Ray's Adm'R v. Standard Oil Co.
| Decision Date | 23 June 1933 |
| Citation | 250 Ky. 111 |
| Parties | Ray's Adm'r v. Standard Oil Co. |
| Court | United States State Supreme Court — District of Kentucky |
2. Appeal and Error. — Exclusion of evidence cannot be reviewed in absence of avowal as to what witness would state.
3. Explosives. — In action against oil company for death of child in school fire, admitting testimony respecting pilfering of articles before fire held not error.
Testimony complained of was incidentally stated and manifestly was of such trifling significance as to not rise to dignity of error much less material one.
4. Explosives. — In action against oil company for death of child in school fire, excluding evidence of contract between defendant and board of education to show containers required held not error where such question was not material issue.
The occasion of the oil company's driver appropriating a can which he found at school was not part of his alleged negligent act, but plaintiff relied on his having put inflammable material into a tea kettle.
5. Explosives. — In action against oil company for death of child in school fire, excluding question to defendant's driver respecting temporary mental affliction some time after fire held not error.
6. Appeal and Error. — In action against oil company for death of child in school fire, testimony from defendant's records as to route traveled by driver on day oil was delivered if erroneous was not prejudicial.
7. Appeal and Error. — In action against oil company for death of child in school fire, doctor's testimony respecting expressions of anxiety by defendant's driver over retaining his job held not prejudicial error.
8. Trial. — In instruction covering oil company's liability for death of child in school fire, court did not err in excluding clause which called specific attention to certain parts of evidence and gave definition of what was proximate cause of fire.
9. Explosives. — As regards proximate cause in action against oil company for death of child in school fire, instruction holding defendant liable for result of act reasonably to be anticipated was proper.
10. Explosives. — In action against oil company for death of child in school fire, instruction that it was negligence for defendant to appropriate oil can in school building held properly refused where putting of oil into such can had nothing to do with producing fire.
Appeal from Henderson Circuit Court.
HENSON & TAYLOR for appellant.
PENTECOST & DORSEY, CHARLES G. MIDDLETON, CRAWFORD MIDDLETON, MILNER & SEELBACH for appellee.
Affirming.
On November 3, 1930, and prior thereto, there was conducted in common school district H in Henderson county a colored school known as Race Creek school. At that time and for some years prior thereto the employed teacher of the school was and had been T.I. Bryant, a colored man beyond middle age but whose exact age is not shown. Shortly after the convening of school on the day mentioned a fire was started in the manner hereinafter described, and which destroyed the building and burned three of the pupils to such extent as to produce their deaths, shortly thereafter. One of them was Albert Ray, who was seven or eight years of age, and the appellant and plaintiff below, Henderson National Bank, qualified as administrator of his estate, and then filed this action in the Henderson circuit court against the defendant and appellee, Standard Oil Company, to recover damages for his death, which plaintiff alleged was produced by defendant's negligence in the manner therein and hereinafter outlined. The burned building was not the property of the county board of education as a part of the public school system of the county, but was only a rented one, the public one having burned some year or so earlier and while the same teacher was conducting the school. After that fire the board of education arranged with a colored church organization nearby to rent the small building that it had constructed near its church building for church entertainment purposes, and in which the school was thereafter taught.
Some time prior to the fire on November 3d, the county board of education entered into a written contract with defendant to furnish floor oil to the various county school buildings needing it, at stipulated prices. The teacher of the school in question had requested the county board of education to procure and furnish for his school five gallons of floor oil, and it immediately notified defendant to deliver that quantity to that school house at its convenience. From some cause, not entirely made clear, there was no school taught in the building on Friday, October 31, 1930, preceding the fire, and the building was supposed to remain fastened from that time until the following Monday morning when the fire occurred. Defendant then had in its employ, and who had been so for a number of years, Monroe Cheaney, a driver of one of its truck oil tanks with which it filled its orders and delivered its product to its customers within the territory assigned to Cheaney, and which included the Race Creek Colored school. Some time during the day of Friday, October 31, 1930, Cheaney went to the school house for the purpose of filling the order, and, as we gather, he was under the impression that school was being conducted on that day, but when he arrived he found the front door locked. He went to the front one of the two side windows and raised the sash, when he saw sitting on the floor of the building, between the door and its corner on that side, a five gallon tin can. He then entered the building and discovered on taking hold of the can that it was empty. The lock on the door was a spring one and could be opened from the inside, and Cheaney thereupon opened it and carried the can to his truck and filled it with five gallons of floor oil and then deposited it at the place where he found it and went away. At that time he made out a delivery slip bearing that date, which he later on the same day delivered to his employer, the defendant. The above is, in substance, his testimony and he also stated that he neither saw nor in any manner handled any tea kettle in the building. However, the teacher, and other witnesses testifying in the case, established the fact that there were two tea kettles in the building, one of which was useless because of a hole in it and the other one was, during school sessions, kept filled with water and resting on the top of the stove for the purpose of moistening the atmosphere, and the teacher testified that he always filled it with water each morning and placed it on top of the stove and that the water in it would about all evaporate during the day, leaving it empty at the time of the closing of the school, to be refilled the next morning.
The teacher also testified that when he dismissed school on Thursday October 30, 1930, until the next Monday morning, he left the tea kettle on the stove unfilled. When he arrived at the school building on the folowing Monday morning, it was on the floor not far from the oil can that had been filled with floor oil by Cheaney. On picking it up he testified that he discovered it was filled with something which he assumed was water and he placed it on top of the stove. He then built the fire, and just after it got going well the contents of the kettle became ignited; whereupon witness picked it up and endeavored to carry it out of the building but the flames from it burned his hands so badly that he dropped it on the floor, which ignited the building and destroyed it with the above-stated tragical consequences.
It was testified by the janitor of the church that the oil can was used by the church congregation as a container of kerosene for lighting purposes for both the church building and the school building. It was also shown that there was an attempted meeting of the church trustees at the school house on Saturday night before the tragical Monday morning, but all of the members present stated that they did nothing to the tea kettle, though they did ascertain that some one had filled the oil can with something that they concluded was kerosene, and some one remarked that he supposed the one who had pilfered a lamp from the church had concluded to compensate the congregation therefor and had donated the five gallons of kerosene. The janitor testified that on the previous Sunday night, October 26, 1930, he had filled some lamps from the kerosene can and had left therein what he supposed was about one gallon of its contents, but there was no evidence in the case that the same or any other amount of kerosene remained in the can until the following Friday when Cheaney delivered the floor oil.
It was charged in the petition that Cheaney poured the small amount of the contents of the oil can into the tea kettle in order to make room for his delivery of the floor oil and that he in no manner informed any one about it, and that in the exercise of ordinary care he should have anticipated the destructive result of his act that later happened. Furthermore, that such conduct on his part constituted such negligence as rendered his principal responsible for any proximate result thereof and which plaintiff averred included the fire that destroyed the life of its decedent. Defendant's demurrer to the petition was overruled and it answered denying all of the material averments therein. Upon trial the jury under the instructions submitted to it by the court, returned a verdict for defendant, and plaintiff's motion for a new trial having been overruled it prosecutes this appeal.
The motion and grounds for a new trial as amended contain ten alleged errors, each of which counsel insists was of such substantial prejudice to the rights of the plaintiff as to authorize a reversal of the judgment; but in their brief filed in this...
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