Oil Company v. Albert Deselms

• Decision Date: 01 February 1909
• Docket Number: WATERS-PIERCE,No. 62,62
• Citation: 53 L.Ed. 453,29 S.Ct. 270,212 U.S. 159
• Parties: OIL COMPANY, Plff. in Err., v. ALBERT B. DESELMS
• Court: U.S. Supreme Court

212 U.S. 159

29 S.Ct. 270

53 L.Ed. 453

WATERS-PIERCE OIL COMPANY, Plff. in Err.,

v ALBERT B. DESELMS.

No. 62.

Argued January 8, 1909.

Decided February 1, 1909.

Messrs. John W. Shartel, J. D. Johnson, James R. Keaton, and Frank Wells for plaintiff in error.

[Argument of Counsel from pages 160-162 intentionally omitted] Messrs. A. H. Huston and John Devereux for defendant in error.

[Argument of Counsel from pages 163-165 intentionally omitted] Mr. Justice White delivered the opinion of the court:

Deselms sued the Waters-Pierce Oil Company to recover damages for the death of his wife and two young children, resulting from an alleged explosion of a highly inflammable and explosive substance, consisting of a mixture of coal oil and gasolene. The mixture, it was alleged, had been bought by Deselms as coal oil from dealers who supposed it be such, although their vendor, the oil company, knew the dangerous character of the article and yet had sold it as coal oil. The oil company answered by a general denial, and specially pleaded that, if the accident in fact occurred, it was caused by the negligence of Mrs. Deselms. Before trial Deselms dismissed the claim based upon the death of his wife. There was judgment on a verdict against the oil company for $14,500, which was affirmed by the supreme court of the territory. 18 Okla. 107, 89 Pac. 212.

On this writ the errors assigned, speaking in a general sense, complain of the action of the court below in affirming the trial court in giving, over exceptions of the oil company, certain instructions asked by Deselms, and in refusing to give various instructions asked by the oil company. For the purpose of clearness, however, we arrange the assignments under three headings: First, errors relating to the action of the trial court in giving and in refusing certain instructions; second, error in refusing, at the close of all the evidence, a request of the oil company for a peremptory instruction in its favor on the ground that the proof as to negligence was not sufficient to justify submitting the case to the jury, and because, even if there was such proof, on the facts shown there was no legal right to recover; third, error in refusing a request concerning the method to be applied in fixing damages in the event the jury found for the plaintiff.

To dispose of these assignments it is necessary to take into view the law of the territory relating to the inspection of coal oil, gasolene, etc., and the facts which the evidence tended to establish. Before coming, therefore, to directly consider the errors relied on, we refer to these subjects.

In 1895 there was enacted in the territory of Oklahoma a statute for the inspection 'of coal oil, gasolene, or any other product of petroleum used as illuminating or burning fluids, by whatever name known.' The statute specially provided, however, that, when once duly inspected in the territory, the fluids subject to inspection might be shipped to any portion of the territory without additional inspection. See Laws 1895, § 1, p. 174.

This act was amended in 1899. Session Laws 1899, p. 186. Section 2 of the act amended § 8 of the prior act to read as follows:

'All illuminating fluids that flash under the conditions as prescribed in § 1 at a less temperature than 120 degrees Fahrenheit, and have not a specific gravity of not less than 46 degrees Baume, that is, all oils which fail to stand both tests, shall be branded by the inspector 'Rejected,' and all such oils that do not flash at a less temperature than 120 degrees Fahrenheit, and which have a specific gravity of not less than 46 degrees Baume, as determined above, shall be branded 'Approved Standard Oil."

By § 3 the flash test was not to be applied to gasolene or other inflammable fluids, but they were to be tested 'to determine the weight or specific gravity in the same manner as required by § 1 of this act to oils.' It was further provided in the section that 'all gasolene to be used in vapor stoves and gasolene lamps shall have a specific gravity of not less than 70 degrees Baume and (at) a temperature of 60 degrees Fahrenheit.' It was made the duty of the inspector to brand all packages, boxes, or barrels of gasolene or other fluid having no fire test with the words 'Highly Inflammable,' and the specific gravity found by him. Where the gasolene was found to have a specific gravity of not less than 70 degrees Baume, at a temperature of 60 degrees Fahrenheit, the inspector was required to mark the same 'Approved Standard Gasolene.' By § 4 the sale by any person of oil or gasolene as approved standard oil or approved standard gasolene, when in fact the same was not of that grade, as found by the inspector of oils, was declared to be a misdemeanor, punishable by fine and imprisonment. Any company or corporation furnishing oils or gasolene for sale in the terri- tory of lower grades than that specified in the act was, moreover, made amenable to a fine.

The oil company had a wholesale depot at Guthrie, Oklahoma, for the sale of oil, gasolene, etc. At this depot there was a storage tank for coal oil, which in January, 1903, contained about 6,600 gallons of that fluid, which presumably had been inspected and tested according to law. Into this tank an employee of the company by mistake ran about 300 gallons of gasolene. When the mistake was discovered the agent of the oil company at Guthrie wrote to the manager at Dennison, Texas, informing him of the mistake. The manager replied, saying, 'I cannot believe that this amount of gasolene will materially affect the burning quality of the P. W. oil. At any rate, we will have to watch the matter, and take chances on selling all the P. W. oil in P. W. oil storage tank, trusting that the same will give good results.' On receipt of these instructions the agent at Guthrie, without any renewed inspection of the oil in the tank containing the mixture of gasolene and coal oil, sold the same to merchants in his territory as coal oil. On January 28, 1903, three barrels of the mixture were so sold to Powers & Deselms, retail grocers at Orlando, Oklahoma. One of the barrels was sold by the firm to another merchant, and the two remaining barrels were taken to the store of the firm, and their contents placed in an empty tank used for that purpose. The barrels thus sold to Powers & Deselms bore no inspection brand, nor were the barrels inspected after they came into the possession of the firm. On the invoice, however, given to Powers & Deselms by the oil company, a charge for inspection fees was made, and Powers & Deselms had no knowledge of the real character of the material supplied, as above stated. A few days after the sale to Powers & Deselms,—on a Sunday morning,—the plaintiff, Deselms, who was a clerk for the firm, bought one gallon of the mixture, supposing it to be coal oil, and took the same to his home in a 2-gallon can. On the afternoon of the same day Deselms left Orlando for a brief absence. His wife and two children—one a boy of four, the other a girl of two years—were left at home. The children were bright and active and were in perfect health. It had been arranged that Mrs. Emory, a sister of Deselms, would remain at night with the family.

The dwelling was a one-story wooden structure, weatherboarded on the outside and lathed on the inside, the laths being covered with canvas, and the canvas then being papered over. The house had a frontage of 12 feet, ran lengthwise east and west about 24 feet, and was divided into two rooms. The east room was used as a kitchen, the cooking stove being near the east wall. The west room was the general living and sleeping room. In it was a heating stove composed of a cylindrical firebox and a cylindrical plate or body with a door in the side. This stove stood on the east side of the room and it and the kitchen stove were connected with a brick flue in the partition wall between the two rooms.

The first use made of the gallon of oil bought by Deselms was on Tuesday evening, when Mrs. Emory filled a new lamp from the contents of the can, and then lit the lamp. Almost immediately a flame shot out of the chimney. Mrs. Emory extinguished the light, trimmed the wick, and lit the lamp again, and, upon flame again issuing out of the chimney, thinking that the lamp was defective, she extinguished the light and made no further attempt to use the lamp. The oil can was then placed in the kitchen, near the southwest corner of the room. During the evening a wood fire which had been burning in the heating stove burned out. The next morning, after lighting the kitchen fire, Mrs. Emory started to kindle a fire in the heating stove. She shook down the ashes, examined the contents of the ash pan and found that the stove was cold. She ceased her preparations to start a fire, however, on being asked to assist in dressing the children, Mrs. Deselms saying that she would make a fire in the stove later. There was no fire in the stove when Mrs. Emory left the house at about 8 o'clock on that (Wednesday) morning, and she was the last person to see alive Mrs. Deselms and the two children.

We take from the opinion of the supreme court of Oklahoma a summary of the evidence relative to the subsequent destruction of the house by fire and the death of the wife and her two children:

'The plaintiff's house was discovered to be on fire about 10 o'clock in the forenoon, and, upon the arrival of the first person on the scene, it was so completely ablaze that it was impossible, on account of smoke and gases, to force an entrance into the building. About 9 o'clock in the morning it had blown up cold from the northwest, and there was a high wind blowing from that direction at the time the fire occurred. Mr. Bradshaw was the first person to arrive at the building, and he broke in the back or kitchen door and tried to get into the other room, but was choked down by the dense smoke and gas, and came out. He tried a second time to enter...