Mahlstedt v. Ideal Lighting Co.

• Decision Date: 22 December 1915
• Docket Number: No. 10187.,10187.
• Parties: MAHLSTEDT v. IDEAL LIGHTING CO.
• Court: Illinois Supreme Court

271 Ill. 154

110 N.E. 795

MAHLSTEDT

v.IDEAL LIGHTING CO.

No. 10187.

Supreme Court of Illinois.

Dec. 22, 1915.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Rock Island County; Robert W. Olmsted, Judge.

Action by Jennie Mahlstedt, executrix, against the Ideal Lighting Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings error. Affirmed.

Cooke, J., dissenting.Searle & Marshall, of Rock Island, for plaintiff in error.

George W. Wood, of Moline, for defendant in error.

CARTER, J.

This action was brought by defendant in error in the circuit court of Rock Island county to recover from plaintiff in error damages for the death of her husband, which, it was alleged, was caused by the negligence of plaintiff in error. On a trial before a jury a verdict was returned in favor of defendant in error, and judgment entered thereon. On appeal to the Appellate Court that judgment was affirmed. The cause has been brought here on petition for certiorari.

Daniel Mahlstedt, at the time of his death and for several years previous, resided with his wife on his farm about 15 miles east of the city of Rock Island. He was injured on May 21, 1911, by an explosion of gas or vapor in his farmhouse, and afterwards died of blood poisoning caused by those injuries. Plaintiff in error is a corporation located in Davenport, Iowa, engaged in the manufacture and sale, among other things, of gasoline lighting and heating systems. Whiteside Bros., located in Joslin, Rock Island county, Ill., a few miles from the Mahlstedt farm, were engaged in the general implement business, and while conducting that business had handled and installed a number of the plaintiff in error's lighting systems or machines. These systems appear to have been sold to a large extent in the country districts, being installed in homes where illuminating gas or electricity was not available. H. S. Busier was a traveling salesman for plintiff in error. A short time before the accident to Mahlstedt Busier called at the store of Whiteside Bros. and suggested that one of them go out with him to see if they could not work up some business, and George Whiteside accordingly drove around the adjoining country in his automobile with Busier, calling on Mahlstedt among others. The evidence is not very complete as to what took place during this visit, as Mahlstedt and Busier are both dead. As a result, however, of this trip Mahlstedt agreed to purchase one of the lighting systems, and drove from his farm to plaintiff in error's factory at Davenport, Iowa, May 18, 1911, and took the machine home with him in his wagon, and also took with him some gasoline from the Standard Oil Company. There is a controversy as to whether Whiteside Bros. or plaintiff in error was to install the machine. We think it is clear, however, that Whiteside Bros. were to furnish the necessary materials and do the work for the installation of the system, and that plaintiff in error was to send an expert to look over the work and start the plant. The work was commenced by George Whiteside and a helper on Friday, May 19th, and continued on Saturday. Busier came out Saturday morning from Devenport, and remained all day on the farm, taking part in the installation of the system. The plant consisted of a carburetor, a blower, the apparatus that ran the blower, and various connecting pipes. The carburetor was placed in a hole dug in the ground outside of the building, and was intended to be covered with earth. It contained two compartments, in one of which gasoline was placed. By means of a heavy weight and fan the blower forced air through the gasoline in said carburetor, forming a gasoline vapor, which was then led to the house through a pipe and distributed through various pipes to the stove and gasburners. By Saturday evening, May 20th, the lighting system was sufficiently installed so that it could be started and used for house purposes, but the carburetor, placed in a hole in the yard 20 or 30 feet from the house, had not yet been covered by dirt. The lighting system was operated that evening at Busier's suggestion, he himself starting it, and Mrs. Mahlstedt used it for getting supper for all the people there. There was something more to be done to finish the installation, including the covering of the carburetor with earth, and Busier and Whiteside left with the understanding that Whiteside should return Monday and Complete the work. The next day, Sunday, May 21st, was bright and hot. The Mahlstedts used the plant for lighting and cooking purposes during the day, but towards night Mrs. Mahlstedt was unable to light a burner. She so informed her husband, and he went into the basement to investigate, and, lighting a match to see what was the matter, was fatally injured by an explosion of gas, as was also a young girl who assisted Mrs. Mahlstedt with her work.

[1] Counsel for plaintiff in error insist that the machine was sold to Mahlstedt by Whiteside Bros, who were to install it, and therefore plaintiff in error cannot be held liable for any defect in installation; that the evidence shows no defect in the machine that would make said company liable, in selling goods to a retailer, for an injury to one purchasing from said retailer. On May 18th, when Mahlstedt obtained this lighting system from plaintiff in error at its factory, in accordance with an arrangement made the day Busier and George Whiteside called at Mahlstedt's farm, plaintiff in error sent Whiteside Bros. an invoice of the items they had delivered to Mahlstedt, stating, among other things, ‘Sold to Daniel Mahlstedt and charged to Whiteside Bros.,’ and a letter accompanying said invoice, saying, ‘We trust you will lose no time in installing the outfit for our customer.’ There is some controversy as to what conversation took place at the factory at the time this lighting outfit was delivered to Mahlstedt, one of the company's employés stating that Mahlstedt said that Whiteside Bros. were to install it, while other witnesses testified that no such statement was made by Mahlstedt. Mahlstedt at that time may not have known with certainty whether he was buying from plaintiff in error or Whiteside Bros., because he asked whom he should pay, and was told by one of the company's officers that it made no difference; that he could pay either, as he desired. The invoice sent to Whiteside Bros. was subject to a commission and discount. As between plaintiff in error and Whiteside Bros. it was treated as a sale by the latter, and the purpose of plaintiff in error in furnishing its agent, Busier, to solicit trade was doubtless to create a demand for its goods, which were to be handled in that locality by Whiteside Bros. in their business as retail merchants. Beyond question, however, the weight of the evidence shows that Busier sold the lighting system, and tends to show that he was in charge when it was installed. We shall have occasion to refer to this later, however, in discussing the questions involved herein. Manifestly on this record the jury were warranted in finding that as between Mahlstedt and plaintiff in error it was plaintiff in error, and not Whiteside Bros., that sold and undertook to install the system, and therefore that plaintiff in error could be held liable in that capacity, and not merely as manufacturer. Instructions were given for plaintiff in error which correctly stated the law as to the right to recover from plaintiff in error if the jury believed that the sale was made by Whiteside Bros., and not by plaintiff in error. This being so, it is unnecessary to consider or discuss the numerous authorities cited by plaintiff in error that there can be no recovery against it as manufacturer of this lighting system.

Defendant in error insists that the air pipe between the carburetor and the blower was not properly installed; that it was not erected of sufficient height so that the weight of the column of gasoline standing in it would overcome the vapor pressure before the column of gasoline would reach the top of the pipe, and that on this account the gasoline was forced through the pipe and blower into the cellar, and thus made possible the explosion; that the carburetor was improperly placed and improperly left uncovered. Whatever may be the fact as to the placing of the pipes properly or improperly, without doubt the cause of the accident was the effect of the sun's heat on the gasoline in the carburetor on Sunday, May 21st, and had the carburetor been covered before it was used the accident would not have happened. George Whiteside testified that when he left Saturday night he told Mahlstedt that the carburetor must be covered before using it, to prevent the heating of the gasoline, but that Busier, who was taking part in the conversation, said it did not make much difference. Whiteside further stated that he could not say that he told Mahlstedt that there would be any danger in using the plant if the carburetor was not covered.

Counsel for plaintiff in error earnestly contend that Busier was not in charge of the installation of the plant. Whiteside testified that Busier took entire charge, and at least one other witness and eimployé of Mahlstedt testified to the same effect, and most of the evidence admitted by the court tends strongly to support the same conclusion. It is true that Whiteside testified that Busier said to him that he had never helped install a machine before, and that Whiteside admitted that he had assisted in installing two or three, but it is also true that Busier had been the active agent in selling this machine, and the evidence, as we have stated, tends strongly to support the conclusion that he was in charge of installing it. After the accident Mahlstedt asked a neighbor to telephone Busier to come and see about the explosion. It is not shown in the record that Mahlstedt knew that Busier was not an expert in installing machines, or that he...