Western Cas. & Sur. Co. v. Shell Oil Co.

• Decision Date: 21 February 1967
• Docket Number: No. 32286,32286
• Court: Missouri Court of Appeals
• Parties: The WESTERN CASUALTY & SURETY COMPANY, a Corporation, Plaintiff-Respondent, v. SHELL OIL COMPANY, a Corp., and John J. Steel, Defendants-Appellants.

Page 550

413 S.W.2d 550

The WESTERN CASUALTY & SURETY COMPANY, a Corporation, Plaintiff-Respondent, v. SHELL OIL COMPANY, a Corp., and John J. Steel, Defendants-Appellants.

No. 32286.

St. Louis Court of Appeals, Missouri.

Feb. 21, 1967.

Motion for Rehearing or for Transfer to Supreme Court Denied

March 17, 1967.

Application to Transfer Denied May 8, 1967.

Evans & Dixon, Eugene K. Buckley, St. Louis, for defendants-appellants.

Lusser, Hughes & Lusser, Rene J. Lusser, Sr., St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

This appeal involves a claim for non-contractual indemnity for liability arising in tort. Marilyn Boyer and Shirley Mae Guenther, teen-age girls, were injured when an explosion occurred in the ladies' rest room in a filling station in DeSoto, Missouri. The station was being operated by Cledis Lanham under a written lease from Shell Oil Company, which owned and had constructed it. The Boyer and Guenther girls each brought an action in the Circuit Court of the City of St. Louis in which Lanham and Shell were joined as defendants. Shell effected settlements of both suits and the actions against it were dismissed, leaving Lanham as the sole defendant. Subsequently plaintiff, Lanham's insurer, on the advice of its trial attorney, paid $6750 on behalf of Lanham in settlement of each of such suits. Relying on the subrogation clause in Lanham's policy, plaintiff then instituted this action against Shell and Steel, Shell's employee, to recover the $13,500 it had paid on behalf of its insured in settlement of the Boyer and Guenther suits. The court, sitting without a jury, rendered judgment in favor of plaintiff and against both defendants in the sum of $13,500, and after their post-trial motions were overruled defendants appealed.

The evidence shows that the filling station in question was designed and constructed by Shell in 1950 on a lot fronting on Boyd Avenue, at its intersection with Main Street, in DeSoto, and faced to the south. The station building, one-story high, was erected on the extreme rear of the lot, against a pre-existing three-story building on the adjoining lot to the north. Three gasoline tanks were located underground and were filled through pipes terminating in a manhole about 12 feet to the east of the station building. To dispel fumes, four vent pipes led from the underground tanks to the northeast corner of the station building, adjacent to the wall of the neighboring three-story building, and extended vertically from the sidewalk on the east side of the station to a point about 18 inches or 2 feet above its roof. Two rest rooms, one for each sex, were located on the east side of the station, the ladies to the north, with the door closest to the north wall, next to the vent pipes.

Lanham had occupied the filling station as Shell's lessee from the time it was completed. The lease in effect at the time of the explosion provided, in brief, that the entire control and direction of the business and operations of the premises was vested in Lanham, with no right of control reserved in Shell, and stipulated that Lanham was not an agent or employee of Shell. The lease obligated Lanham to keep the premises in good order and repair but provided that Lanham could not make any attachments or additions to, or any alterations of, the building without Shell's prior written consent. Emil A. Stobbe, Shell's Division Engineer, in charge of the erection and maintenance of its filling stations, who had designed and supervised the construction of the station in question, testified that this reservation by Shell included the right to relocate the storage tanks and the vent pipes. For the purpose only of showing such right of control the plaintiff was permitted to introduce evidence that subsequent to the explosion Shell raised the vent pipes to a height above that of the adjoining three-story building. The lease also provided that Lanham should indemnify Shell against any and all claims and liability for injury of persons caused by or happening in connection with the premises or the condition, maintenance, possession or use thereof or the operations thereon. Defendant Shell does not urge that clause as a bar to plaintiff's action.

Between 8:30 and 9:00 P.M. on August 20, 1957, Steel, Shell's driver, drove its tank truck onto the east part of the station lot to deliver 2800 gallons of regular gasoline and 2000 gallons of ethyl ordered by Lanham. Steel attached one hose to the filler pipe which led to the tank for regular gasoline and another to the pipe for the ethyl tank, and discharged through both hoses simultaneously. Most of the witnesses described the weather as warm and 'muggy,' with no wind blowing. About 9:00 P.M., while the gasoline was being unloaded, the Boyer and Guenther girls, walking home from downtown, stopped to use the ladies' rest room, as they had often done before. While the Guenther girl was using the facilities the Boyer girl struck a match to light her cigarette, and an explosion occurred, which injured them.

Basically, plaintiff's theory is that it is entitled to restitution from defendants under the doctrine of non-contractual or implied indemnity because the defendants were guilty of active and primary negligence towards the Boyer and Guenther girls, while Lanham was merely guilty of passive and secondary negligence. Such negligence on the part of defendants, it pleaded, consisted in the construction and location of the vent pipes in such lose proximity to the adjoining building on the north, and at such a height, as to cause and permit dangerous gasoline fumes to accumulate in the ladies' rest room; in failing to warn Lanham of the dangerous condition thereby created, although Shell had superior knowledge of the safety factors required in the design, construction and maintenance of the station, and particularly the vent pipes; and in causing an unusual and large accumulation of gasoline vapors to be emitted from the vent pipes by simultaneously discharging both grades of gasoline into the storage tanks. Regarding Lanham's liability to the Boyer and Guenther girls plaintiff alleged that it was '* * * solely by imputation of law for the vicarious liability of said Cledis I. Lanham due to the sole and direct and proximate negligence of the defendants * * *' in the particulars just stated.

The court found that the negligence of defendants had been active or primary, and to have created the dangerous and hazardous condition which was the proximate cause of the explosion and the resultant injuries to the Boyer and Guenther girls; that the negligence of Lanham had been passive or secondary; and that as a result of defendant's active and primary negligence, Lanham, plaintiff's insured, was exposed to liability and compelled to pay $13,500 damages in settlement of the Boyer and Guenther lawsuits. Judgment, as mentioned, was rendered in favor of plaintiff for the sum stated.

As the court observed in Crouch v. Tourtelot, Mo., 350 S.W.2d 799, 804: 'There is considerable divergence and some confusion in the authorities, generally, as to the circumstances under which indemnity may be required for a liability arising in tort. * * *' And as stated in Prosser on Torts, 2d Ed., 251, § 46, quoted with approval in McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788, 793: '* * * 'It is difficult to state any general rule or principle as to when indemnity will be allowed and when it will not.' * * *' Perhaps the statement of principles most frequently quoted with approval by our Missouri courts is that given in Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 371, 24 A.L.R.2d 319, where it was said:

"Without multiplying instances, it is clear that the right of a person vicariously or secondarily liable for a tort to recover from one primarily liable has been universally recognized. But the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other."

Union Electric Co. v. M. D. Magary Const. Co., Mo., 373 S.W.2d 16, 21; Crouch v. Tourtelot, supra; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 507--508. While plaintiff refers to that statement of principles in its brief it leans heavily on the case of Kansas City Southern Ry Co. et. al. v. Payway Feed Mills, Mo., 338 S.W.2d 1, in which the decision was largely based on the rule given in Restatement of the Law of Restitution, § 95, p. 415, that:

'Where a person has became (sic) liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other's duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.'

Defendants do not take the position that one joint tort-feasor may never recover indemnity from another. In their brief they concede that our Missouri courts have recognized that the right to indemnity...