Merchants' Bank v. Sherman, 1 Div. 403

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

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. [110 So. 806]

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), [110 So. 807] 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. &amp 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

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