Morrison v. Lee

• Decision Date: 14 November 1911
• Citation: 133 N.W. 548,22 N.D. 251
• Parties: MORRISON v. LEE
• Court: North Dakota Supreme Court

133 N.W. 548

22 N.D. 251

MORRISON v. LEE

Supreme Court of North Dakota

November 14, 1911

Appeal from District Court, Ward county; Leighton, J.

Action by James T. Morrison against Peter P. Lee. From an order sustaining a demurrer to the answer, defendant appeals.

Reversed.

Reversed and remanded.

James Johnson and Guy C. H. Corliss, for appellant.

Arthur LeSueur and Bangs, Cooley, & Hamilton, for respondent.

FISK J. GOSS, J., did not participate; Honorable W. C. CRAWFORD of the Tenth Judicial District, sitting in his place by request.

OPINION

FISK, J.

This is an appeal from an order of the district court of Ward county, sustaining plaintiff's demurrer to the answer of the defendant. Plaintiff seeks to recover damages for personal injuries sustained by him as the result of an explosion of a mixture of kerosene and gasoline which he purchased of the defendant as and for kerosene oil. Plaintiff relies for a recovery upon § 2223 of the Revised Codes of this state, which reads as follows: "Whoever shall knowingly use, sell, or cause to be sold unlawfully any of the illuminating oils specified in this article which are below 105 degrees Fahrenheit, as tested by the official tests herein prescribed, shall be liable to any person purchasing such oil or to any person injured thereby for any damage to person or property arising from any explosion thereof." In other words, plaintiff bases his cause of action upon the statutory liability of defendant under the above section. The answer pleads a former adjudication. By such plea defendant alleges that the former action was instituted for the recovery of damages for the same injuries resulting from the same explosion, and that such explosion was caused by defendant's negligence in selling to plaintiff as and for kerosene oil a mixture of kerosene and gasoline; such cause of action being based upon the alleged common-law liability of defendant. By such plea it is also alleged that the issues in such former action, including that of contributory negligence on plaintiff's part, were duly considered and adjudicated and finally decided in defendant's favor, and judgment was finally entered, dismissing plaintiff's action.

The ground of demurrer to the above answer is that it does not state facts sufficient to constitute a defense to plaintiff's cause of action. Respondent's counsel advance two propositions of law in support of the action of the trial court in sustaining their demurrer: First, that the cause of action upon which the plaintiff seeks a recovery in this case is different and distinct from that set up in the case which appellant has pleaded in bar. Second, that contributory negligence is not a defense to this action. Appellant's counsel deny the soundness of both of these propositions. It is conceded that, if either of such propositions is untenable, the demurrer was improperly sustained. We will take up these questions in the inverse order thus stated, and proceed to determine whether contributory negligence is a defense to this action. Does § 2223, Rev. Codes, "impose a positive and absolute liability, regardless of any contributory negligence on the part of the person injured," as contended by plaintiff's counsel? They assert that unless it does so the section would be superfluous and meaningless. We can best give their line of reasoning by quoting from their brief as follows: "For the sale of oil that will omit a combustible vapor at less than 105 degrees, a person injured has a right of action at common law, because this is an act prohibited by § 2222. That section contains many other prohibitions for the violations of any one of which an action may be maintained under the common law, by a person injured in consequence of such violation. But under the provisions of § 2223 the legislature has seen fit to single out but one of these acts prohibited by § 2222, and has declared, in effect, that for the commission of that act the offender shall be absolutely liable to the person injured. If contributory negligence is a defense to an action under this section, the purpose of the statute would be in a great measure, if not wholly, defeated."

In support of their contention, counsel for plaintiff rely chiefly on a line of authorities under statutes making railroad companies liable for injuries to stock where they have neglected to fence or otherwise protect their right of way; and authorities under so-called "factory acts;" and also under statutes requiring owners of mines to take certain precaution for the protection of miners. Among the authorities thus relied on are the following: Corwin v. New York & E. R. Co. 13 N.Y. 42; Harwood v. Bennington & R. R. Co. 67 Vt. 664, 32 A. 721; Congdon v. Central Vermont R. Co. 56 Vt. 390, 48 Am. Rep. 793; Jensen v. South Dakota C. R. Co. 25 S.D. 506, 35 L.R.A. (N.S.) 1015, 127 N.W. 650; Flint & P.M.R. Co. v. Lull, 28 Mich. 510; Welty v. Indianapolis & V. R. Co. 105 Ind. 55, 4 N.E. 410; Chicago, St. L. & P. R. Co. v. Fenn, 3 Ind.App. 250, 29 N.E. 790; Carterville Coal Co. v. Abbott, 181 Ill. 495, 55 N.E. 131; Caspar v. Lewin, 82 Kan. 604, L.R.A. (N.S.) , 109 P. 657; Atchison, T. & S. F. R. Co. v. Paxton, 75 Kan. 197, 88 P. 1082; Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418; Johnson v. Marshall, Sons & Co., [1906] A. C. 409, 75 L.J. K.B. N.S. 68, 94 L.T. N.S. 828, 22 Times L. R. 565, 5 Ann. Cas. 630.

There are a great many authorities holding to the same effect, and they are collated in the valuable note to the case of Wolf v. Smith, 9 L.R.A. N.S. 338. An examination of the opinions in most, if not all, of these cases will disclose, however, that the plaintiff's negligence was remote rather than proximate to the injury; and it is nowhere held that the railway company is liable where the owner of the stock killed or injured wilfully or recklessly drove his stock upon the track. As said by Taft, Ch. J. , in Kilpatrick v. Grand Trunk R. Co. 72 Vt. 263, 82 Am. St. Rep. 939, 47 A. 827: "These cases can well be put upon the ground that the negligence of the plaintiff in permitting his animals to escape, stray away, and pass upon the railroad track was remote, and not proximate. If the negligence of the plaintiff consisted in his negligently driving cattle upon the track, at the time of the accident, it might well be claimed that such negligence was proximate, not remote, and that his neglect would bar a recovery. When the negligence of the plaintiff did not occur at the time of the accident, but was prior thereto, and consisted in permitting his animals to stray away, it is not mutual with that of the defendant, and was not one of the proximate causes of the accident; for, in the use of the words 'proximate cause,' negligence occurring at the time the injury happened is meant. The case, in principle, is analogous to the one which formerly arose under the provisions of our early statutes, which enacted that 'if any special damage shall happen to any person, his team, carriage, or other property, by means of the insufficiency or want of repairs of any highway or bridge in any town, which such town is liable to keep in repair, the person sustaining such damage shall have the right to recover the same,' etc. In these cases it has been universally held that if the plaintiff is guilty of contributory negligence, as one of the proximate causes of the accident, if his negligence contributes to his injury to any extent, he is not entitled to recover. But in such highway cases it was held that when the plaintiff's negligence consisted in taking a road constructed to avoid the dangerous place, which caused the accident, the plaintiff was not barred from a recovery, for the reason that his negligence was remote, not proximate. Templeton v. Montpelier, 56 Vt. 328."

It is no doubt true, as contended for by respondent's counsel and as held in many of the authorities, that statutes similar to the one under consideration in the case at bar were enacted in the legitimate exercise of the police power and are penal in their nature, being designed for the protection of the public against injuries to persons and property, and are highly beneficial and should be strictly enforced. It does not follow from this, however, that a person who violates the statute is civilly liable for all damages occasioned by an explosion of the oil under all circumstances. We are here confronted with a question of statutory construction. Did the legislature intend by the statute in question to impose on a person who has sold oil in violation of the statute, an absolute liability regardless of whether such violation had, in fact, anything...