Berger v. Standard Oil Co.

• Decision Date: 18 June 1907
• Citation: 103 S.W. 245,126 Ky. 155
• Parties: BERGER v. STANDARD OIL CO.
• Court: Kentucky Court of Appeals

103 S.W. 245

126 Ky. 155

BERGER v. STANDARD OIL CO.

Court of Appeals of Kentucky.

June 18, 1907

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

"To be officially reported."

Action by Henry Berger against the Standard Oil Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Matt. O'Doherty and Morton K. Yonts, for appellant.

Humphrey & Humphrey and Kohn, Baird, Sloss & Kohn, for appellee.

O'REAR J.

Appellee sold to appellant's employer a quantity of lubricating oil to be used on a stationary steam engine. Appellant was the engineer who operated the engine. A lubricator, which had a glass tube attachment, was in use upon the engine. The oil was transmitted through it by means of the steam pressure to the inside of the cylinders of the engine. The glass tube exploded while in such use, and while appellant was using in it some of the oil which his employer had purchased of appellee. In the explosion a piece of the flying glass struck appellant in the eye, and destroyed its sight. He brought this suit against appellee to recover damages because of his injury. He charged in his petition that appellee was guilty of gross negligence in representing and warranting to appellant's employer (the owner of the plant where the engine was in use) that the oil was fit and suitable for use as a lubricant on the engine, whereas it was unfit and dangerous, and by reason of its dangerous and unsuitable quality it caused the explosion which injured appellant. The petition also alleged that appellee knew, or, by the use of ordinary care, could have known, of the dangerous and unsuitable quality of the oil, but that appellant did not know, and could not have known of it with ordinary care on his part. The trial court submitted the question of appellee's negligence in the matter to the jury in an instruction which will be particularly noticed further along. The evidence was sharply conflicting as to the suitableness of the oil as a lubricant for such purposes to which it was put, and as to whether it probably caused the explosion. The jury's verdict was for the defendant.

The first error assigned on this appeal is in the court's refusal to submit to the jury the question of appellant's right to recover upon the warranty. A warranty is always a matter of contract. For its breach, damages may be recovered by any party to the contract injured thereby, including any person for whose benefit the contract was made. But strangers to the contract have no right of action upon it. There is lacking privity, mutuality, consideration, and every other element essential to constitute the contractual relation between the claimant and the person sued. 2 Benjamin on Sales, § 1004; King v. Creekmore, 77 S.W. 689, 117 Ky. 172; Simons v. Gregory, etc., 85 S.W. 751, 27 Ky. Law Rep. 509; Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621.

When a manufacturer or a furnisher of an article is negligent in its composition, construction, or sale, so that injury results not to the vendee, but to a stranger, the general rule is that the seller is not liable unless either the article is an imminently dangerous one, or the seller has knowledge of its defects, and that they are such as to endanger life or property without notice or warning of the defects. Cooley on Torts (3d Ed.) 1486-1489. The liability in this case, if one existed at all, was under the second exception just stated. It is founded on deceit, and is a tort. The scienter must be laid as to the deceit to support it. Heindirk v Louisville Elevator Co., 92 S.W. 608, 5 L. R. A. (N. S.) 1103, 29 Ky. Law Rep. 193. We are of opinion that the circuit court properly classified the action by the instruction given, and rested the plaintiff's right to recover on the fact of knowledge of the defective and dangerous quality of the oil, or notice of such facts as that it ought to have known of them. The instruction is as follows: "If you believe from the evidence that the oil in the evidence referred to was dangerous and unsuitable for use as a lubricant, and if you further believe from the evidence that the defendant, by its agent, represented to plaintiff that said oil was safe and suitable for use as a lubricant, and if you further believe from the evidence that the dangerous quality of the oil, if it was dangerous, was known to defendant or to its agents, or could have been known to the defendant or its agents by the exercise of ordinary care, and was not known to the plaintiff (and could not have been known to him by the exercise of ordinary care), and if you further believe from the evidence that the plaintiff relied upon the representations as to the character of the oil so made to him, if they were made, and...