Reckert v. Roco Petroleum Corp.

• Decision Date: 30 December 1966
• Docket Number: No. 1,No. 51720,51720,1
• Citation: 411 S.W.2d 199
• Parties: Helen RECKERT, Appellant, v. ROCO PETROLEUM CORPORATION, a Corporation, and Otto Evans, Respondents
• Court: Missouri Supreme Court

Page 199

411 S.W.2d 199

Helen RECKERT, Appellant, v. ROCO PETROLEUM CORPORATION, a Corporation, and Otto Evans,

Respondents.

No. 51720.

Supreme Court of Missouri, Division No. 1.

Dec. 30, 1966.

Motion for Rehearing or for Transfer to Court En Banc Denied

Feb. 13, 1967.

James F. Koester, St. Louis, for plaintiff-appellant.

F. X. Cleary, Paul S. Brown, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for Roco Petroleum Corporation, respondent.

HOUSER, Commissioner.

Death action by Helen Reckert, widow of William, an employee at a gasoline filling station burned to death when gasoline escaping from the tank of a station wagon on a hydraulic grease rack caught fire and exploded.

Standard Oil Company, allegedly the owner of the filling station, Roco Petroleum Corporation, lessee, and Otto Evans, sublessee, were originally named as defendants. Standard was dismissed. The jury exonerated Evans and returned a verdict for $25,000 against Roco. A new trial was granted Roco on the ground that the court erred in giving Instruction No. 2, and plaintiff appealed.

The first question is whether, considering the evidence in the light most favorable to plaintiff, plaintiff made a submissible case of negligence against Roco.

The written lease between Roco as lessor and Evans as lessee covered fixtures, equipment and appliances. The rental was not only for the use and enjoyment of the real estate and buildings but also was specified to be for the use of the equipment. Under the lease Evans was to handle Roco's products exclusively. Lessee Evans was bound to keep the equipment in repair and lessor had a right to inspect the premises to insure lessee's performance of this obligation. In the writing lessee acknowledged that he had examined and knew the condition of the equipment and appliances and that they were received in good order and repair. The lease provided that lessor was to be exonerated and indemnified against liability arising out of the condition, use and operation of the property and premises. No provision of the lease was to be construed as reserving to lessor any right to exercise any control over the business or operation or to direct how it should be conducted, 'it being understood and agreed that the entire control and direction of such activities shall be and remain with the Lessee.' Lessee was to have no authority to employ any persons or agents for lessor and lessee was not to be deemed to be the employee of lessor. A separate loaned equipment agreement executed between the same parties at the same time contained an acknowledgment by Evans that he had in his possession the hydraulic grease rack and granted him the right to use it. This agreement also contained an indemnification clause holding Roco harmless as against any liability arising out of injury to persons caused by or resulting from the condition or use of the equipment, whether caused by improper construction or negligence.

The grease rack consisted of two parallel I-beams joined at the middle, attached to a hydraulic piston capable of raising an automobile. When the rack was in a 'down' position the beams rested on the floor. An automobile would be 'run on' with its wheels on each side of the I-beams. By turning a valve compressed air would raise the rack until it came in contact with the front axle and rear axle housing. The front axle would rest on stationary pieces of metal attached to the I-beams. The rear axle housing would rest on flanges or 'dogs.' These dogs were moveable and could be adjusted to accommodate automobiles of differing lengths by sliding them along the I-beams. When properly positioned the automobile would be lifted to the desired height for servicing.

Here is a picture of one of the I-beams, showing a flange or 'dog' in upright or vertical position:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The dogs would be turned down in a horizontal position when an automobile, straddling the beams, would be driven into position over the rack. The filling station attendant would get down on his knees and by the use of an attached rod or handle would slide the dogs along the beams to the back axle housing. The dogs would then be turned upright in a vertical position so that when the grease rack was elevated the circular cut-out portions of the top part of the dogs would accommodate or fit around the bottom of the rear axle housing, thus providing support for the automobile as it was lifted.

This accident occurred in March, 1964, during Evans' operation of the filling station. Evans' predecessor as lessee was Hubert Parks. Parks testified that often the dogs would fall over to the side after being placed in position and before the rack was lifted. In November, 1963, during Parks operation, there was an accident involving this same grease rack. On that previous occasion the tank of a 1956 model Chevrolet station wagon was punctured. Parks testified as follows: '* * * I got the dogs set and went to the valve to turn the air to lift it and while I was doing that one of the dogs fell over and * * * let the car come down and left the one dog that was standing up puncture the tank, and all the gas escaped from it.' It was not the dog that fell over that punctured the tank; it was '(t)he one on the other side.' The inquiry continued: 'Q Did you report that back to Roco Petroleum, their employee, or agent? A Mr. Metze, yes. Q Would you tell the Jury whether or not you told him that you had had that happen, that it punctured a gas tank? A I certainly did.' (Our emphasis.) Roco's supervisor told Parks that Roco would remedy the situation 'as soon as they could,' but that they were so busy installing new stations that he did not know when it could be done. When Evans commenced operating the station no one from Roco showed Evans how to operate the rack. Evans found that the rack was damaging the front end of 'our modern automobiles.' He complained of this to two different officials of Roco, stating that the rack 'was insufficient for the new model automobiles,' and several times requested that Roco install a new rack. These complaints were made about 60 days before the accident happened. The only difficulty Evans experienced with the rack from the time he leased the station in January until the accident in March related to the inefficiency of the rack in causing misalignment of the front wheels of automobiles placed thereon. Apparently he had no experience with the dogs falling. He testified that the dogs 'were doing what they were supposed to do.' It was not until after the accident in question that Parks told Evans about the previous incident in which the gasoline tank of a Chevrolet station wagon had been punctured. Notwithstanding the two tenants had requested that the rack be replaced Roco did nothing; did not undertake to repair the dogs, change, remodel or replace the rack, and did not send anyone to make an inspection of the rack. Roco, however, did make some repairs of the building and equipment, repaired the furnace and replaced a broken pane of glass in the overhead door.

On the day in question, during Evans' operation of the station, the former tenant Parks drove his 1957 Chevrolet station wagon into the station and onto the grease rack to have work done on his master brake cylinder. Evans got down on his knees and slid the dogs forward to place them under the axle housing. The top cut-out of the dogs accommodated cars having 15-inch wheels. The lower cut-out was used in the case of cars having 14-inch wheels. In positioning the dogs for cars with 15-inch wheels the operators had to be careful to place the dog at the right place so that when the rack was lifted the dogs would come in contact with the axle housing, but in positioning dogs for cars with 14-inch wheels the operator pushed the dogs forward until the dog came in contact with the axle housing. When that point was reached the operator knew the position was right because the rear of the dog protruded above the bottom of the axle housing, and this prevented the dog from being pushed any farther forward. Thus the housings of automobiles with 14-inch wheels always rested in the front cut-out and those of 15-inch-wheel automobiles rested in the back cut-out of the dogs. The back part of the top extended back 5 1/2 inches from the center of the dogs. In the case of some automobiles, particularly 1956 and 1957 Chevrolet station wagons, holes would be punched in the gasoline tanks when they were lifted, regardless of how carefully the dogs were positioned, because of the manner in which the rack was designed and had to be used. This was due to the fact that in the construction of those models the gas tank is located within 5 inches of the dog. These models have 14-inch wheels, which meant that their rear axle housings would rest in the front cut-outs. This left 5 1/2 inches or so of metal extending backwards from the housing, so that when the lift was pushed upwards the back top portion of the dogs would puncture the gas tank. The dogs were properly positioned and used the way they were intended to be used. Evans knew before the upward movement began that the dogs were going to come in contact with the axle housing 'in the cutaway' but he did not know where the dogs were in relationship to the gas tank, because the vision of one looking underneath was obstructed by the spare tire carrier. After he positioned the dogs he raised the lift. The top portion of one of the dogs punctured the gasoline tank. Gasoline ran out of the hole in the tank onto the floor of the filling station. Evans' employee William Reckert was working underneath a car next to the grease rack. The gasoline caught fire from a flame in a burner in the station and there was an explosion. In the holocaust Reckert received fatal burns.

In Paragraph 6(a) of the petition defendants were charged with operating the grease rack at a time when they knew or in the...