Gordy v. Pan American Petroleum Corporation

• Decision Date: 22 January 1940
• Docket Number: 33946
• Court: Mississippi Supreme Court
• Parties: GORDY v. PAN AMERICAN PETROLEUM CORPORATION et al

193 So. 29

188 Miss. 313

GORDY v. PAN AMERICAN PETROLEUM CORPORATION et al

No. 33946

Supreme Court of Mississippi, Division B

January 22, 1940

Suggestion Of Error Overruled March 4, 1940.

APPEAL from the circuit court of Sharkey county HON. R. B. ANDERSON Judge.

Personal injury suit by Mrs. B. B. Gordy against the Pan American Petroleum Corporation and others. From an adverse judgment plaintiff appeals. Judgment reversed, and cause remanded for a new trial.

Reversed and remanded.

Clements & Clements, of Rolling Fork, and V. B. Montgomery, of Belzoni, for appellant.

It was a question for the jury whether P. L. Domengeaux was a servant of the Pan American Petroleum Corporation or an independent contractor.

Pan American Petroleum Corp. v. Pate, 126 So. 480, 157 Miss. 822; Caver v. Eggerton, 157 Miss. 88, 127 So 727; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Gulf Refining Co. v. Nations, 145 So. 327, 167 Miss. 315; Standard Oil Co. v. Franks, 149 So. 798, 167 Miss. 282; Texas Co. v. Mills, 156 So. 866, 171 Miss. 231; La. Oil Corp. v. Renno, 157 So. 705, 173 Miss. 609; Shell Petroleum Corp. v. Linham, 163 So. 839; Texas Co. v. Jackson, 165 So. 546, 174 Miss. 737; Note in 116 A. L. R. 457; Standard Oil Co. v. Parkinson (C. C. A. 8th), 152 F. 681; Estes v. Anderson Oil Co., 93 Ind.App. 365, 176 N.E. 560; Coffman v. Shell Petroleum Corp., 228 Mo.App. 727, 71 S.W.2d 97; Gulf Refining Co. v. Huffman, 155 Tenn. 580, 297 S.W. 199; Texas Co. v. Ingram, 16 Tenn.App. 267, 65 S.W.2d 208; Gulf Ref. Co. v. Rogers (Tex. Civ. App.), 57 S.W.2d 183; Laws of 1936, Chap. 162, pp. 187-190, 195.

If Domengeaux was the oil company's servant, then the case should also have been submitted to the jury as to whether these two defendants were negligent under all of the facts and circumstances after the substance reached Belzoni, Mississippi.

Jackson Coca Cola Bottling Co. v. Chapman, 64 So. 791, 106 Miss. 864; Ellis v. Republic Oil Co., 133 Iowa 11, 110 N.W. 20.

One who puts out as his own a chattel manufactured by another is subject to the same liability for injury caused by defects in the chattel as though he were its manufacturer.

Swift & Co. v. Hawkins, 164 So. 231, 174 Miss. 253; Thornhill v. Carpenter-Morton & Co., 220 Mass. 593, 108 N.E. 474; Note in 111 A. L. R. 1240, 1241; Lill v. Murphy Door Bed Co. (Ill. App. ), 8 N. E. (2d) 714; Restatement of the Law, Torts, Sec. 400, pp. 1086, 1087; J. C. Penney & Co. v. Morris, 163 So. 124, 173 Miss. 710; Farmers Gin Co. v. Leach, 174 So. 566, 178 Miss. 784; Standard Oil of Ky. v. Evans, 122 So. 735, 154 Miss. 475; 25 C. J. 189, sec. 12; 22 Am. Jur. 195, sec. 71; Miss. Power & Light Co. v. McCormick, 166 So. 534, 175 Miss. 337; Ness Creameries v. Barthes, 155 So. 222, 170 Miss. 865; Gulf Ref. Co. v. Williams (Miss.), 185 So. 235; Curry & Turner Const. Co. v. Bryan (Miss.), 185 So. 256; 17 A. L. R. 672; 39 A. L. R. 992; 63 A. L. R. 340; 105 A. L. R. 1502; 111 A. L. R. 1239.

The vendor of an inherently dangerous commodity such as gasoline or tractor fuel is under duty to use cautious care to distribute same under its proper name and label as defined and specified by the statute specifically requiring every such vendor to test the product within thirty days prior to its delivery and in connection with which delivery the statute itself provides that there is an implied warranty of the grade of the product sold or delivered and violation of which constitutes negligence per se.

Laws 1938, Chap. 144, pp. 231, 255, 256, and Chap. 145, p. 269, sec. 3 (h) and 3 (h) (3). sec. 3 (j) (1 to 6, inc.), and pp. 271, 272, sec. 5, and pp. 273, 274 secs. 9 and 12; Stowell v. Standard Oil Co., 139 Mich. 18, 102 N.W. 227, 17 Am. Negl. Rep. 569; Peterson v. Standard Oil Co., 55 Ore. 511, 106 P. 337, Am. Ann. Cases (1912A) 625.

There was no negligence on the part of the cook in kindling the fire, and the negligence of the defendants, or one of them, was the sole negligence shown.

Waters-Pierce Oil Co. v. Deselms, 21 U.S. 159, 53 L.Ed. 453, 39 S.Ct. 270; Ky. Ind. Oil Co. v. Schnitzler (Ky.), 271 S.W. 570; 39 A. L. R. 979.

Butler & Snow, and Wells, Wells & Lipscomb, of Jackson, for appellee, Pan American Petroleum Corporation.

We are confident that the relation existing between the Pan American Petroleum Corporation and Domengeaux was not that of master and servant, but that Domengeaux was purely an independent dealer or an independent contractor. If the court agrees with us in this position, then under the proof in this case there can be no liability on the part of the Pan American Petroleum Corporation.

We submit that the requirement in the contract that Mr. Domengeaux should sell the products furnished by the Pan American Petroleum Corporation under the trade name of the corporation, and that the equipment should be painted in the customary colors, indicating to the public that Pan American Products were sold, in no manner interferes with the relation of Mr. Domengeaux as an independent merchant.

Secs. 5 and 14, Chap. 163, Laws 1936.

We submit that there is not one element of the servant in the relation of Mr. Domengeaux to the Pan American Petroleum Corporation contained in either the lease contract or the sales agreement, which were the two contracts existing between Mr. Domengeaux and the Pan American Petroleum Corporation at the time the sale in question was made.

The Pan American Corporation simply sold Mr. Domengeaux the merchandise and collected its money for it from him and from then on out the business was Mr. Domengeaux's and was run by him as he saw fit exactly as any other merchants would run his business.

Such cases as Pan American Petroleum Corporation v. Pate, 157 Miss. 822; Gulf Refining Co. v. Nations, 167 Miss. 315; Texas Oil Co. v. Mills, 171 Miss. 231; La. Oil Corp. v. Renno, 173 Miss. 609; and Texas Oil Co. v. Jackson, 174 Miss. 737, are not in point and are not controlling here. These are commission agent cases.

Quite recently this court in Texas Co. v. Wheeless, 187 So. 880, and American Oil Co. v. Wheeless, 187 So. 889, discussed the legal point involved here and had under consideration relations somewhat similar to that involved between the Pan American Petroleum Corporation and Mr. Domengeaux and his employees. In these cases the court reached the conclusion that the distributors were not servants but were independent contractors.

Cook v. Wright, 177 Miss. 644; Crosby Lbr. Co. v. Durham, 181 Miss. 559; Shell Petroleum Corp. v. Linham, 163 So. 839; N. O., etc., R. R. v. Norwood, 62 Miss. 565; Callahan Const. v. Rayburn, 110 Miss. 107; Till v. Fairbanks-Morse & Co., 111 Miss. 123; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1; Louis-Werner Sawmill Co. v. Northcutt, 161 Miss. 441; McDonald v. Hall-Neeley Lbr. Co., 165 Miss. 143; Crescent Baking Co. v. Denton, 147 Miss. 639.

If Domengeaux was not the servant of the Pan American Petroleum Corporation, then plaintiff's entire case fails against Pan American Petroleum Corporation.

We say that the proof wholly fails to show that the Pan American Petroleum Corporation negligently shipped and delivered the five gallons of fluid purchased by plaintiff's husband from Mr. Domengeaux's place of business at Belzoni to Mr. Domengeaux as kerosene when the same was in fact a more highly volatile substance (tractor fuel).

The burden was on the plaintiff to prove that the five gallons of fluid sold by Rufus Johnson to plaintiff's husband on the night of April 5, 1938, was in its then form shipped and delivered by Pan American Petroleum Corporation to Mr. Domengeaux. The burden was on the plaintiff to prove that that shipped and delivered by the Pan American Petroleum Corporation to Mr. Domengeaux as kerosene was not at the time of the delivery kerosene; that the kerosene as shipped did not become mixed with some other substance after it left the possession of Pan American Petroleum Corporation. In other words, the plaintiff must prove that the mixing did not occur after it got into the hands of Mr. Domengeaux and of Mr. Domengeaux's servants, and, incidentally, a mere possibility that such was not the case is not sufficient.

Cudahy Packing Co. v. Baskin, 170 Miss. 834; Cudahy Packing Co. v. McPhail, 170 Miss. 508; Johnson v. Swift & Co., 191 So. 423; Wheeler v. Laurel Bottling Works, 111 Miss. 442; Kramer Service v. Wilkins, 186. So. 625.

Our court is committed to the rule that if a distributor of food stuffs puts out an article of food containing impurities and a consumer who purchases the same from a retailer is injured thereby, although the distributor did not manufacture the food, but did put the same out under its name, then the distributor is liable therefor.

Swift & Co. v. Hawkins, 164 So. 231.

But our court has definitely limited this rule to articles constituting food stuffs.

Cone v. Virginia-Carolina Chemical Corp., 174 So. 554, 178 Miss. 816.

That the court is definitely committed to the proposition of non-liability of a distributor who purchases articles from a responsible manufacturer, and that it is not going to extend the exceptions to this rule to cover articles other than those intended for human consumption is plainly illustrated by the case of Hercules Powder Company v. Calcote, 161 Miss. 860.

Mississippi is committed to the doctrine that except as to articles intended for human consumption, the manufacturer, producer, or distributor is not liable to third persons for impurities or defects in an article occasioning injury purchased from a retailer. There are two lines of authorities on this point, but Mississippi has never extended the rule except as above set forth.

Pate Auto Co. v. Westbrook Elevator Co., 142 Miss. 419; Kilcrease v. Galtney Motor Co., 149 Miss. 703; Ford Motor Co. v. Myers, ...