La Fayette v. Bass
| Decision Date | 23 March 1926 |
| Docket Number | 15618. |
| Citation | 252 P. 1101,122 Okla. 182,1926 OK 282 |
| Parties | LA FAYETTE et al. v. BASS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 11, 1926.
Application for Leave to File Second Petition for Rehearing Denied Feb 8, 1927.
Syllabus by the Court.
Where an action is brought in the district court of a county against a domestic corporation, an individual, and a foreign corporation, and the cause of action or a part thereof arose in such county, or such county was the residence of the plaintiff, service of summons can be had upon the domestic corporation by serving the same in the county of the domicile of such corporation under section 202, Compiled Oklahoma Statutes 1921, and service of summons can be obtained on the individual by serving him with summons in the county of his domicile under section 234, Compiled Oklahoma Statutes 1921. And under article 9, § 43, of the Constitution, and section 205, Compiled Oklahoma Statutes 1921, suit may be brought against a foreign corporation in the county where the plaintiff resides or in the county where the cause of action arose.
Under article 7, § 21, Constitution of Oklahoma, and section 552 Compiled Oklahoma Statutes 1921, the privilege of submitting questions of fact to be answered by the jury at the time they return their general verdict is discretionary with the court. We adopt the rule, in reference to special findings of fact submitted to a jury, that: (1) A failure to agree upon such findings is equivalent to a failure to answer; and (2) a failure to answer, on the part of the jury, in view of a general verdict being returned and the approval of the same by the court, is equivalent to the withdrawal of the submitted special interrogatory.
Section 7991, Compiled Oklahoma statutes 1921, prohibits the sale for illuminating purposes, of kerosene which will flash at a temperature of less than 115 degrees Fahrenheit. It makes dealers warrantors of such oils, irrespective of inspection of such oils as provided by law.
Section 8009, Compiled Oklahoma Statutes 1921, makes the jobbers and manufacturers liable to retail dealers and all other persons for damages of every kind and nature caused by the inferior quality of oil sold by said jobbers or manufacturers to such retail dealers and other persons.
In an action to recover for injuries caused by the explosion of illuminating oil, which had been sold by the defendants and wherein plaintiff produced evidence to show such oils did not conform to the standard fixed by the statute, it is no defense either that the defendants were ignorant that it did not so conform, or that an authorized inspector had certified that it did; and if the person injured was using such care as would have been proper had the oil conformed to the standard fixed, the jury will be warranted in awarding adequate compensation in damages to the person so injured.
Every person while violating an express statute is a wrongdoer, is ex necessitate negligent in the eyes of the law, and an innocent person, within its protection injured thereby, is entitled to civil remedy by way of damages.
Where the law has made a product a thing inherently dangerous, one who dispenses it to the public does so at his peril, and is liable in tort to innocent third parties injured thereby even though there is no privity of contract existing between the seller and the injured person.
The doctrine of imputed negligence is not recognized in this jurisdiction.
Appeal from District Court, McIntosh County; O. H. Searcy, Judge.
Action by Berral Bass against Ben F. La Fayette and others for personal injuries. From a judgment for plaintiff, defendants appeal. Affirmed.
Britton H. Tabor, of Checotah, Alvin Richards, of Tulsa, and Bower Broaddus and C. A. Ambrister, both of Muskogee, for plaintiffs in error.
Neff & Neff, of Tulsa, Harry G. Davis, of Muskogee, and John T Cooper, of Checotah, for defendant in error.
This cause presents an appeal from the district court of McIntosh county wherein Berral Bass, a minor, by his guardian, sought judgment in the sum of $10,000 against the three defendants, Ben F. La Fayette, Oklahoma Producing & Refining Corporation of America, and the Holcomb Oil Company, for personal injuries alleged to have been received on account of the concurring negligence of the defendants.
The epitomized facts alleged are: That plaintiff's father sent a five-gallon can to be filled with coal oil at defendant La Fayette's store. The oil was so purchased, brought home, and a lamp filled with the same. The lamp exploded and injured the plaintiff, who was studying in the room by the lamp. Facts further show that the kerosene oil was purchased by La Fayette from the Holcomb Oil Company about December 1, 1921, and about 30 days before the injury, and that the Holcomb Oil Company shortly prior thereto had purchased the oil from the Oklahoma Producing & Refining Corporation of America.
Allegations of negligence relied upon are that said kerosene oil was explosive in its nature and was unsafe for use, that the same was sold by the defendants for illuminating purposes, and that the defendants knew, or by the exercise of due care could have known, that the same was unsafe for the purposes for which it was sold, and that the same was sold in violation of the laws of the state of Oklahoma, and was sold without being inspected as required by law and regulations of the corporation commission, and that a proper inspection would have disclosed the explosive nature of the oil.
The defendants La Fayette and Holcomb Oil Company filed a motion to quash service of summons which was denied. The Oklahoma Producing & Refining Company entered a voluntary appearance. The defendants filed separate answers in the form of general denials, specifically denying that the said kerosene was manufactured and sold in violation of law, and alleged a proper inspection, pleading further contributory negligence. The defendant La Fayette, answering, pleaded that he purchased the kerosene from a regular oil jobbing house in the usual manner, that the oils were properly marked and branded, and that he had no knowledge or information of defects, if any, and denied the manufacture and sale of said oils in violation of law.
Plaintiff filed a general denial; the cause was submitted to a jury. Each defendant objected to the introduction of evidence on the grounds that the court had no jurisdiction for the reason that all the defendants were nonresidents of McIntosh county. These objections were overruled. The defendant La Fayette demurred to plaintiff's evidence on the ground that plaintiff failed to establish any negligence on his part. The demurrer was overruled. Likewise defendants' request to the court for a directed verdict was denied. The court, upon request of defendants, submitted to the jury a request for a special finding of fact which was as follows:
"* * * It is therefore proper that this question be submitted to you, and therefore you are asked whether or not the oil sold by the Oklahoma Producing & Refining Corporation of America to the Holcomb Oil Company, and in turn sold to Ben F. La Fayette, was of an inferior grade or quality of kerosene, and not suitable to be used for the usual and ordinary purposes to which kerosene is put."
The answer made by the jury to the special interrogatory was as follows:
The judgment of the court was in favor of plaintiff and against the defendants in the sum of $1,000, in accordance with the verdict of the jury. All the defendants appeal and file separate briefs. The assignments of error are similar, and we shall consider them as nearly as possible in the chronological order.
It is first contended that the district court of McIntosh county was without jurisdiction of the defendants and therefore without jurisdiction to render any judgment whatever. The plaintiff was a resident of McIntosh county. The cause of action arose there. The Oklahoma Producing & Refining Corporation of America was a foreign corporation.
Section 205, Compiled Oklahoma Statutes 1921, and article 9, § 43, of the Constitution, provides that a foreign corporation may be sued in any county where the cause of action arose or where the plaintiff resides. Atchison, T. & S. F. R. Co. v. Lambert, 32 Okl. 665, 123 P. 428; Shelby-Downard Asphalt Co. v. Enyart, 67 Okl. 237, 170 P. 708; Martin v. Federal Motor Co., 89 Okl. 273, 215 P. 737.
Section 202, Compiled Oklahoma Statutes 1921, provides, amongst other things, that a suit may be brought against a domestic corporation in the county where the cause of action arose. Summons were served upon the Holcomb Oil Company, a domestic corporation, in the city of Muskogee, the county of its principal office. The defendant La Fayette was served in Oklahoma county.
Section 234, Compiled Oklahoma Statutes 1921, provides:
"Where the action is rightfully brought in any county, the summons shall be issued to any other county against any one or more of the defendants, at the plaintiff's request." Oklahoma Nat. Bank v. Ezzard, 58 Okl. 251, 159 P. 267, L. R. A. 1918A, 411.
Therefore we conclude that under section 202, supra, the cause of action arising in McIntosh county, summons properly issued to the Holcomb Oil Company, the domestic corporation, in Muskogee county, and, that action rightfully being brought against said domestic corporation, summons rightfully issued to La Fayette in Oklahoma county, the trial court properly overruled the motion to quash service of summons.
We consider the second and third assignments of error together. They are as follows: Second, the evidence of plaintiff was insufficient and failed to establish negligence on the part of any of the...
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