Handshy v. Nolte Petroleum Co.
| Decision Date | 16 February 1965 |
| Docket Number | No. 31642,31642 |
| Citation | 387 S.W.2d 161 |
| Parties | Orville HANDSHY, Plaintiff-Respondent, v. NOLTE PETROLEUM COMPANY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Heege & Heege, George F. Heege, III, Thomas W. Wehrle, Clayton, for defendant-appellant.
Marvin Klamen, Clayton, William P. Byrne, St. Louis, for plaintiff-respondent.
BRADY, Commissioner.
This appeal has recently come to this writer by reassignment. This is an action for personal injuries in which the respondent, upon jury trial, recovered judgment in the amount of $6,000.00. The appellant's timely after-trial motions were overruled and it has perfected this appeal. The parties will hereafter be referred to by their designation in the trial court.
The defendant advances four allegations of prejudicial error among which is the contention that the trial court erred in instructing upon general negligence because the uncontradicted evidence showed the specific negligence. This contention is decisive of this appeal, and we will therefore limit our recitation of the factual situation to those facts bearing upon that issue. However, it should be pointed out that the other allegations of prejudicial error raised by defendant deal with the trial court's action in admitting certain testimony over objection, in excluding from evidence certain exhibits, and in giving the measure of damages instruction. There is no contention that plaintiff failed to state a cause of action nor that the trial court improperly ruled defendant's motion for a directed verdict offered at the close of all the evidence on the basis that plaintiff had failed to make a submissible case.
The plaintiff pleaded that the defendant's employees '* * * negligently and carelessly delivered said fuel, causing said fuel to overflow onto plaintiff's property'; that by reason of '* * * said negligence aforesaid, plaintiff's property became in imminent peril of damage and destruction'; and '[t]hat while acting to protect his property, plaintiff was caused to fall down a flight of steps, injuring him thereby.' The injuries to the plaintiff were described in detail. The defendant denied the pertinent allegations of the petition and alleged plaintiff was contributorily negligent in that plaintiff failed to '* * * look, watch or observe * * *' where he was walking and negligently walked into the spilled oil without making any effort to clean the oil away.
On the date with which we are here concerned the plaintiff was sitting in an office he maintained in his home. The defendant's employees regularly delivered fuel oil to the plaintiff, and on this occasion the truck pulled up in front of the house and one of the defendant's employee, Eugene Wood, the driver, got the hose out and carried it up to the fill pipe which was located right by the door of plaintiff's house. Wood then knocked on plaintiff's door and plaintiff told him to fill the tank. Wood then started the flow of oil into plaintiff's tank. When the truck motor, which has to be running to pump the fuel oil, began to slow down, Wood left the hose and nozzle with his helper Black and went to the front of the truck to 'rev' it up. The tank became full and Black attempted to turn the oil off but didn't know how to operate the nozzle and the oil ran out of the fill pipe and onto plaintiff's patio. Plaintiff went to the window and saw Black standing there with the nozzle in his hand and oil running out on the patio. The plaintiff went outside and as he opened the door, he heard Black say, 'I can't turn it off, Gene.' It further appeared that the defendant's employee Wood had worked for defendant since 1946, but Black had only started work that morning and had not been instructed as to how to shut off the nozzle. The plaintiff helped Wood turn off the hose. Wood then asked the plaintiff to get him a broom and also to open the drain on the patio. The plaintiff did so and Wood started sweeping oil into the drain. After making three or four 'swipes' with the broom Wood said, 'Oh, my gosh, what about the basement?' The plaintiff was then asked if '* * * sometime after he made that statement, did you then start to go to the basement?' and answered, 'I started to walk to the basement.' The plaintiff's theory was that the oil that accumulated on his shoes when he got the broom and opened the drain caused him to slip and fall on the basement stairs.
In those parts pertinent to the issue which we rule on this appeal Instruction No. 3 hypothesized that as the fuel oil was being delivered '* * * said oil did suddenly and unexpectedly overflow from said pipe and onto the patio and into * * *' the plaintiff's home; that the plaintiff '* * * did thereafter step into said oil * * *'; that the plaintiff '* * * believed that there was danger of damage to his property in said basement and a danger of fire by virtue of oil overflowing from the storage tank located in the basement of his home * * *'; that the plaintiff '* * * in an attempt to protect his family and property attempted to walk to the basement steps in order to descend said steps to go to the basement of his home * * *'; and that as the plaintiff '* * * was at the top of said steps he slipped and fell by reason of oil being on his shoes, if you so find, and was caused to sustain the injuries mentioned in evidence * * *.' Instruction No. 3 went on to inform the jury that '* * * you are instructed that such facts, if you believe them to be true, are a sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent * * *.'
Before passing upon the merits we are confronted with plaintiff's motion to dismiss the appeal for failure to comply with the rules. The main contention advanced by the plaintiff in support of this motion is that the defendant has not properly stated its points and authorities as required by Rule 83.05(e), V.A.M.R. Plaintiff also contends that the allegations of error which ...
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Handshy v. Nolte Petroleum Co., 52107
...Upon appeal that judgment was reversed and the case was remanded for a new trial because of error in an instruction. Handshy v. Nolte Petroleum Co., Mo.App., 387 S.W.2d 161. On December 5, 1959, plaintiff was engaged in the moving business and maintained an office in a small room in the bac......