Gately v. Taylor

• Decision Date: 26 February 1912
• Citation: 97 N.E. 619,211 Mass. 60
• Parties: GATELY v. TAYLOR et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 60

97 N.E. 619

GATELY v. TAYLOR et al.

Supreme Judicial Court of Massachusetts, Middlesex.

February 26, 1912

COUNSEL

J. E Cotter and M. J. Connolly, for plaintiff.

G. L Mayberry and T. F. Carey, for defendants.

OPINION

BRALEY J.

The plaintiff sues in tort under Rev. Laws, c. 102, § 108, and at common law to recover damages for the conscious suffering of his wife and intestate, alleged to have been caused by the wrongful acts of the defendants. The refusal to give the first three requests, that upon all the evidence and the pleadings the plaintiff could not recover under either count presents for decision, as the principal question, whether the jury were warranted in returning a general verdict for the plaintiff. Oulighan v. Butler, 189 Mass. 287, 289, 75 N.E. 726; Murphy v. Russell, 202 Mass. 480, 89 N.E. 107. The defendants as retail dealers in hardware and stoves kept for sale and sold, with other stove polishes, a liquid stove polish known as '6-5-4 Self- Shining Stove Lusta.' It was contained in small round cans with a label on which, under the heading of directions, the excellencies of the preparation as a stove polish and the manner of application were elaborately printed. The article with the knowledge and assent of the defendants, as appeared by their testimony, had been advertised in the local papers by the manufacturers from whom they purchased it in bulk, as being kept for sale by them, and although the advertisement recommended its use they were ignorant of its composition. The conflicting expert testimony left to the jury the credibility of the witnesses, and the weight of the evidence, and they could accept the opinion of the plaintiff's witness, who positively stated that it was 'naphtha with some pigment, and a little thickening,' and 'notwithstanding all that is said about qualifying phrases it is naphtha just as much as half a dollar is silver,' rather than the conclusion of the defendants' expert, that it was 'an asphalt paint.' The son of the decedent at her request bought a can of the defendants and in the afternoon of the day of purchase, while she was using the contents on a cooking range in which the fire had not been extinguished, and explosion suddenly followed, enveloping her in flame and causing such grave injuries that her death followed after a period of intense pain. If it were not that the defendants urge the question of her due care, it would be unnecessary to add that the 'directions' specified, 'if a greater luster is desired apply when iron is warm,' and that generally stove polishes in common experience do not explode, even when applied to heated surfaces. It is sufficient that as matter of law, she was not shown to have been careless. Baldwin v. American Writing Paper Co., 196 Mass. 402, 407, 82 N.E. 1; Thompson v. Cambridge Gas Light Co., 201 Mass. 77, 87 N.E. 486.

The substantial inquiry upon this evidence is the construction to be given to Rev. Laws, c. 102, § 108, making it a penal offense to sell, offer, or keep for sale, 'naphtha under an assumed name.' Naphtha has been defined as a product of petroleum intermediate between the associate products of gosoline and benzine, all of which do not differ in their essential nature, but vary only in the degree of inflammability when brought into contract with radiant heat. Webster's New International Dict.; Morse v. Buffalo Fire & Marine Ins. Co., 30 Wis. 534, 536, 11 Am. Rep. 587. The inflammable and explosive qualities of petroleum and its products have been generally recognized, as calling for statutory regulations governing their storage and sale, for the protection of the public; and in this jurisdiction the first legislation upon the general subject is St. 1865, c. 244. The statute, however, and the succeeding St. 1866, c. 285, which repealed the prior act, went no farther than to provide that crude petroleum or any of its products should not be kept, manufactured or refined in quantities exceeding 500 gallons without a license from the public authorities, unless 'stored, kept, munufactured or refined in detached and properly ventilated buildings specially adapted to the purpose, and surrounded by an embankment so constructed as to prevent the overflow of said petroleum or any of its products' beyond the premises. The next enactment, which repealed St. 1867, c. 286, is entitled 'An act regulating the sale of coal and petroleum oils.' By section 5 any person who sold, kept or offered for sale naphtha under the name of oil was upon conviction subject to fine or imprisonment or both, and by section 2 also was made liable in damages to any person suffering injuries from the explosion or ignition of such oil unlawfully sold. Wellington v. Downer Kerosene Oil Co., 104 Mass. 64. St. 1869, c. 152, followed, and while by section 2 no person shall mix for sale naphtha and illuminating oils or shall sell or offer for sale such mixtures unless for the purposes or remanufacture into illuminating oil made from coal or petroleum, which would not ignite beyond a fixed standard of temperature, by section 4, the sale of naphtha under an assumed name was for the first time generally prohibited. This section appears without change in Pub. St. 1882, c. 102, § 71, and Rev. Laws, c. 102, § 108. It is not impossible to say that the prohibition refers only to the sale of naphtha under the name of petroleum or some of its other enumerated products. But this would not reach the mischief which the statute obviously was intended to prevent. The designations under which naphtha might be sold would be as various as its fluid nature would permit, and the seller would not be subject to a penalty. A commercial compound of which one of the substantial parts might be naphtha, yet when combined with other ingredients it became as a whole a distinct and independent product, would not come within the statute. But if the contributed parts merely supplied coloring to the fluid, with a slight thickening, making the mixture adhesive when applied, then the jury must determine whether the article sold does not remain really and essentially naphtha. Com. v. Wentworth, 118 Mass. 441, 442.

The statutory regulation is absolute, and in a criminal prosecution want of knowledge by the seller would not be a defense. He violates the statute, which is a police regulation, at his peril. Com. v. New York Central & Hudson River Railroad, 202 Mass. 399, 88 N.E. 764, 23 L R. A. (N. S.) 350, 135 Am. St. Rep. 507; Com. v. Mixter, 207 Mass. 141, 93 N.E. 249, 31 L. R. A. (N. S.) 467. Section 108, however, not only imposes a penalty, but under section 106 the defendants, if found to have transgressed, also were made liable in a civil action for any damage suffered by the decedent from the explosion or ignition of the naphtha, independently of any question of negligence on their part. Wellington v. Downer Kerosene Oil Co., 104 Mass. 64, 70; Hourigan v. Nowell, 110 Mass. 470, 473. The allegations of the first count were sufficient under the statute, and the jury were...