Natoli v. Johnson

• Decision Date: 09 January 1973
• Docket Number: No. 34506,34506
• Citation: Natoli v. Johnson, 490 S.W.2d 275 (Mo. App. 1973)
• Parties: Michael NATOLI, an infant, by Lorraine Natoli, Next Friend, and Albert Natoli, Plaintiffs-Appellants, v. John A. JOHNSON and Virginia Johnson, Defendants-Respondents. . Louis District
• Court: Missouri Court of Appeals

Page 275

490 S.W.2d 275

Michael NATOLI, an infant, by Lorraine Natoli, Next Friend and Albert Natoli, Plaintiffs-Appellants, v. John A. JOHNSON and Virginia Johnson, Defendants-Respondents.

No. 34506.

Missouri Court of Appeals, St. Louis District.

Jan. 9, 1973.

David C. Godfrey, Clayton, for plaintiffs-appellants.

Wilburn A. Duncan, Anthony F. Vaiana, Clayton, for defendants-respondents.

PER CURIAM.

At the conclusion of the opening statement to the jury by plaintiffs' counsel, the court directed a verdict for defendants. We reversed and remand.

Plaintiffs were a young boy, Michael, and his father. Michael sued for damages for personal injuries and his father for Michael's medical and hospital expenses. The petition in two counts alleged that on April 22, 1968, Michael was on an enclosed back porch belonging to defendants where an open can contained a highly inflammable and explosive liquid at which time an explosion and fire occurred and plaintiff Michael suffered third degree burns to 40 to 45 percent of his body. The premises and contents were alleged to be under the sole management and control of defendants.

Plaintiffs' counsel in his opening statement declared he anticipated the evidence would show that Michael, then 6 1/2 years old, frequently played with defendants' son of about the same age. Defendants' house included a glass-enclosed porch on which they had two sofas, a chifforobe, a table, and chairs. Michael had previously been on the porch with permission of defendants. On the day of the fire, with permission of his mother, Michael walked to defendants' home to play with their son. He entered the outside door which had no lock on it. The defendants were not at home and the interior door to the kitchen was locked. Mr. Johnson had cleaned some paint brushes in a can partly filled with white gasoline and had left the can open and exposed on top of the chifforobe. Counsel detailed the construction of the porch with exposed glass, the fact that it had been weather stripped with no ventilation. He commented on the exterior temperature the day of the fire and explosion.

When Michael travelled across the street and got near the house, his mother's attention was diverted by the telephone. She next saw him in Johnson's yard enveloped in flames. With the help of neighbors, she put out the flames and Michael was then taken to the hospital.

After the fire, the gasoline can was found on the floor empty. A moveable barbecue grill was about three feet from the empty can. Alongside the barbecue grill in addition to the empty can, were paint brushes and a book of matches with at least one spent matchstick found by Mrs. Johnson. The house did not burn but the porch roof above the barbecue grill and the two sofas were damaged.

Counsel for plaintiffs advised that a witness from a testing laboratory would testify as to the cause of the fire; the volatility of gasoline and its dangerous qualities.

Defendants' counsel then moved for a directed verdict because the opening statement did not disclose what the evidence would be as to the cause of the fire. The court considered the motion and granted it, stating that no person, even a 6 1/2 year old child, had a right to go into someone else's house unless invited.

On appeal we are first confronted with a motion to dismiss the appeal because of failure to comply with Rule 84.04(a)(3) and (d), V.A.M.R. for the reason that appellants' brief failed to state 'wherein and why' the rulings of the court sought to be reviewed are claimed to be erroneous. We agree that the brief is defective in the respects claimed but because of the infancy of the plaintiff, Michael Natoli, and our conviction that the interests of justice require otherwise, we overrule the motion and consider the appeal on its merits. Rule 84.08, V.A.M.R.

The direction of a...