Carter v. Marshall Oil Co.

• Decision Date: 17 February 1919
• Docket Number: 32096
• Citation: 170 N.W. 798,185 Iowa 416
• Parties: NELLIE CARTER, Appellee, v. MARSHALL OIL COMPANY, Appellant
• Court: Iowa Supreme Court

170 N.W. 798

185 Iowa 416

NELLIE CARTER, Appellee, v. MARSHALL OIL COMPANY, Appellant

No. 32096

Supreme Court of Iowa, Des Moines

February 17, 1919

Appeal from Cerro Gordo District Court.--JOSEPH J. CLARK, Judge.

ACTION for damages consequent on being burned as the result of an explosion, resulted in judgment against the defendant, from which it appeals.

Reversed.

C. H E. Boardman and Henry Curvo, for appellant.

Senneff Bliss & Witwer, and E. B. Stillman, for appellee.

LADD C. J. EVANS, PRESTON, and SALINGER, JJ., concur.

OPINION

LADD, C. J.

The defendant was engaged in the sale and delivery of kerosene, gasoline, and naphtha, with head-quarters at Marshalltown, and had established an agency at Clear Lake, with B. C. Belding as agent. On December 5, 1914, A. E. Carter directed the agent or representative of the defendant company to place in a galvanized, unpainted can on his farm 50 or 60 gallons of kerosene. Fred Gentry had requested him to deliver gasoline at the same place, and Belding loaded in his motor truck such an amount of gasoline and kerosene as seemed sufficient to fill the two orders. In the afternoon, he drove to Carter's place, where Gentry was working his tractor, and poured 115 gallons of gasoline in the tank, which was empty, and then filled two 10-gallon milk cans with gasoline for Gentry, at Carter's house. This took all the gasoline off the truck, and Belding then took 60 gallons of kerosene from the truck in 2-gallon pails, and poured same into Carter's kerosene tank. There is some controversy as to how the kerosene was purchased, and how much there was. After the oil had been delivered, Mrs. Carter took a small can, then empty, and drew kerosene from the oil tank in it, until three fourths full, and poured enough into three lamps, which were not empty, to fill them, and also filled an oil burner. She then placed the small can, which still had oil in it, in the kitchen, about six feet from the stove, and went to Clear Lake in the evening, to attend church services. In the morning following, Carter arose, and, before dressing himself entirely, started a fire in the kitchen stove. He filled the fire box with cobs, which were rather damp, and then poured oil from a gallon can on them, and applied a match. This was done by removing the lid, which was replaced after starting the fire. In touching the match to the oil, he had noticed no flash or explosion. He put no coal into the stove, and returned the can to the place whence he obtained it. When dressed, he went out to attend to his chores, first calling the plaintiff, who was 15 years old, and her sister, 13 years of age, to get breakfast. From a half to three quarters of an hour after he had started the fire, his daughters came running to the barn, in flames. The plaintiff had looked into the stove, and thought the fire had gone out. She testified that it "looked black, like it always does when cobs burn or are blackened * * * I saw the cobs there. I did not see any fire; I don't know whether the stove was very warm. It was not very hot I don't know whether I thought the fire had been started or whether it had not, or whether it had gone out. The fire box of the stove was filled with something black." She replaced the lid, and her younger sister took it off again, got the kerosene can, and, holding it about a foot above the stove, began to pour the contents into the stove. Plaintiff was then standing three or four feet back, and, as the oil reached the cobs, there was a blaze, a noise like that of a shot, and the can itself exploded, throwing its burning contents over both girls. The top of the can and the sides were burst open, and the bottom of the can was blown entirely out. The injuries suffered by the younger daughter, Frances, resulted in her death. The plaintiff recovered, though she was seriously and permanently injured. No fuel or cobs appear to have been thrown from the stove, and Carter testified that he observed no fire therein, immediately on coming into the house. A curtain near the stove was burned, and some of the paint on the woodwork was blistered.

Most of the errors assigned are not such as will be likely to arise on another trial, and for that reason, are not reviewed. Because of the errors necessitating a reversal, we express no opinion on the sufficiency of the evidence to sustain the verdict.

I. One Knudtson testified to having been employed by M. Olson & Company during two years prior to September 25, 1915, and that he remembered when some oil was put in the corner tank, and that he made some test of it, on complaint; that this had occurred about a year previous, the trial having begun on February 7, 1915. He was then asked. "Did it flash up or not?" An objection that "it would be immaterial, attempting to contradict immaterial testimony," seems to have been sustained, and he was asked:

"Well, Mr. Knudtson, you say 'about a year ago.' I find here in this order book that, on the 4th day of December, 1914, that M. Olson & Company got 50 gallons of Search-Light kerosene. What would you say as to whether this instance you speak of was around about that time, or whether it was not?"

An objection as leading and suggestive was overruled, and the witness answered:

"I think it could be that time. Q. Well, is it your judgment that it was around somewheres that time? (An objection as leading and suggestive was sustained). Q. Well, what is your best judgment as to whether it was in the neighborhood of that time? A. Well, my judgment of the time, I would believe it fall, rather than spring, because at that time in testing it, there was little or no snow on the ground,--usually in the spring, there is lots of it. Q. What is your best recollection as to whether it was around December 4, 1914? A. I recollect the instance of this, this oil instance, but not the exact dates. Court: Now he wants you to give the nearest date you do recollect of that occurrence. A. Well, the nearest recollection I could state would be late in the fall,--I could not give any other dates. Q. Well, it is in the late fall of 1914,--of course, it would be impossible for any witness--The Court: You say it was right the next day after he had been to Carter's? Mr. Senneff: No, it would be the day before. The Court: The day before he went out to Carter's? Mr. Senneff: Yes. The Court: Well, he may answer this question, under those circumstances. (Defendant excepts.) Question read by the reporter as follows: Q. Mr. Knudtson, did you, the next day after the tank was filled, see Mr. Belding remove it from the tank? A. He did the next day."

The ruling was erroneous and prejudicial. Evidently, the court accepted Senneff's suggestion that all this happened the day before the explosion in question, but the witness had not so stated, and the ruling permitted evidence of a distinct transaction, wherein Belding had put oil in the corner tank, and afterwards it was tested by the witness, and some of it was removed on the next day. No connection with the hauling or sale of the oil in question was shown, nor that the time was nearer to December 5, 1914 than late in the fall of that year. This did not tend to contradict...