Standard Oil Co. v. Reagan
| Docket Number | 5475. |
| Decision Date | 20 January 1915 |
| Citation | 84 S.E. 69,15 Ga.App. 571 |
| Parties | STANDARD OIL CO. ET AL. v. REAGAN ET AL. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where oil sold as kerosene is used in starting a fire, by one who believes it to be kerosene, when it is in fact a more dangerous liquid and explodes when so used, its use for this purpose is not such negligence per se as would bar a recovery from the seller for resulting injuries to the person so using it.
(a) Whether kerosene oil could or could not be used with safety in a particular manner in starting a fire is a question for the jury.
Mitchum v State, 11 Ga. 615, 623. "Declarations of a party to be admitted as part of the res gestæ, must be at the time of the transaction they are intended to explain; must be calculated to unfold its nature and quality, and must harmonize with it." Carter v. Buchannon, 3 Ga 513 (2).
(a) Declarations made by a wife to her husband, who had just reached her side, three or four minutes after a fatal injury, when she was still lying on the ground where she had been blown by the force of an explosion, surrounded by circumstances corroborating her statement, and with her person still smoking from the flames which consumed her clothing, may be treated as "part and parcel of the catastrophe," and may be admitted as part of the res gestæ, when there is nothing to indicate that they were prompted by device or afterthought.
Proof of a simple and primitive test, tending to indicate the actual identity of a substance by showing its characteristics in one or more particulars, may be introduced in evidence, and should have such probative value as, from the certainty of the test, the degree of capacity required to make the test, and the capacity possessed by those making it, it is, in the opinion of the jury, entitled to receive--measured by the evidence or by common knowledge so general as to be practically universal.
While evidence that one had used kerosene oil for many years in a particular manner might be no measure of diligence for another, who was fatally injured by using it in the same way, yet it might tend to indicate that the injured person was not guilty of gross negligence amounting to a lack of ordinary care in thus using it.
Where the age of a person is shown, his expectancy of life may be determined by the jury without any other direct evidence on the subject. Tables of the probable length of life and its probable worth may be useful, but are not conclusive or absolutely essential for that purpose. Upon proof as to a person's age, health, and earning capacity, the jury may estimate the value of his life, and reduce that value to its present cash value, by any method satisfactory to them which produces a definite result that is fair and reasonable and is authorized by the evidence.
When the jury disregard instructions from the court as to a method of calculation, and by some other method reach a result which is fairly deducible from the evidence, but different from what they might have reached by adopting the method suggested by the court, the verdict may nevertheless be sustained. It is immaterial how a result be reached, so that it is legal, just, and accurate.
The jury may increase damages awarded for death caused by wrongful act, by including in the total sum awarded legal interest on the present cash value of the life of the deceased at the time of death, from that time to the date of the verdict.
The reasonably probable average earnings of the deceased may be deduced by the jury from evidence as to past earnings, and taking into consideration age and health, and the probable future increase in efficiency during future years, as well as the natural diminution in earning capacity, consequent upon old age.
In estimating the value of ordinary domestic services rendered by a wife, the jury is authorized to take into consideration what may be the value of many services incapable of exact proof, but measured in the light of their own observation and experience. Metropolitan St. R. R. Co., v. Johnson, 91 Ga. 466, 471, 472, 18 S.E. 816, 817.
The evidence authorized the verdict, and no substantial error was committed by the court.
Additional Syllabus by Editorial Staff.
"Ordinary kerosene," being the kerosene sold in the open market, means kerosene of a lawful grade and quality ordinarily sold for the general use of the public for illuminating purposes.
Error from City Court of Thomasville; W. H. Hammond, Judge.
Action by G. W. Reagan, in his own behalf and as next friend for his minor child, Ellis Reagan, against the Standard Oil Company and others. Judgment for plaintiffs, and defendants bring error. Affirmed.
In estimating the value of ordinary domestic services rendered by a wife, the jury may consider the value of such services from their own observation and experience.
Theo. Titus, of Thomasville, and King, Spalding & Underwood, of Atlanta, for plaintiffs in error.
Little, Powell, Hooper & Goldstein, of Atlanta, and Roscoe Luke, of Thomasville, for defendants in error.
G. W.Reagan brought an action in his own behalf and as next friend for his minor child, Ellis Reagan, against the Standard Oil Company, J. W. Dillon, and Israel Bowdre, to recover damages on account of the death of Lula Reagan, his wife, whose death he alleged was caused by the negligence of the defendants. The petition as amended alleged that the Standard Oil Company was a dealer in illuminating oils on July 3, 1912, and was engaged in selling the same through J. W. Dillon and Israel Bowdre, its employés; and that on the day named Dillon, acting as its local manager, placed Bowdre in charge of a wagon loaded with both kerosene oil and gasoline, which was offered for sale to any who desired to buy; that Bowdre came to the petitioner's store and sold to him and placed in his kerosene tank ten gallons of a fluid which Bowdre stated, and which petitioner supposed, was kerosene oil, but which in fact was gasoline, resembling kerosene oil in appearance, but a much more dangerous and a very much more explosive substance; that a day or two thereafter the petitioner drew out from the said tank about a gallon of what he supposed to be kerosene oil, but which was in fact a portion of the gasoline sold and delivered to him for kerosene by the defendants, and placed it in a small can and sent it to his home near by for domestic use; that several days thereafter, to wit, on the 18th of July, 1912, at or about 10 o'clock in the morning, his wife put certain fuel in the stove in his home and lighted it with fire, and poured thereon some of the gasoline in the family oil can, supposing it to be kerosene, when the gasoline exploded and set fire to the contents of the can, which also exploded, so that therefrom she was set on fire and received burns, from which she died about 4:30 o'clock p. m. on the same day; that, at the date of her death, Lula Reagan was 24 years old and was in good health, and the value of her services was $100 per month, and she then had a life expectancy of 40 years; and that Ellis Reagan was then an infant 17 months old, and was her only child. The petition further alleged that the death of Lula Reagan was occasioned solely by the negligence and wrong of the defendants in selling and in causing to be sold and delivered to the petitioner gasoline, which is a highly dangerous substance, liable to explode and cause destruction of human life and property, unless handled most carefully, and in selling the same for "fireproof" kerosene oil, which is a substance greatly resembling gasoline in its superficial appearance, but which is comparatively free from danger when handled in an ordinary manner, and in placing it and causing it to be placed in the dispensing tank of petitioner, where he was likely to use it and to dispense it to his own family and to others; and that the wrongful act of the defendants in causing gasoline to thus be placed and delivered as kerosene, in such a manner that in the natural course of things, and in a way that could be reasonably expected, it came into the possession of Lula Reagan, and was used as kerosene by her without any knowledge on her part that it was in fact gasoline, was the direct, proximate, and natural cause of her death, and the negligence complained of was in law and in fact the negligence of each of the defendants and of all of them. The petitioners asked for damages in the sum of $20,000.
1. The defendants filed a demurrer, on the ground that the petition set forth no cause of action, because it appeared therefrom that the injury complained of was caused directly and proximately by the negligence of Mrs. Reagan, and that such negligence would prevent a recovery; and also because it appeared from the petition as amended that by the use of ordinary care Mrs. Reagan could have avoided the consequences of the alleged negligence of the defendants, and her contributory negligence would therefore prevent a recovery. These grounds are in effect repeated in somewhat different words, but no other point is raised by the demurrer. The precise issue therefore raised by the demurrer was that as a matter of law it is contributory negligence, amounting...
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