Olena v. Standard Oil Co.
| Decision Date | 05 October 1926 |
| Citation | 135 A. 27 |
| Parties | OLENA v. STANDARD OIL COMPANY. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Branch, Judge.
Action of case by Wilbur E. Olena, administrator, based upon Pub. St, 1901, c. 126, § 26 (Pub. Laws 1926, c. 162, §§ 25, 26), against the Standard Oil Company. Verdict for plaintiff. Transferred on exceptions to denial of motions for nonsuit and directed verdict, allowance of argument, and to the charge. New trial.
Case, based upon P. S. c. 126, § 26 (P. L. c. 162, §§ 25, 26), for causing death. Trial by jury and verdict for plaintiff The decedent died from burns claimed to be received in an explosion of a mixture of kerosene and gasoline sold as illuminating oil and igniting at a temperature below 120° Fahrenheit. Transferred by Branch C. J., on exceptions to the denial of motions for a nonsuit and directed verdict, to the allowance of argument, and to the charge. The opinion states the material facts.
Wason & Moran, Doyle & Doyle, and John R. Spring, all of Nashua, for plaintiff.
Hamblett & Hamblett, of Nashua, Robert W. Upton, of Concord, and Lucier & Lucier, of Nashua, for defendant.
The motions for a nonsuit and directed verdict were properly denied. As will appear later, the plaintiff was entitled to a verdict if exploding oil was supplied by the defendant when below the statutory standard, and the explosion caused the decedent's death, barring her fault.
A witness who was present at the accident testified that an explosion of the contents of an oil can preceded flames which enveloped and fatally burned the decedent. There was evidence that the can contained oil bought at a store. The storekeeper testified to having a 300-gallon tank for storing kerosene and to the purchase of 1,350 gallons during the 11 months preceding the accident. Of this quantity the defendant furnished all but 100 gallons bought about 6 months before the accident, the subsequent deliveries by the defendant amounting to 500 gallons. It was therefore proper to infer that the decedent died as the result of an explosion of oil which was supplied by the defendant, and which when thus supplied was of the same standard as when sold by the storekeeper.
It only remains to consider if there was evidence that the oil when thus supplied was under the statutory ban. According to the testimony, the oil can had been cleaned before the purchase was made from the storekeeper, and also two lamps before they were filled with some of the oil. The accident occurred a few days after the oil was purchased. After the accident, the oil remaining in each of the lamps was transferred to a separate bottle, and the contents of each bottle were later separately analyzed at times about a month apart. Both analyses showed a sublegal condition, but with a difference of about 13 degrees in the temperature for flashing.
It is claimed that the difference conclusively established that the oil analyzed was not the same as that supplied by the defendant, or at least made it necessarily conjectural to find that the oil when thus supplied was below the standard.
Reasonable explanation of the difference on grounds favorable to the plaintiff warranted the rejection of other explanations. The difference in time between the analyses, the fact that the experts acted separately and each in his own laboratory, and the circumstances concerning the use of the lamps and bottles as containers, may be suggested as reasonable explanations for the plaintiff. There is no common knowledge that oil may not flash at varying temperatures under such varying occasions and conditions as were shown to have existed, and the argument that the oil analyzed could not be the same as that supplied by the defendant fails as a legal demonstration. Since it cannot be said said that the difference necessarily showed, either that the oil did not come from the defendant, or that it was not below standard when and if it did so come, it cannot be said to overcome the evidence that it did thus come and was thus below standard.
The plaintiff had a case to submit to the jury, unless, and only unless, the difference was a conclusive disproof of the truth of the evidence supporting the case. As the difference at best made only a probability to meet such evidence, it was for the jury to say how far it affected the evidence. They were entitled to believe the evidence, unless the difference showed it impossible of reasonable belief, and this it did not do.
The position that it was conjectural to find that the oil analyzed came from the defendant and was of the same standard disregards the situation as to proof. The plaintiff, having furnished evidence that the oil analyzed did so come and was below the standard when it thus came, had a case for the jury's consideration. If it is conceded that the difference was not satisfactorily accounted for, and that explanation of it was conjectural, the difference was merely an argument against the adoption of the evidence, without making the evidence necessarily conjectural, and it might be regarded as an indecisive circumstance.
On the motions the burden does not rest on the plaintiff to eliminate all causes favorable to the defendant, but is on the defendant to eliminate those favorable to the plaintiff. The plaintiff's evidence is not made conjectural by casting doubt on it. If the difference in the flashing temperature of the two specimens, considered by itself, would make the source of the oil conjectural, the plaintiff's case here does not depend upon such conjecture, but is attacked by it. The conjectural evidence is relied on, not to support, but to destroy, the plaintiff's case as already established by other evidence.
Whether the difference made a probability in the defendant's favor or whether it cast a conjectural doubt on the plaintiffs other evidence, it was for the jury to weigh the evidence and balance the probabilities on each side.
The evidence of the difference came from the plaintiff's witnesses, but the situation is the same as though it were furnished by the defendant, and upon such evidence Hill v. Carr, 78 N. H. 458, 462, 101 A. 525, 527.
The court charged the jury that, if the exploding oil came from the defendant and was below the legal standard the defendant was liable unless contributory negligence were found. To this instruction the defendant excepted on the ground that it did not require a less than standard condition of the oil to be a legal cause of the explosion.
The question is one of construction of the statute on which the action was brought, and the principle of legal cause is irrelevant if the statute dispenses with its application. Oil exploded but, aside from contributory negligence, what caused the explosion if the oil was below the standard is not material to liability if the statute so declares.
The statute provides that one selling or keeping for sale illuminating oil mixed with naphtha or below the specified standard shall be criminally liable, and also "shall be liable for all damage occasioned to any person by the explosion of such oil. * * *" It is a police regulation designed to promote protection from hidden and serious dangers. The purpose to minimize danger is further shown by provisions on the subject relating to inspection and licenses, and the legislative intent to do all that was practical in making oil safe to use is not doubtful. "The object of these provisions is to protect the public from the danger arising from the use of oil that will evaporate and ignite at a low temperature." Hanson v. Maverick Oil Co., 67 N. H. 201, 202, 29 A. 459, 460.
As the statute reads, it is explicit in creating liability for damage to one hurt from the explosion or ignition of such oil. The character of the oil is made the test of liability, and not the results of its character. There is liability for the consequences of an explosion of the oil below the standard, and not merely of an explosion due to the oil being below standard. It is not because of poor oil causing an explosion, but because such oil does explode, that liability is determined.
If a construction for the limitation of liability as claimed were adopted and proof...
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