Anderson v. Standard Oil Co.
| Decision Date | 24 September 1917 |
| Docket Number | 31435 |
| Parties | MAGNUS ANDERSON, Appellee, v. STANDARD OIL COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--CHARLES A. DUDLEY, Judge.
ACTION at law for damages claimed to have resulted from an explosion of a mixture of kerosene and gasoline which had been sold to plaintiff as kerosene. Trial to a jury. Verdict for plaintiff. Defendant appeals.
Affirmed.
Carr Carr & Evans and Nourse & Nourse, for appellant.
John L Gillespie, for appellee.
I.
On the morning of March 21, 1915, while appellant was about to pour part of the contents of a can containing kerosene into a stove in a wash shanty near his residence, in which stove he had placed some paper and kindling, to which he had set fire a short time before, the oil in the can exploded, setting fire to his clothing and severely burning his hands and legs, thereby inflicting painful and permanent injuries upon both his hands and legs.
According to his testimony, he purchased the oil, a few days prior, of Whittaker & Burgess, retail dealers at Marquisville, Iowa; it was kept in the shanty prior to the accident; and shortly after setting fire to the paper in the stove, he left the shanty, returning in a few minutes, and, looking into the stove, saw no fire. This occurred about 9:00 A. M. He took the can containing the kerosene from a bench a short distance from the stove, and when within about 18 inches or 2 feet of the stove, he testifies that he unscrewed the cap from the top and placed his hand on the bottom of the can preparatory to pouring some of the liquid into the stove, when the can exploded, setting fire to his clothing and burning him, as above stated.
The defendant maintained a station at Altoona, from which point gasoline and kerosene were distributed by its agent, by wagon, to customers at near-by places. Upon receipt of the oil at Altoona, it is emptied from the tanks on the cars into storage tanks. The means employed makes it impossible for it to become mixed, either in filling the storage tanks from the cars or in emptying them into the tank wagon, unless by carelessness in pumping oil into the wrong compartment of the tank wagon. It appears from the evidence that the oil in the storage tanks, from which that in question was taken, had been previously inspected by the state oil inspector, and approved.
On the 17th of March, the agent of defendant filled the respective compartments or tanks on his wagon with kerosene and gasoline from the storage tanks at Altoona, and started to Marquisville to deliver oil to Whittaker & Burgess. On account of the bad condition of the roads, he was compelled to return to Altoona, and the following morning, backed a farm wagon up to within a few feet of the rear of his tank wagon, and in the usual way drew both gasoline and kerosene from the wagon tanks into a measuring bucket and poured the same into separate common 10-gallon milk cans. Defendant's agent testified that he first filled 20 cans with kerosene and placed the same in the front end of the wagon box; that he then placed the end gate from his wagon box immediately back of the cans and across the box, so as to make a partition, and then filled four 10-gallon milk cans with gasoline and placed the same in the wagon in such a way that the cans containing the gasoline and the cans containing the kerosene were separated by the end gate. He also testified that he placed red tags on the cans containing gasoline, on which were printed the words, "Gasoline--Dangerous." He further testified that the oil was drawn from the separate compartments of his tank wagon through a faucet; that same could be turned only with a wrench; and that in drawing kerosene it would foam up in the measuring bucket to a much greater extent than the gasoline.
Whittaker & Burgess had three storage tanks: one for gasoline, in an outbuilding; and two for kerosene, one known as the north and the other as the south tank. Upon the arrival of defendant's agent at Marquisville, he first emptied the cans containing gasoline into the tank in the gasoline house. He then emptied 10 cans of kerosene into the north tank, and then 10 cans of kerosene into the south tank, thereby emptying all of the cans which he had on his wagon. The gasoline was used or sold by Whittaker & Burgess, and appears to have been good oil. The oil in the storage tanks at Altoona from which the oil in question was drawn was sold, and no complaint was ever made of it.
The oil purchased by appellee was taken from the south tank. Later, the oil inspector tested the oil in both the north and south tanks, the result of which was that the oil in the south tank was found bad, and in the north tank, good. Burgess and Whittaker and a clerk testified to the manner of handling both the kerosene and gasoline at the store. They used a 5-gallon and a 2-gallon can in measuring and selling the gasoline to customers, and when they sold five gallons, they used a 5-gallon can, and when they sold two gallons, they used a 2-gallon can. The gasoline was kept in a separate building from the kerosene. Without setting out the details of the evidence, they each testified that the method of drawing the oil from the tanks and delivering it to customers was such as to make it very improbable that there could have been negligence upon their part in doing so.
The oil that was put in the south tank by defendant's agent was sold to parties by the names of Brugioni, Amedi, Murray, Fletcher, Pinott and Ballentini, and to appellee. After the accident, the oil sold to Fletcher, Murray and Amedi was poured out. Mrs. Brugioni undertook to use some of the oil with which to start a fire in the kitchen stove, when the same exploded, causing her death and that of her daughter. Mrs. Ballentini testified that she used some of the oil with which to start a fire; that, when she touched a match to it, the oil took fire, and the cap on the top of the can was blown therefrom a distance of 10 or 12 feet. Mrs. Anderson testified that, on the same morning, and shortly before the accident, she took the can to the kitchen and poured some of its contents into a lamp, which was at the time partly filled with oil. A sample of the oil taken from the lamp was tested by the state oil inspector and flashed at 84 degrees. A sample which it is claimed was taken from the Ballentini can was also tested by a deputy oil inspector, and flashed without applying any heat. Tests made of this oil showed that it would flash when a lighted match was brought within an inch of two or three tablespoonfuls emptied into a saucer. The state oil inspector testified that a sample claimed to have been taken from the Ballentini oil would take fire at any temperature above 32 degrees, and that it flashed at that temperature. He further testified that good, safe kerosene oil should not flash until it reached a temperature of 101 degrees. The temperature at the government station in Des Moines on the morning of the accident, at about the time the explosion occurred, was 31 degrees above zero. It was also claimed by appellee that samples of the oil were taken from the tanks by the representatives of defendant, and that the 35 gallons left in the south kerosene tank were taken away by defendant's agents.
The evidence satisfactorily shows that the oil in question and that contained in the south tank was a mixture of kerosene and gasoline. The evidence of some of the experts was that, under certain conditions, the gasoline would rise to the top of the can containing a mixture of kerosene and gasoline.
Appellant contends: (1) That it is as consistent, under the evidence, that the oil became mixed after its delivery to Whittaker & Burgess as before, and that, therefore, plaintiff has failed to make out a case of negligence; (2) that plaintiff's testimony regarding the explosion is so unreasonable and contrary to fixed, known, scientific and physical facts and laws as to be unworthy of belief; (3) that there was error in the admission of certain expert evidence offered by appellee; (4) that there was error in the refusal of the court to give an instruction requested by defendant regarding the direct cause of the explosion.
We have above set out substantially all of the evidence detailing the manner in which the oil in question was handled by the agent of defendant. He testified that the portion of the oil remaining in his tank wagon after filling the milk cans was sold, as was all of that in the storage tanks at Altoona, and that he never heard any complaint in regard thereto. The testimony of defendant's agent, who filled the milk cans with oil and delivered the same to Whittaker & Burgess, is contradicted to some extent by a farmer who went toward the road, to buy some oil from the wagon. He testified that he stood on an embankment near the wagon and about four feet above it. The evidence shows that the cans stood several inches above the top of the wagon box. The driver told him that the gasoline cans were tagged, but he testified that he saw no tags on them, and that he looked down into the wagon box, but observed no end gate or other partition between the cans.
As before stated, the witnesses detailed the method of taking the oil from the different tanks at the store, the kind of receptacles used, and the method of filling the cans of customers and delivering same to them. The gasoline tank of Whittaker & Burgess was in a building separate and at some distance from the tanks containing the kerosene. Defendant placed 100 gallons of kerosene in each of...
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