May v. AOG Holding Corp., No. 16607

• Decision Date: 15 May 1991
• Docket Number: No. 16607
• Citation: May v. AOG Holding Corp., 810 S.W.2d 655 (Mo. App. 1991)
• Parties: R. Allen MAY, Individually and as Personal Representative of the Estate of Mary May, Plaintiffs-Respondents, v. AOG HOLDING CORP. (formerly known as Union L.P. Gas Systems, Inc.), Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 655

810 S.W.2d 655

R. Allen MAY, Individually and as Personal Representative of the Estate of Mary May, Plaintiffs-Respondents, v.AOG HOLDING CORP. (formerly known as Union L.P. Gas Systems Inc.), Defendant-Appellant.

No. 16607.

Missouri Court of Appeals,

Southern District,

Division Two.

May 15, 1991.

Motion for Rehearing or to Transfer

Denied June 20, 1991.

Application to Transfer Denied July 23, 1991.

Richard E. Dorr, Dorr, Baird and Lightner, R. Lynn Myers, Springfield, for defendant and appellant.

David W. Hall, Jr., Bussell, Hough, O'Neal & Hall, Craig R. Oliver, Miller & Sanford, Springfield, for plaintiffs and respondents.

FLANIGAN, Chief Judge.

PlaintiffsR. Allen May and his wife Mary May brought this action against defendantAOG Holding Corp., formerly known as Union L.P.Gas Systems, Inc., (Union Gas), for injuries sustained by R. Allen May arising out of an explosion which occurred on February 28, 1981, at Queen City Car Wash in Springfield.Mary May's claim was based on loss of her husband's consortium.The explosion occurred when a hose connected to a propane tank on a pickup truck became entangled in an overhead brush inside the car wash.Union Gas had "converted" the truck so that it could operate on propane gas.The truck was owned by James Wade.May was a customer of the car wash at the time of the explosion.

Prior to the trial, the trial court sustained plaintiffs' motion for summary judgment as to the liability of Union Gas, with respect to any actual damages sustained by each plaintiff, based on the collateral estoppel effect of a final judgment entered in an earlier lawsuit arising out of the same explosion.

The jury awarded Allen May $150,000 in actual damages and $100,000 in punitive damages, and awarded Mary May $15,000 in actual damages.Union Gas appeals.

Union Gas contends that the trial court erred in giving Instruction 11, plaintiffAllen May's instruction submitting punitive damages, because plaintiffs failed to make a submissible case on the issue of punitive damages "since there was insufficient evidence to show the required mental state of defendant's employee at the time of the acts shown in Instruction 11," and Instruction 11 failed to provide to the jury the objective standard that Union Gas's conduct must be "outrageous" because of Union Gas's evil motive or reckless indifference to the rights of others.

The challenged instruction reads:

"InstructionNo. 11

If you believe the conduct of defendant Union Gas in filling the tank with liquid propane gas, releasing the tank to the customer, James Wade, and failing to install a solid steel plug in the tank showed complete indifference to or conscious disregard for the safety of others, then in addition to any damages to which you may find plaintiff entitled under Instruction Number 7 you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant Union Gas and to deter defendant Union Gas and others from like conduct."

At the close of plaintiffs' evidence and at the close of all the evidence, Union Gas moved for a directed verdict on the issue of punitive damages.Those motions stated that as a matter of law plaintiffs' evidence failed to make a submissible case on the issue of punitive damages because "there is no evidence that any injury would naturally or probably result from any conduct on the part of Union Gas by and through its agents and employees and because there is no evidence that Union Gas or its agents or employees intended to perform an act with knowledge that the act was wrongful when performed."The same point was preserved in Union Gas's post-trial motions.

PlaintiffMary May neither sought nor received an award of punitive damages, and Union Gas makes no challenge to that portion of the judgment awarding her actual damages.Union Gas does not challenge the award of actual damages to Allen May.

The issue is whether Allen May made a submissible case for punitive damages.In determining whether he did so, this court must review the evidence in the light most favorable to plaintiff and give him the benefit of all inferences which may reasonably be drawn from the evidence.Bhagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392, 397(Mo. banc 1987);Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848, 849(Mo. banc 1975).No fact essential to submissibility may be inferred in the absence of a substantial evidentiary basis.Minnesota Mining & Mfg. Co. v. Williamson, 675 S.W.2d 951, 953(Mo.App.1984).In determining the issue presented, this court considers only the conduct submitted to the jury by Instruction 11, upon which the verdict for punitive damages was returned.Thaller v. Skinner & Kennedy Co., 315 S.W.2d 124, 126(Mo. banc 1958);Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 95(banc 1941);Grissom v. Handley, 410 S.W.2d 681, 685(Mo.App.1966).

The test for this court to apply in determining whether the evidence is sufficient to submit the issue of punitive damages is whether a reasonable juror could have found that the conduct of Union Gas submitted in Instruction 11--filling the tank with liquid propane gas, releasing the tank to the customer James Wade, and failing to install a solid steel plug in the tank--meets the requirements of Missouri law for imposing punitive damages based on negligent conduct.SeeSmith v. Courter, 575 S.W.2d 199, 207[6, 7](Mo.App.1978).Those requirements, under the circumstances here, are found in MAI 10.02[1983 Revision], Note 3 of the Notes on Use [1991 Revision] under MAI 10.02andMAI 10.07[1991 New].Note 3 under MAI 10.02 states that MAI 10.02 is not adequate to submit punitive damages where, as here, the verdict-directing instruction does not contain a submission on the issue of defendant's "knowledge."

Except for offering portions of Allen May's deposition as admissions on matters not material here, Union Gas presented no witnesses.All of the testimony pertinent to the issues on this appeal came from plaintiffs' witnesses, some of whom were employees of Union Gas."Without question, a party is bound by the uncontradicted testimony of his adversaries which he introduces."Klotsch v. P.F. Collier & Son Corporation, 159 S.W.2d 589, 594(Mo. banc 1942).See alsoTaylor v. Riddle, 384 S.W.2d 569, 573-574[3, 4](Mo.1964);Hoock v. S.S. Kresge Co., 230 S.W.2d 758, 760-761(Mo. banc 1950);Frazier v. Stone, 515 S.W.2d 766, 769(Mo.App.1974)."[S]ince plaintiff has the burden of proof if he puts on only one witness to prove a fact and his positive statement on direct testimony is that the fact is definitely one way, then the plaintiff cannot have the jury disregard his only direct evidence on the point and find that the fact is exactly the opposite on the basis of inferences from circumstances also stated in the testimony of this same witness."Draper v. Louisville RR. Co., 156 S.W.2d 626, 634(Mo.1941).

James Wade testified that he operated Wade Cleaners and Laundry, and West Side Laundry, in Mountain Grove.At the cleaning establishment he had two 500-gallon propane tanks, and at the laundry he had a 1000-gallon propane tank.Wade owned a 1976 pickup truck.In 1979he bought a used propane tank because he intended to have the truck "converted" so that it could operate on propane gas as well as gasoline.The tank was equipped with a hose attached to a globe valve.

Wade was a propane customer of Union Gas, and had been for several years.Shortly after Wade purchased the tank, Glen Boykin, manager of Union Gas's propane facility at Norwood, helped Wade load the tank onto Wade's pickup.Wade told Boykin that Wade was interested in using the hose to transfer propane from his laundry tanks to fill the tank on the pickup after it had been converted.

In February 1981, Wade talked with Boykin about having the truck converted and Boykin, acting for Union Gas, agreed to convert the engine to propane gas for $400.

On February 15 or 16, 1981, Wade's wife delivered the truck, tank, globe valve and hose to Boykin at the Union Gas facility in Norwood.The tank was in the bed of the pickup, just behind the cab.The hose and globe valve were not attached to the tank at that time.One of the openings on the tank was the "liquid withdrawal opening," and at the time Boykin received the truck a pipe nipple was in that opening.When Boykin helped Wade load the tank onto Wade's pickup shortly after Wade purchased the tank, the pipe nipple was in the opening and the hose and globe valve were attached to the nipple.

Boykin commenced the conversion on February 18.After the work on the engine had been completed, Boykin attached the globe valve (with hose attached) to the pipe nipple in the liquid withdrawal opening on the tank.He did that to plug the opening so propane could be put in the tank.George Stigall, another employee of Union Gas, put propane in the tank.Before attaching the globe valve to the liquid withdrawal opening, Boykin looked at the opening and saw there were no safety valves in it.A solid steel plug would have fit the opening, but Boykin did not have such a plug in stock.

On February 19, 1981, the conversion was completed by Boykin.Wade picked up the truck at the Union Gas facility while Boykin was out on a service call.A few minutes after Wade picked up the truck, he met Boykin on a road in the vicinity, and the two men had a conversation.There was some dispute between Wade and Boykin concerning the contents of that conversation.

According to Wade, he told Boykin that "it looked like it was a good installation."Boykin said that he needed to come down and replace a couple of valves, that they needed to be replaced later.Wade said, "Fine, any time you want to just come down and do it."Wade also said that when Boykin made those remarks, "I reached over the bed just to, and smelled to see if there was any leak or anything since he mentioned that the valve needed to be...