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Davis v. Marathon Oil Co.

MAY 22, 1975.

BURLEIGH C. DAVIS, PLAINTIFF-APPELLEE,

v.

MARATHON OIL COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Douglas County; the Hon. JAMES N. SHERRICK, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

Plaintiff, an independent Marathon dealer suffered severe burns in an explosion which occurred while he was delivering gasoline to a service station at Villa Grove, Illinois, on March 5, 1970. He brought an action for these injuries against defendant Marathon Oil Company and others. A verdict was directed in favor of the other defendants at the close of plaintiff's case. At the close of all of the evidence three counts were submitted to the jury and they returned a general verdict in favor of the plaintiff for $200,000. A post-trial motion was denied and defendant appeals.

The three counts all alleged negligence. The parties disagree as to what exact acts of negligence are charged. Each count stated that defendant owned, controlled, and possessed certain gasoline storage tanks and other equipment, including the fill pipes to the tanks on the service station premises and that the fill pipes were so located as to be dangerous. An issues instruction, given at plaintiff's request, stated that plaintiff claimed defendant "was negligent in the manner in which it stored gasoline at and upon the premises" in question. Defendant's only objection to this instruction was that it omitted a claimed affirmative defense, which the court had earlier stricken.

The evidence was undisputed that the service station premises and station building were owned by Victor J. Crawford, since deceased, and that defendant owned the gasoline storage tanks and piping, including the fill pipes to the tanks. Defendant installed two storage tanks of approximately 1000 gallon capacity with fill pipes in 1951 and one 550 gallon tank with similar piping in 1961. The fill pipes were 2 inches in diameter and extended 4 to 5 inches above the ground.

The tank truck with which plaintiff made the delivery in question was so equipped that gasoline was pumped from the tank through faucets and a metering device into a hose. Plaintiff had placed a manually operated nozzle on the end of the hose which could be held in an open position by hand and could be locked in one of three open positions. With the nozzle locked at the most open position, the apparatus would pump 45 gallons per minute. The truck tank had a capacity of slightly over 1000 gallons. An automatic shut-off nozzle had been furnished to plaintiff, but he was not using it.

Plaintiff testified that he had been servicing the station in question since 1955 and that for 2 years prior to the incident he had been furnishing it with three or four deliveries of gasoline weekly. On the day in question he received a call from Donald E. Taylor, whom he knew to be an attendant at the station. He described Taylor as being a good worker but "in need of considerable supervision." Plaintiff testified that Taylor told him that both tanks used for regular gasoline were empty. Taylor, on the other hand, testified that he had measured the tanks, told plaintiff that the 550-gallon tank was empty but that the 1000-gallon regular tank was not empty, gave plaintiff the measurement of the amount of gasoline in the 1000-gallon tank, and ordered a delivery. Taylor did not testify as to the amount of gasoline that he had said was in the tank.

Plaintiff further testified that he went to the station and began filling the 550-gallon regular tank by using the nozzle locking device. He put 550 gallons into that tank and stood by the fill pipe during the entire time the tank was being filled. He stated that he could tell when the tank was nearly filled by the sound emanating from the fill pipe. He then dragged his hose to the fill pipe for the 1000-gallon tank. At that time he had 525 gallons of regular left in his truck tank. He began to fill the 1000-gallon tank, but did not use his measuring device to determine the amount of gas already in the tank, nor did he listen to determine from the sound of the gasoline entering the tank as to how full it was. After changing the connection to a new compartment in the truck tank he opened the nozzle, locking it in a position that would allow the fastest possible rate of flow. Because of the cold, chilly weather he then went into the gas station building and began a conversation with Everett Crawford, who was inside. At that time he could not hear the sounds made by the filling of the tank.

After several minutes, Crawford pointed to the gasoline pump which was connected to the tank being filled and asked, "What's that out there?" Plaintiff then saw gasoline by the pump, whirled, opened the door, went out, and tried to grab the nozzle to shut it off. He stated that as he opened the door, gasoline began to flow out of the fill pipe at a height of 12 of 15 inches, forming a pool of gasoline at its base. As soon as he touched the locking device on the nozzle, the explosion and fire occurred. He threw the nozzle and hose away from the fill pipe, jumped out of the burning pool of gas, extinguished the fire on his body and moved his truck away from the building. He said that he had seen no liquid gasoline enter the service station building itself and had sielled no gas fumes in it. He stated that although the fire itself consumed the building the explosion caused no apparent damage to it.

Everett Crawford testified that he was in the station building at the time in question and there was a small floor type space heater stove in the sales area west or northwest of the doorway. He described the space heater as being in operation on the date in question, but on cross-examination he qualified this to say that he knew that it was operable at the time but did not know whether it was burning. He said that the weather was wet and cold. The testimony as to the position of the fill pipe receiving gasoline at the time of the explosion ranged from it being 4 feet north of the doorway to being 2 feet north and 1 foot east of the doorway.

Each of the sides called expert witnesses, and in answer to a hypothetical question, Charles L. Robley, on behalf of the plaintiff, basing his opinion on the hypothesis that the space heater was on at the time, gave the opinion that the gasoline overflowing caused fumes or vapors and that when the plaintiff opened the station door the fumes or vapors were pulled inward and ignited by the pilot light on the heater.

Scott Anderson, a physicist called on behalf of the defendant, answered a similar hypothetical question, also based upon the hypothesis that the heater was on, with an opinion that when plaintiff approached the nozzle on the hose, a spark passed between his body and the nozzle igniting the gasoline vapor in the area of the nozzle.

Defendant asserts that the trial court erred in its rulings on voir dire, admission of evidence, instructions, affirmative defenses and as to the sufficiency of the evidence to support the verdict. Since the latter point depends partly on the propriety of rulings made during the trial, we will consider it last.

Defendant pleaded two affirmative defenses both of which were claimed to arise out of an agreement between the parties entitled "Independent Contractor's Agreement." The agreement licensed plaintiff to use a bulk plant at Tuscola, Illinois, and operate it, selling gasoline on a commission basis. Plaintiff agreed to "meet the requirements of customers within the area." Defendant contends that under the circumstances of this case, by virtue of the agreement, plaintiff indemnified defendant from suit for injury and assumed the risk of the injury. At the close of the evidence, on plaintiff's motion, the court struck these affirmative defenses and refused defendant's tendered instruction on the theory of assumption of the risk.

• 1 Paragraph 10 of the agreement stated, in part, that "Ohio shall not be liable for and Contractor shall save and hold Ohio harmless from all claims for injury to or death of any person or persons and for damages to or loss of property, attributal, directly or indirectly to the operations of Contractor." The term "Contractor" referred to plaintiff and "Ohio" to defendant. In Tatar v. Maxon Construction Co., 54 Ill.2d 64, 66, 68, 294 N.E.2d 272, 273, 274, an indemnity agreement between a general contractor and a subcontractor on a construction project provided that the general contractor be indemnified by the subcontractor "against all expenses, claims, suits or judgments of every kind whatsoever * * * by reason of, arising out of, or connected with, accidents, injuries, or damages, which may occur upon or about the subcontractors work." The plaintiff was a subcontractor's employee who alleged that he was injured by the general contractor's negligence when working in an area where only general contractor's employees were otherwise working. The general contractor filed a third-party complaint seeking indemnity from the subcontractor. The supreme court affirmed this court's affirmance of the trial court's dismissal of that third-party complaint. The opinion quoted from Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp., 395 Ill. 429, 433, 70 N.E.2d 604, 606, where it was stated:

"It is quite generally held that an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language of the contract ...


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