Palacine Oil Co. v. Philpot
| Decision Date | 15 April 1930 |
| Docket Number | Case Number: 19388 |
| Citation | 1930 OK 180,144 Okla. 123,289 P. 281 |
| Parties | PALACINE OIL CO. v. PHILPOT. |
| Court | Oklahoma Supreme Court |
¶0 1. Explosives--Dangerous Character of Gasoline.
Gasoline is a commodity generally known and recognized as being so readily inflammable that, if brought in contact with flame, it will almost inevitably and invariably ignite without any appreciable period of previous heat, is readily vaporized by coming in contact with air, and a gas or vapor is formed, which, if confined, when ignited, explodes with all of the incidents connected with the most disastrous character of explosions, and is almost universally recognized as a dangerous commodity.
2. Same--Distributor of Gasoline Lending to Filling Station Certain Equipment Held not "Manufacturer or Vendor" Thereof.
A person or corporation engaged in the sale and distribution of gasoline, and in that business, has and owns tanks, pumps, etc., used in the storage and handling of gasoline in the sale thereof at retail, which it lends, furnishes, and installs free of charge to persons engaged in the sale of gasoline at retail only so long as, or on condition that, such person sells the products of such owner, is not, as to such tanks, pumps, etc., the manufacturer or vendor thereof.
3. Same--Petition Held to State Cause of Action Against Distributor of Gasoline for Injuries from Explosion of Gasoline Seeping from Tank Into Nearby Well.
A petition which alleges that a defendant is engaged in the business of selling and distributing gasoline, and lends, furnishes, and installs pumps and tanks to be used in the sale at retail of its gasoline to persons, free of charge on condition and only so long as such persons sell the products of defendant, and further charges that in the installation and maintenance of such a tank and pump for the use of one such retailer, such defendant was guilty of such negligence that by reason thereof gasoline leaked or escaped from such tank and pump, and found its way to a well or nearby excavation, and accumulated therein so as to cause an explosion, whereby one not at fault himself was seriously burned and injured, states a cause of action.
4. Same--Plaintiff's Evidence Held Sufficient Against Demurrer and Motion to Direct Verdict.
Record examined, and held, no error in overruling defendant's demurrer to plaintiff's evidence, and, further, no error in refusing to direct a verdict for defendant.
5. Negligence--Proximate Cause as Question for Jury.
Whether or not the negligence of one sought to be held liable for an injury to another is the proximate cause of such injury is ordinarily a question for a jury, and where there is evidence from which a jury may be authorized to find that the negligence of defendant directly produced, or concurred directly in producing, the injury, then the court is not authorized to say, as a matter of law, that such negligence was not the proximate cause of the injury.
6. Same--Evidence of Statements by Employee of Defendant After Accident.
Evidence of statements made by an employee of defendant after an accident alleged to have occurred through the negligence of defendant, though inadmissible for the purpose of proving such negligence, may be admitted as tending to show that defendant had knowledge of the conditions, indicated by the admission, where there is other evidence before the jury sufficient to authorize a finding that the conditions actually existed.
7. Appeal and Error--Damages--Medical and Hospital Expenses of Minor not Recoverable in Action by Minor for Personal Injuries--Cause not Reversed for Erroneous Instruction on Damages not Objected to Below.
Where the plaintiff is a minor living with plaintiff's parents, damages for expenses for a physician, medicine, and hospital expenses, and loss of time during minority, are ordinarily not recoverable in an action for damages for personal injury brought by such minor, but where such items are drawn in issue, and the court instructs the jury that they may consider such items as elements of damages, and the jury finds for plaintiff in a lump sum for less than the amount sued for, and there is no complaint that the verdict is excessive, or such complaint is made and abandoned, and the defendant does not suggest the correction of such instruction at the time it is given, the cause will not be reversed because the court's charge does not accurately define the measure of damages. St. L.-S. F. Ry. Co. v. Loftus, 109 Okla. 141, 234 P. 607.
Commissioners' Opinion, Division No. 2.
Error from District Court, Bryan County; Porter Newman, Judge.
Action by Mary Jane Philpot, a minor, by R. C. Philpot, next friend, against the Palacine Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Geo. N. Otey, Brown & Williams, and Hatchett & Ferguson, for plaintiff in error.
Hayes & Hayes, and MacDonald & MacDonald, for defendant in error.
¶1 This is an action commenced by Mary Jane Philpot, a minor, hereinafter referred to as plaintiff, against the Palacine Oil Company, hereinafter referred to as defendant, to recover damages for personal injuries, alleged to have been received by reason of the negligence of defendant.
¶2 The petition, in substance, alleges that defendant, among other things, is engaged in the business of selling and distributing gasoline, and in that connection owns and maintains at various places tanks or reservoirs with pumps connected therewith which it furnishes to its customer, the tanks being installed underground, which tanks and the pumps connected thereto are furnished and installed by defendant for the use of the customer and loaned by defendant to its customers free of charge, except for the consideration for the use thereof the customer shall buy gasoline exclusively from defendant; that under such arrangement defendant furnished and installed a tank and pump for the use and benefit of Philpot Brothers at the village of Cade, same being installed and put in operation by defendant under an oral agreement and written receipt to the effect that said property was owned by defendant and to be used by Philpot Brothers only so long as Palacine Oil Company products were sold at said place. By amendment to the petition, the alleged written receipt was attached, and is as follows:
¶3 The allegations of negligence were, in part:
"That wholly in disregard of its duty to properly install said storage tank and pump, and in violation of its duty to this plaintiff and to others living in the community where said gasoline was stored, the said defendants, its agents, servants, and employees, negligently, carelessly, and without due regard to its duty to the plaintiff and to the public generally, installed said storage tank and pump and all connections pertaining thereto in such a manner that gasoline deposited in said tank by the said defendant, its agents, servants, and employees, was permitted to leak from the containing tank, and in escaping from said tank seeped through the ground or reservoir northwest of the mercantile establishment of Philpot Brothers, and which was used by this plaintiff and other members of her family for the purpose of obtaining water for drinking and household purposes; that said storage tank, so improperly installed by the said defendant, its agents, servants, and employees, was permitted to remain in that condition for a period of 14 months; that gasoline so stored and deposited therein by the said defendant, its agents, servants, and employees, was permitted to leak therefrom at the rate of from three to five gallons per day; that said leakage and seepage from said tank in the natural course of drainage entered the said cistern or reservoir, and there accumulated for sometime; that the said defendant, its agents, servants, and employees, were repeatedly warned and notified that said tank was leaking, but to remedy the same the said defendant, its agents, servants, and employees wholly failed, neglected, and refused to so do, notwithstanding that the said defendant, its agents, servants, and employees, were thoroughly conversant with the danger of permitting said gasoline to escape and in escaping to accumulate in any quantity at one place and be subject to contact with fire or excessive heat."
¶4 It was then alleged:
"That, on the 30th day of June, 1925, a great quantity of said gasoline by seepage and drainage had found its way into said cistern or reservoir above described due to the gross negligence of the said defendant, its agents, servants, and employees; that this plaintiff, and the owners and operators of the store at which said pump and storage tank was maintained by the said defendant were ignorant of the fact that said gasoline had been by said defendant permitted to escape into said cistern and were ignorant of the dangerous quality of said gasoline when so permitted to leak and accumulate, and this plaintiff and those using said cistern for the purpose of obtaining water, this plaintiff being a minor of very immature years and of the actual age of less than 14 years, not knowing of the danger of placing a lighted flame in said cistern, did so on said date with the result that said gasoline, so grossly, negligently permitted to escape and accumulate by said defendant, exploded in said cistern or reservoir, hurling this plaintiff a distance of more than 30 feet and setting fire to...
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