Tharp v. Monsees
| Decision Date | 14 September 1959 |
| Docket Number | No. 46165,46165 |
| Citation | 327 S.W.2d 889 |
| Parties | William THARP, a Minor, by Winston G. Tharp, His Father and Natural Guardian, Respondent, v. Harry C. MONSEES, d/b/a Monsees Standard Service, Appellant. |
| Court | Missouri Supreme Court |
Albert E. Hausman, A. A. Goodenough W. Cloyd, St. Louis, for appellant.
Bernard A. Barken, St. Louis, for (plaintiff) respondent.
Action for damages for personal injuries alleged to have been sustained on account of defendant's negligence. Verdict and judgment were for plaintiff for $48,000. Defendant has appealed and here contends (1) that the court erred in submitting the cause to the jury because plaintiff failed to offer any evidence (a) that defendant was negligent, or (b) that defendant's act was the direct and proximate cause of plaintiff's injuries; (2) that plaintiff's Instruction No. 1 is erroneous; and (3) that the verdict is grossly excessive.
We shall state the evidence favorably to the plaintiff and disregard defendant's evidence unless it aids the plaintiff's case. Defendant Monsees, a service station operator selling Standard Oil Company products at the corner of St. Charles Rock Road and Edmundson Road, St. Louis County, on July 23, 1953 sold a small quantity of gasoline to Jerry Teson, a neighbor boy between twelve and thirteen years of age. Plaintiff was subsequently burned by this gasoline. The act of defendant in making this particular sale of gasoline under the circumstances shown by the evidence is the negligence relied upon as the basis for the recovery of the damages claimed.
Jerry Teson resided with his parents at 3353 Edmundson Road. He was twelve years of age and would be thirteen the 3rd of the next October. Apparently he had finished the 8th grade, as he was in high school, 11th grade, at the time of the trial. He was a boy of normal intelligence for his age.
Jerry's home was 'about a half a block or a block' from defendant's service station. On one prior occasion, Jerry had purchased gasoline from this station for his father, 'got it in a gallon jug.' Jerry visited defendant's station from time to time. He would buy 'soda and a candy bar, or fill my tires on my bicycle.' He had also been in the station with his father 'in the car', and Jerry testified that defendant knew him and his father and knew that he lived in the neighborhood.
On the morning of July 23, 1953, Jerry and Jimmy Calvert (a neighbor, eleven years of age and would be twelve the following January) were together, riding their bicycles around in the neighborhood. Jerry was riding Billy Tharp (age four, a next-door neighbor) and taking turns with Dickie Tharp, Billy's brother. Riding them 'up and down the street', but whether they passed defendant's station or whether defendant saw them does not definitely appear. However, defendant had seen children in the neighborhood playing together and knew that the older ones played with the younger ones at times.
Some time in the afternoon of that day, Jerry rode his bicycle into defendant's station. He was alone. He had a clean glass jar with a tin or copper lid. He had a nickel and told defendant he wanted to buy some gasoline. Defendant filled or nearly filled the jar with gasoline and gave him two cents in change. Defendant did not ask him why he wanted the gasoline and Jerry did not tell him why he wanted it. Jerry could not remember whether the jar was wiped off or the lid replaced, but plaintiff's instruction submitted and defendant's evidence showed a sale of gasoline 'in a closed glass jar.' After the purchase was completed, Jerry got on his bicycle and went to Jimmy Calvert's home, two houses up and across the street from his own home.
Jerry in fact purchased the gasoline with Jimmy Calvert's money. Jimmy had been painting an orange crate and, after he finished, he wanted some gasoline to clean his brushes, so he had gotten the glass jar from his mother's basement and given Jerry a nickel and sent him for the gasoline. When Jerry returned, Jimmy 'cleaned out the paint jars' and 'cleaned his brushes and wiped them off.' Only part of the gasoline was required for these purposes. Plaintiff's witness referred to the amount of gasoline remaining, as 'a small amount', but this was stricken on defendant's motion. We find no other reference to quantity by plaintiff's witnesses, but in examining plaintiff's expert witness, plaintiff's counsel repeatedly assumed that the quantity of gasoline remaining in the then open jar was 'approximately a pint.'
Other children were playing in the backyard where Jimmy had been painting the orange crate and, after the paint cans and brushes were cleaned, Jerry and Jimmy went over to the side yard by the creek and Jimmy started playing with the remaining gasoline. Unknown to any adults, Jimmy had matches with him and he 'lit a fire' to see how the gasoline would burn. First he 'lit' a small paper bag and some Kleenex, then he poured gasoline on a rubber ball to see how it would burn. Later, somebody said, 'Let's see how it would burn on the water' and as Jimmy 'started to dribble it down out of the jar,' pouring the gasoline down the side of the bank, 'it shot up and caught fire to the whole jar', the fire backed up into the jar, and Jimmy swung around to throw it into the water, but plaintiff was in the way and it spilled over him, and he was badly burned.
At the time Jerry purchased the gasoline in question, he knew it would burn and he had seen it burn before. He had seen a match thrown on gasoline to 'see it go up, see it burn the whole thing at once.' He knew it was fairly easy to catch fire. He knew that 'all you had to do is touch a small flame to gasoline and it would burn rapidly'; and that people were cautious about using gasoline around an open flame.' However, he did not know that, if you dribbled gasoline from an open container onto an open flame, the fire would 'backlash' and the flames shoot up to the container and set the source gasoline afire, nor did he make any such use of the gasoline sold by defendant. Jimmy also knew that gasoline would burn, and that people said it was dangerous, but he didn't know how dangerous. He thought it would burn like paper or boards, 'Naturally, anybody hears that gasoline will burn.' He had 'heard about cars catching on fire and blowing up.'
Defendant had been in the filling station business for thirty-two years and knew that gasoline was a dangerous commodity when sold to Jerry 'or anybody else, as far as that matter goes.' He knew that an automobile engine should be turned off to prevent a spark from igniting the gasoline fumes when the gas tank is being filled.
Plaintiff offered evidence to show that gasoline has a very low igniting point; that it is highly inflammable and is dangerous; that gasoline, as a liquid, will not burn but gasoline vapors burn and, when gasoline is vaporized, fire will follow the vapor trails (sometimes as much as several hundred feet) to cause ignition at the source. Heat causes gasoline to vaporize more rapidly. Gasoline in an open container in open air will not explode, but when vaporizing it will burn ultra rapidly. Gasoline, as a liquid, if properly contained and confined, does not present a hazard, but when exposed to air it vaporizes rapidly and presents an extreme and practically uncontrollable hazard. Under certain conditions it is highly explosive and very powerful. The danger in putting gasoline in a glass container is that some force might cause the glass container to be broken and the contents exposed to rapid vaporization and possible ignition.
The issue of negligence was submitted by plaintiff's Instruction No. 1. It submitted a finding that defendant 'sold and delivered three cents (3cents) worth of gasoline in a closed glass jar to one Jerry Teson, a minor child being then between twelve (12) and thirteen (13) years of age * * * that gasoline is a highly inflammable and inherently dangerous substance, and that the same in the hands of the minor child, as aforesaid, would be reasonably likely to cause said child, or others in proximity to him, to be injured as herein set out; and if you further find that defendant * * * knew, or in the exercise of ordinary care should have known, that gasoline is a highly inflammable and inherently dangerous substance and that the same in the hands of a minor child, as aforesaid, would be reasonably likely to cause said child, or others in proximity to him to be injured, as aforesaid, and if you further find that in selling and delivering the gasoline to the minor child, as aforesaid, defendant was negligent * * *.' The issue submitted by the instruction was therefore whether defendant knew, or in the exercise of ordinary care should have known, that the sale of the gasoline in question to Jerry, under all of the facts and circumstances shown in evidence, 'would be reasonably likely to cause said child, or others in proximity to him to be injured.'
At the close of all the evidence defendant had moved for a directed verdict on the ground that the evidence 'fails to prove any negligence on the part of defendant'; and that 'the evidence fails to show that any act of this defendant was the proximate cause of plaintiff's injuries.' The motion was overruled and the cause submitted. Appellant here complains of that ruling.
No statute prohibits the sale of gasoline to a minor child. Section 414.130 RSMo 1949, V.A.M.S., provides that persons retailing gasoline 'and other kindred high explosives' in less than carload or tank wagon, or motor truck lots, shall have the containers 'painted vermillion red' and otherwise labeled as therein provided, but the statute does not apply to sales of gasoline 'where the quantity is one quart or less.' There is no contention here that defendant's act was negligent per se.
To make out a submissible negligence case for the jury there must be substantial evidence not only of...
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