Gulf Refining Co. v. Brown

• Decision Date: 04 January 1938
• Docket Number: No. 4215.,4215.
• Citation: 93 F.2d 870,116 ALR 449
• Parties: GULF REFINING CO. v. BROWN.
• Court: U.S. Court of Appeals — Fourth Circuit

116 ALR 449, 93 F.2d 870 (1938)

GULF REFINING CO. v. BROWN.

No. 4215.

Circuit Court of Appeals, Fourth Circuit.

January 4, 1938.

Tom Irvin Gill, of Danville, Va. (Carter & Williams and Margaret L. Carter, all of Danville, Va., on the brief), for appellant.

E. Walton Brown, of Danville, Va. (Clinton A. Fowler, of Danville, Va., on the brief), for appellee.

Before PARKER, NORTHCOTT and SOPER, Circuit Judges.

SOPER, Circuit Judge.

The Gulf Refining Company, defendant in the District Court, appeals from a judgment of $10,000 rendered at the suit of the administratrix of the estate of Percy Edward Brown upon the claim that he had come to his death by reason of the neglect of agents of the refining company, in that they had sold and delivered as kerosene oil a dangerous mixture of kerosene and gasoline which exploded when he made use of it for the purpose of kindling a fire in a wood stove. The question of contributory negligence was submitted to the jury and no defense on this ground was raised in this court. The refining company, however, does contend that the evidence was not legally sufficient to justify the submission of the case to the jury; and that, even if negligence was proved, it was not attributable to the defendant but rather to one P. S. Ford who sold and delivered the goods, it is claimed, as an independent contractor.

The petroleum products of the refining company were distributed in Pittsylvania county, Va., in which the accident occurred, from a tank wagon station in the city of Danville, under an agreement called a consignment contract. It provided that the consignor should furnish a storage warehouse at Danville and should ship to the consignee a stock of oils, gasoline, and other petroleum products to be sold by the consignee at prices fixed by the consignor; that the consignee should devote his best efforts to the sale and distribution of the products in the territory assigned to him and transmit to the consignor a monthly statement of sales and stock on hand. Sales were to be made for cash, unless credit sales were authorized in writing by the consignor. Daily statements of sales and deliveries were to be mailed to the consignor and daily remittances of the money received from cash sales and of signed receipts for credit sales were to be made by the consignee. Every month the consignor was to render a written statement and to remit to the consignee the commissions earned during the preceding month.

It was also expressly agreed that the consigned stocks should remain the property of the consignor until sold in the regular course of business; that the consignee should have entire charge of the management and operation of the business; that he should pay all license fees and furnish all necessary equipment, trucks, tank wagons, etc.; that he should furnish his own helpers and employees, and pay the expenses of conducting the business, and that the consignor should not in any event be responsible for the negligence of the consignee or his employees in conducting the business; that the consignee and his employees should not be deemed to be the employees of the consignor and that the consignee should carry compensation and public liability insurance for himself and his employees. The consignor reserved the right to erect and maintain on the warehouse property such signs as it might deem necessary to advertise its products; and the consignee was authorized to use the words "Distributor, Gulf Refining Products" on his stationery and equipment, but he was forbidden to represent himself as an agent or employee of the consignor and agreed to indemnify the consignor against all claims for acts or omissions of himself or employees in the management of the business, negligent or otherwise. The contract was not assignable and was subject to termination by either party on ten days' written notice to the other.

The product used by the deceased at the time of the accident was transported to the home of Miss Nellie Dodson on a delivery truck bearing the name of the refining company or the symbol "Gulf Products." The truck was in charge of O. E. Russell and P. S. Ford, Jr., employees of the consignee. They made out a ticket headed "P. S. Ford, Distributor for Gulf Refining Company" showing a sale to Miss Dodson of 55 gallons of kerosene delivered from the Danville station. The sales ticket showed that payment for the goods was to be made at the office of the refining company in Philadelphia, but the money was actually paid to Russell and Ford and deposited by them to the credit of the company in its Danville Bank. Five gallons of this product were delivered directly by Ford's employees to the wife of the deceased as a customer of Miss Dodson; and it was taken to the home of the decedent. The evidence of the plaintiff tended to show that the oil so delivered, instead of being standard kerosene, contained 16 per cent. of gasoline. The delivery truck had three separate tanks or compartments and, on the occasion described, the front and middle tanks were filed with gasoline and the rear tank, ordinarily used for gasoline, was filled with kerosene. Before the delivery to Miss Dodson, 108 gallons of kerosene were by mistake pumped into the gasoline tank of a customer who wanted gasoline, and, the mistake being discovered, the liquid in the customer's tank was pumped back into the truck. From the ensuing mixture, the delivery to Miss Dodson was made.

It is the position of the defendant that the evidence relating to the explosion and the injury to the deceased was too indefinite to justify the inference that the accident was caused by the inflammable character of the mixture. The deceased lived in a log house, consisting of a main room, two stories high, and two one-story shed rooms, one of which was the kitchen. The main room was used as a living room and bedroom for husband and wife and two young children. It was the daily custom of the deceased, when he arose in the morning, to light a fire in the wood stove in the kitchen by placing kindling wood in the firebox, pouring kerosene over it from a 1-gallon can, and applying a match. The 1-gallon can had been filled from the 5-gallon can the night before the catastrophe. About 5:30 a. m. the next morning, the deceased got out of bed and went to the kitchen in his underclothes. His wife remained in bed but was awake. She testified that her husband had been in the kitchen only long enough to put the kindling in the stove and light the fire when she heard an explosion, like a gun shot. Running to the kitchen, she found it so filled with dense black smoke that she could not see her husband. She endeavored to leave the room by other doors but was unsuccessful, and in a very brief time her husband came into the main room from the kitchen with his garments afire and so badly burned that he died the same day. When the neighbors responded to the alarm, they found that the kitchen walls and ceiling, the kitchen furniture, and the stove wood in the corner of the room were on fire. Two of the caps of the stove top were off, the 1-gallon can was lying on the floor with the bottom off, and the window glass had been blown out. There was a little fire in the wood in the firebox in the stove as if some one had just started to build a fire.

There was evidence that some of the contents of the 5-gallon can had been used in a lamp the night before without explosion, and also that other persons had used some of the mixture bought by Miss Dodson in lamps and for making fires without harm. Two witnesses for the defendant testified that in their opinion the bottom of the 1-gallon can was not blown off by an explosion, since the weaker side seam of the can had not been disrupted, and hence they concluded that the can had been set on a hot stove so as to melt the solder and release the contents of the can. It would require a temperature of 400 degrees Fahrenheit to accomplish this result.

The defendant contends that this evidence justifies the inference that the fire was caused by setting the can on a hot stove or that, in the view most favorable to the plaintiff, it is impossible, in the absence of direct testimony, to say whether the accident was caused in this manner or by an explosion while the fire was being kindled; and that since the circumstances proved are consistent with either of the two theories, and there is nothing to show that one, rather than the other, is correct, the plaintiff's case must fall. See Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Bonner v. Texas Co., 5 Cir., 89 F.2d 291.

But a chemist testified, without contradiction, that an analysis of the contents of the 5-gallon can disclosed a liquid that gave off a vapor with a flash point on contact with a lighted match below 50 degrees Fahrenheit, and that the mixture was not safe for domestic consumption. Hence the dangerous character of the delivered goods and their susceptibility to explosion and disastrous accident was proved. Moreover, the short time elapsing between the entry of the deceased into the kitchen and the explosion, and the absence of a hot fire in the stove after the explosion, tended to show that the bottom of the 1-gallon can was not melted off. We conclude, therefore, that the evidence was sufficient to sustain a reasonable inference of an explosion from the use of an adulterated and dangerous...