Magnolia Petroleum Co. v. Angelly Ex Rel. Angelly

306 P.2d 309

• Court: Supreme Court of Oklahoma
• Decided: December 14, 1956
• Docket: 35952
• Status: Published

Opinions

JOHNSON, Chief Justice.

This action was brought by LaNoah An-gelly, a minor, by and through Emma An-gelly, his legal guardian, mother and next friend, against John L. Bates, Jack Long and Magnolia Petroleum Company to recover damages for alleged wrongful personal injuries to the plaintiff. No service was had upon Bates, but the case proceeded to jury trial against Jack Long and Magnolia Petroleum Company resulting in a verdict in favor of plaintiff against both Long and Magnolia jointly, which verdict was approved by the trial court and judgment rendered accordingly. From an order overruling separate motions for a new trial, both defendants appeal.

It is first contended by defendants that there was no primary negligence shown, and for that reason, among others, (hereinafter referred to) the judgment must be reversed.

While this assignment challenges the record as to evidence, yet to a large extent the factual situation is not in dispute.

In 1945 the plaintiff when 13 years old was employed by defendant Long, and was under 16 years of age and so employed by Long on December 1, 1947, the date of his injury. In this connection, however, Long claims that the boy (plaintiff) was employed by Bates, his assignee of the airport, when injured, which claim was negatived by the jury’s finding to the contrary from conflicting evidence on that issue, and this concluded fact issue now inheres in the judgment.

Briefly stated, other facts germane to the issues involved are that Jack Long operated a small airport near Antlers, Oklahoma. He had no one generally in charge of this place other than the plaintiff to care for the same during his absence. Plaintiff lived and attended school near the airport and had an arrangement by which he could leave school when a plane came in to land. It also appears that it was his duty to be at the airport before and after school and to keep the hogs and other animals off the field. There is evidence to the effect that plaintiff serviced planes and performed much of the other usual work around a place of this nature.

The Magnolia Petroleum Company, through its distributor, Ed Jackson, installed and furnished to Long a tank, pump and other equipment to be used in supplying gasoline to planes at the field; this being the usual arrangement where a retailer agrees to exclusive use of a company’s gasoline and other products. The arrangement between Magnolia and Long was substantially the same as between the parties in Palacine Oil Co. v. Philpot, 144 Okl. 123, 289 P. 281.

Long, the operator of the airport and filling station, owed the duty to furnish his employees reasonably safe tools and appliances and place to work. This is admitted. The Magnolia Company, through its distributor, because of defectiveness in the first tank and pump, installed another tank and pump; the hose on the newly installed pump was short and was elongated in a manner described by the testimony, which manner is said to have been improper, or not according to customary demand. The connection resulting in elongation of the pump hose is said to have leaked. The employee, plaintiff, testified that he had complained of leakage where this elongation was made. The evidence showed that when said employee, standing some distance away from the pump and the hose attached thereto and hanging in position, lighted a match, an explosion occurred, inflicting on plaintiff severe burns over his body and limbs which endangered his life for a time, and after many months of hospital treatment, with numerous skin graft operations, resulted in serious and substantial permanent injury, disability and disfigurement.

The theory of the plaintiff is that the leakage resulted in formation of a pocket of gas fumes, and the explosion under the circumstances was the result of the defendants’ negligence in failing to perform their assumed duties to furnish proper and safe appliances. He argues that the evidence is sufficient to show greater probability that the explosion occurred for this reason than any other. If so, the rule would be complied with and the situation created was one upon which reasonable minds could differ as to the cause of plaintiff’s injury. Oklahoma Natural Gas Co. v. Jopling, 121 Okl. 10, 247 P. 69.

The record confirms plaintiff’s theory, and we conclude that the position of Long and Magnolia that there is no evidence to show the cause of the explosion is not well taken.

The verdict of the jury and the judgment based thereon in a law action will not be disturbed where the evidence is such that reasonable minds might differ on the question of what caused an explosion and resulting personal injuries.

We are unable to see from the evidence that Jackson, the agent and distributor for Magnolia, made an inspection of this equipment, either before or after substituting a pump and hose for the defective one. He tested the pump to see if it would draw gasoline; and spliced the hose by connecting the old with the new. There is no indication that he did more. He did not use the customary means to make the connection reasonably safe, yet he was dealing with a most elusive and dangerous substance. From the evidence, there appears to be no reason to assume that brass fittings would seal more tightly than the usual metals used in such business. The customary means used to make such a connection reasonably safe is described in the case of Palacine Oil Co. v. Philpot, supra, as follows [144 Okl. 123, 289 P. 287]:

“Testimony was given by defendant’s witnesses, those who installed the tank and pump in the first instance and who installed the new pump, to the effect that all connections in the pipe were properly made in the usual manner and sealed and painted over with a mixture of litharge and glycerine, the substance usually used for such purpose, and tested for leaks before being covered and found to be free from any leaks.”

The only material difference in the Pala-cine case and the instant case, except the manner of sealing the connection, is that in that case the gas had evidently seeped through the ground into an abandoned well and was unfortunately ignited and caused the injury. Here plaintiff claims the gas-leaked into the air and was ignited when he struck a match to light a cigaret.

In addition to proper installation of equipment, it was the duty of the company in furnishing equipment to make frequent and timely inspection of the same to discover and repair any leaks or defects therein. There is no evidence that such inspection was ever made.

There seems to be no dispute that plaintiff was injured by the explosion of gasoline fumes in the area where he was standing when he lighted the match, igniting and causing a fire. From the evidence it is plain that the gasoline which caused the injury was from the company’s equipment. There was no other known or apparent source from which it could have come. The only question is whether this gasoline came from leaks or defects in the company’s equipment or by plaintiff spilling it on himself while servicing a plane or in furnishing a stranded motorist with a small amount of gas to run his car to a gas station, a circumstance which happened shortly before the explosion occurred. Plaintiff’s evidence is to the effect his clothing had been recently laundered, and that he did not spill any gasoline on his clothing or otherwise; but that the fire was caused by gas and gas fumes that came from the pump, tank or hose of the company’s equipment. It is argued by counsel for plaintiff that gas is heavier than air, and when it escapes it will drift with the wind and most often break up into pockets, like clouds or smoke, and when thus unconfined, will ignite and burn without flashing back to the point of escape.

The jury was justified in finding that it was more probable that gas had leaked from defects in the company’s equipment and caused the injury to plaintiff than from any other cause.

We have frequently stated the applicable rule to be:

“If there is any evidence which reasonably tends to prove directly or indirectly or by permissive inference the essential facts, the verdict of jury must stand.

“In a civil case, in order to establish his claim, plaintiff need only make it appear to be more probable that injury came in whole or in part from defendant’s negligence than from any other cause, and such fact may be established by circumstantial evidence and reasonable inferences to be drawn therefrom.” Mid-Continent Pipe Line Co. v. Price, 203 Okl. 626, 225 P.2d 176, 177, and cases cited therein.

For recent cases applying this general rule, see Otis Elevator Co. v. Mellot, Okl., 281 P.2d 408 and Service Pipe Line Co. v. Donahue, Okl., 283 P.2d 844.

The Magnolia next insists that the furnishing and use of the equipment by Long was a bailment, and there being no contractual relation between plaintiff and it, there can be no recovery. We think the situation presented here is governed by the rule applicable to one furnishing appliances for the use of others. In 45 C.J. Negligence, Sec. 270-5, page 849, the rule is stated to be:

“One undertaking to furnish machinery or appliances for the use of others assumes a duty to furnish proper and safe appliances, and he may be liable to one lawfully using such machinery or appliances who is injured because of his failure to exercise proper diligence in this regard, even where the person using the appliance, or his employer, does not receive the appliance directly from the person furnishing it, the liability resting not upon a contractual relation between the person injured, and the person whose negligence caused the injury, but upon the failure to perform a duty assumed by one, which results in injury to another. This rule is particularly applicable where the defect is such as to render the article in itself imminently dangerous and serious injury to any person using it as a natural and probable consequence of its use.” See also 65 C.J.S., Negligence, § 70, Furnishing Appliances for the Use of Others.

There is no merit in this assignment of error, which is equally true of the company’s claim that one Ed Jackson, its distributor, was not its agent with power to bind Magnolia with his knowledge, but was an independent operator. Agency is generally a question of fact to be determined by the court or jury as the case may be. From the evidence and the circumstances shown in the record, the jury was fully justified in finding that Jackson was the duly authorized agent of Magnolia to install, inspect and repair the equipment it provided for Long’s use at his airport, in consideration that Long use exclusively its products.

The jury had a right to disregard the evidence of defendants and to believe that of plaintiff. It could take into consideration all of the reasonable evidence and circumstances and reasonable inferences to be drawn therefrom. Under the rule, 45 C.J. Sec. 270 ; 65 C.J.S. § 70, supra, and the facts and circumstances in this record, we cannot say that there is not sufficient evidence to sustain the verdict in this respect.

The next material contention of Magnolia is that the court committed reversible error in giving Instructions 19 and 31. Briefly summarized, these instructions informed the jury that it was a violation of our statute, 40 O.S.1951 §§ 71 and 72, for any child to be employed or permitted around or to handle aviation gasoline or any other explosive, and that the doing of same within itself was evidence of negligence. The instructions informed the jury that such employment or permitting such employment within itself did not make out a case in favor of plaintiff, hut in effect that it was evidence which the jury might consider in determining the liability, if any.

Section 72, supra, of the Child Labor Law is the statute applicable herein. This section prohibits the employment (or permitting the employment) of minors over 14 and under 16 years of age in certain defined businesses and factories, including the storing of explosives. The storing of aviation gasoline- is the storing of explosives within the terms of the statute, a violation of which in case of injury to such minor by reason of and through the prohibited employment, constitutes negligence per se. Tulsa Cotton Oil Co. v. Ratley, 59 Okl. 45, 157 P. 1056; Curtis and Gartside Co. v. Pigg, 39 Okl. 31, 134 P. 1125; and where, as herein, pleadings and proof showed a violation of Child Labor Law, instructions advising the jury that such violation is negligence per se was proper. Id. The instructions were materially more favorable to defendants than they were entitled to have under the statute.

Magnolia claims also that no relationship of master and servant existed between it and the plaintiff, and that the language used in the instructions implicates that such relationship did exist between it and plaintiff, as well as between plaintiff and the co-defendant, Long, and that it is apparent that such was the result intended to be accomplished; that there was not a scintilla of pleading, evidence or legal authority to justify the objectionable instructions without, at least, excluding Magnolia from the implication that it, too, could be found by the jury to have been negligent in violating the Child Labor Laws by the employment or permitting the employment of minors under the age of 16 years around certain hazardous occupations.

We observe that Magnolia did not ask for any other instruction on this point, nor ask the court to instruct the jury that there was no evidence of any employment or of permitting plaintiff to work around such gasoline by Magnolia, and that they should not consider these instructions as against Magnolia. They thereby waived the point.

Magnolia’s liability, if any, to plaintiff, was not dependent upon plaintiff’s age and the Child Labor Laws unless it negligently permitted plaintiff’s employment, Sec. 72, supra. But even if Magnolia’s contention is correct that it did not employ or permit the employment of plaintiff, yet the error, if any, is not prejudicial to Magnolia as Magnolia was fully protected by the court’s giving to the j ury different forms of verdict, permitting the jury to return a verdict in favor of both defendants, or in favor of the plaintiff against Long only, or in favor of plaintiff against Magnolia only, or in favor of plaintiff against both defendants. The jury chose in conformity with the pleadings, the evidence, and Magnolia’s liability for furnishing defective appliances, to return a verdict in favor of plaintiff and against both defendants. This alleged error, if any, by the trial court apparently did not mislead the jury nor cause any miscarriage of justice. If there was error, it was harmless.

The contention of Long that plaintiff was not, at the time he received his injuries, an employee of his so as to invoke the operation of the Child Labor statute, is untenable. As heretofore shown, there was ample evidence, though conflicting, to support the verdict of the jury that Long was the employer of plaintiff when he was injured and as was alleged; and that the relationship of master and servant did exist between plaintiff and Long. This fact is so evident from a reading of the record that we deem it unnecessary to narrate the evidence relating to such relationship.

We next consider the contention that the verdict was excessive as the result of passion and prejudice of the jury, and that the damages were not supported by the evidence.

We have already disposed of the question of the sufficiency of the evidence to sustain the verdict of the jury and judgment based thereon, but whether a verdict is excessive depends upon the particular facts and circumstances in the case. Jones v. Eppler, Okl., 266 P.2d 451. Herein, the amount of the verdict and judgment conformed to the pleadings and evidence. A careful examination of the entire record fails to reveal facts sufficient for us to conclude that the amount awarded clearly shows that the jury was actuated by passion, partiality or prejudice. In an action for damages for personal injuries sustained, the court will not set a judgment aside because of excessive damages, unless the amount awarded clearly shows that the jury was actuated by passion, partiality or prejudice. Jones v. Eppler, supra.

Defendants complain of alleged error in permitting plaintiff to remove all of his clothing in the view of the jury to display and demonstrate to them the full area of his burns. Arguing that since plaintiff had already fully testified as to the burned area on his body, his pain and disability, which facts defense counsel had offered to stipulate, and that for that reason such display and demonstration was unnecessary and prejudicial and only served the purpose of arousing sympathy and passion against the defendants and thus interfered with their right to a fair trial.

No authority is cited to sustain this contention, and through our independent research none was been found. However, we can see no logical legal reason why this procedure was improper or prejudicial to defendants.

Magnolia also complains of error in refusing to give certain instructions, and in giving certain others hereinbe-fore discussed. But from a careful examination of the record, including the instructions given and refused, we find no substantial prejudicial error because when the instructions as given are considered as a whole, they show that the material issues were fairly covered and properly presented to the jury.

Other questions are raised by the parties herein, but we do not deem it necessary for the purposes of this opinion, nor in the interest of justice, to consider them.

Judgment affirmed.

CORN, DAVISON, HUNT and STEGER, JJ., concur. WILLIAMS, V. C. J., and HALLEY, BLACKBIRD and JACKSON, JJ., dissent. WELCH, J., having certified his disqualification in this case, Honorable W. L. STEGER, Durant, Oklahoma, was appointed Special Justice in his stead.