Farrell v. G. O. Miller Co.

• Decision Date: 15 October 1920
• Docket Number: No. 21937.,21937.
• Citation: 147 Minn. 52,179 N.W. 566
• Parties: FARRELL v. G. O. MILLER CO.
• Court: Minnesota Supreme Court

147 Minn. 52

179 N.W. 566

FARRELL

v.G. O. MILLER CO.

No. 21937.

Supreme Court of Minnesota.

Oct. 15, 1920.

Appeal from District Court, Goodhue County; Albert Johnson, Judge.

Action by Lucy Agnes Farrell against G. O. Miller Company. Judgment for plaintiff, and from a denial of an alternative motion for judgment notwithstanding and for new trial, defendant appeals. Affirmed.

Syllabus by the Court

Section 8764, Gen. St. 1913, relating to the sale of gasoline, is intended to protect persons from dangers arising from mistaking gasoline for something else. If the disobedience of the statute results in injury to one for whose protection it is passed liability follows.

The evidence justified the jury in finding that defendant's disobedience of the statute was the proximate cause of the injury to plaintiff.

Defendant sold and delivered gasoline in a can not colored or tagged as required by statute, and the can was placed by a third person beside other cans containing kerosene. The act of such person was not an efficient intervening cause of the injury to plaintiff, relieving defendant from liability.

Assuming that contributory negligence is a defense to an action founded on a violation of the statute, the evidence fell short of conclusively establishing its existence.

A person who uses kerosene in lighting a fire is not necessarily guilty of negligence, though a distinction is to be drawn between its use for lighting a new fire and its use for reviving one partially extinct.

There was no error in the instructions to the jury or in the refusal to give certain requested instructions, because some were sufficiently covered by the charge as a whole, while others were not supported by any competent evidence, and others were open to the objection that they required the jury to consider whether certain inferences might not be drawn from a particular state of facts they might find to exist. P. B. Green, of Red Wing, and A. J. Rockne, of Zumbrota, for appellant.

Mohn & Mohn, of Red Wing, for respondent.

LEES, C.

Plaintiff was severely burned while lighting a fire in a cookstove, and brought this action to recover damages on the ground that defendant, without complying with section 8764, G. S. 1913, had sold and delivered gasoline to her brother Thomas, whose housekeeper she was, and that, in the belief that the gasoline was kerosene she had used some of it to start the fire. The trial resulted in a verdict in her favor, and defendant appeals from an order denying its alternative motion for judgment notwithstanding or a new trial.

Defendant conducted a general store at White Rock in Goodhue county, this state, and for a period of about two years prior to the accident had employed one Anderson to take orders for and make deliveries of merchandise to neighboring farmers, of whom Thomas Farrell was one. Two 5-gallon metal cans, painted red, were kept in the basement of the Farrell farmhouse, which was lighted in part by a gasoline plant, the tank in the lighting plant being filled from time to time with gasoline from these cans. Five gallon gray metal cans, belonging to defendant and containing kerosene oil were kept in a shed in the rear of the house. Plaintiff ordered the gasoline and kerosene which defendant furnished. She testified that when Anderson began to deliver the oils she ordered he was directed to place the kerosene in the shed and the gasoline in the red cans in the basement, and that he invariably did so until he made the last delivery prior to the accident. This testimony was contradicted by Anderson, who testified that he some times did so, but at other times left it in the can in which he brought it from defendant's store, following directions given him by plaintiff or her brother.

On or about December 15, 1917, plaintiff gave Anderson an order for 5 gallons of high-test gasoline and for some other articles. A gray metal can in which to bring the gasoline was either given him by plaintiff, or she directed him to get it from the shed where the kerosene cans were kept. On December 18th or 19th, he returned to deliver the articles ordered. The gasoline had been placed in the can Anderson had obtained at the Farrell farm. Anderson testified that a shipping tag was attached to the can, and that he wrote on it in pencil, ‘5 gallon best gasoline’; that he found no one at the Farrell house when he arrived; that he placed all of the articles ordered, except the gasoline, in the kitchen, and that he left the can of gasoline on a cement walk leading from the kitchen to the shed. One Germer, a farm hand employed by the Farrells, testified that Anderson set the can just inside the door of the shed, and that later he (Germer) placed the can near two kerosene cans in the shed, where it remained until after the accident, and that he did not know that the can contained gasoline. Plaintiff and her brother were at Red Wing when the gasoline was delivered, and were not informed that it had not been placed in the red cans in the basement, or that it was in one of the gray cans in the shed.

On Saturday, December 29th, plaintiff filled some lamps, a lantern, and the tank of an oil stove from a gray metal can in the shed. The can was then full. She thought it contained kerosene. She knew that the gasoline she had ordered on December 15th had been delivered, and that it was always brought in a can similar to the one from which she filled the lamps. She made no effort to learn whether the can contained kerosene or gasoline. When the lantern was lighted on Saturday night, it popped, and was extinguished by the farm hand who was using it. It did not appear that plaintiff was told of this incident. At about 5 o'clock on Sunday afternoon she went into the kitchen to prepare the evening meal. There was testimony that there had been a fire in the cookstove until 1 or 2 o'clock in the afternoon, and that at 5 o'clock there was neither fire nor embers in the stove. Plaintiff placed some paper and light willow wood in the fire box, went to the shed, poured about a third of a teacupful of oil from the can from which she had filled the lamps on the previous day, poured it over the wood and paper, and struck a match. Immediately there was an explosion, and the flames set fire to her clothing and burned her body in many places. Later in the day the oil stove was lighted, and there was no explosion. The following morning Mr. Farrell examined the can from which plaintiff had poured kerosene as, she supposed, and found that it contained gasoline instead, and that from 3 1/2 to 4 gallons remained in the can. A sample was taken and submitted for examination to a state oil inspector, who pronounced it to be high-test gasoline.

[1] 1. Defendant challenges the sufficiency of the evidence to support the verdict, asserting that plaintiff knew, or was bound to know, that the gasoline she ordered was brought and left in a gray metal can. She admitted that she knew that Anderson had taken such a can on December 15th, and that when gasoline was ordered he always brought it in a similar can, but denied knowledge of the fact that he had left it in the can in which he brought it on December 18th or 19th. There was no delivery when the can was filled at defendant's store. It was defendant's duty to cause the gasoline to be placed in one of the red cans in the Farrell house, or at least to leave it on the premises in a red can. Under the statute defendant, in selling and delivering gasoline, was required to cause it to be placed in a receptacle of a bright red color, tagged and labeled in large plain letters with the name of the contents. Plaintiff had a right to assume that the directions given in the statute would be obeyed. She neither knew, nor was bound to know, that the statute had been disobeyed. In a well-considered case, it was held that where the laws of a state, enacted for the protection of the public, prescribe certain precautions to be observed in handling and labeling the volatile oils distilled from petroleum, one injured by an explosion of gas from such oils establishes a cause of action by showing a breach of the statutory requirement that such breach was the...