Kearse v. Seyb

• Decision Date: 27 January 1919
• Citation: Kearse v. Seyb, 209 S.W. 635, 200 Mo. App. 645 (Kan. App. 1919)
• Parties: ALBERT KEARSE, Respondent, v. W. P. SEYB et al., Appellant
• Court: Kansas Court of Appeals

209 S.W. 635

200 Mo.App. 645

ALBERT KEARSE, Respondent, v. W. P. SEYB et al., Appellant

Court of Appeals of Missouri, Kansas City

January 27, 1919

Appeal from Schuyler Circuit Court.--Hon. N. M. Pettingill, Judge.

AFFIRMED.

Judgment affirmed.

Alden Latham & Young, Fogle & Fogle and Charles Martin for appellants.

Higbee & Mills for respondent.

OPINION

ELLISON, P. J.--

Plaintiff as surviving husband brought this action for damages resulting from the death of his wife caused by an explosion of gasoline charged to have occurred through the negligence of defendants. He recovered judgment in the circuit court for $ 7500.

He and his wife, resided in Lancaster, Missouri. On Sunday morning November 4, 1917, the deceased was at home alone with her three small children. She desired to start a fire in the furnace and sent one of the children with a two gallon can to a store kept by Martin for a gallon of kerosene. The child told Martin her errand and he drew into her can from a large vessel the gallon of oil supposed to be kerosene. She returned home with the oil and deceased took it to the basement. Evidence tended to show that deceased attempted to use some of the oil in starting a fire. An explosion followed whereby she was so badly burned that she died in a few hours.

Defendants, Anderson & Gustafson, are wholesale jobbers in oils at Chicago, Illinois, with a branch office at Kansas City, Missouri. Defendant, "The independent Oil and Merchandise Company" is a Missouri Corporation at Kahoka with a branch office at Lancaster, Mo. Defendant Seyb is the manager of the latter company at Lancaster. The storekeeper Martin was not sued. Defendants Anderson & Gustafson alone appeal. The case presented involves a question of negligence of the latter parties, and that is to be solved by the following facts.

There was an institution in El Dorado, Kansas, known as the "Midland Refining Company" and defendants Anderson & Gustafson had bought several cars of kerosene from it among others was car "M D R K 509," and this, according to statement of the Midland Company, had been shipped to them over the Santa Fe R. R. The Midland Company forwarded a bill of lading for it to the latter firm. At this time the president of the Independent Company went to the Kansas City office of Anderson & Gustafson to buy a tank car of kerosene. The manager at that office informed him that they had a car "M D R K 509" then in Kansas City, and he sold the car to the Independent Company. He reported the sale to the Chicago office and that office ordered the Santa Fe railroad to divert the car M. D. R. K. 509, to the Independent Company at Lancaster, Missouri, over the C. B. & Q. R. R. Co., and that was done; and defendants Anderson & Gustafson wrote the Independent Company that car M. D. R. K. 509, containing kerosene had left Kansas City for Lancaster on the C. B. & Q. R. R. at 7:30 A. M. October 26th. In order to effect the diversion Anderson & Gustafson surrendered to the Santa Fe R. R. the bill of lading covering this car issued by that railroad and secured an "exchange bill of lading" from them as consignors to the Independent Company as consignee which bill likewise described the car as "M. D. R. K. 509," containing kerosene. The car was taken to Lancaster by the C. B. & Q. R. R. and delivered (with written invoice describing the car sold) to defendant Seyb, who we have already stated, was agent at that place for the Independent Company. Seyb then sold ninety-eight gallons out of this car as kerosene oil to Martin the storekeeper and put it in the latter's tank. Shortly thereafter, as we have said, Martin sold a gallon of it to plaintiff's child for her mother and the tragedy followed. Neither of the defendants inspected the oil. Martin sold small quantities to other customers at his store and there was evidence tending to show that defendant Seyb became aware that the oil was at least partly gasoline.

In behalf of defendant there was evidence tending to prove that in point of fact car M. D. R. K. 509 was not filled with kerosene, and it was never in fact, shipped to Anderson & Gustafson from El Dorado, Kansas. On the contrary that car was placed on a side track of the Santa Fe R. R., El Dorado, where it remained several days. At this time the Midland Company of El Dorado received an order from an oil refining company in Illinois for a car of gasoline and this order was filled by shipping to that company from El Dorado, via Kansas City, this car M. D. R. K. 509 marked "Gasoline, Inflammable." The Santa Fe R. R. agent at El Dorado made out a new way bill for the car and cancelled the old one, but the bill of lading to Anderson & Gustafson was not recalled and no notice was given to them and they did not know that the car of kerosene which they sold to the Independent Company had never been shipped from Kansas when they sold it to the Independent Company.

When the car got to Kansas City the Santa Fe R. R. agent had received his order to divert it to the Independent Company at Lancaster and seeing that the description "car M. D. R. K. 509," was the same as that in his order, he diverted the car of gasoline intended for the oil company in Illinois to the Independent company at Lancaster. In that way occurred the mistake resulting so disastrously to plaintiff's wife.

By the provisions of our oil inspection statute, as amended and reenacted in Laws of 1913, page 373, sections 6836, 6838b, it was the duty of Anderson & Gustafson to have inspected the car of oil they sold to the Independent company before allowing it to be delivered to that company. If they had inspected it before forwarding to the Independent company at Lancaster, they would have discovered it was not kerosene. By not inspecting they set in motion a cause which led directly to distribution among a community of consumers.

The inspection statute (Sec. 6836) just cited, requires kerosene and other oils sold in this State, to be inspected and the evidence in plaintiff's behalf discloses that the car sold by Anderson and Gustafson was then in Kansas City. The sale was therefore covered by the statute. We note that counsel seek to qualify the statement as to the place of sale. But...