Motsch v. Standard Oil Co.

• Decision Date: 04 May 1920
• Docket Number: No. 16059.,16059.
• Citation: 223 S.W. 677
• Parties: MOTSCH v. STANDARD OIL CO.
• Court: Missouri Court of Appeals

223 S.W. 677

MOTSCH v. STANDARD OIL CO.

No. 16059.

St. Louis Court of Appeals. Missouri.

May 4, 1920.

Rehearing Denied May 27, 1920.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Suit by Peter Motsch against the Standard Oil Company of Indiana. From judgment' for defendant, plaintiff appeals. Affirmed. William T. Keil and S. E. Eaken, both of St. Louis, for appellant.

Nagel & Kirby, of St. Louis, for respondent.

BECKER, J.

This is a suit for damages to plaintiff's automobile caused by a fire which plaintiff alleges started under the machine while defendant was filling the oil tank of the automobile at its gasoline filling station. The case originated before a justice of the peace, and on appeal was tried de novo in the circuit court, where plaintiff was forced to take an involuntary nonsuit. From the action of the court in overruling plaintiff's motion to set aside said nonsuit, plaintiff in due course brings this appeal.

The questions which present themselves for review are, first, whether the doctrine of res ipsa loquitur is available to the plaintiff under his petition: and, second, if the doctrine of res ipsa loquitur is not in the case, was there evidence of negligence adduced sufficient to carry the case to the jury?

Plaintiff's petition alleges that he was the owner of a five-passenger automobile, and that on the day in question he drove said car up to a gasoline filling station of the defendant company for the purpose of buying gasoline and having the defendant put same into the gasoline tank of his said automobile; "that while in the act of having the tank filled the servants, agents, and employés of the defendant so carelessly and negligently maintained, operated, and handled said gasoline and filling apparatus at said station as to allow said gasoline to be spilled and to catch fire, and as a direct result of said carelessness and resultant fire plaintiff's automobile was damaged in the sum of $475."

We cannot view plaintiff's petition as charging general negligence on the part of the defendant. It clearly alleges specific acts of negligence, namely, that defendant's servants negligently handled said gasoline so as to allow it to be spilled and to catch fire, and therefore, even though this were a case, under the facts disclosed, where the rule of res ipsa loquitur were to apply, a matter which we do not decide, it is clear that, the petition charging specific acts or. negligence on the part of the defendant, the right to rely upon the...