Merchants' Bank v. Sherman

• Decision Date: 16 December 1926
• Docket Number: 1 Div. 403
• Citation: 215 Ala. 370,110 So. 805
• Parties: MERCHANT'S BANK v. SHERMAN et al.
• Court: Alabama Supreme Court

110 So. 805

215 Ala. 370

MERCHANT'S BANK v. SHERMAN et al.

1 Div. 403

Supreme Court of Alabama

December 16, 1926

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by the Merchants' Bank, as administrator of the estate of Effie Matthews, deceased, against Bert R. Sherman and others individually and as copartners doing business under the firm name of Mobile Oil Company. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading. Reversed and remanded.

Harry T. Smith & Caffey, of Mobile, for appellant.

Armbrecht & Hand, of Mobile, for appellees.

THOMAS J.

The appellant took a nonsuit on account of the adverse rulings in sustaining demurrers to the several counts of the complaint.

The effect of the amended counts is that it is charged that the defendant negligently created a dangerous kerosene mixture and negligently sold the same to the St. Louis Street market from whom the plaintiff purchased, in due course of business and was injured by its explosion.

The second and third counts are rested, respectively, upon the charge of negligence in selling and negligence in mixing and selling the compound. These counts aver substantially the same facts as contained in the original counts 1, 2, and 5.

Original count 3 pleaded a violation of the state statute, requiring a tag showing the guaranteed degrees of the fire test of the oil; and count 4 alleges a violation of the law in selling a mixture of kerosene oil, without having submitted the same to the state chemist for inspection and written statement thereof, as required by section 2716 of the Code of 1923, before offering it for sale, etc.

The requirements of good pleading in complaints (Ala. F. & I. Co. v. Bush, 204 Ala. 658, 86 So. 541), Dwight Mfg. Co. v. Holmes,

198 Ala. 590, 73 So. 933) have been differentiated and often stated by this court. The general rule of statement required of complaints is:

"*** The matter pleaded or facts alleged must be (1) sufficient in law to avail the party who pleads it, and (2) alleged or deduced according to the forms of law. Will's Gould on Pleading, pp. 2, 3, 192, 361. A cause of action is made up of a duty and its breach. The duty--the relationship from which the duty springs--must be shown by the facts alleged; and the breach of the duty may be averred by way of a conclusion. B.R.L. & P. Co. v. Littleton, 201 Ala. 141, 143, 77 So. 565; B.R.L. & P. Co. v. Cockrum, 179 Ala. 372, 376, 381, 60 So. 304; Johnson v. B.R.L. & P. Co., 149 Ala. 529, 43 So. 33; Long v. Addix, 184 Ala. 236, 63 So. 982; T.C.I. & R. Co. v. Moore, 194 Ala. 134, 69 So. 540; T.C.I. & R. Co. v. Smith, 171 Ala. 251, 255, 55 So. 170; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; So. Ry. Co. v. Williams, 143 Ala. 212, 217, 38 So. 1013."

The relation of privity of the parties and the declared purpose of the statute or public policy in the premises is that one engaged in selling illuminating oils to dealers for resale is in duty bound to such purchasers to exercise a reasonable amount of care not to sell such oils as are of a dangerously explosive nature or compound, as mixed with other minerals, gases or oils. Jones v. Gulf States Steel Co., 205 Ala. 291, 88 So. 21; Waters-Pierce Oil Co. v. Deselms, 212 U.S. 159, 29 S.Ct. 270, 53 L.Ed. 453.

The plaintiff, having alleged a purchase from a retailer of the dangerous mixture as illuminating oil, and that said retailer had purchased it from the defendant, both sales being of the commodity represented as ordinary kerosene, in the matter of such sales, there is shown a duty owing to the plaintiff by the defendant. It followed that the duty being specifically charged, it was sufficient to charge the violation of that duty by general terms, as, that said dangerous mixture was negligently mixed or negligently permitted to be mixed and negligently sold. Ala. F. & I. Co. v. Bush, 204 Ala. 658, 659, 86 So. 541; Shelby Iron Co. v. Morrow, 209 Ala. 116, 118, 95 So. 370; Burton & Sons v. May, 212 Ala. 435, 103 So. 46; City Ice Co. v. Lecari, 210 Ala. 629, 98 So. 901; Atlas Port. Cement Co. v. Sharpe, 209 Ala. 464, 96 So. 632.

The proximate causal connection is sufficiently shown. In Waters-Pierce Oil Co. v. Deselms, 212 U.S. 159, 178, 29 S.Ct. 270, 276, 53 L.Ed. 453, 463, Mr. Justice White quoted from National Sav. Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621, the illustration:

"Pharmacists or apothecaries who compound or sell medicines, if they carelessly label a poison as a harmless medicine, and send it so labeled into the market, are liable to all persons who, without fault on their part, are injured by using it as such medicine, in consequence of the false label; the rule being that the liability in such a case arises, not out of any contract or direct privity between the wrongdoer and the person injured, but out of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others. He is liable, therefore, though the poisonous drug with the label may have passed through many intermediate sales before it reached the hands of the person injured. [ 179] Thomas v. Winchester, 6 N.Y. 397, 410, 57 Am.Dec. 455."

The Chief Justice then makes observation that:

"*** The same principle was applied to a sale of dangerous oil in Wellington v. Downer Kerosene Oil Co., 104 Mass. 64, where it was said: 'It is well settled that a man who delivers an article which he knows to be dangerous or noxious, to another person, without notice of its nature and qualities, is liable for any injury which may reasonably be contemplated as likely to result, and which does, in fact, result, therefrom, to that person or any other who is not himself in fault.' And the like doctrine has been expounded in many cases. See, especially, Elkins v. McKean, 79 Pa. 493, and Weiser v. Holzman, 33 Wash. 87, 73 P. 797, 99 Am.St.Rep. 932, where the doctrine is clearly and forcibly stated and the many authorities sustaining the same are cited. In view of the tendencies of the proof as to the entire absence of knowledge by Powers & Deselms, when purchasing from the oil company, and the ignorance of Deselms when he bought from the firm, of the character of the fluid, it is certain that, in the case before us, the act of the oil company, in any view, was the proximate cause of the accident, as no other independent and efficient cause or wrong can be legally said to have occasioned the same. The G.R. Booth, 171 U.S. 450, 19 S.Ct. 9, 43 L.Ed. 234.

"But, because we confine ourselves to the particular facts of the case before us, we must not be understood as holding, in view of the dangerous character of the fluid and the putting of the same upon the market by the oil company, with the expectation that it would be retailed to the public, and the violation of the statutory regulations and prohibition concerning the sale of such article, that under the general principles of law sustained by the authorities already cited, a recovery against the oil company might not have been justified, even if the proof had established that Powers & Deselms had been informed by the oil company of the dangerous character of the mixture. See, further, Clement v. Crosby

& Co., 148 Mich. 293, 111 N.W. 745, 10 L.R.A. (N.S.) 588 , and Stowell v. Standard Oil Co., 139 Mich. 18, 102 N.W. 227, and authorities cited in both cases."

The basis of liability is rested upon the duty of all persons to do no unnecessary and negligent acts in their nature dangerous to the lives and safety of others. National Savings Bank v. Ward, 100 U.S. 195, 208, 25 L.Ed. 621; Waters-Pierce Oil Co. v. Deselms, 212 U.S. 159, 29 S.Ct. 270, 53 L.Ed. 453. The duty being shown and violated the injury having proximately resulted, as alleged in the counts, the several necessary elements of liability are shown without any allegations how the dangerous agency was being used, or was being used for one purpose...