Shaffer Oil & Ref. Co. v. Thomas

• Decision Date: 23 November 1926
• Docket Number: Case Number: 17436
• Citation: 252 P. 41,120 Okla. 253,1926 OK 941
• Parties: SHAFFER OIL & REF. CO. v. THOMAS.
• Court: Oklahoma Supreme Court

1926 OK 941

252 P. 41

120 Okla. 253

SHAFFER OIL & REF. CO. v. THOMAS.

Case Number: 17436

Supreme Court of Oklahoma

Decided: November 23, 1926

Syllabus

¶0 1. Appeal and Error--Review--Necessity for Motion for New Trial--Overruling Demurrer and Pleading Further.

The action of the trial court in overruling a demurrer to a petition, where the defendant has pleaded further, will not be reviewed by the court, unless it is presented to the trial court in a motion for a new trial.

2. Pleading--Liberal Construction of Petition Demurred to as not Stating Facts Constituting Cause of Action.

The rule is well settled that, on demurrer to a petition as defective, in that it does not state facts sufficient to constitute a cause of action, the petition must be liberally construed, and all its allegations, for the purposes of the demurrer, taken as true. And such demurrer can be sustained only where the petition presents defects so substantial and fatal as to authorize the court to say that, taking all the facts to be admitted, they furnish no cause of action whatever. If the facts stated in the petition entitled the plaintiff to any relief, a demurrer for want of sufficient facts should be overruled.

3. Negligence--Care Required of Property Owners--Dangers to Children.

As a general rule, every person is required to use such care in and about the keeping of his property as an ordinarily prudent person would have used under all the facts and circumstances of the case, but there is a difference in the degree of care that is required to be used in guarding against dangers where a child or immature person is concerned and in the case of a mature person.

4. Same--Sufficiency of Instructions. The instructions given by the court examined, and held, to fairly cover the issues involved in the case.

Ross & Thurman, for plaintiff in error.

Streeter Speakman, for defendant in error.

PINKHAM, C.

¶1 This action was instituted by the defendant in error, Everett Thomas, a minor, by W. J. Thomas, his father and next friend, guardian, against the plaintiff in error, the Shaffer Oil & Refining Company, a corporation, for alleged personal injuries received by defendant in error in Creek county, Okla., alleged by the defendant in error to have been directly and proximately caused by the negligence of plaintiff in error.

¶2 Plaintiff alleges in his petition, in substance, that on the 25th day of January, 1925, the defendant operated a certain gas pipe line in the course of its industry through which to convey natural gas, to which pipe line was attached a gasoline drip, and that there was an appliance provided by the defendant at said time and place for drawing the gasoline from the tank, which device is commonly called a "stop," and that it was defendant's duty to provide at said particular place some safety device whereby the said "stop" could be locked or securely fastened, but that defendant carelessly and negligently failed to do so, but provided a stop-cock valve without any lock or safety device which could be easily loosened, and thereupon the natural gas filling said gas line would force a spray of gasoline from said stopcock so removed a distance of several feet in the air and for a distance on all sides surrounding the same for six or eight feet; that by reason thereof the said device so used and provided by said defendant at said place was very attractive to children and did attract children to play at, near, and with the same, and that same was dangerous to the life and safety of such children for the reason that such gasoline was very inflammable; that near said place was a path along which a number of children ordinarily traveled in going to and from the public school and to and from the town of Shamrock, and near by was a playground frequented by the community children, and within almost 20 yards of said place in said pipe line there was a rope swing where the community children frequented, and on account of the close proximity of said gasoline drip to said path and said playground, children would frequently stop at said gasoline drip and play around and about the same, and cause the same to spray gas and gasoline upon each other; that said conditions had continued for more than a year prior to January 25, 1925, and were known to, or could have been known to defendant by the exercise of reasonable care and caution upon its part, but it continued to carelessly and negligently operate and maintain said gasoline drip under said conditions and circumstances; that on said 25th day of January, 1925, plaintiff and his 14-year old brother, Leonard Thomas, who lived near said town of Shamrock and had with other children frequently passed along said path running in close proximity to said gasoline drip, were attending the public school at Shamrock, and it was necessary for them to go home for their noon meal; that on their way home along said path they were attracted to said gasoline drip and stopped thereat to play; that they played thereat and in the vicinity thereof two or three hours, and having run through the spray of gas and gasoline emitted therefrom their clothes became saturated with gasoline; that without knowing or understanding the dangerous nature thereof and desiring to dry their clothing, they went a distance of some 30 or 40 feet north of said gasoline drip, gathered some leaves and sticks with which to build a fire in order to dry their clothes, and thereupon lit a match to start said fire, and thereupon their clothes became ignited and said Leonard Thomas was burned to death, and plaintiff's right arm was seriously burned to such an extent that he has permanently lost the use of his said right hand and arm; that by reason of said injury he has suffered great physical and mental pain and suffering and will continue so to do in the future, that the said injuries were directly and proximately caused by the careless and negligent acts and omissions of defendant in maintaining said gasoline drip in the condition and manner above set forth so as to constitute an attractive nuisance to plaintiff to play at and about and with the same, and the careless and negligent acts and omissions of the defendant in failing and refusing to provide locks or safety devices by means of which the emitting of gasoline spray from said gasoline drip could and would have been prevented; that plaintiff was without fault or negligence in the premises, all to his damage in the sum of $ 30,000, for which he prays judgment.

¶3 The defendant's general demurrer to plaintiff's petition was overruled and exception reserved. The defendant for its answer to plaintiff's petition denies each and every allegation therein contained, except admitting that it is a corporation doing business in the state of Oklahoma, and engaged in the production and refining of oil in Creek county.

¶4 For further answer and defense defendant says that the point on its pipe line, where the gasoline drip referred to in plaintiff's petition was attached, was located in a remote spot not near to where plaintiff or other children were in the habit of playing or had any occasion to play, and same was not near to any playground usually or commonly used by children nor close to a path frequently traveled by children or other people, and that said gasoline drip, pipe, and other appliances connected therewith were not sufficiently close to any point where children were in the habit of going to attract children's attention, and that same were entirely safe for the purpose for which they were installed and maintained, and that if plaintiff or others were in the habit of molesting or playing with said gasoline drip, defendant had no knowledge thereof; that defendant had no information to the effect that plaintiff or others even knew of the location of said gasoline drip, or the location of its pipe line, or that they would discover it in the usual course of their affairs; that plaintiff in tampering with said gasoline drip was doing so without defendant's knowledge or consent; that he was a pure volunteer; that he was a boy of at least ordinary intelligence for his age and must have known or did know that he was guilty of contributory negligence in bothering or playing with said gasoline drip and in permitting the escape of gas therefrom.

¶5 Plaintiff for reply to defendant's answer denies generally all of the allegations of new matter therein contained. The case was tried to a jury and at the close of plaintiff's evidence the defendant interposed its demurrer thereto, which was by the court overruled and exception saved. At the close of all the evidence the defendant moved the court to direct the jury to find for the defendant. This motion was overruled and exception reserved. Thereafter the case was submitted to the jury under the court's instructions, and a verdict returned in favor of the plaintiff and against the defendant for the sum of $ 5,000. Defendant's motion for a new trial was overruled, exceptions saved, judgment was rendered in accordance with the jury's verdict, and from said Judgment the defendant has duly appealed to this court by petition in error and case-made attached. For reversal of the judgment the defendant presents numerous assignments of error. 'The first proposition presented is that the court erred in overruling defendant's demurrer to plaintiff's petition. The record discloses that the defendant's demurrer to plaintiff's petition was overruled on June 1, 1925; exception was reserved and the defendant given 15 days to answer. The defendant's motion for new trial was presented upon the 21st day of January, 1926 and the appeal was filed in this court May 14, 1926.

¶6 It further appears that the defendant did not incorporate as error the overruling of the demurrer in its motion for new trial. In a number of decisions of this court it has been held that the action of the trial court in overruling a demurrer to a petition, where the defendant has pleaded further, will...