Midwest Oil Co. v. Storey

• Citation: 178 N.E.2d 468,134 Ind.App. 137
• Decision Date: 01 December 1961
• Docket Number: No. 19355,No. 1,19355,1
• Parties: MIDWEST OIL COMPANY, INC., Appellant, v. Tom STOREY, Appellee
• Court: Court of Appeals of Indiana

Page 468

178 N.E.2d 468

134 Ind.App. 137

MIDWEST OIL COMPANY, INC., Appellant, v. Tom STOREY, Appellee.

No. 19355.

Appellate Court of Indiana, Division No. 1.

Dec. 1, 1961.

Rehearing Denied Jan. 31, 1962.

Clelland J. Hanner, Rockville, Jerdie D. Lewis, Terre Haute, Lewis & Lewis, Terre Haute, of counsel, for appellant.

Seal & Seal, Washington, McFaddin & McFaddin, Rockville, for appellee.

COOPER, Judge.

This is an action brought by appellee, Tom Storey, as plaintiff Below, against appellant, Midwest Oil Company, one of the defendants below, for damages for injuries by reason of alleged negligence on the part of appellant and the Dresser Petroleum Company, Inc. in removing some underground storage tanks formerly used as a service station, from appellee's premises, allegedly leaving an unguarded excavation into which appellee fell.

The complaint and the amended complaint were in two paragraphs, the first paragraph against the Dresser Petroleum Company, Inc., and the second paragraph against appellant herein. The issues were formed by appellee's amended paragraph one of complaint against co-defendant, Dresser Petroleum Company, Inc., and by appellee's amended paragraph two of amended complaint against appellant, Midwest Oil Company, Inc., said two paragraphs alleged negligence on the part of both Dresser Petroleum Company, Inc. and appellant, Midwest Oil Company, Inc., causing personal injuries to appellant. The negligence alleged in each legal paragraph of appellee's amended complaint against appellant and its co-defendant are identical, reading as follows:

'(a) Leaving the pit and excavation without placing any lights or signals or other warning devices at the sides of said excavation, and,

'(b) Without placing any guards, timbers or other covering over the said excavation, and

'(c) Without placing or stationing any person, guard, or watchman to give due and proper warning of the existence of said excavation.

'(d) Failure to enclose, light, guard or warn persons using said lot.'

After various motions and pleadings, the issues were closed, and trial was had by jury, which returned a verdict for the appellee in the sum of Twenty Thousand Dollars ($20,000.00) against appellant, and also a verdict in favor of co-defendant, Dresser Petroleum Company, Inc.

The appellant then filed a motion for new trial, which was overruled, and judgment was entered for the appellee, reading as follows:

'Comes the Court and now sustains motion of plaintiff for judgment on verdict returned by the jury in this cause, and the Court now renders judgment on said verdict in accordance therewith.

'IT IS, THEREFORE, CONSIDERED AND ADJUDGED BY THE COURT that the plaintiff recover of the defendant, Mid-West Oil Co., Inc., the sum of $20,000.00, together with his costs in this cause laid out and expended, and that plaintiff take nothing by his action as to the defendant, Dresser Petroleum Company, Inc., and that the defendant, Dresser Petroleum Company, Inc., recover of plaintiff its costs and charges in this cause laid out and expended.'

The assigned error in this court is the court erred in overruling appellant's motion for new trial.

The record reveals that the judgment of the jury was based upon amended paragraph two of amended complaint, which reads as follows:

'1. That the defendant, Mid-West Oil Company, Inc. is a corporation duly organized and existing under the laws of the state of Indiana.

'2. That said Corporation has now and for more than five years last past has had its principal office and place of business in the city of Terre Haute, Vigo County, Indiana, and during all of said time was and is engaged in the business of operating gasoline filling stations.

'3. That on October 9, 1954, the defendant, Mid-West Oil Company, Inc. was in possession of the following described real estate, located in the city of Washington, Daviess County, Indiana, to-wit:----

'On the Northeast corner of First Street and West Main Street more particularly described as follows; Beginning at a point where the North line of the sidewalk on West Main Street and the East edge of the sidewalk on First Street intersect, and running thence East 72 feet, thence North 12 feet, thence North to the first alley North of West Main Street, thence West 60 feet, thence South to the point of beginning.

'4. That during the year 1954 until sometime in the month of September, 1954, the exact date not being known to plaintiff, the defendant, Mid-West Oil Company, Inc. operated a gasoline filling station on the above described real estate and in connection therewith kept, constructed and maintained underground storage tanks for gasoline on the North part of said ground and North of the filling station bldg. and during said time did pay the monthly rentals as provided in a lease then in existence, which was entered into between the plaintiff and the defendant, Dresser Petroleum Company, Inc. covering the above described real estate.

'5. That under the terms of said lease the said lessee, Dresser Petroleum Company, Inc., had the right to sub-let said premises, a part of paragraph 13 of said lease reading as follows:

"It is further agreed that lessee may sub-let said premises * * *.'

'6. That under the terms of said lease between the plaintiff and the defendant, Dresser Petroleum Company, Inc. the right was given upon the termination thereof to remove all tools, machinery, apparatus, and equipment of whatever description, and all fixtures, buildings, or structures of any kind placed or erected or caused to be placed or erected on said premises during the term of said lease.

'7. That under the terms of said lease, the plaintiff had the right and privilege to use the back, or North portion, of said real estate and to park his automobile thereon.

'8. That within fifteen days immediately prior to October 9, 1954, the exact date being unknown to this plaintiff, the defendant, Mid-West Oil Company, Inc. began and completed the excavation and removal of the underground gasoline storage tanks from said property and as a result thereof, left a large opening and pit in the surface of the ground approximately twenty feet long, eight feet wide and three and a half feet deep.

'9. That paragraph 11 of said lease between plaintiff and said Dresser Petroleum Company, Inc. provides as follows:

"It is known to the parties hereto that the Lessor owns a rooming house adjoining the above described real estate and that tenants in this rooming house frequently have automobiles, and the right and privilege is granted the Lessor or his tenants or assigns to use the back part, or the North part of the above described real estate for parking automobiles, but that not to exceed five automobiles are allowed to be parked there at one time, and such parking shall be done in such way as not to interfere with the operation of the business of the Lessee.'

'That in the afternoon or evening of October 9, 1954, the defendant, Mid-West Oil Company, Inc. its agents, servants and employees negligently and carelessly left the aforesaid pit and excavation without placing any lights or signals or other warning devices at the sides of said excavation and without placing any guards, timbers or other covering over the said excavation and without placing or stationing any person, guard or watchman to give due and proper warning of the existence of said excavation.

'10. That after dark on the 9th day of October, 1954, plaintiff parked his automobile on the North part of said real estate and was lawfully walking along and over the back or North part of said premises, and was without knowledge of the existence of said pit and excavation and being unable to see same, the plaintiff fell into said excavation. The defendant Mid-West Oil Company, Inc. negligently failed to enclose, light, guard or warn persons using said lot as hereinabove set forth.

'11. That as a proximate result of the defendant Mid-West Oil Company Inc.'s said negligence as aforesaid, the plaintiff fell into the pit and excavation and was severly and permanently injured as follows:--he suffered a herniated cervical disc, concussion of his spinal cord, the nerves and tendons in his neck and head were strained, twisted and torn; he suffered a concussion of the brain; his entire nervous system was injured; that he suffered great nervous physical and mental shock and anguish of mind; that as a result of said fall he is suffering from muscle atrophy, his hands and arms are drawing and shrinking and he had developed osteoarthritis of the spine is unable to sleep and suffers from a constant pain in his head; that he suffered, suffers and will continue to suffer great pain of body and mind, and is permanently injured and crippled.

'12. That since the date of said accident, and as a result thereof, plaintiff has been under the care and treatment of various physicians and surgeons and was hospitalized; further medical treatment, surgery and hospitalization will be necessary on account thereof; that following said accident, as a result thereof, plaintiff was unable to perform all of his duties, which consist principally of farming, and becuase of his increased debility, plaintiff is now wholly unable to perform any of his duties and work, and is permanently disable and crippled; that plaintiff has expended large sums of money for physicians and surgeons and hospitalization on account of said injuries.

'WHEREFORE, plaintiff demands judgment against the defendant, MidWest Oil Company, Inc. in the amount of One Hundred Thousand Dollars ($100,000.00) and for all other proper relief.'

It appears that the appellant filed a motion to make more specific under Rule 1-3A of the Supreme Court, which said motion was overruled, and, thereafter, the appellant filed a demurrer to said amended second paragraph of amended complaint upon the statutory grounds that 'complaint does not state facts sufficient to constitute a cause of action against this defendant'.

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