Gulf Refining Co. v. Williams

• Decision Date: 12 December 1938
• Docket Number: 33422
• Citation: 183 Miss. 723,185 So. 234
• Court: Mississippi Supreme Court
• Parties: GULF REFINING CO. et al. v. WILLIAMS

185 So. 234

183 Miss. 723

GULF REFINING CO. et al. v. WILLIAMS

No. 33422

Supreme Court of Mississippi, Division A

December 12, 1938

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by Willie Williams against the Gulf Refining Company and others for injuries allegedly resulting from defect in gasoline container which caused a fire. From a judgment for plaintiff, defendants appeal. Affirmed.

Affirmed.

Green Green & Jackson, of Jackson, for appellants.

The peremptory instruction requested by defendants should have been granted. There was no actionable negligence on the part of the defendants.

It is the contention of the appellants that they may not be held liable to the plaintiff because it is probable for a thing to happen in a certain way; that they are only chargeable with the reasonable probabilities of an occurrence within the knowledge of reasonably prudent men.

Commonwealth v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; Lenz v. Standard Oil Co., 186 A. 330; A. L. I., Restatement of Law of Torts, sec. 388; Cliff v. California Spray-Chemical Co., 257 P. 102; Baker v. Sears Roebuck & Co., 16 F.Supp. 925.

There is no proof in this record that the gasoline container was in any way inherently dangerous and there is no proof in this record whatsoever that if this particular drum was in fact harmful that these appellees had any notice thereof or was constructively charged with information thereasto, except through Percy Virden, a negro laborer.

Walstrom Optical Co. v. Miller, 59 S.W.2d 895.

Where buyer of eyeglasses sustains injuries caused by dye on glass frames and dye was harmless to ordinary persons and injuries were due to idiosyncrasy of buyer's skin, buyer could not recover against seller.

Smith v. Kresge Co., 79 F.2d 361; Bird v. Ford Motor Co., 15 F.Supp. 590; Hruska v. Parke, Davis & Co., 6 F.2d 536; A. L. I., Restatement of Torts, sec. 289, page 762; 45 C. J. 888; Woolworth v. Haney, 170 So. 150.

As to the liability of the manufacturer of a defective article for injury to the person or property of the ultimate consumer, the purchaser from the middleman, as is appellee, compare 105 A.L.R. 1502.

Opposite counsel may urge for recovery upon the doctrine of res ipsa loquitur, but counsel is not to be allowed to recover through that doctrine.

Fisher v. Washington Coca-Cola Bottling Works, 84 F.2d 261, 105 A.L.R. 1038; Cone v. Virginia-Carolina Chemical Corp., 178 Miss. 816, 174 So. 554.

We submit that the defendants could not have anticipated that the accident and injury would occur, and not having any knowledge that such a thing would occur, the defendants can not be charged with any actionable negligence such as would permit a recovery under all of the foregoing authorities when applied to the facts without dispute in this case. The peremptory instruction should have, therefore, been given to both of the defendants.

There was no contractual relationship between the plaintiff and these defendants.

Pate Auto Co. v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; Ford Motor Co. v. Myers, 151 Miss. 73, 117 So. 362; Kilcrease v. Motor Co., 149 Miss. 703, 115 So. 193; Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469.

The container was law conforming.

Burnside v. Gulf Refining Co., 166 Miss. 460, 148, So. 219; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 727 So. 236; Goodlander Mill Co. v. Standard Oil Co., 63 F. 400, 27 L.R.A. 583.

The defendant obtained the drum from a reputable manufacturer.

A. L. I., Restatement of Torts, sections 399 and 405; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726; Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N.E. 474; Noble v. Sears Roebuck & Co., 12 F.Supp. 181; Hercules Powder Co. v. Calcote, 161 Miss. 860, 138 So. 583; Pate Auto Co. v. Westbrook Elevator Co., 141 Miss. 419, 107 So. 552; Royal Feed & Milling Co. v. Thorn, 142 Miss. 92, 107 So. 282; Rainwater v. Hattiesburg Coca-Cola Bottling Co., 131 Miss. 315, 95 So. 444; Masonite Corp. v. Dennis, 168 So. 613; Masonite Corp. v. Hall, 170 Miss. 158, 154 So. 295, 95 A.L.R. 157.

We submit that there being no showing that the container or drum had changed in any particular since its manufacture and the fact that it was purchased from a reputable manufacturer, entitled the defendants to a peremptory instruction, they not being the manufacturers of said container.

Cone v. Virgina-Carolina Chemical Corp., 171 Miss. 816, 174 So. 554.

The plaintiff assumed the risk incident to the method used by him in opening the drum.

Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74; Holman v. Bennett, 44 Miss. 322; McInnis v. State, 52 So. 634; Potter v. Fidelity & Deposit Co. of Maryland, 101 Miss. 823, 58 So. 713; Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333, 94 So. 228; McDonald v. Wilmut Gas & Oil Co., 176 So. 395.

The court erred in admitting testimony as to custom and practice in the particular industry.

22 C. J. 176, sec. 116.

Jack M. Greaves, of Madison, and Barnett, Jones & Barnett, of Jackson, for appellee.

As explosives are intrinsically dangerous to human life, the seller's liability is not limited to injuries sustained by the purchaser, but extends to injuries sustained by third persons. His liability is not based on a contractual relation, but upon the duty of the vendor of an article dangerous in its nature, or likely to become so in the course of ordinary usage to be contemplated by the vendor, either to exercise due care to warn users of the danger, or to take reasonable care to prevent the article sold from proving dangerous when subjected only to customary usage.

11 R. C. L. 701; 45 C. J. 845.

The manufacturer and distributor of an inherently dangerous substance owes to the public the duty to exercise care commensurate with the danger of its distribution.

45 C. J. 650, 847 and 849; 61 L.R.A. 306; Palacine Oil Co. v. Philpot, 289 P. 281; Hamblin v. Gano, 76. So. 633; Opple v. Ray, 195 N.E. 81; Robertson v. G. & S. I. R. R. Co., 158 So. 350; Miss. Central R. R. Co. v. Lott, 118 Miss. 816.

In 55 A.L.R. 194, are found full and complete annotations of the duties owing by the seller of explosives to guard against the improper condition of containers, some of the annotations being the following:

Hallenback v. S. Wander & Sons Chemical Co., 197 A.D. 855, 189 N.Y.S. 334; Texas Drug Co. v. Cadwell, 237 S.W. 968; Hooper v. Cooper & Co., 139 A. 19, 55 A.L.R. 187; Guinea v. Campbell, Rap. Jud. Quebec, 22 C. S. 257; Keep v. National Tube Co., 154 F. 121.

In an action for the loss of an eye, due to the explosion of a bottle of coca-cola, it has been held that the manufacturer or vendor of such an article must take reasonable precautions to have receptacles suitable for the use to which they are put.

Wheeler v. Laurel Bottling Works, 111 Miss. 442, L.R.A. 1916E, 71 So. 743; Cashwell v. Fayetteville Pepsi-Cola 729 Bottling Works, 174 N.C. 324, 93 S.E. 901; Stolle v. Anheuser-Busch, 307 Mo. 520, 39 A.L.R. 1001, 271 S.W. 497, 24 N.C. C. A. 727; Grant v. Graham CheroCola Bottling Co., 176 N.C. 256, 4 A.L.R. 1090, 97 S.E. 27, 18 N.C. C. A. 869; Bates v. Batey & Co., 3 K. B. (Eng.) 351; Griffith v. Atlantic Refining Co., 157 A. 791.

As to experimental evidence as to inflammability of explosives see 8 A.L.R. 45 and 85 A.L.R. 479; also 3 Shearman & Redfield on Negligence, sec. 690.

As a general rule, a manufacturer or vendor of a machine or other instrumentality rendered dangerous by the defective construction is liable only to his customer or vendee unless it is contemplated that the thing shall be resold or it is in its nature imminently dangerous, or the act itself unlawful or recklessly dangerous.

1 Shearman & Redfield on Negligence, sec. 117 (a); 2 A. L. I., Torts, sec. 388; Robertson v. G. & S. I. R. R., 158 So. 350; Miss. Central R. R. Co. v. Lott, 80 So. 277; Cooley on Torts (3 Ed.), pages 1486, 1488, 1489; 6 Blashfield, page 17; Morris v. Texas Co., 115 A. 643.

As to any assumption of risk on the part of Willie Williams, we refer the court to the case of Standard Oil Company v. Evans, 122 So. 735.

The defendant said that it could not anticipate or foresee that this drum was likely to cause an explosion and injure Willie Williams. We insist that its duty as a vendor of an inherently dangerous commodity required it to exercise the highest degree of care and that this duty imposed a requirement of careful inspection of that drum for the purpose of discovering bad caps or defective bung holes which would render it unsuitable and unsafe for such a dangerous commodity as gasoline, because this Honorable Court and all persons will know that the rubbing together of two pieces of iron will create a spark and that gasoline when confined will evaporate and give off fumes and vapors, which fumes will expand suddenly and with great force when the pressure is removed and the defendant cannot be heard to say that it could not have anticipated an explosion would occur as shown in this case.

As to the defendant's duties of anticipating injuries likely to occur as they did occur in this case, we cite the court the cases picked at random from the several states which are decisive of the point here raised by the defendant.

Bisson v. Kelly, 170 A. 142; Rosebrock v. General Electric, 236 N.Y. 227, 140 N.E. 571; St. Louis Expanding Metal Fireproofing Co. v. Dawson, 70 S.W. 450; McGlone v. Angus, 161 N.E. 469; Pennsylvania Steel Co. v. Elmore, 175 F. 176; Commonwealth v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; Ward v. Pullman Co., 128 S.W. 606.

Argued orally by Forrest B. Jackson, for appellant, and by Ross R. Barnett, for appellee.

OPINION

Griffith,...