Grissom v. Handley

Decision Date16 December 1966
Docket NumberNo. 8483,8483
Citation410 S.W.2d 681
PartiesJoe E. GRISSOM, Plaintiff-Respondent, v. Nettie M. HANDLEY, d/b/a Handley's Tri-County Gas and Fertilizer Company, Hayti, Mo., Defendant-Appellant.
CourtMissouri Court of Appeals

John R. Fowlkes, Caruthersville, Harold D. Jones, Bock & Jones, New Madrid, for defendant-appellant.

Wendell W. Crow, James F. Ford, Ford, Ford & Crow, Kennett, for plaintiff-respondent.

TITUS, Judge.

An explosion of fire which injured plaintiff in a bean field on November 13, 1962, near Hayti, Pemiscot County, Missouri, provoked this lawsuit and a $15,000 verdict and judgment in his favor. On appeal the defendant, a retailer of propane (a liquid petroleum gas), successfully convinced all judges here plaintiff had not made a submissible case in the trial court. A difference existed, however, as to whether the cause should be reversed outright or reversed and remanded. Defendant's motion for rehearing was granted, the parties have offered their supplemental briefs and arguments, and the matter is now assigned to the present writer for belaboring. From the subsequently appearing pronouncements set forth in brackets, the reader will realize a liberal kidnapping has been taken of the original opinion in this case provided by Hogan, J.

Two contrivances are involved. One is an auto-combine used to harvest soybeans and which had been converted to use propane, instead of gasoline, as fuel. The other is a 500 gallon propane tank of customary appearance. The tank and its fixtures were owned and supplied by defendant, and the propane in the tank was put there by defendant. The tank was mounted on a four-wheeled trailer owned by Troy Grissom, so it could be hauled about to service the combine which was the property of Bondy Grissom. Although the term 'customary appearance' is applied to the tank, it is necessary to undertake a detailed description of this item, its attachments, and the trailer.

The tank was cylindrical in shape with either end encased by a dome-like closing. Affixed to the trailer with its axis horizontal, the tank was about eight feet long with a diametrical span approximating two and one-half feet. The trailer was equipped with a tongue of pipe, the end of which appears capable of coupling with a trailer hitch. When the casualty occurred, the tank and trailer were parked in a turnrow at the south end of the bean field with the tongue extending towards the east. Consequently, the tongue end of the trailer is alternately referred to as the front or east end of the tank.

A bird's-eye look at the tank (i.e., looking down at it from above, reading it maplike with the tongue to the east) reveals that directly atop the tank and a short distance west of center is affixed a percentage gauge. Facing upward, the percentage gauge (said to bear numbers up to 95 or 100) indicates the amount of liquid in the tank. This gauge was not introduced into evidence.

At what appears to be the middle of the tank lengthwise (east and west) and just north of the lengthwise center line, was an input fitting used to fill the 500 gallon tank (Plaintiff's Exhibit Number 26). Part of this fitting was an outage or 85 per cent pressure gauge operated by thumbscrew. Extending to the west horizontally from the fitting was a pressure gauge, the dial of which faces upward and bears numbers from 0 to 300. The dial reading reveals the pounds of pressure per square inch inside the tank.

Just east of the lengthwise middle of the tank and slightly south of the lengthwise conterline was the filler fitting (Plaintiff's Exhibit Number 29) and excess flow check valve. To this was attached a filler hose or tube (Plaintiff's Exhibit Number 30) used in transferring propane from the 500 gallon trailer mounted tank to the fuel tank on the combine. At the end of the hose was the filler valve (Plaintiff's Exhibit Number 28) to be connected to the combine tank when it was being serviced from the larger tank.

The pressure relief value (Plaintiff's Exhibit Number 27) was located on top of the tank and about two feet east of the filler fitting. This valve, as it appears from the exterior of the tank, is one and three-fourths inches in diameter and one and one-half inches high.

(The storage tank in question had been filled several days earlier at the defendant's plant and had been left in the field where plaintiff and another combine operator were working. 'Around one o'clock' plaintiff stopped his combine near the storage tank in order (so he says) to check the oil, and it was then that the casualty occurred, though the evidence is sharply in conflict as to what actually happened. Plaintiff's theory was that gas escaped from a relief valve on the storage tank; when it came in contact with the engine on the combine, which was 'red hot,' it caught fire or exploded. A deposition which plaintiff offered in evidence showed that six days following the accident plaintiff had told a physician that the combine caught fire and he claimbed up on it in an attempt to put the fire out, and at that time the combine exploded, burning the plaintiff. The defendant produced a witness who claimed to have been present and who testified that the plaintiff caused the accident himself by using the compressed gas (through a filler tube) to blow the accumulated dust and debris from the radiator on the combine. In any event, there was a fire or explosion; the plaintiff was severely burned and either fell or was thrown from the combine. The defendant has appealed solely upon the issues involving liability. The extent and seriousness of the plaintiff's injuries are not questioned.

In his amended petition, the plaintiff pleaded numerous assignments of negligence, as well as breach of warranty on the defendant's part, but he finally submitted his case upon three specific grounds. These were: (1) defendant's failure to warn plaintiff of the possible escape of gas from the storage tank; (2) defendant's negligence in filling the tank with an excessive amount of gas; and (3) defendant's failure to have the relief value vented upward so as to prevent escaping gas from coming in contact with nearby machinery. In this court, the defendant contends that its motion for directed verdict made at the close of all the evidence should have been sustained. We are therefore called upon the determine whether plaintiff made a submissible case upon the issues actually submitted, granting plaintiff the most favorable view of all the evidence, and giving him the benefit of all reasonable inferences to be drawn therefrom. Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 126--127(1)(2); Guthrie v. City of St. Charles, 347 Mo. 1175, 1184, 152 S.W.2d 91, 95(5); Newcombe v. Farmer, Mo.App., 360 S.W.2d 272, 276(2).

As to defendant's negligence in failing to warn plaintiff 'of the possible release of combustible gas,' the appellant contends that there was no showing of any necessity for such a warning and therefore no basis for submitting a failure to warn as being negligence. The respondent's argument justifying this submission is diffuse and somewhat difficult to follow. Citing Thompson v. Economy Hydro Gas Co., 363 Mo. 1115, 257 S.W.2d 669, he stresses the combustible nature of liquefied petroleum gas and the defendant's duty to exercise a degree of care commensurate with the product, and says that the release of gas from the relief valve constituted a 'danger within the foreseeable, expected and intended use of the tank,' of which plaintiff should have been warned. There were, of course, certain risks ordinarily attendant upon the use of the tank, for the escape of small amounts of vapor normally accompanied the process of refueling farm machinery. Plaintiff testified, however, that he was familiar with this risk, and his evidence indicated that he appreciated the danger involved in releasing the compressed gas near possible sources of ignition. It was not the general risk of danger of which he says he should have been warned; rather, he maintains the possibility that gas might be released through the operation of the relief valve, in the circumstances here presented, constituted a hidden danger within the foreseeable, expected and intended use of the tank, a latent danger of which he should have been warned.)

The relief valve on the tank was (designed to release gas and relieve the internal pressure when it exceeded 250 pounds per square inch. Normally, the record indicates, the relief valve releases gas only when a tank has been overfilled, or possibly when it has been filled near the limit of its safe capacity (about eighty per cent of its water gallon capacity) and is exposed to high outside temperatures. The expansion characteristics of the gas are not shown. A Mr. Dunivant, defendant's manager, testified that if a tank were overfilled, in 'say 90 or 95 degree weather,' the relief valve would probably release, and the vapor, if released, would probably be explosive. Mr. Dunivant could recall only one time, in his three and one-half to four years' experience with L.P. gas, when a relief valve had released gas from a tank; his testimony was that he '* * * seen it on one occasion, I believe.' Mr. Clifford James, who had fifteen or twenty years' experience servicing liquefied petroleum gas equipment, stated he had 'occasionally' seen gas spew from relief valves because of 'too much pressure.' A Mr. Grady testified that on one occasion he had seen a defective valve release gas at less than 250 pounds per square inch. There is no evidence more precise than that which we have just recited which indicates when and upon what occasions a relief valve may be expected to function and release gas. The 'high' temperature obtaining when this casualty occurred, and which the plaintiff argues is a favor to be considered in the case, was 62 degrees, with a north breeze blowing.

In our view, the evidence did not warrant submission of defendant's failure to warn of...

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