Pfarr v. Standard Oil Co.

• Decision Date: 14 April 1914
• Citation: 146 N.W. 851,165 Iowa 657
• Parties: JOHN F. PFARR, HUGO GEBERT, and N. L. HUNT, Co-partners, doing business under the firm name and style of PFARR, GEBART & HUNT, Appellees, v. THE STANDARD OIL CO., Appellant
• Court: Iowa Supreme Court

146 N.W. 851

165 Iowa 657

JOHN F. PFARR, HUGO GEBERT, and N. L. HUNT, Co-partners, doing business under the firm name and style of PFARR, GEBART & HUNT, Appellees, v. THE STANDARD OIL CO., Appellant

Supreme Court of Iowa, Des Moines

April 14, 1914

Appeal from Crawford District Court.--HON. F. M. POWERS, Judge.

ACTION to recover from defendant the amount of a judgment rendered against plaintiff, with interest, costs, expenses, and attorney's fees, in an action brought against plaintiff by one Lee J. Chapman, which judgment, with interest, etc plaintiffs paid, and they seek indemnity from defendant because of its (defendant's) wrong in selling it a barrel of kerosene which was dangerous, in that it contained a large percentage of gasoline. Plaintiffs, after being sued notified defendant to appear and defend the action, but it failed and neglected to do so, and this action followed. The defendant denied that the oil, when sold to plaintiff, was of a dangerous character, and averred that plaintiffs were held liable in the Chapman case because of their own negligence and not because of any negligence of the defendant. It also alleged that, if defendant was negligent at all, it was a joint tort-feasor with plaintiffs, and that plaintiffs are not entitled to indemnity. Other defenses were interposed and, aside from some admissions, the effect of the answer was a general denial. On the issues joined, the case was tried to a jury, and, at the conclusion of the testimony, each party moved for a directed verdict. Defendant's motion was overruled, and plaintiff's motion was sustained, and defendant appeals.

Reversed.

Clinton L. Nourse and Carr, Carr & Evans, for appellant.

Sims & Kuehnle, for appellees.

DEEMER J. LADD, C. J., and GAYNOR and WITHROW, JJ., concurring.

OPINION

DEEMER, J.

On April 26, 1907, plaintiff was a copartnership, doing business at the town of Pisgah, this state, and through its agent, one Strong, it purchased of defendant, through its traveling salesman, a barrel of kerosene oil (Perfection brand). The oil was shipped on that day in an ordinary wooden barrel from Sioux City, Iowa via the Chicago & Northwestern Railway, and arrived at the point of destination on May 1st. One end of the barrel bore the state inspector's stamp, stenciled in the wood, and reading: "Perfection Oil. 2 flash tests 106 degrees. Apr. 24th, 1907. C. W. Kemp, Inspector. Filed Apr. 24, 1907."

On the day of arrival the oil was taken from the railway station to plaintiff's store, and unloaded at the back door in the alley, where it remained over night. Thereafter it was taken inside the building, and, when the barrel then in use was emptied (which was within five or six days), the bung of the new barrel was knocked out, the barrel placed on its side in a little hole in the dirt floor of the shed where the oil was kept, and a pump which had been used in other barrels was inserted for the purpose of drawing the oil. The bung was about three inches in diameter, and the pump not more than two inches. In the same shed plaintiffs kept a gasoline tank, which was to the right of and back of the kerosene barrel, about eight feet. Separate measures were kept for the oil and gasoline. There were two regular employees about the store, and occasionally another helped them, and all drew oil from the barrel in question by means of the pump, which had been inserted through the bunghole.

Two-thirds of the contents of the barrel had been sold at the time when the accident occurred for which the Chapman suit was brought; and oil was sold to various persons who used it for illuminating and other purposes, without any ill effects. Of the many customers who purchased oil prior to the time of the sale to Mrs. Chapman, of which complaint is made, which was on May 25, 1907, but one had made any complaint or, so far as known, had noticed anything wrong with the oil. That complaint was from a Mrs. Bryson, who stated that there was something wrong with the oil. Strong, the plaintiff's agent, then made a superficial test of some of the oil taken from the barrel, and did not find anything wrong with it. The complaint came to Strong from ten days to two weeks before the accident.

On May 25, 1907, Mrs. Chapman came to plaintiff's store for a gallon of oil, and Strong, the agent, sold it to her, drawing it, as he said, from the barrel in question. On the evening of the day on which the oil was purchased, Mr. Chapman assisted his wife in starting a fire in a cook stove. He put in some cobs, and his wife poured on some of the oil she had purchased from plaintiffs, and then put the can down on the floor of the kitchen. He took a match, struck it, and applied the match to the cobs and oil, causing an explosion which resulted in the death of Mrs. Chapman and three children, and severe injuries to the husband. An investigation was made immediately as to the character of the oil remaining in the barrel, and also of oil that had previously been sold from the barrel to other customers, and it is claimed that, as a result thereof, the oil was found to contain something like twenty per cent. of gasoline, and that it did not test more than 67 deg. Fahrenheit. Action was then brought by Chapman, the husband, against the plaintiffs herein, to recover the damages sustained by him in person, and for the loss of the services and society of his wife and the other members of the family.

Notice was given the defendant of this suit, and it was requested to appear and make defense to the action. This the present defendant failed to do, and consequently plaintiffs were compelled to make defense, and, at the end of several trials, the case having twice reached this court, judgment was rendered for Chapman in the sum of $ 1,084, which was affirmed in this court. Plaintiffs paid the judgment, with interest, and also attorney's fees, expenses, costs, etc., amounting to $ 1,725.92, and thereupon brought this action to recover from defendant the amount so paid. The defenses to the action have already been sufficiently noticed.

In the Chapman petition it was, among other things, alleged that:

The oil was sold and delivered to plaintiff's wife as coal oil, it was twenty-one per cent. gasoline, and at the time, and about one week before said sale to plaintiff's wife by defendant's agent, A. C. Strong, he was notified that the oil contained gasoline and was not right, and, notwithstanding said notice and knowledge on the part of A. C. Strong, agent of defendants, he failed and neglected to have the oil inspected or examined by an expert oil inspector, which, if done, would have disclosed the dangerous and explosive character of said oil, and shown that it was twenty-one per cent. gasoline, and, by reason of said negligence of said defendants and their agent, Strong, in selling and delivering a dangerous explosive which plaintiff, his wife and children had no knowledge of at the time, but, by the use of reasonable care, the defendants would have discovered, plaintiff charges that the injuries inflicted were so caused by defendants' negligence as aforesaid and plaintiff has sustained damages as follows.

Plaintiffs herein, defendants to that suit, filed a general denial, and the case was tried to a jury upon the issues so made and framed; the theory thereof appearing from the following instruction, given by the trial court:

(6) The specific allegation of negligence made in the petition is that the agent of the defendants, after notice that the oil contained gasoline, and was not right, failed and neglected to have the oil inspected or examined by an expert oil inspector, which, if done, would have disclosed the dangerous explosive character of said oil. On this point, as Strong was the agent of the defendants carrying on the store in question, his negligence, if he was negligent, would be the negligence of the defendants. It was his duty to use reasonable and ordinary care not to sell oil which did not conform to the test required by law. In the first instance, and until he had knowledge or notice to the contrary, or such notice as would put a reasonably prudent man upon inquiry, which would lead to such knowledge, he had the right to rely upon the inspector's stamp or brand upon the barrel from which the oil sold to plaintiff's wife was taken. If, however, such information came to him prior to the sale of the oil to plaintiff's wife as would put an ordinary prudent person upon inquiry and investigation that would have developed the fact that the oil in question was not up to the required test, then he was negligent in not making such investigation or having it made before making further sales of the oil. There is no requirement that the seller of oil provide himself with apparatus for making the closed test such as the statute requires to be made by the inspector, and there is no specific requirement of law that the seller shall, under any circumstances, call upon a state inspector to determine the character of oil which has been purchased in a barrel properly branded. It was the duty of the said agent, Strong, on receiving information, if he did receive it, such as would lead a reasonably prudent man to think that the oil which he was selling out of said barrel did not correspond to the brand on the barrel, to himself make or cause to be made by some competent person such inspection as would reasonably determine whether the oil which he was selling was, in fact, dangerous; that is, of a lower standard than that required by statute.

In response to interrogatories, the jury in that case also made the following special findings:

Int. 1 Would the information received by the daughter of Mr. Strong over the telephone from Mr. Booth lead an ordinarily careful and prudent person to...