Stowell v. Standard Oil Co.

Decision Date30 January 1905
Citation139 Mich. 18,102 N.W. 227
PartiesSTOWELL v. STANDARD OIL CO.
CourtMichigan Supreme Court

139 Mich. 18
102 N.W. 227

STOWELL
v.
STANDARD OIL CO.

Supreme Court of Michigan.

Jan. 30, 1905.


Error to Circuit Court, Clinton County; George P. Stone, Judge.

Action by Elmer Stowell against the Standard Oil Company. Plaintiff had judgment, and defendant brings error. Affirmed.

Argued before MOORE, C. J., and CARPENTER, GRANT, MONTGOMERY, and HOOKER, JJ.

[102 N.W. 228]

H. E. & E. L. Walbridge (Alfred D. Eddy and John D. Conely, of counsel), for appellant.

Lyon & Moinet, for appellee.


MONTGOMERY, J.

The plaintiff's declaration counts upon an alleged unlawful sale to Martin & Green, a firm of grocers, of a quantity of kerosene oil adulterated with benzine or other dangerous substance; that this mixture was sold and delivered to Martin & Green to be resold by them; that Martin & Green resold a quantity thereof to the plaintiff; that plaintiff's daughter, Verna Stowell, made use of the same for illuminating purposes; that while attempting to blow out the flame of the lamp in which the oil was being used the same exploded without fault on her part; that in attempting to extinguish the flames caused by the explosion plaintiff suffered severe personal injuries; and that the property of plaintiff, fully described in the declaration, was also damaged. The plea was the general issue, with notice that defendant would prove that the oil sold to Martin & Green was tested and approved by the deputy state oil inspector, as required by Act No. 26, p. 35, of the Laws of 1899.

To avoid repetition, the questions raised which merit discussion will be considered in the order in which they arose on the trial. On the examination of certain of the jurors on the voir dire, the plaintiff's counsel inquired of individual jurors as to whether the juror would consider it negligent to extinguish a lighted lamp by blowing across and down the chimney. These questions were objected to, but allowed by the court. We cannot say that the trial judge did not exercise a proper discretion in permitting these questions to be answered as an aid to the counsel for the plaintiff in exercising his peremptory challenges. Towl v. Bradley, 108 Mich. 409, 66 N. W. 347. On the jurors' answering these questions in the negative, the defendant's counsel challenged one of the jurors for cause. The challenge was not sustained, and error is assigned on this ruling. It is doubtful if, in the case of any juror, the examination, taken as a whole, showed any such settled conviction on this question as would disqualify the juror. A complete answer is that the defendant was not harmed by the ruling, as but one peremptory challenge was exercised, and we are satisfied that the defendant could have amply protected itself in all doubtful cases by the exercise of its remaining peremptory challenges. People v. Aplin, 86 Mich. 393, 49 N. W. 148;People v. Rush, 113 Mich. 540,71 N. W. 863;Luebe v. Thorpe, 94 Mich. 271,54 N. W. 41;Mining Company v. Johnston, 23 Mich. 36;Brennan v. O'Brien, 121 Mich. 496,80 N. W. 249;Bank v. Chatfield, 121 Mich. 641, 80 N. W. 712.

The seventeenth, eighteenth, and nineteenth assignments of error depend for their force upon the main question, to be discussed under another head.

Assignment 20 is based upon an objection to a question put to an expert-Dr. Palmer-asking for a brief description of the process of producing kerosene oil from petroleum, offered with the purpose of showing that gasoline was the lighter product. The objection stated was that the testimony was immaterial; ‘that the question they [the plaintiff] allege is that it [the oil in question] didn't come up to the standard of the test; that is the issue involved.’ It is argued in this court that there was no showing that gasoline was mixed with the kerosene sold to Martin & Green, and that for this reason the testimony was not competent or material. The objection to this question made in the court below did not foreshadow this position, but, on the contrary, rested upon the claim that the testimony had no bearing upon the question whether the oil came up to the standard of the test. It is clear that the inquiry was preliminary, and that, standing alone, it did not prove the plaintiff's contention; but we are not prepared to say that it was wholly immaterial on that question. The testimony as to the qualities of the products of petroleum may have furnished some aid to the jury in determining what the substance sold to plaintiff was. Schoepper v. Chemical Co., 113 Mich. 582, 71 N. W. 1081. For a like reason we think it was competent to show that gasoline would throw off a vapor at a lower temperature than kerosene oil of the legal test standard, and to show by expert testimony that oil of the legal test

[102 N.W. 229]

would not ignite under the conditions and circumstances shown to exist, and that, if mixed with gasoline or other similar substance, it might.

Error is assigned upon a ruling excluding certain hypothetical questions put to the plaintiff's witness Dr. Palmer on cross-examination. The court correctly ruled that the questions called for an expression of opinion upon a state of facts not known to the witness, or stated to him hypothetically in the question.

Otto L. Sprague, a deputy oil inspector, was called by the defendant. His testimony tended to show that he had asssumed to inspect the oil shipped into St. Johns by the defendant, and that on making an inspection or test he left with defendant's agent, Cyrus L. Smith, a card reading as follows, all...

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