Sinclair Refining Co. v. Stevens

• Decision Date: 26 November 1941
• Docket Number: No. 11964.,11964.
• Citation: 123 F.2d 186
• Parties: SINCLAIR REFINING CO. v. STEVENS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

123 F.2d 186 (1941)

SINCLAIR REFINING CO. v. STEVENS et al.

No. 11964.

Circuit Court of Appeals, Eighth Circuit.

November 5, 1941.

Rehearing Denied November 26, 1941.

James A. Potter, of Jefferson City, Mo. (Ragland, Otto & Potter and Forrest P. Carson, all of Jefferson City, Mo., and Roger B. Jones, of Kansas City, Mo., on the brief), for appellant.

Jean Paul Bradshaw, of Lebanon, Mo. (Bradshaw & Fields, Robert C. Fields, and Mary Alice Hunt, all of Lebanon, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is taken by the Sinclair Refining Company to reverse a judgment rendered against it upon the verdict of the jury in an action brought by Mr. and Mrs. Stevens to recover for damages to their property by fire resulting from the company's alleged negligence. The action was brought in the state court and was duly removed to the federal court. We will refer to the Stevenses as plaintiffs and to the company as defendant.

The defendant has not brought up the testimony given on the trial but has presented only that it was and is entitled to judgment in its favor on the pleadings. It moved for judgment on the pleadings shortly after the pleadings were made up and the motion was denied. It moved for a directed verdict on the same ground at the conclusion of the evidence and also moved on the same ground for judgment notwithstanding the verdict, both motions being denied.

It is argued for the plaintiffs that under the Missouri law the defendant "waived any objection to the pleadings by going to trial" but Rule 12(c) of the Rules of Civil Procedure for the District Courts of the United States, 28 U.S.C.A. following section 723c, expressly establishes the right of the defendant to "move for judgment on the pleadings * * * after the pleadings are closed but within such time as not to delay the trial". The record discloses that the defendant throughout the proceedings consistently asserted and maintained that the pleadings showed on their face that the defendant had a good and valid defense to the claims of the plaintiffs as a matter of law, that there was no amendment to the pleadings express or to be implied, that the defense as a matter of law so asserted by defendant was properly called to the trial court's attention and submitted for decision and the court ruled upon it adversely to defendant. The timely appeal therefore requires us to review the question of law involved in the trial court's decision.

It was alleged in plaintiffs' amended petition, on which the case was tried, that plaintiffs own a lot in Camden County, Missouri, adjacent to State Highway Route No. 54 on which they were engaged in January, 1939, in constructing a frame building, a part of which was to be devoted to the use of an oil and gasoline service station. That on January 4, 1939, plaintiffs agreed with defendant to handle Sinclair petroleum products at the service station upon its completion. That in May and June, 1939, defendant delivered and installed on the premises service station equipment, including storage tanks, breather pipes, pumps, and electric equipment. That after the equipment was installed and had been operating a few days and on July 6, 1939, the defendant opened a vapor proof box containing the wires and switches on one of the pumps and disconnected, connected and changed the position of the wires located therein. That plaintiffs had no knowledge of the proper method of installing the equipment and so informed defendant, and plaintiffs were by defendant induced to and did rely upon defendant for the proper installing, repairing and altering of the same. It was then alleged:

"That wholly disregarding its duty to exercise due care in the installing, repairing and altering of said equipment, said defendant carelessly and negligently installed, repaired and altered said equipment as hereinabove pleaded, and that such negligence was, in part, as follows, to-wit:

"A. The defendant failed to install in rigid iron conduits the electrical wires leading from plaintiffs' building to the motors located in defendant's pumps; and

"B. the defendant failed to install the armored cable used by it in extending the electric wires from plaintiffs' building to the motors located in defendant's pumps, in such a manner as to complete the metallic connection between the pump and the cable armor; and

"C. the defendant failed properly to connect and insulate the exposed wires leading from plaintiffs' building to the motors located in defendant's pumps and failed to properly tape and insulate the exposed wires and failed to make a proper connection between said wires and the motors in defendant's pumps; and

"D. the defendant failed to provide adequate mechanical protection for the armored cable installed by it and leading from plaintiffs' building to the motors located in defendant's pumps; and

"E. the defendant failed to install a switch properly protected by fuses at the point where defendant connected its wires with plaintiffs' power line at an outlet located on the inside of plaintiffs' building; and

"F. the defendant, after installing the electric wires from defendant's pumps to plaintiffs' building in the manner hereinabove alleged, thereafter located immediately adjacent to said wires at the place where they came through the walls of said building, three breather pipes, running from the underground storage tanks along the side and against said building, for the purpose of carrying the gases and fumes from said underground tanks, and equipped said breather pipes with open elbow joints turned in such manner as to point directly toward said building so that said defective wiring as hereinabove alleged could and did ignite the gasoline fumes escaping from said breather pipe; and that as the direct and proximate result of the above enumerated acts of negligence the electrical equipment used in operating said pumps became overheated, thereby producing a fire on plaintiffs' premises on the 18th day of July, 1939; and

"That as a direct and proximate result of the carelessness and negligence of the said defendant, as aforesaid, the building of the plaintiffs located on the premises aforesaid on the 18th day of July, 1939, was totally destroyed to plaintiffs' damage in the amount of nine thousand dollars ($9,000.00).

"Wherefore, the premises considered, plaintiffs pray judgment, in this the first count of their first amended petition, against the defendant in the sum of Nine Thousand Dollars ($9,000.00) and for their costs in this behalf expended."

In Count II of the amended petition damages were claimed on account of the same acts of negligence for the loss of the contents of the building in the amount of $5,000.

In its answer, defendant admitted that there had been damage by fire occurring on plaintiffs' premises and that it had installed the service station equipment referred to in plaintiffs' amended petition on plaintiffs' premises "in accordance with terms of a certain `Equipment Rental Agreement', `Lease Agreement' and `Dealer's Permit'", duly entered into in writing between plaintiffs and defendant on the date of January 4, 1939, specified by plaintiffs. Copies of the documents were attached to the answer together with two "Receipts for Equipment and Material" which it was alleged were executed and delivered by plaintiffs to defendant after the installation of the service station equipment, in accordance with the Equipment Rental Agreement. Defendant denied liability for the fire damage on the grounds that it had not been negligent, that plaintiffs were guilty of contributory negligence and that the agreements by their express terms released defendant from liability on account of any of the matters alleged by plaintiffs.

In their reply the plaintiffs admitted the execution of the documents included in defendant's answer and alleged that the instruments make no provision for the installation of the equipment, that defendant undertook to install the same and thereafter to make repairs and alterations of the same on its own responsibility and in doing so was guilty of active and positive acts of negligence; that the duty was imposed upon plaintiffs under the said agreements to repair and maintain the equipment but that defendant had demanded the right to make repairs and had exercised it negligently.

Rule 10(c) of R.C.P. provides that a copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes and it is the contention of defendant that the provisions of the contracts pleaded by it and admitted by the plaintiffs preclude the plaintiffs from maintaining their action. More particularly: By the terms of the Equipment Rental Agreement the defendant rented to the plaintiffs designated "Customer", the equipment for the service station and agreed to deliver it. By the "Lease Agreement" the plaintiffs leased the service station, including the ground and all the equipment thereon to the defendant; and by the "Dealer's Permit" the defendant for specified consideration granted to the plaintiffs the right to use the service station for one year. The several agreements provided that plaintiffs should maintain the equipment in good condition and repair at their own expense. The Lease Agreement, however, also reserved to the defendant the right of equipping and maintaining on the demised premises any and all improvements and appliances it desired or required to carry on the business.

The Equipment Rental Agreement provides that: "12. Customer plaintiffs, for itself, its heirs, executors, administrators, successors and assigns, hereby releases, relinquishes and discharges, and agrees to indemnity, protect and save harmless, Sinclair, its successors and assigns, of and from any and all claims, demands and liability for any loss, damage, injury or other casualty to property (whether it be that of either of the parties...