Perry v. Standard Oil Co., 7916.
| Decision Date | 28 July 1936 |
| Docket Number | No. 7916.,7916. |
| Citation | 15 F. Supp. 563 |
| Parties | PERRY et al. v. STANDARD OIL CO. et al. |
| Court | U.S. District Court — Southern District of Mississippi |
Barbour & Henry, of Yazoo City, Miss., and Johnson & White, of Lexington, Miss., for plaintiffs.
G. G. Lyell, of Jackson, Miss., and A. M. Pepper, of Lexington, Miss., for defendants.
The plaintiffs filed an action at law in the state court against the Standard Oil Company, a citizen of Kentucky, and H. R. Garnett, a citizen of Mississippi, claiming damages for the wrongful death of their husband and father, who was burned, and died from the injuries, when a lamp exploded by reason of illicit oil sold and delivered by defendants to a country merchant who, in turn, sold it for household purposes of illumination. It was alleged that the substance was too inflammable for kerosene, as defined by specifications of the Gasoline Inspection Act of 1930, in that it was below the flash point of 115 degrees Fahrenheit. Article 1, c. 116, Miss. Code of 1930 (section 4764 et seq.). The sale of such product for kerosene, it is claimed, was a misdemeanor under said act. Section 4783, Miss. Code of 1930.
Effort was made to remove the case to this court on the ground, among others, that no cause of action was stated against the resident defendant. The statutory formalities for removal having been complied with, the plaintiffs now move to remand. For the purposes of this motion, I take it to be true that Garnett, the resident defendant, was the agent who made delivery of the oil which exploded and burned the deceased. I also take it to be the law that if he mixed, substituted, or adulterated the product, or knew, at the time of delivery, it was below the flash point of 115 degrees Fahrenheit, he, at least, knowingly aided in the commission of a crime, and would be jointly liable with his employer, the nonresident defendant, for the direct and proximate consequences of his illegal act. On the contrary, if he neither mixed, substituted, nor adulterated the oil, and did not know that it was below the required flash point, but was merely the innocent instrument of the perpetrator of the wrong, he would be guilty of no crime or tort.
We look to the declaration to find whether a cause of action is stated against Garnett. If none is stated, the case should not be remanded even though under the facts one might have been stated. In examining it, under familiar rules of pleading in Mississippi, all doubtful allegations...
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