McConnell v. Pic-Walsh Freight Co.

• Decision Date: 09 September 1968
• Docket Number: No. 53162,PIC-WALSH,No. 1,53162,1
• Citation: 432 S.W.2d 292
• Parties: Robert P. McCONNELL and Hilda A. McConnell, Respondents, v.FREIGHT COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 292

432 S.W.2d 292

Robert P. McCONNELL and Hilda A. McConnell, Respondents, v. PIC-WALSH FREIGHT COMPANY, a Corporation, Appellant.

No. 53162.

Supreme Court of Missouri, Division No. 1.

Sept. 9, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 14, 1968.

Donald L. James, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for plaintiffs-respondents.

Paxton H. Ackerman, Ackerman, Schiller & Schwartz, Clayton, for defendant-appellant.

HOUSER, Commissioner.

Action by Robert P. McConnell for $175,000 damages for personal injuries and by his wife Hilda for $25,000 damages for loss of services and consortium, against Pic-Walsh Freight Company. From a judgment for $75,000 damages for personal injuries and $15,000 damages for loss of services, entered upon a jury verdict, defendant has appealed. We have jurisdiction because this appeal involves $90,000.

There was evidence from which the jury could have found the following facts: Robert McConnell, hereinafter 'plaintiff,' was an employee of Esselbruegge Gas Company, a dealer supplying liquefied petroleum gas (LPG) to owners of refrigerated trucking equipment in the St. Louis area. He was thoroughly experienced in the handling, transportation and delivery of LPG. He had been so employed for 12 years. Appellant operated a truck line. Several of its trailers were refrigerated. Trailer 4513 was equipped with a refrigerating machine known as a Transicold. This unit was powered by a combustion engine fueled by LPG from a 30-gallon tank, which was attached to the trailer. This and similar tanks on other Pic-Walsh refrigerated trailers for several years had been serviced and filled by plaintiff, driver for Esselbruegge Gas Company, from a delivery truck equipped with a large tank, a metering device, a pump and hose with a nozzle so built as to make a sealed connection between supply tank and trailer tank. It was plaintiff's practice to make daily calls at appellant's terminal, during which he would check the refrigerated trailers and fill to 80% of capacity any tanks less than 50% full. (Tanks would not be filled to 100% capacity because LPG gas expands when heated. It is a custom in the industry, for safety purposes, not to fill LPG tanks beyond 80% of capacity.) Ordinarily plaintiff received no instructions as to the manner of performing his work. It was his routine practice, understood between him and appellant, that plaintiff would make sure that all refrigerated trailer tanks were always filled with LPG and that he should fill them 'on his own' without specific orders and directions from appellant. It was a standing order to 'keep them full.' Sometimes, however, when one was empty, appellant would call plaintiff's employer to be sure that plaintiff would 'get it.' Otherwise no one at Pic-Walsh would ordinarily direct plaintiff to come out to service the tanks or how to go about the actual filling operation.

On Sunday morning, August 30, 1964, plaintiff's employer received a call from his answering service, telling him that someone from Pic-Walsh had called and stated that the fuel tank on trailer 4513 was empty; that 4513 was in the trailer shop, loaded with beer, and needed to be filled 'right away.' When plaintiff telephoned his employer that morning, 'to see if (he) had any calls,' his employer relayed the message, telling plaintiff that there was a refrigerated trailer in the garage at Pic-Walsh; that it was empty and that they wanted it filled. Plaintiff proceeded to appellant's terminal. There he saw Eddie Barsanti, an employee of appellant, who told him that trailer 4513 was empty; that it had 'run out of gas and quit running'; that it was 'setting there in the shelter in the garage,' loaded with beer, and instructed him to fill it 'right away.' Plaintiff knew Barsanti as an employee of appellant who on occasion had previously given him information as to the condition of the tanks and had previously given him instructions to fill tanks with gas. Plaintiff had relied upon the information given him by Barsanti before that day. Plaintiff drove his delivery truck to the south side of the garage or trailer shop preparatory to servicing trailer 4513. The trailer shop was a large building, 42 60 feet in size, in which trailers were serviced by appellant's employees and made ready for the road. It was equipped with six overhead doors, three on the north and three on the south side. There were three skylights in the roof; ventilators in the ceiling. All six of the doors and at least one of the skylights were 'wide open' so as to admit air when plaintiff arrived at the trailer shop. When the doors were open there was enough ventilation that drivers had no fear of carbon monoxide inhalation. There was an average wind velocity of 17 m.p.h. that day. There was a washroom on the north end of the building in which a gas water heater was located. Acetylene equipment was kept in the shop and welding was done there. Trailer 4513 was at rest, inside the building, in the first aisle on the west side. Plaintiff had gassed up trucks in this trailer shop more than once; perhaps as many as four times. Plaintiff was familiar with trailer 4513. He had previously serviced it many times. Its tank was equipped with a filler valve, a pressure relief ('pop-off') valve, and a rotary gauge. A rotary gauge is designed to indicate the amount of LPG in the tank. The gauge on 4513 was not working. Plaintiff knew that it was broken. He had known this for at least a month or six weeks prior to August 30, 1964. He had reported this to appellant's director of operations sometime previously. Since the gauge was not operating it was impossible to determine how much gas was in the tank (a sealed unit). Plaintiff would never fill the tank on trailer 4513 ('wouldn't fool with it') unless someone told him that it was empty. On previous occasions when told that it was empty it always had been empty. The motor on the Transicold unit was not running. Plaintiff computed that under existing weather conditions (temperature 80 Fahrenheit and getting warmer) the 30-gallon tank should be charged with 24 liquid gallons (80% of capacity), since he was proceeding on information that it was empty. In fact the tank was partially filled at that time. Plaintiff was unable to stay near the transfer point because it was necessary for him to go to his truck to watch the meter on his truck in order to determine when 24 gallons had been delivered. He let out 150 feet of hose, which he hooked up to the trailer tank. He opened the filler valve on the tank, went back to the delivery truck, and opened the valve by the meter. The pump on the delivery truck was running. He watched the meter until it reached 24 gallons, and then shut it off. At that time he heard a sound like a 'boom' or a shotgun discharging. He turned around and saw flames around the fuel tank of the trailer. Various employees of Pic-Walsh were on the premises at the time. Barsanti, whom plaintiff had seen that morning, was working at the rear of the trailer when the fire started. Plaintiff had seen 'a little colored fellow' working around the trailer when he started his operation. He 'missed a man that worked around there.' Plaintiff grabbed a fire extinguisher and ran 140 feet to the trailer and looked underneath (thinking that the man who checks the tires was there and had been trapped in the fire). When plaintiff stooped down the pressure relief valve 'popped off' and sprayed him with raw gas, setting him on fire. There was evidence that the pilot light on the gas heater ignited the propane vapors which escaped from the LPG tank when it overfilled.

Contributory negligence as a matter of law?

Appellant argues that plaintiff was guilty of contributory negligence as a matter of law; that he was not a novice in the business; was aware of the dangers attending overfilling of a tank; was obliged to exercise a high degree of care commensurate with the deadly and dangerous character of his product; knew that the gauge was broken and that he could not determine the contents of the tank; was in sole charge and control of the equipment and instrumentalities; that plaintiff, alone, overfilled the tank, contrary to an absolute duty imposed upon him by law not to fill the tank beyond a safe level. Appellant cites cases indicating the care to be exercised in handling such a commodity as gas; the duty of investigation and inspection when a situation suggestive of dangers appears, and refers to the rule that '(t)he risk reasonably to be perceived defines the duty to be obeyed.' Appellant cites Grissom v. Handley, Mo.App., 410 S.W.2d 681, suggesting that in that case the court 'unequivocally spelled out that a liquefied petroleum gas company and its employees have the duty not to fill a tank beyond a safe level.'

The pertinent question is whether appellant's assurance that the tank was empty and appellant's direction to fill the tank justified plaintiff in doing what he did. One may not be guilty of contributory negligence in exposing his person to known and appreciated danger where there is some reason of necessity or propriety to justify him in so doing. Fletcher v. Kemp, mo.Sup., 327 S.W.2d 178, 183. On previous occasions plaintiff had safely relied upon the representations of appellant's employees that the tank was empty. 'A person may rely on assurances, or representations of safety made to him by others, where, under the same or similar circumstances, an ordinarily prudent man would do so.' 65A C.J.S. Negligence § 118(3), p. 47. Here the representation was that the tank was empty. (In Heldenfels v. Montgomery, Tex.Civ.App., 157 S.W.2d 998, a road contractor assured a machinist, who was given a hollow piston of a water pump to repair, that the piston was solid. Acting in reliance on that assurance the machinist applied heat to it and it exploded. The contractor was held liable as against the contention that...