Pierce Oil Corporation v. Taylor

• Citation: 227 S.W. 420,147 Ark. 100
• Decision Date: 24 January 1921
• Docket Number: 112
• Parties: PIERCE OIL CORPORATION v. TAYLOR
• Court: Arkansas Supreme Court

227 S.W. 420

147 Ark. 100

PIERCE OIL CORPORATION v. TAYLOR

No. 112

Supreme Court of Arkansas

January 24, 1921

Appeal from Johnson Circuit Court; A. B. Priddy, Judge; affirmed.

Affirmed.

J. J Montgomery and James B. McDonough, for appellant.

1. The court erred in sustaining the demurrer to the paragraph of the answer setting up the plea of res adjudicata. The loss of the money on the person of Alice Taylor, she holding same as bailee for the plaintiff, was a damage necessarily inhering in the judgment in the Federal court. All causes of action growing out of the death of Alice Taylor inhered in Elihu Taylor as administrator of Alice Taylor, and all the issues in this case were included, inhered in and were a part of the right of recovery in the former case. 79 Ark. 62 is decisive of this case. In death actions under the Arkansas law the administrator is the sole party and represents every child whether of age or not, and hence the administrator represented Ed Taylor, appellee, whose money was burned. 113 Ark. 380. Ed Taylor can not maintain this suit because the money sued for or the cause of action belonged to Alice Taylor and inhered in the other action her right of action passed to her administrator. 118 Ark. 402. This case is squarely in point, and shows that Ed Taylor can not split up his cause of action. 79 Ark. 62. See, also, 97 Ark. 560; 63 Id. 259; 23 Cyc. 446. Cited with approval in 25 Ala 450; 27 Id. 238; 31 Id. 162; 56 Id. 373; 73 Id. 607; 84 Id. 509; 4 So. 426; 5 Am. St. 387; 19 So. 180; 108 Ala. 327; 50 So. 106.

It follows from these cases that Ed Taylor is barred by the former recovery. There is but one injury for one wrongful act. The only courts holding otherwise are in New Jersey and New York. 87 S.W. 1082; 91 Id. 194. See, also, 141 Mo. 252; 18 P. 636; 13 Ind. 103; 150 Mass. 261; 86 Cal. 415; 137 Pa.St. 82; 83 Mo. 660; 103 Ind. 314. A majority of the cases declare the principle the same way as it is in Arkansas, and the court erred in sustaining the demurrer to the second paragraph.

2. The court should have directed a verdict for appellant, as the evidence was entirely insufficient, and the burden was on plaintiff. 122 Ark. 445; 63 So. Rep. 484; 119 F. 572. There must be some breach of legal duty, and none was shown. 37 N. L. 5; 100 U.S. 195; 63 F. 400; 123 N.W. 1013; 212 U.S. 159; 64 A. 985. The mere fact of explosion is not evidence of negligence. 119 F. 572; 64 A. 985. Where an injury may be due to several causes for which the defendant would not be liable, a verdict should be directed for defendant, in the absence of a showing as to which produced the injury. 236 F. 690; 123 N.W. 992; 75 P. 1013.

3. Deceased was guilty of negligence as a matter of law. His action was the proximate cause of the injury, and there can be no recovery. 130 F. 199; 164. N. W. 668; 39 La.Ann. 344.

4. The instructions as a whole do not submit to the jury the actual questions involved, and the evidence is insufficient to show that the oil was not kerosene at the time it was sold. If it was kerosene at the time, there can be no recovery.

Heartsill Ragon and G. O. Patterson, for appellee.

1. There was no error in sustaining the demurrer. The issues in this case were not within the scope of the issues in the proceedings in the Federal court. A judgment is conclusive only between parties and privies. 105 Ark. 86; 96 Id. 454; Ib. 409; 83 Id. 157; 82 Id. 419. The question here was not determined in the Federal court. Alice Taylor had no rights against appellant, as she had no special property or ownership in the money destroyed and held it under no contract. She, as appellee's mother, simply held the money as a favor. Appellee was the owner of the money and entitled to the immediate possession of it. 15 Ark. 159; 3 J. J. Marsh 307; 13 Ark. 437; 3 A. & E. Enc. Law 763; 5 Cyc. 208. Mrs. Taylor held the money subject to the will and pleasure of the bailor, and the possession of the bailee is that of the bailor. 15 Ark. 459. The present action is not within the scope of the issues in the Federal court. Mrs. Alice Taylor was a gratuitous bailee and only charged with due care to preserve it from destruction and only responsible for gross negligence. 11 Ark. 189; 23 Id. 61; 52 Id. 364; 103 Id. 12; 58 Id. 284; 3 A. & E. Enc. L. 750-1. The question here is taken out of the rule of res judicata.

2. There was no splitting of actions from one tortious act. 79 Ark. 62, and others cited, do not sustain appellant's contention. 53 Ark. 117.

3. The court should not have directed a verdict, as the evidence shows. The proof is convincing that the fluid was not kerosene. Defendant had the opportunity to have the fluid analyzed, but did not even take samples. Failure to have the fluid analyzed must be held adverse to appellant. 264 F. 829. See, also, 110 N.W. 20. Appellant was responsible for damages for using oil highly dangerous and explosive and sold for kerosene. 102 N.W. 227; 158 F. 241; 95 A. 931; 247 F. 921. The court properly refused to direct a verdict for appellant. 104 Ark. 267. The facts of this case bring it within the rule in 104 Ark. 267. Deceased was not guilty of negligence as matter of law. 264 F. 829. The presumption is that Alice Taylor in handling the oil acted with due care. 133 Iowa 11; 8 Thompson on Negl., § 7140; Ann. Cases 1912 A 625. The testimony shows that Alice Taylor used due care for her own safety. 255 F. 841. The burden to show contributory negligence was on defendant. 255 F. 841. The court properly instructed the jury, and the evidence sustains the findings and is conclusive.

4. There is no error in the instructions.

OPINION

MCCULLOCH, C. J.

Mrs. Alice Taylor, the mother of plaintiff, lost her life on November 26, 1917, as the result of an explosion of some kind of oil sold by the defendant, Pierce Oil Corporation, as kerosene, and which Mrs. Taylor used in an effort to start a fire in a stove. It is alleged that the oil thus sold by the defendant and used by Mrs. Taylor was not kerosene, but was either gasoline or some other oil more inflammable than kerosene, and that the defendant was guilty of actionable negligence in selling the fluid and furnishing it for use as kerosene. Mrs. Taylor's clothing caught fire from the explosion, and she was burned to death. She carried on her person at the time the sum of $ 811 in paper currency, which was the property of the plaintiff and which was consumed by fire with her clothing. She merely had the money for safe-keeping at the request of her son, the plaintiff.

Elihu Taylor, the husband of Mrs. Alice Taylor, became the administrator of her estate and instituted an action against the defendant to recover damages for her death. The action was to recover damages for the benefit of the estate on account of pain and suffering endured by the decedent and also to recover for the benefit of the infant children of the decedent (not including the plaintiff in the present action, who is an adult) the damages sustained by them on account of the death of their mother. The action thus instituted by the administrator was removed to the Federal court, and the trial of the case resulted in a judgment in favor of the administrator against the defendant for the recovery of damages in the sum of $ 10,000. That judgment was affirmed by the Circuit Court of Appeals of the United States for the Eighth Circuit. Pierce Oil Corporation v. Taylor, 264 F. 829.

The present action is for the recovery of a sum equal to the amount of money destroyed on the person of Mrs. Taylor, which is alleged to have been the property of plaintiff and held by Mrs. Taylor for safe-keeping at the request of plaintiff. It is alleged in the complaint in this case, as in the former case referred to, that the defendant negligently sold as kerosene the fluid used by Mrs. Taylor in attempting to start a fire, but which was in fact gasoline or some other fluid more inflammable than kerosene. The defendant filed its answer denying the allegations of negligence and also pleaded the judgment in the former action as an adjudication in bar of the right of plaintiff to recover in this action.

The ruling of the court in sustaining a demurrer to the paragraph of the answer setting forth the plea of res judicata is assigned as error. The contention is that Mrs. Taylor had special ownership of the property destroyed, and that the right of action for its destruction rested in her and passed to her administrator, and that the different causes of action could not be split. This is but another way of saying that the right of action for the destruction of the money was not in the plaintiff in the present action, but was in Mrs. Taylor and passed to her administrator. If that be true, then it would follow that plaintiff is not entitled to sue in the present action, but such is not the state of the law on this subject. It is undisputed that Mrs. Taylor was a gratuitous bailee without beneficial interest in the property thus held. The law is settled that under those circumstances the right of action for injury to the property or destruction thereof is in the general owner and not in the bailee as special owner. Scott v. Jester, 13 Ark. 437; Overby v. McGee, 15 Ark. 459; Long v. Bledsoe (Ky.), 3 J.J. Marsh. 307. In Overby v. McGee, supra, there is a statement of the law that is controlling in the present case. It is as follows: "But where the general owner merely permits another gratuitously to use his chattel, such owner may maintain trespass against the stranger for an injury done to it whilst thus held."

Conceding that an action might have been maintained by the bailee, as special owner, for the benefit of plaintiff as general owner, it does not necessarily follow that there was no right of action in favor of plaintiff...