Ramsey v. Sentell Oil Co., 6 Div. 282

• Decision Date: 16 February 1967
• Docket Number: 6 Div. 282
• Citation: 195 So.2d 527,280 Ala. 475
• Parties: James A. RAMSEY v. SENTELL OIL COMPANY et al.
• Court: Alabama Supreme Court

Page 527

195 So.2d 527

280 Ala. 475

James A. RAMSEY v. SENTELL OIL COMPANY et al.

6 Div. 282.

Supreme Court of Alabama.

Feb. 16, 1967.

Walter B. Henley, Northport, for appellant. Robt. B. Harwood, Jr., of Clement Rosen, Hubbard & Waldrop, Tuscaloosa, for appellee.

MERRILL, Justice.

This appeal is from a judgment of nonsuit, induced by the sustaining of demurrers to all five counts of a complaint, as amended. Plaintiff was injured when a steel drum that formerly held tractor fuel exploded when a cutting torch was applied to it.

Count One reads as follows:

'The Plaintiff claims of the Defendants the sum of TWO HUNDRED THOUSAND AND NO/100 ($200,000.00) DOLLARS, as damages and as grounds for the damages claimed, the Plaintiff alleges as follows:

'1:01. On, to-wit; April 9, 1963, the Defendants were in the business of manufacturing, selling and distributing gasoline, tractor fuel, and other petroleum products, and operated a wholesale department or distributorship in Northport, Alabama, on Main Avenue.

'1:02. The Defendants had established a dealership in the sale of its products through Ike W. Maddox (herein referred to as Maddox) to the general public, Maddox operated a service station on U.S. Highway No. 43, about ten (10) miles North of Northport, Alabama, in Tuscaloosa County, Alabama, and through this service station sold the products of the Defendants which had been sold to the Defendants to Maddox.

'1:03. Maddox also operated a farm and the Plaintiff was employed by Maddox as a farm hand and as an employee at the service station, dispensing the Defendants' products. The Palintiff was performing his duties as a farm hand at said time and place and was instructed by Maddox to take a steel drum, which had been used prior to that time for the storage of the Defendants' products, to a welding shop in Tuscaloosa, Tuscaloosa County, Alabama and to have a hole cut in the top of the drum by a cutting torch (a device using a flame to cut metal and herein referred to as cutting torch) so that the drum could be used for the purpose of holding water to spray with chemical cotton poison.

'1:04. The drum had been used prior to the said time and place to store and contain or transport the Defendants' products, tractor fuel and gasoline, at said time and place the drum still contained fumes from the prior storage of the Defendants' products, gasoline and tractor fuel, in the drum. The Palintiff took the drum and filled it with water and used the drum of water prior to taking it to the welding shop to have a hole cut in it. The Plaintiff also washed out the drum with water. The Plaintiff was convicted and believed that the use of the water in the drum and the washing out of the drum with water had removed all dangerous fumes therefrom. The Plaintiff took the drum on, to-wit: April 9, 1963, to a welding shop and asked the operator of the welding shop if it were same (sic) to cut a hole in it. The operator of the shop asked the Plaintiff if the drum had been used for water since it had been used to contain tractor fuel or gasoline. The Plaintiff told him that it had been used to store water and had been washed out with water since it had been used to store tractor fuel or gasoline. The operator of the welding shop then informed the Plaintiff that it was safe to cut a hole in the drum with the cutting torch and proceeded to do so by striking the top of the drum with the open flame of the cutting torch and at the moment when the flame entered the drum, and drum exploded, and the Plaintiff was injured and damaged as set out in Paragraph 2:01 herein.

'1:05. The Plaintiff alleges that the Defendants placed gasoline on the open market without adequately instructing its distributors employees, agents, or operators of service stations to store gasoline in drums would cause the drum to become contaminated and harmful and dangerous and render said drum dangerous when it was used near heat, fire, sparks or open flame, even after the contaminated drums had been washed out with water.

'1:06. The Defendants should have warned the Plaintiff, as one of the employees of one of the Defendants' distributors, service station operators, or agents, in the proper use and handling of such drums after they had been used for storage of the Defendants' tractor fuel or gasoline.

'1:07. The drum was imminently dangerous when it was placed near flame, sparks, heat, or open fire, and the Defendants knew the drums which had been used to store the Defendants' tractor fuel or gasoline would still be dangerous even though the drum had been washed out with water, but this danger was not known to the Plaintiff, nor ever made known to him by instructions from the Defendants or anyone else.

'1:08. The Defendants then negligently allowed the Plaintiff to use the drum after it had been filled with gasoline, and washed out with water, and the Defendants did not exercise reasonable diligence to notify the Plaintiff of such danger, and the Plaintiff's injuries and damages as set out in Paragraph 2:01 were all a direct and proximate consequence of the said negligence of the Defendants.

'The Plaintiff alleges that as a direct and proximate consequence of the negligent conduct, Ommissions, and acts of the Defendants complained of above, the Plaintiff was injured and damaged as set out in Paragraph 2:01 as follows:

'2:01. Plaintiff suffered a severe shock to his nervous system; suffered...