McLeod v. Simon

• Decision Date: 13 September 1924
• Parties: McLEOD v. SIMON et al.
• Court: North Dakota Supreme Court

51 N.D. 533

200 N.W. 790

McLEOD

v.SIMON et al.

Supreme Court of North Dakota.

Sept. 13, 1924.

Syllabus by the Court.

The purpose and effect of chapter 133, S. L. 1921, providing, “When at the close of the testimony any party to the action moves the court to direct a verdict in his favor, and the adverse party objects thereto, such motion shall be denied and the court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken, as either or any party to the action shall request, but upon a subsequent motion, by such moving party after verdict rendered in such action, that judgment be entered notwithstanding the verdict, * * * the court shall grant the same if, upon the evidence as it stood at the time such motion to direct a verdict was made, the moving party was entitled to such directed verdict, * * *” is to defer a ruling by the court on the sufficiency of the evidence until after a verdict has been returned.

When the sufficiency of the evidence has been challenged by motion for directed verdict, a new trial should be granted on that ground, where the cause is submitted to the jury on two distinct inconsistent theories, and the evidence is sufficient to sustain it on one of those theories, but insufficient to sustain it on the other, and it is impossible to say on which theory the jury found, though no exception is taken to the instructions under which the cause is submitted.

Record examined, and held, for reasons stated in the opinion, that the evidence, while sufficient to sustain the verdict on one of the two theories of fact on which the cause was submitted, is insufficient to sustain it on the other theory of fact.

Appeal from District Court, Cass County; M. J. Englert, Judge.

Action by Donald McLeod against Joseph Simon, and the Consumers' Home Oil Company of South Dakota and another. From a judgment for plaintiff, and an order denying its motion for judgment notwithstanding verdict or for new trial, the defendant last named appeals. Reversed, and new trial ordered.A. L. Parsons, of Lidgerwood, and Schneller & Heder, of Wahpeton, for appellant.

Lovell & Horner, of Fargo, for respondent.

NUESSLE, J.

This is an action for damages, claimed on account of the sale to the plaintiff and respondent of an unsafe and dangerous mixture of gasoline and kerosene for illuminating purposes.

From the record it appears that there is no question but that the plaintiff, McLeod, bought oil for illuminating purposes from the defendant Simon, who kept a general store at Wheatland, N. D.; that he used the oil for such purposes; that on May 7, 1920, an explosion resulted from such use, causing a fire, and that the plaintiff was substantially damaged thereby. It further appears that Simon kept the oils that he had for sale in tanks in his storehouse. He had two such tanks, one painted red, to contain gasoline of a capacity of from 160 to 290 gallons; the other painted gray, to contain kerosene of a capacity of from 60 to 110 gallons. The Standard Oil Company and the defendant Home Oil Company were engaged in the business of wholesaling gasoline and kerosene. They supplied their customers, one of whom was the defendant Simon, from their distributing stations by means of tank wagons. In 1919 and 1920 the Standard's agent and driver were first one Askew, and, later, one Klein. The defendant Home Oil Company began business in the month of March, 1920. Askew, formerly employed by the Standard, was appellant's agent and driver. These companies supplied Simon with his gasoline and kerosene. It appears that whichever company Simon happened to be doing business with had an understanding with him that, when its tank came to Wheatland, the driver would fill Simon's containers without any further directions, present the tickets to the cashier, and get the money therefor.

In the fall of 1919, Klein, who was delivering to Simon for the Standard, suggested that the kerosene tank was too small to hold the amount of oil that might be required, and, at Simon's direction, he filled the gasoline tank, as well as the kerosene tank, with kerosene. The date on which this was done does not clearly appear. Klein continued making deliveries as required throughout the winter. He made his last delivery on March 12th. It does not appear from the record, however, whether the commodity then delivered was kerosene or gasoline, or the quantity thereof, or in what container, or containers, it was put.

The defendant, Home Oil Company, began business in March, 1920. Simon liked Askew and arranged to buy from him. On March 23d Askew came to Simon's storehouse, and, without any particular direction from Simon, filled the tanks therein according to the custom which had been followed with Simon. He put 75 gallons of kerosene in the gray tank and 30 gallons of gasoline in the red tank. He was paid therefor by Simon's cashier.

Askew's testimony is that immediately afterfilling the tanks he learned from Simon's son that the oil in the red tank, at the time it was thus filled, was kerosene; that, knowing the dangerous character of the mixture thus resulting for illuminating purposes, he at once advised Simon of the fact; that he suggested locking the tank, and that the mixture in the tank should be disposed of to the local electric light plant for use in its engine; that the tank was locked and a sale was at once made of 100 gallons of the mixture to Powlinson, the owner of the electric plant, and that Askew delivered the same, using his tank wagon for that purpose; that he made his next trip to Wheatland on April 22d; that at that time he learned that Simon was selling the mixture in the red tank for illuminating purposes; that he again advised Simon that it was dangerous and unsafe for such use. He, on this occasion, delivered both kerosene and gasoline, 50 gallons of each, to Simon. Simon procured a small red tank from Powlinson to contain the gasoline. Askew put nothing but kerosene in the gray tank. The defendant company made its next delivery to Simon on May 8th. Askew is corroborated by the testimony of Powlinson, and by other evidence in the record.

Simon testifies that he had no knowledge of the fact of the mixture in the red tank prior to the fire. He admits that Askew told him of the mixture, but testifies that this was at the time of the delivery on May 8th, after the fire; that only one sale was made to Powlinson, and that was of 100 gallons, or thereabouts; it was made after the fire, and the small tank was not obtained from Powlinson until after the fire; that the oil that he sold to McLeod was furnished to him by the defendant Oil Company; that Klein might have delivered for the Standard as late as March 12th; that he does not know how much either of kerosene or gasoline he had on hand on March 23d, or how it was contained. Harry Simon, the son of the defendant Simon, was also called as a witness. Harry testifies that he sometimes helped his father in the store; that he filled the can for McLeod at the time of the purchase; that it was filled from the gray tank.

There is no other testimony in the record as to the tank from which the oil purchased by McLeod came. After the fire a portion of the liquid thus purchased was analyzed by the state oil inspector, and found not to comply with the legal requirements for illuminating oil, and to be unsafe and dangerous as such. It does not appear, however, whether it was unsafe by reason of being a mixture of kerosene and gasoline, or whether it was unsafe and dangerous, and did not comply with the legal requirements, by reason of not being properly refined. In other words, the effect of the testimony of the chemist is simply that it was unsafe and dangerous for illuminating purposes, and did not meet the requirements for illuminating oil as prescribed by chapter 185, S. L. 1919.

The statute (chapter 185, S. L. 1919), prescribes the sort of containers that must be used for gasoline and kerosene. It is made a misdemeanor to put or keep gasoline in any other than a red container, and, likewise, to put or keep kerosene in a red container. Simon had arranged to buy his oil from Askew. Askew, in accordance with the arrangement and the practice followed, went to the storehouse to deliver his wares. He put the oils thus delivered in the containers there provided. One was red; the other gray. He had the right to assume that the red tank contained gasoline, and, so assuming, he was not negligent in not investigating before delivering gasoline therein, and, likewise, he had the right to assume that the gray tank contained kerosene, and there was no negligence in putting kerosene into that tank without investigating as to its contents. The plaintiff claims to recover on account of negligence on the part of Askew. How, then, could Askew be negligent? There...