by the statutes and the city ordinance. Plaintiff asked damages in the amount of $8,428. Neither of the defendants offered any evidence, both choosing to stand upon their separate demurrers to plaintiff's evidence. Verdict was for plaintiff for $822 for pain and suffering and for $178 for medical attention. Nothing was allowed for permanent injuries. To a question as to the nature of defendants' negligence, if any, the jury answered: "That their employee sold 2 ¢ worth of gasoline to a 9 year old child and put it in an open tin can."

We deal first with the demurrers to the evidence. It is clear that the court erred in overruling the demurrer of the Phillips Petroleum Company. As before stated, it was alleged in the petition that Phillips and LaPlante individually and jointly owned and operated the station. Such ownership and operation was put in issue by the answer of Phillips. In his opening statement counsel for the plaintiff said:

"I think the evidence will show unquestionably that the Phillips Petroleum Company own this station up there and just what relation the Phillips Petroleum Company bears to LaPlante will probably be shown in the evidence later on, but Mr. LaPlante apparently is the operator of the station up there."

In the opening statement for Phillips counsel admitted that the company owned or leased the land upon which the station was built and stated that the property had been leased to LaPlante and that the company was not operating the station and had not operated it "for quite a period of time." The burden was upon the plaintiff to establish--by direct proof or by circumstances from which reasonable inference of agency could be drawn--that the Phillips company exercised some supervision or control over the attendant who sold the gasoline. In addition to the bare fact of ownership of the land upon which the station was built the only other evidence submitted for the purpose of connecting the Phillips company with the transaction was the fact that there was a sign "Phillips Petroleum Company" at the station and one or more signs advertising Phillips products. Indeed, the abstract merely shows that there were certain signs at the station. However, we accept counsel's statement as to what the signs were. Citation of authorities is scarcely needed in support of the proposition that tenancy alone is insufficient to render the landlord liable for the torts of the tenant or that the mere fact of ownership of property or that goods marketed under the trade name of such owner are advertised and sold there is insufficient to show that the one who sells the goods is the agent or employee of such owner. 2 C.J.S., Agency, § 2, p. 1030; 32 Am.Jur. 537; Tice v. Crowder, 119 Kan. 494, 240 P. 964, 42 A.L.R. 893; Stilwell v. Faith, 142 Kan. 730, 732, 52 P.2d 635. The trial court erred in overruling the Phillips Petroleum Company's demurrer to the evidence.

We next consider the demurrer of LaPlante, the operator of the station. We think there was sufficient evidence to withstand demurrer on...