Peterson v. Standard Oil Co.

• Decision Date: 18 January 1910
• Parties: PETERSON v. STANDARD OIL CO. [d]
• Court: Oregon Supreme Court

106 P. 337

55 Or. 511

PETERSON v. STANDARD OIL CO. ^[d]

Supreme Court of Oregon

January 18, 1910

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Action by Ernest Peterson, administrator of Victoria Beatrice Peterson, deceased, against the Standard Oil Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This is an action brought by Ernest Peterson, as administrator of the estate of Victoria Beatrice Peterson, deceased, against the defendant company. The complaint, so far as material to the matters at issue, alleges the following facts: "That one Fox, of Troutdale, county of Multnomah, state of Oregon, now is, and at all times hereinafter mentioned was, conducting a general merchandise business in the town, county, and state aforesaid, and that prior to the 19th day of March, 1906, the said Fox ordered from the defendant corporation herein, for the purpose of retailing the same to his customers, a large quantity of kerosene or coal oil that would stand an open-fire test of 120 degrees Fahrenheit. That, in pretended compliance with the said order, the defendant corporation herein did, acting through its officers and agents carelessly and negligently deliver to the said Fox, in lieu of kerosene or coal oil that would stand an open-fire test of 120 degrees Fahrenheit without burning, a distillate inferior oil, or liquid that would not stand an open-fire test of more than 88 degrees Fahrenheit without burning, and that said distillate, oil, or liquid so delivered by the defendant corporation herein, acting through its officers and agents as hereinbefore set forth, to said Fox, was carelessly and negligently delivered in a tank or drum labeled with the words, "Water White oil," and also labeled to the effect that same would not burn under 120 degrees Fahrenheit open-fire test. That on or about the 19th day of March, 1906 and at the time of the occurrences hereinbefore and hereinafter mentioned, plaintiff's intestate was employed as a domestic of one Mary Rowley, in the town of Troutdale Multnomah county, Or. That said Fox, relying upon the contract made with the defendant corporation herein, and the label upon the tank or drum in which said distillate, oil, or liquid was delivered to him by the defendant corporation herein, and said Fox believing the same to be kerosene or coal oil that would not burn under 120 degrees Fahrenheit open-fire test, and not knowing otherwise, did sell to Mary Rowley, of Troutdale, Or., and deliver to plaintiff's intestate for said Mary Rowley, a small quantity of said distillate, oil, or liquid as hereinbefore described for coal oil or kerosene that would stand an open-fire test of 120 degrees Fahrenheit without burning. That on the date last mentioned plaintiff's intestate did, for the purpose of starting a fire, place some kindling wood in a stove in which there was absolutely no fire, and did pour thereon a small quantity of said distillate, oil, or liquid, delivered to her by Fox, and purchased by the said Mary Rowley, from the said Fox, and by the said Fox from the said Standard Oil Company, as aforesaid. That plaintiff's intestate, in so doing, used due care and caution, and, not knowing otherwise, believed said distillate, oil, or liquid to be coal oil or kerosene that would stand an open-fire test of 120 degrees Fahrenheit without burning, and that plaintiff's intestate then with due care and caution placed the can containing the balance of said distillate, oil, or liquid delivered to her by Fox about 2 1/2 feet from the stove and kindling upon which she had poured a small quantity thereof, as hereinbefore stated. That immediately thereafter plaintiff's intestate with due care and caution applied a lighted match to the kindling, so placed as aforesaid, upon which she had previously poured said distillate, oil, or liquid as just hereinbefore stated, and that immediately upon applying the said lighted match there was an explosion, wherein and whereby plaintiff's intestate was severely burned, bruised, and maimed, and died from the effects thereof on the 19th day of March, 1906. That plaintiff's intestate used said distillate, oil, or liquid with due care and caution and without carelessness or negligence on her part, and that, had same stood an open-fire test of 120 degrees Fahrenheit without burning, there would have been no ill result or explosion as just hereinbefore set forth. That said distillate, oil, or liquid, when used by plaintiff's intestate as just hereinbefore set forth, was in exactly the same condition as when delivered to the said Fox by the defendant corporation herein, acting through its officers and agents as hereinbefore set forth."

Defendant answered, denying all that part of the complaint above quoted, except that it admitted the death of plaintiff's intestate and the fact that Fox was conducting a general merchandise store at Troutdale. There was a further and separate defense of contributory negligence, which is as follows:

"That one Fox, of Troutdale, county of Multnomah, state of Oregon, on or about March 19, 1906, was, ever since has been, and for many years prior thereto had been, conducting a general merchandise business in the town of Troutdale aforesaid, and had been from time to time during all said period buying from defendant and directing to be shipped to him from Portland, Or., to Troutdale, Or., various quantities of kerosene or coal oil that would stand an open-fire test of 120 degrees Fahrenheit and various other kinds and qualities of the products of petroleum, among others, No. 1 Engine Distillate. That on or about January 26, 1906, the said Fox ordered of and from the defendant a quantity of kerosene or coal oil that would stand an open-fire test of 120 degrees Fahrenheit and a certain quantity of No. 1 Engine Distillate, and that thereupon and pursuant to said order the defendant shipped to the said Fox both kinds of said oil as aforesaid, properly tagged and marked in separate drums furnished by said Fox, and thereupon and thereafter, and on or about said date, the said Fox received said shipments of said coal oil and distillate as aforesaid for the purpose of sale to h is customers.

"That at the time and place when and where plaintiff's intestate received the injuries resulting in her death, she carelessly, negligently, and recklessly, and for the purpose of starting a fire, poured thereon a quantity of oil sold by said Fox to said Mary Rowley and delivered by him to said plaintiff's intestate, the particular kind of which said oil is to the defendant unknown; and thereupon said plaintiff's intestate, while said oil was so poured upon said wood and put to a use by plaintiff's intestate for which neither of said kinds of oil was intended or manufactured, applied a lighted match to said oil so placed as aforesaid, and thereby recklessly, negligently and carelessly caused the same to ignite while she was then and there in the possession and control of said oil can from which she was pouring said oil, by reason whereof the said plaintiff's intestate received and suffered the injuries resulting in her death. That said injuries so resulting in her death were wholly caused and occasioned by her own want of care and negligence as aforesaid, and without the fault or negligence of this defendant or any of its servants or agents."

The reply admits all of paragraph 1, of the separate answer, to and including the words "Engine Distillate," but denies the remainder of the paragraph. It denies all of paragraph 2, except that it admits that plaintiff's intestate, for the purpose of starting a fire, poured on wood and quantity of oil, sold by Fox to Mary Rowley and delivered by him to plaintiff's intestate and, after so doing, applied a lighted match to said oil, thereby causing it to ignite and to explode, and that by reason of such explosion she received and suffered injuries resulting in her death.

The plaintiff had judgment for $2,500, and defendant appeals. Other facts necessary to a decision appear in the opinion.

R.A. Leiter (Wm. D. Fenton and Ben C. Dey, on the brief), for appellant.

Otto J. Kraemer, for respondent.

McBRIDE, J. (after stating the facts as above).

The first error assigned is the overruling of defendant's general demurrer to the complaint. While the complaint is somewhat meager in details, we are of the opinion that it states a cause of action. It charges, in effect, that the merchant Fox ordered certain barrels of Water White kerosene that would stand an open-fire test of 120 degrees Fahrenheit, and that defendant negligently and carelessly delivered to him distillate that would only stand a test of 88 degrees Fahrenheit, such distillate being carelessly and negligently delivered to Fox in a drum labeled "Water White oil" and also labeled to the effect that the same would not burn under 120 degrees Fahrenheit, open-fire test; and relying upon his contract and the label placed by defendant upon the drum, and believing it to be as represented, said merchant, Fox, sold a small quantity of it to Mrs. Rowley for coal oil and delivered it as such to plaintiff's intestate, who was Mrs. Rowley's domestic, and that plaintiff's intestate, while trying to kindle a fire with said substance, without any carelessness on her part, was killed by the explosion that resulted; that, if the substance had been as represented, no explosion would have resulted. This sufficiently alleges, we think, that the direct and proximate cause of the injury was the negligence of defendant. In other words, defendant sold a substance to Fox which would explode at a comparatively low temperature, negligently representing it to be a substance that would explode or take fire only at a high temperature, and Fox innocently delivered...