Milner v. Texas Discount Gas Co., 37926

• Citation: 559 S.W.2d 547
• Decision Date: 15 November 1977
• Docket Number: No. 37926,37926
• Parties: Maralyn MILNER, Plaintiff-Appellant, v. TEXAS DISCOUNT GAS CO., Defendant-Respondent. . Louis District, Division Three
• Court: Court of Appeal of Missouri (US)

Page 547

559 S.W.2d 547

Maralyn MILNER, Plaintiff-Appellant, v. TEXAS DISCOUNT GAS CO., Defendant-Respondent.

No. 37926.

Missouri Court of Appeals, St. Louis District, Division Three.

Nov. 15, 1977.

Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.

Ben J. Weinberger, St. Louis, for plaintiff-appellant.

Evans & Dixon, Sam Rynearson, St. Louis, for defendant-respondent.

KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of St. Louis County in favor of the defendant-respondent following a jury trial in a negligence action in which the plaintiff-appellant sought money damages for injuries sustained when she fell on the premises whereon the defendant-respondent operated a service station business. We affirm.

At trial the appellant presented all of the evidence on the issue of liability in plaintiff's case, the respondent limiting its evidence to the testimony of its examining physician. Because of the result we reach, a brief statement of the facts will be sufficient.

Mrs. Maralyn Milner, the appellant, drove her motor vehicle onto the premises of a service station being operated by the respondent at 9800 Page Boulevard in St. Louis County at approximately 1 p. m. on the 10th day of October, 1972, for the purpose of purchasing some gasoline. Charles Johnson, the acting manager of the service station, came up to Mrs. Milner's car and she told him to "fill it up." Mr. Johnson put the nozzle of the hose from the gas pump into the gas tank of the auto, turned the gas pump on, set the nozzle on automatic, and went to the gas station island nearby to either get something to wash the windshield of Mrs. Milner's car or to wait on another customer. Mrs. Milner was getting out of her car as Mr. Johnson was putting the nozzle of the gas hose into the gas tank of her car and after Mr. Johnson left, the nozzle came out of the gas tank of her car, flipped up into the air, and sprayed gasoline all over her and also sprayed the gasoline on the pavement where she was standing. In attempting to get out of the way, Mrs. Milner fell backwards and sustained injuries to her back for which she sought compensation in this case.

Following an adverse jury verdict, appellant filed "Plaintiff's Motion to Set Aside The Verdict of the Jury in Favor of Defendant Rendered On The 10th Day of December, 1975, Or In The Alternative For A Directed Verdict In Favor of Plaintiff On The Issue of Liability And For A New Trial on the Issue Of Damages."

On appeal the appellant relies on the following Points:

1) the trial court erred and abused its discretion in denying appellant's motion for judgment in her favor on the issue of liability and for a new trial on the issue of damages because she made a submissible case and sustained her burden of proof in accordance with her theory of recovery under her pleadings and supported by her evidence and there was no dispute as to the issue of liability and damages and that the active negligence of the respondent was established and conceded;

2) the trial court erred and abused its discretion when it overruled appellant's motion to set aside the verdict of the jury and the judgment of the Court in favor of respondent because it was not responsive to the pleadings or fully consistent with the theory on which the case was tried by the parties and in utter disregard of the evidence and that there was no evidence in support thereof and so unreasonable as to shock the sense of justice;

3) the trial court erred and abused its discretion by refusing appellant's verdict director marked "A," a modified 22.03 which set forth and contained all the necessary ultimate issues of the case in support of the peculiar facts and circumstances of the case and predicated upon her theory of recovery under her pleadings supported by her evidence, which were necessary to direct a proper verdict for appellant;

4) the trial court erred and abused its discretion because it gave its own erroneous instruction Number Three, a modified MAI 17.01, which was vague, uncertain, indefinite, misleading, and not applicable to the peculiar facts and circumstances in the case as a whole and failed to include other essential and necessary elements and ultimate facts in the case for a proper verdict for appellant, the same being as follows: The failure of the attendant in charge of the service station to either cut off the flow of gasoline when the nozzle valve fell out of the gasoline tank so that the nozzle valve failed to function properly to automatically shut itself off at said time, which directly made the premises of respondent not reasonably safe for appellant which caused plaintiff's damages.

Our examination of the transcript on appeal demonstrates that the appellant failed to preserve her first point for review by this court. Motions for Directed Verdict are authorized by Rule 72.01(a) and are...