Mooney v. Monark Gasoline & Oil Co.

• Decision Date: 16 September 1927
• Docket Number: 25934
• Parties: Walter T. Mooney, Appellant, v. Monark Gasoline & Oil Company
• Court: Missouri Supreme Court

298 S.W. 69

317 Mo. 1255

Walter T. Mooney, Appellant, v. Monark Gasoline & Oil Company

No. 25934

Supreme Court of Missouri

September 16, 1927

[Copyrighted Material Omitted]

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

Reversed and remanded (with directions).

E. H McVey, Samuel R. Freet and Lester G. Seacat for appellant.

(1) The plaintiff was entitled to judgment on the verdict of the jury, unless he failed to make some proof of some essential averment of his petition, or so convicted himself of contributory negligence that reasonable minds could not draw different conclusions about it. Burgess v. Insurance Co., 230 S.W. 315; Burton v. Holman, 231 S.W. 630; Burtoh v. Wabash Ry. Co., 236 S.W. 338; Kepler v. Wells, 238 S.W. 425; W. J. Howey Co. v. Cole, 269 S.W. 955; Bender v. Ry. Co., 137 Mo. 240; Young v. Webb City, 150 Mo. 333; Ganey v. Kansas City, 259 Mo. 654; Barnett v. Delano, 187 Mo.App. 501; Singleton v. Pac. Railroad Co., 41 Mo. 469. (2) The defendant was engaged in handling gasoline, a highly dangerous substance, and therefore was required to exercise the highest degree of care for the safety of its employees. Kings Co. Ins. Co. v. Swigert, 11 Ill.App. 590; Socola v. Chess Carley Co., 29 La. Ann. 344; Whittemore v. Laundry Co., 181 Mich. 564; McLawson v. Paragon Ref. Co., 198 Mich. 222; Ormsby v. A. B. C. Co., 253 S.W. 668; Myers v. Payne, 227 S.W. 633; Henderson v. Wilson Stove Co., 197 S.W. 177; Britt v. Crebe, 172 Mo.App. 426; Jewell v. Mfg. Co., 143 Mo.App. 200. (3) Plaintiff's evidence established defendant's liability on each and every one of the grounds of negligence specified in the petition, only one of which was sufficient to take the case to the jury and to sustain the verdict rendered; therefore the court erred in sustaining defendant's motion for a new trial on the ground that the demurrer to the evidence should have been sustained. Yarbrough v. Packing Co., 231 S.W. 72; Soeltz v. Provision Co., 260 S.W. 990; Troutman v. Oil Co., 234 S.W. 1916. (a) The evidence showed that the defendant knowingly maintained in service a worn-out and defective valve on a gasoline hose, because of which the plaintiff, an employee, was sprayed with gasoline, and, in tending a fire in the discharge of his duties, was burned because of the gasoline that had been sprayed on him, thus establishing defendant's liability. 39 C. J. 326, 338, 339. (b) The evidence showed that even though the defendant knew that the plaintiff was being sprayed with gasoline through the defective valve, it required him to work in an enclosed room and to keep a fire burning there after his clothes had been sprayed with gasoline, thus rendering the room an unsafe place to work. Waters-Pierce Oil Co. v. Snell, 47 Tex. Civ. App. 413; Cooper v. Fidelity Dev. Co., 131 N.Y.S. 457; Sorenson v. Selden Brick Co., 154 N.W. 222; Houston Belt Ry. Co. v. Wood, 149 S.W. 372; Moeckel v. Cross & Co., 76 N.E. 447; Stoeber v. Brewing Co., 79 A. 416; Ames v. Standard Oil Co., 233 S.W. 195; Allen v. Quercus Lumber Co., 190 S.W. 86; Henderson v. Wilson Stove Co., 197 S.W. 180; Richert v. Hammond Packing Co., 136 Mo.App. 565. (c) The evidence showed that gasoline was of such a nature that on a cold day it would evaporate slowly and in the meantime clothing wetted with gasoline would seem dry and free from it, but, when warmed inside a room with a fire in it, the gasoline would evaporate rapidly and give off fumes, so that when brought near the fire there would be danger of ignition; the evidence showed that the defendant had actual knowledge of this property of gasoline and, this being known to the science of the subject, the defendant was charged with knowing it. Plaintiff was not warned of this fact and in ignorance of it waited, after being wetted, until his clothing seemed dry, as he had been told by defendant's officers he could safely do, and then attempted to fix the fire and was burned, and now contends that defendant is liable for such failure to warn him of this hidden peril of his employment. As to actual notice: See, 3 Labatt on Master & Servant, pp. 2707, 2771; Cunningham v. Railroad, 156 Mo.App. 617; O'Mans v. Packing Co., 151 Mo.App. 557; Reickert v. Packing Co., 136 Mo.App. 562; Highfill v. City, 189 S.W. 803; Dewcese v. Meramec Iron Min. Co., 128 Mo. 423. As to constructive notice: See, Mather v. Rilston, 156 U.S. 391; Hysell v. Swift, 78 Mo.App. 39; Nickel v. Columbia Paper Co., 95 Mo.App. 225; Cunningham v. Railroad, 156 Mo.App. 618; Zimmerman v. Pryor, 190 S.W. 26; Roehrig v. Car & Foundry Co., 257 S.W. 1086; Boynter v. Construction Co., 265 S.W. 841; Adams v. Ref. Co., 160 Mich. 590; Smith v. Car Works, 60 Mich. 501; Thompson v. United Laboratories, 221 Mass. 276; Wagner v. Chem. Co., 23 A. 772; Waters-Pierce Oil Co. v. Snell, 106 S.W. 170. (d) The evidence showed that plaintiff complained to defendant's officers about his clothes being sprayed through the defective valve and asked about going near the fire under those circumstances and was assured by them that if he would stay outside for a while and until he was dry, there would be no danger; plaintiff relied on these assurances, and after staying outside until he seemed dry, attempted to fix the fire as he was required to do, and was burned. Plaintiff contends defendant is liable because it gave him false assurances of safety upon which he acted. Highfill v. City, 189 S.W. 803; Gilbert v. Hilliard, 222 S.W. 1027; Jewell v. Bolt & Nut Co., 231 Mo. 195; Hays v. Sheffield Ice Co., 282 Mo. 446; Wilson v. United Railways Co., 181 S.W. 20; Carter v. Baldwin, 107 Mo.App. 229; Hayden v. Gravel Co., 186 S.W. 1195; Schaffner v. Massey & Co., 270 Ill. 207; Keegan v. Kavanaugh, 62 Mo. 230; Steinhauser v. Sprawl, 114 Mo. 551; Eckhardt v. Electric Co., 235 S.W. 119; Stephens v. Ry. Co., 96 Mo. 208. (e) The evidence showed that plaintiff brought the defect in the valve to the attention of the defendant's officers on various occasions and they promised plaintiff they would repair it, but never did, and the valve was defective when plaintiff was injured and he was injured because of the defective valve. This is a distinct and sufficient basis for liability. 18 R. C. L. 650. (4) The plaintiff cannot as a matter of law be declared to have assumed the risk, or be convicted of contributory negligence, the peril to which he was exposed and through which he was injured having been a latent and hidden one; the questions of assumption of risk and contributory negligence in this case were peculiarly questions of fact for the jury to determine. 18 R. C. L. 639, 649; Spinnell v. Goldberg, 275 S.W. 775.

Lathrop, Morrow, Fox & Moore, George J. Mersereau and Richard S. Righter for respondent.

(1) The trial court was right in granting a new trial on the ground that respondent's demurrer to the evidence should have been sustained. (a) Plaintiff did not plead and did not prove that gasoline has the peculiar properties which are alleged to have caused this accident, and did not plead or prove that respondent knew or in the exercise of ordinary care should have known that gasoline has such qualities. Chitty v. Iron Mt. Ry. Co., 148 Mo. 64; Nave v. Dieckman, 208 S.W. 273; Collins v. Hutchings, 194 S.W. 733; Secs. 1272, 1273, R. S. 1919; Compton v. Railroad, 147 Mo.App. 420; Politowitz v. Telephone Co., 115 Mo.App. 57; Bryan v. Lamp Co., 159 S.W. 754; Glenn v. St. Ry. Co., 107 Mo.App. 109; State ex rel. Boeving v. Cox, 276 S.W. 869; VanBibber v. Swift & Co., 286 Mo. 317, 228 S.W. 69; Doerr v. Brewing Assn., 176 Mo. 547; Smith v. Box Co., 193 Mo. 715; King v. Natl. Oil Co., 81 Mo.App. 155; Mather v. Rillston, 156 U.S. 391; Cunningham v. Railroad Co., 156 Mo.App. 618. (b) The court properly granted a new trial because plaintiff was guilty of contributory negligence as a matter of law. VanBibber v. Swift & Co., 386 Mo. 317; Bobnett v. Brewery Co., 238 S.W. 532; Moore v. Ry. Co., 146 Mo. 572; Hurst v. Ry. Co., 163 Mo. 309; Railroad v. Bivins, 103 Ala. 142; Railroad Co. v. Holborn, 84 Ala. 133; Rogers v. Packing Co., 170 S.W. 675; Hirsch v. Bread Co., 129 S.W. 1060. (c) The defect in the valve in the pump, the failure of respondent to repair the same, and the alleged assurances of safety were not the proximate cause of the accident. Glenn v. St. Ry. Co., 107 Mo.App. 109; State ex rel. Boeving v. Cox, 276 S.W. 869; VanBibber v. Swift & Co., 286 Mo. 317; Doerr v. Brewing Assn., 176 Mo. 547; Smith v. Box Co., 193 Mo. 715; George v. Mfg. Co., 159 Mo. 333; Nugent v. Milling Co., 131 Mo. 241; Coin v. Lounge Co., 222 Mo. 488. (2) The trial court was right in granting a new trial for reasons other than those stated by the court. (a) This court can sustain the trial court's ruling granting a new trial on any ground preserved in the record, whether assigned by the trial court as a ground for its ruling, or not. Ittner v. Hughes, 133 Mo. 679; Haven v. Railroad, 155 Mo. 216; Johnson Grain Co. v. Railroad, 177 Mo.App. 194; Condee v. Ry. Co., 130 Mo. 154. (b) The trial court erred in giving Instruction 2 on behalf of appellant. (c) The trial court erred in giving Instruction 4 on behalf of appellant. (d) The trial court erred in giving Instruction 3, as modified by the court, on behalf of appellant. Edwards v. Structural Steel Co., 185 S.W. 1147; Trage v. Land & Lumber Co., 187 Mo. 227. (e) The trial court erred in overruling respondent's objection to hypothetical question asked Dr. Cross. (f) The court erred in overruling respondent's motion for continuance and affidavit of surprise. (g) The amount in damages awarded by the jury was excessive, and so excessive as to indicate passion and prejudice on the part of the jury. Rigg v. Railroad Co., 212 S.W. 878.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

Action to recover damages...