Ray's Adm'r v. Standard Oil Co.
| Decision Date | 23 June 1933 |
| Citation | 250 Ky. 111,61 S.W.2d 1067 |
| Parties | RAY'S ADM'R v. STANDARD OIL CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Henderson County.
Action by Albert Ray's administrator against the Standard Oil Company. From an adverse judgment, plaintiff appeals.
Affirmed.
Henson & Taylor, of Henderson, for appellant.
Pentecost & Dorsey, of Henderson, Charles G. Middleton and Crawford Middleton, Milner & Seelbach, all of Louisville, for appellee.
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 following 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 court they appear to have abandoned all of them except what we shall classify as: (1) That the verdict is flagrantly against the evidence and not sustained by it; (2) rejection of competent evidence offered by plaintiff and the admission of incompetent evidence offered by defendant; and (3) error in giving and refusing instructions. The others contained in the motion for a new trial, we repeat, are not pressed in briefs; but, were it otherwise, we conclude that they are wholly immaterial and without merit and for which reason we will confine our discussion to the three we have enumerated, taking them up in the order named.
1. In disposing of ground (1) it should be remembered that Cheaney testified clearly and positively that he neither saw nor filled any tea kettle, in the school building when he delivered the floor oil, either with kerosene or any other substance, and that he saw and handled only one container in the school building, which was the oil can, and which was done in the manner and for the purpose hereinbefore stated. There was no evidence contradicting him upon those matters other than the circumstances in the case, which established an opportunity for him to have put into the tea kettle the inflammable substance that it was later discovered it contained. If he told the truth, then the very foundation of plaintiff's cause of action, independently of any question of proximate cause, vanishes and disappears, since its charge of negligence rests exclusively upon the fact that defendant's servant, Cheaney, filled the tea kettle with its inflammable contents without notifying the teacher or any one connected with the school that he had done so. Whether or not that act of negligence, if true, would be the proximate cause of the fire, notwithstanding the intervening acts of the school teacher in placing the filled tea kettle on top of the stove under the circumstances and without examining its contents, is an entirely distinct question, and one which in itself rested upon the fact that Cheaney put the inflammable...
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