Ellis v. Republic Oil Co.

• Decision Date: 15 December 1906
• Citation: 133 Iowa 11,110 N.W. 20
• Parties: ELLIS v. REPUBLIC OIL CO.
• Court: Iowa Supreme Court

133 Iowa 11

110 N.W. 20

ELLIS

v.REPUBLIC OIL CO.

Supreme Court of Iowa.

Dec. 15, 1906.

Appeal from District Court, Polk County; James A. Howe, Judge.

The opinion states the case. Affirmed.

Read & Read, for appellant.

E. H. McVey and P. L. Sever, for appellee.

WEAVER, J.

The case made by the plaintiff's petition is, in substance, as follows: The defendant, the Republic Oil Company, is a corporation engaged in the wholesale gasoline and kerosene oil trade at the city of Des Moines, Iowa, and as such dealer sold said products to Anderson & Bergman, a firm of retail grocers in said city. On July 20, 1904, in response to an order from Anderson & Bergman, defendant undertook to deliver to them a quantity of kerosene oil, and deposited what it claimed to be the designated quantity of that product in a tank kept by the grocers for such purpose. On the following day several of the customers of Anderson & Bergman, including the father of the intestate, having ordered small quantities of kerosene oil, an employé of Anderson & Bergman filled two cans, one of about five gallons and one of one gallon capacity, from the tank above mentioned, placed them in a wagon, and went out to make the delivery. At the home of Nelson he poured a gallon from the larger can into a can kept by the family for that use, and distributed the remainder among five other customers in that neighborhood. Living with said Nelson at this time was his daughter, Bessie Edith Nelson, a girl in the fifteenth year of her age. On the morning of the second day after the delivery of the oil the girl undertook to build a fire in the kitchen stove, when an explosion occurred from which she received injuries resulting in her death in a very short time. No other use had been made of the oil by the Nelsons prior to the accident, except to fill a lamp which had not been lighted. It is alleged that, instead of filling Anderson & Bergman's tank with kerosene oil of the proper grade and test as ordered, defendant negligently delivered therein gasoline or oil with which gasoline had been mingled in dangerous quantities; that Anderson & Bergman, believing the same to be kerosene oil, delivered it as such to Nelson; and that the girl, having no knowledge of its true character, made use of a small quantity in preparing kindling with which to build a fire, and without fault on her part the fatal explosion ensued. The defendant admits sale of kerosene and its delivery in the tank of Anderson & Bergman, but denies all other allegations of the petition. There was a verdict for plaintiff as administrator of the estate of the deceased in the sum of $4,000, from which amount there was remitted the sum of $1,000. From the judgment rendered against it on the reduced verdict, defendant appeals.

1. With the exception of a single paragraph of the court's charge to the jury, the objections raised by counsel in behalf of appellant go wholly to the question of the sufficiency of the evidence to support a verdict in plaintiff's favor and to the alleged excessiveness of the damages assessed by the jury. It is to be admitted that appellant makes a strong defensive showing, leaving the truth as to some of the material facts a matter of no little doubt, but we are convinced that the record as a whole is such as to fairly bring it within the universally accepted rule that issues of fact upon which, under the evidence, there is any room for difference of opinion among fair-minded men, must be left to the arbitrament of the jury. It is shown without dispute that Nelson or his wife ordered from Anderson & Bergman one gallon of kerosene, and that the driver of said firm delivered and placed in Nelson's oil can one gallon of material supposed to be kerosene, and from the same supply and on the same trip filled small orders for kerosene by five other customers in the same vicinity. It is also fairly well established that this article so delivered to these customers was either gasoline or kerosene with which gasoline had been mingled to a dangerous degree. In addition to the circumstances attending the explosion which strongly tends to this conclusion, it is shown by four of the five other customers served on the same trip that immediately after the accident they tested the oil so purchased by them and found it to flash after the manner of gasoline. Experiments, examinations, and tests made by others substantially all support the same view. If the article thus delivered to Nelson for kerosene oil was gasoline or kerosene mixed with gasoline, it is obvious that some person or persons were negligent with respect thereto; for, to say nothing of common-law rules, our law forbids the sale of kerosene of a quality below the established standard and of gasoline, except under regulation as to label which shall give notice to all of its true character. The Nelsons testify that they used no gasoline, and kept none in the house, and this is not controverted, a fact which sufficiently eliminates any theory that the presence of such article in their oil can was chargeable to their own act. It is also shown without dispute that the article delivered to Nelson was taken by Anderson & Bergman's driver from the white oil tank which appellant concedes it filled. With this as a starting point, we are led inevitably to the conclusion that the responsibility for the mistake rests either upon the appellant or upon Anderson & Bergman; for there is no testimony whatever that any other person or persons had anything to do with handling, controlling, or using the oil and gasoline, or the receptacles in which they were stored, or the manner and means employed in their sale and delivery.

To make the situation clearer, we will briefly recite the conceded facts concerning the manner in which the business was carried on. Appellant kept stored in separate receptacles gasoline and two brands of kerosene oil, known as “Palacine” and “Prime White.” These products were distributed and delivered to retail dealers in the city by the use of tank wagons. These wagons were divided into several compartments for the different grades or kinds of products above mentioned. The compartments were not labeled, and, as we read the record, they were not always filled with the same product, but sometimes one, and other times two or more would be filled with gasoline or with kerosene, as the demands of the trade required. The wagons were loaded by the use of a hose or pipe leading from separate storage tanks at appellant's warehouse and attached as occasion required to the proper compartment of the wagon. The driver of the wagon would then proceed to the place of business of the retail dealer and fill his order by drawing the oil or gasoline into buckets from which he poured it into the receptacles kept by the dealer for that purpose. Anderson & Bergman were regular customers of appellant, and dealt in gasoline and in both brands of kerosene. On July 20, 1904, they had in use three tanks of about 55 gallons capacity each, one of which was used for the storage of gasoline and the others for the storage, respectively, of Palacine and Prime White kerosene oil. When appellants' driver arrived to make a delivery on the day named, each of these tanks had been partially emptied, and he proceeded to fill them from his wagon,...