McLeod v. Linde Air Products Co.

• Decision Date: 07 December 1927
• Docket Number: No. 25937.,25937.
• Citation: 1 S.W.2d 122
• Parties: JOHN McLEOD, JR., by JOHN McLEOD, his Next Friend, v. LINDE AIR PRODUCTS COMPANY.
• Court: Missouri Supreme Court

1 S.W.2d 122

JOHN McLEOD, JR., by JOHN McLEOD, his Next Friend, v. LINDE AIR PRODUCTS COMPANY.

No. 25937.

Supreme Court of Missouri. Division No. 1.

December 7, 1927.

Appeal from Jackson Circuit Court. — Hon. O.A. Lucas, Judge.

AFFIRMED.

Thomas H. Kingsley and George Kingsley for appellant.

(1) Respondent failed to make out a case of simple negligence. From the testimony presented in his behalf it appears that appellant could not reasonably have anticipated that any injury would result from any acts or omissions on the part of appellant shown in the evidence. It clearly appears that the injury if it happened as respondent infers was the result of a chain of exceptional circumstances which no prudent person could have foreseen. It is necessary that the defendant should have anticipated that some bodily injury would be likely to result from its acts or omissions before they can be held to constitute negligence. American Brewing Assn. v. Talbot, 141 Mo. 674; Fuchs v. St. Louis, 167 Mo. 620; Chandler v. Gas Co., 174 Mo. 321; State ex rel. Lusk v. Ellison, 271 Mo. 463; Zasemowich v. Mfg. Co., 213 S.W. 799. (2) Respondent's theory of the case rests upon certain facts, the existence of which are necessary to establish that theory. Some of these facts are based upon mere surmise and are without evidence to support them. One in particular is the fact that the valve of the tank was caused to be obstructed or clogged by some act or omission of appellant. There was no evidence that the valve was actually obstructed when the tank left the custody of appellant, and it was not shown where the tank had been between the time it left appellant's hands and the time of the accident, nor how long it had been out of the control and custody of appellant. Again, the obstruction might have been in the pipe-line attached to the tank instead of the valve of the tank. But the pipe-line was attached to the tank by McLeod, and belonged to him. It had been in his shop for some time prior to the accident. There was no showing that it had been examined immediately before it was attached to the tank and found to be unobstructed. So the valve may have been obstructed by some agency or by some person over which appellant had no control, or the obstruction may have been in the pipe-line and not in the valve at all. The rule is well established that "if the injury may have resulted from one of two causes, for one of which and not the other the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant and is liable produced the result, and, if the evidence leaves it to conjecture, the plaintiff must fail in his action." Warner v. Railroad, 178 Mo. 125; Graefe v. Transit Co., 224 Mo. 263. (3) The manufacturer and vendor of an article is not liable to a third person with whom he has no contractual relations who is injured by the article unless the article in the condition in which it was sold was a thing imminently dangerous to life or limb, either inherently or because of some defect. Even if mere negligence were shown in this case it would not be enough to establish liability on the part of appellant. It would have to be shown in addition that appellant's negligence rendered the tank of oxygen a dangerous object. It cannot be said that the tank of oxygen was a necessarily dangerous agency. Heizer v. Kingsland & Mfg. Co., 110 Mo. 605; Tipton v. Barnard & Leas Mfg. Co., 302 Mo. 162; Loop v. Litchfield, 42 N.Y. 351; Losee v. Clute, 51 N.Y. 494; Husett v. Case Threshing Machine Co., 120 Fed. 865; Marquardt v. Ball Engine Co., 122 Fed. 374; Glaser v. Seitz, 79 N.Y. Supp. 942; Bruckel v. Milhous, 102 N.Y. Supp. 395; McCoffrey v. Massberg Mfg. Co., 23 R.I. 381; O'Neill v. James, 138 Mich. 567; Heindirk v. Elevator Co., 122 Ky. 675; Lebourdale v. Vitrifield Wheel Co., 194 Mass. 341. (4) Even if it should appear from the evidence that on account of appellant's negligence the tank of oxygen was in such a defective condition that when sold it constituted a dangerous agency, appellant would not be liable unless it further appeared that appellant had actual knowledge of its defective condition. If the tank of oxygen was in a defective condition when sold, there is not a particle of evidence in the case that appellant had any knowledge whatever of such defect or defects. Heizer v. Kingsland & Mfg. Co., 110 Mo. 605; Tipton v. Barnard & Leas Mfg. Co., 302 Mo. 162. (5) For the reasons stated under preceding points the instruction number one given at the request of respondent is clearly erroneous.

Darius A. Brown and Maurice Weinberger for respondent.

(1) In passing upon defendant's demurrer to the evidence, plaintiff's testimony must be accepted as true, the most favorable view must be given the most favorable testimony, and all reasonable inferences to be derived therefrom must be viewed in the light most favorable to the cause of action. Sullivan v. Railroad Co., 271 S.W. 988. (2) Defendant may be held liable for anything which, after the injury is complete, appears to have been the natural and probable consequence of the act or omission. Smith v. St. Joseph Ry. L.H. & P. Co., 276 S.W. 610; Buckner v. Stockyards Co., 221 Mo. 700. (3) Under the evidence taken in its most favorable aspect to plaintiff, and adopting those inferences most favorable to the plaintiff's cause of action, the explosion resulting in injury to plaintiff could not have reasonably resulted from any other cause than the defect in the valve of the tank furnished by appellant for the use of McLeod. (4) Want of contractual relation between appellant and respondent is immaterial. Stolle v. Anheuser Busch, 307 Mo. 520; Kearse v. Seyb, 200 Mo. App. 645; Kiser v. Suppe, 133 Mo. App. 19; Huset v. Machine Co., 129 Fed. 865; Roddy v. Railroad, 104 Mo. 234; Keep v. Nat. Tube Co., 154 Fed. 121; Olds Motor Works v. Shaffer, 145 Ky. 616; Johnson v. Cadillac, 261 Fed. 878; McPherson v. Buick, 217 N.Y. 382; Hayes v. Coal Co., 150 Mass. 457; Swan v. Jackson, 55 Hun (N.Y.) 194; Sweeney v. Rozell, 64 N.Y. Supp. 721; Elliott v. Hall, 15 Q.B.D. 315; Young v. Waters-Pierce Oil Co., 185 Mo. 662; Applegate v. Railroad, 252 Mo. 197; Strayer v. Railroad, 170 Mo. App. 514; Fossbinder v. Railroad Co., 126 Mo. 563; Sykes v. Railroad Co., 178 Mo. 693; Herman v. Markham, 258 Fed. 475; Casey v. Bridge Co., 114 Mo. App. 514. (5) The rule of liability to be applied in a case of this kind under the facts shown was clearly stated by this court in Stolle v. Anheuser Busch, 307 Mo. 520.

GANTT, J.

This is a suit for personal injuries, alleged to have been received by plaintiff as a result of the negligence of defendant. The facts are as follows:

Plaintiff is the son of John McLeod, who, on the 9th of January, 1917, and for nine years prior thereto, operated a welding shop in Kansas City, Missouri, under the name of the Oxy-Acetylene Welding Company. The defendant manufactured oxygen, and during the eight months prior to plaintiff's injury had sold about one hundred tanks of oxygen to plaintiff's father for use in his welding business. The oxygen was delivered in steel tanks of two hundred cubic feet capacity and at a pressure of 1800 pounds to the square inch. The tanks were cylindrical in shape, twelve inches in diameter, five feet in height, stood upright on a flat base, and were equipped with a brass valve at the top of the tank, with an outlet of three-sixteenths of an inch in diameter. The tanks were not sold to McLeod, Sr., but were returned to defendant when empty. McLeod, Sr., had a low pressure tank, and on a delivery of oxygen would transfer it from the defendant's tank to his tank by connecting the tanks with a steel pipe, about two and a half feet in length, which pipe-line consisted of two pieces of pipe and three brass couplings.

On the afternoon of the 9th of January, 1917, defendant delivered two tanks of oxygen. Thereupon, McLeod, Sr., directed one Braymer, an employee, to transfer the oxygen to the McLeod tank. The connection having been made, Braymer "cracked" or slightly opened the valve of defendant's tank to permit the oxygen to flow into the McLeod tank. When oxygen flows through the connecting pipe-line it makes a hissing sound and tends to make the pipe cold. No such sound followed the opening of the valve on this occasion and the pipe was not cold. Braymer then knew the oxygen was not flowing. This caused him to believe defendant had delivered an empty tank, as had occurred on a former delivery. Accordingly he closed the valve on defendant's tank and disconnected the two tanks by removing the pipe-line, leaving attached to the valve of defendant's tank a brass coupling. Then, to determine whether the defendant's tank was in fact empty, he again opened the valve thereon and held his hand over the opening. It seems that when a tank is emptied of oxygen, in a commercial sense, some little of the gas will still remain. After holding his hand in this position for a short time, he concluded there was no oxygen in the tank and left the valve open. In a few seconds the gas, with 1800 pressure to the square inch, forced itself through the valve, with a loud report and in an explosive manner, driving into Braymer's face particles of rust or metal, causing the tank to topple over and the brass coupling on the valve to strike a steel table, thereby chipping a piece from the brass coupling and driving it into the skull of plaintiff, who was standing about eight feet from the tank.

Plaintiff was fifteen years of age, attended school and after school hours made collections for his father. He had collected a bill and was there to turn over the money. Braymer had been working for McLeod a year, and during this time always attended to transferring the gas from defendant's tank to McLeod's tank. On this occasion the transfer was being made in the usual manner. The next morning an employee of defendant's came to McLeod's, the tank was opened, turned...