McDonald v. Morrison Plumbing & Sheet Metal Co.

• Decision Date: 14 January 1922
• Docket Number: No. 2962.,2962.
• Citation: 236 S.W. 418,209 Mo. App. 23
• Parties: McDONALD v. MORRISON PLUMBING & SHEET METAL CO.
• Court: Missouri Court of Appeals

236 S.W. 418

209 Mo. App. 23

McDONALD v. MORRISON PLUMBING & SHEET METAL CO.

No. 2962.

Springfield Court of Appeals. Missouri.

January 14, 1922.

Appeal from Circuit Court, Wayne County; E. M. Dearing, Judge.

Action by J. C. McDonald against the Morrison Plumbing & Sheet Metal Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Atkinson, Rombauer & Hill, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

Henson & Woody, of Poplar Bluff, for respondent.

FARRINGTON, J.

This is an action for personal injuries sustained by the plaintiff while in the employ of the defendant. Defendant is engaged in the plumbing and sheet metal business. On the 23d day of September, 1919, the Model Motor Car Company, which was engaged in selling automobiles, gasoline, etc., and whose plant was located a few blocks from defendant's place of business, brought to the shop of the defendant a galvanized gasoline tank for the purpose of having the same repaired. It was about 3 feet in diameter and 7 or 8 feet in length, having three openings in the side, one near each end and one in the middle, the middle opening being the larger of the three. The tank was delivered to the defendant some time in the forenoon on the day on which plaintiff was injured, and when delivered the plaintiff was not at the shop. That afternoon Morrison, manager of defendant company, called plaintiff out to the alley back of the shop where the tank had been placed and asked him if he thought that the same could be repaired so it would not leak. The plaintiff told him he thought it could be repaired, but he could not work on it for 20 or 30 minutes owing to the fact that he was then working on another job. After the tank had been placed in the alley, and before it was shown to plaintiff, defendant had filled it with water and two other men were put to work cleaning the dirt from around the flanges, the tank being a gasoline tank, buried in the ground, and covered with dirt, water and rust. Plaintiff saw that the tank had been filled with water when he had examined it. When the plaintiff came back from the job on which he was at work when Morrison first spoke to him, Morrison, the manager, told him that the tank was ready for him to repair, and that he wanted him to do a good job. The plaintiff got his tools necessary to do the proper soldering, the manager seeing him get ready and seeing him take a blow torch. The manager then left the premises, and was not present when the plaintiff went to work on the tank or when he was injured. When the plaintiff reached the alley and got to the tank he found that the water with which it was filled when he first looked at it, in company with defendant's manager, had been emptied out, and one of the men was at work on the tank cleaning off the dirt and rust. In order to mend the tank, the evidence shows, it was necessary to "tin it"; that is, to apply a very hot heat to the outside of the tank so that it could be properly soldered. The evidence shows that, almost immediately on applying the torch to the tank for this purpose, there was a terrific explosion, resulting in most serious injuries to this plaintiff.

After a trial to a jury under the instructions a verdict was rendered in plaintiff's favor, and it is from that judgment the appeal is brought here.

We are convinced that the judgment must be reversed because of the first instruction asked by the plaintiff, and the error contained therein will be made apparent when it is compared with the charging clauses in the petition. We will therefore set out a portion of the petition:

"That on said 23d day of September, 1919, defendant, by and through its authorized agents and servants, showed plaintiff a large tank in the alley adjoining its place of business and instructed and directed plaintiff to repair the same so as to prevent it from leaking; that said tank had theretofore been used to contain gasoline, the vapor of which is and was highly explosive and very dangerous, all of which was then and there known to defendant; that it was the duty of defendant, before having plaintiff to make the repairs necessary thereon, to use ordinary care to prepare said tank by thoroughly cleaning the same and removing therefrom all gasoline and gasoline vapor, in order to furnish plaintiff a reasonably safe place in which to work; that defendant had assumed said duty and had pretended to clean said tank and to remove therefrom all gasoline and gasoline vapor before it directed plaintiff to repair the same.

"Plaintiff states that, pursuant to said instructions and directions, and without any warning of danger whatever, he did, on said 23d day of September, 1919, while in the exercise of due care for his own safety, proceed to his task of repairing said tank under the belief and with the understanding that defendant had thoroughly cleaned the same, and that .it was free from gasoline vapor, and with the belief that he could perform the duties assigned to him with safety to himself.

"Plaintiff further states that defendant, in total disregard of its duty in that behalf, had not thoroughly cleaned said tank, and had not removed therefrom all gasoline and gasoline vapor, but, on the contrary thereof, had only pretended to do so, and had carelessly and negligently left sufficient gasoline therein to form an explosive vapor or gas, and that said tank contained said gasoline and gasoline vapor at the time plaintiff began work thereon under his said instructions and directions from defendant.

"Plaintiff states...