Nesmith v. Magnolia Petroleum Co., 8107.
Decision Date | 24 April 1935 |
Docket Number | No. 8107.,8107. |
Citation | 82 S.W.2d 721 |
Parties | NESMITH et al. v. MAGNOLIA PETROLEUM CO. |
Court | Texas Court of Appeals |
Appeal from District Court, Brown County; E. J. Miller, Judge.
Action by W. C. Nesmith and others against the Magnolia Petroleum Company. From a judgment of dismissal, plaintiffs appeal.
Affirmed.
Mark Callaway, of Brownwood, for appellants.
A. S. Hardwicke, of Dallas, and McCartney & McCartney, of Brownwood, for appellee.
W. C., Olen, and J. B. Nesmith sued the Magnolia Petroleum Company for compensatory damages, the result of injuries to their persons and property, caused by the explosion of gasoline. The explosion was due to ignition of gasoline spilled on a motor tractor in the process of filling the supply tank from a drum container by means of a pump supplied by defendant. The latter's liability is predicated upon an alleged defect in the pump consisting of a missing nozzle at the end of the hose designed to fit into the opening in the supply tank. The trial court sustained two special exceptions to the petition, urging that it (1) failed to show that the injuries sued for were "the proximate legal result of the breach of any duty either contractual or as the result of negligence owing by the defendant to the plaintiffs, or either of them"; and (2) that it affirmatively showed that plaintiffs (a) assumed the risk, and (b) were contributorily negligent. Plaintiffs declined to amend, and judgment of dismissal was rendered; from which plaintiffs appealed.
The petition alleges the following:
The three plaintiffs were all interested in the operation of a grain threshing outfit consisting of a tractor and grain separator using gasoline as motor fuel. Two of the plaintiffs were owners of the outfit. Defendant was engaged in the sale and distribution of oil and gasoline. On or about June 20, 1933, defendant agreed to deliver to plaintiffs, at places designated by the latter, gasoline in 54-gallon steel drums to be used in the threshing business during the 1933 season, and (as part of the consideration for the purchase) to furnish plaintiffs with a pump in good working order, and suitable for the purpose for which it was to be used, to pump the gasoline from the iron barrels, or drums, into plaintiffs' tractor tank.
The other relevant portions of the petition read:
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