Du Bois v. Luthmer

• Decision Date: 05 May 1910
• Citation: 147 Iowa 315,126 N.W. 147
• Parties: DU BOIS v. LUTHMER ET AL.
• Court: Iowa Supreme Court

147 Iowa 315

126 N.W. 147

DU BOIS

v.LUTHMER ET AL.

Supreme Court of Iowa.

May 5, 1910.

Appeal from Superior Court of Oelwein; D. M. Porter, Judge.

Action at law to recover damages for personal injuries received by plaintiff due to an explosion of gasoline, which gasoline it is charged was delivered and put in a can not marked as required by law; and negligently delivered to plaintiff without informing her of the fact that it was gasoline. Defendants' answer was in effect a general denial. The case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $2,500. Defendants appeal. Reversed.Jay Cook and W. B. Ingersoll, for appellants.

DEEMER, C. J.

Plaintiff claims that her mother sent her and her brother, Guy a boy of six years of age, to defendants' store to buy 10 cents worth of kerosene; that they took with them a dark red two-gallon can which did not have the word gasoline printed on it; that the children went to the defendant's store, called for the kerosene, and that defendants, instead of putting kerosene into the can, put in gasoline and delivered it to the children, who took it home with them in the can which they took to the store. After they had brought the can home, plaintiff, by the direction or consent of her mother, undertook to start or replenish the fire in a cook stove preparatory to the preparation of a meal, and in so doing she turned some of the contents of the can into a cup and put it on the fire, resulting in an explosion which caused the injuries complained of. There is much dispute in the testimony regarding the character of the can into which defendants put the gasoline, and also as to what plaintiff and her brother ordered when they went to defendants' store, so that the trial court was justified in submitting these matters to the jury by proper instructions. The manner in which the case was submitted is shown by the following instruction given to the jury as a part of the court's charge: “Par. 7. The burden is on the plaintiff to prove by a preponderance of the evidence: (a) That the defendant A. J. Luthmer, as agent for H. J. Luthmer, was negligent and did not use ordinary care in the manner charged in the petition either (1) in delivering to the boy Guy Du Bois, or to him and plaintiff, gasoline when he asked for kerosene, and not informing him thereof; or (2) that defendant did deliver to the boy Guy Du Bois, or to him and plaintiff, gasoline in a can not properly painted or labeled as by law provided. (b) That she was injured by reason of such negligence and want of care on the part of defendants and while using some of the substance in starting a fire while using ordinary care. (c) That she in no way by her negligence contributed to produce the injury complained of.” By section 2510j, Code Supp. 1907, it is provided: “Every person dealing at retail in gasoline in this state shall after the first day of January, 1907, deliver the same to the purchaser in quantities of more than one quart, and less than six gallons, only in such barrels, casks, packages, cans or measures, painted vermillion red and having the word gasoline plainly stenciled or marked thereon. No such dealer shall deliver kerosene in a barrel, cask, package or can painted or marked as above. There was testimony strongly tending to show that the can in which the gasoline was delivered was painted a vermillion red, and that it had lettering thereon; but the significant thing about the matter is that plaintiff took the can whatever it may have been from her parents who owned it, and presented it to the defendants as a proper receptacle for the gasoline or kerosene, no matter which it may have been that plaintiff ordered. Moreover, the can as presented to defendants had some oil in it when presented to the defendants. The fact that defendants may have violated the law in putting gasoline into a kerosene can is not material to...