Shermer v. Crowe, 25204.

• Decision Date: 08 June 1936
• Docket Number: No. 25204.,25204.
• Citation: 53 Ga.App. 418,186 S.E. 224
• Parties: SHERMER. v. CROWE et al.
• Court: Georgia Court of Appeals

53 Ga.App. 418

186 S.E. 224

SHERMER.

v.CROWE et al.

No. 25204.

Court of Appeals of Georgia, Division No. 2.

June 8, 1936.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Action by G. E. Crowe and others against D. D. Shermer and another. Judgment for plaintiff, and the named defendant brings error.

Affirmed.

Etheridge, Belser, Etheridge & Ether-idge, of Atlanta, for plaintiff in error.

Hewlett & Dennis, John A. Dunaway, and Bryan Middlebrooks & Carter, all of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

Plaintiffs brought suit against Shermer and the General Oil Company for damages on account of the death of their wife and mother, alleged to have been caused by the negligence of the defendants, in selling a dangerous substance as kerosene, which was a "flash point lower than 115 degrees F" in violation of the state law, the same being an inflammable and explosive liquid, without giving any caution or warning thereof, and which was wholly unsuited for the uses and purpose for which kerosene was customarily used. The jury returned a verdict in favor of the plaintiffs against both defendants for $13,041.67. The defendant Shermer moved for a new trial, which was overruled, and he excepted, naming the defendant oil company as a defendant in error in the bill of exceptions. The evidence on the trial of the case authorized the jury to find the following facts:

Shermer was engaged in the retail and wholesale of kerosene and other petroleum products, and in the rear of his store he maintained four large storage tanks. Two of the tanks were divided into two compartments, and two into three compartments. Shermer retailed kerosene from hand pumps in the front of his store. All trucks and wagon tanks drove to the rear of the store and loaded directly from these storage tanks. He purchased kerosene and stored the same in one of his storage tanks. The state oil inspector inspected this kerosene and found the same to be a flash point lower than 115 degrees Fahrenheit, which it was a violation of the law to sell, and rendered the same more easily inflammable and explosive than proper kerosene was, and this officer confiscated and sealed said tank of kerosene. The tank truck of the General Oil Company loaded with kerosene at Shermer's rear tanks, and it was earnestly con-tended that he was not given any kerosene from this faulty tank, and that all other kerosene was up to the standard required. This tank truck sold and delivered kerosene to small retail stores. Mrs. Harris owned the Peeple Street Market, and purchased exclusively all kerosene that she sold from said oil company's truck. On May 14, 1932, Mrs. Harris purchased some kerosene from said truck of the oil company and the same was delivered to her. The plaintiff G. E. Crowe, husband of the deceased, lived in the house with Godfrey, who worked for Mrs. Harris, and on May 14, 1932, Godfrey purchased four gallons of this kerosene from the market and the same was carried by Crowe to Godfrey's home. On May 16, 1932, Leila Crowe, wife of the plaintiff Crowe, preparatory to heating water, placed some charcoal in a charcoal bucket, poured about one-half a teacup of this kerosene out of the can onto the charcoal, in order to make it burn freely, set the oilcan down about eighteen inches away from the charcoal bucket, and then struck a match upon the side of the bucket, whereupon the charcoal soaked kerosene, caught fire, and blazed up, igniting the adjacent oilcan, and the same exploded. The fire spread and burned the house, and said Leila Crowe received burns from which she died that afternoon. It was contended by Shermer that Mrs. Crowe had previously set fire to the charcoal, and, it not catching up soon enough for her, some 10 or 15 minutes later she poured the kerosene over the hot coals and this caused the explosion. An investigation was made by the state oil chemist the next day, and he discovered that the kerosene in the tank at Mrs. Harris' market, from which the kerosene that caused Mrs. Crowe's death came, was of an improper grade, the same as that which had been condemned at the place of business of Shermer, whereupon all kerosene bought by the oil company from Shermer was taken up by it and destroyed. There was evidence that had the kerosene been of the proper grade it would not have exploded in the manner in which the kerosene exploded in this case, or not as quickly and easily as this kerosene exploded.

1. The evidence authorized the jury to find that the kerosene causing the explosion that resulted in the death of Mrs. Crowe was sold by defendant Shermer to the defendant oil company, and in turn sold by it to the merchant from whom it was purchased for use by Mrs. Crowe; that it could have come from no other place than the place of business of this defendant; and that this defendant had a quantity of below grade kerosene on hand at the time. The fact that Mrs. Crowe attempted to start a fire in a charcoal bucket with such kerosene was not such an unusual and dangerous use thereof as would bar, as a matter of law, a recovery for her death, when it exploded. Standard Oil Co. v. Reagan, 15 Ga.App. 571, 574 et seq, 84 S.E. 69. There was evidence that had this kerosene been up to the standard required by the law of this state, it would not have ignited and then exploded as it did. The evidence supported the verdict in favor of the plaintiffs, the husband and minor children of the deceased. The verdict in this case was not attacked as being excessive.

2. Our statutes provided that it shall be a misdemeanor for kerosene oil below a certain standard to be sold for cooking, heating, or power purposes. Ga.Laws 1927, pp. 279, 283, § 8. The trial judge in effect charged the jury in this case that if the defendant sold "kerosene oil for use or intended to be used in the manner and way in which kerosene is usually used" that was below such standard, this would be a violation of the law and if the jury believed from the evidence that the defendant did sell this grade of kerosene he would be guilty of negligence per se by so doing. Where the violation of a penal statute by the defendant is the proximate cause of the injury complained of, the defendant is guilty of negligence per se authorizing a recovery. Platt v. Southern Photo Material Co, 4 Ga.App. 159, 60 S.E. 1068; Louisville & N. R. Co. v. Hames, 135 Ga. 67, 68 S.E. 805. It would not be a violation of the law for the defendant to sell kerosene that was below such standard for use in eradicating mosquitoes and for other kindred purposes. However, there was no question nor issue in this case that the kerosene alleged to have been sold by Shermer to the merchant from whom it was purchased by the brother in law of the husband of the deceased was sold for any purpose other than cooking, heating, or power purposes, and it was being used to start a fire for the purpose of heating water when the explosion that resulted in the death of Mrs. Crowe occurred. It is a matter of general knowledge that high-grade kerosene isusually and customarily used for cooking, heating, or lighting purposes, and while the above charge was not in the exact language of the statute, under the facts of this case it did not tend to extend this statute, which is limited to the sale of kerosene for the purposes therein specified, to the sale of kerosene that is to be used for cleaning, mixing with paint, eradicating insects, and kindred uses, for which use an inferior grade of kerosene may be used. Furthermore, under the facts of this case, this charge did not tend to harm or prejudice this defendant's case in any manner. Defendant contends that he...