Stone v. Sinclair Ref. Co., 57.

• Decision Date: 19 December 1923
• Docket Number: No. 57.,57.
• Citation: 225 Mich. 344,196 N.W. 339
• Parties: STONE v. SINCLAIR REFINING CO.
• Court: Michigan Supreme Court

225 Mich. 344

196 N.W. 339

STONE

v.SINCLAIR REFINING CO.

No. 57.

Supreme Court of Michigan.

Dec. 19, 1923.

Error to Circuit Court, Muskegon County; John Vanderwerp, Judge.

Action by Clark Stone against the Sinclair Refining Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Cross, Foote & Sessions, of Muskegon (Hoyne & O'Connor, of Chicago, Ill., of counsel), for appellant.

Carpenter & Jackson, of Muskegon, for appellee.

BIRD, J.

In this suit plaintiff recovered judgment against defendant for wrongfully causing the death of his wife and two children.

The facts in brief upon which the action was planted were that plaintiff arose on the morning of June, 8, 1920, prepared his own breakfast, and left for his work. Later his wife and children arose, and some time during the morning hours the mother sent Gladys, her seven-year old daughter, to the nearby grocery store of Peter Coleman for a can of kerosene oil. She returned with the oil, and a short time thereafter an explosion was heard in plaintiff's house. The fire department was summoned and extinguished the fire. Mrs. Stone and her children were carried out of the house and placed on the lawn. Later they were removed to the hospital. They had severe burns and were seriously affected by the gases which proceeded from the explosion. They survived only a short time.

Testimony of the firemen and state inspectors showed that the fire was what they termed a ‘flash fire,’ and not such a fire as would occur from an explosion of kerosene.

It appeared that Mr. Coleman, the grocer, had some time before that, purchased 50 gallons of gasoline from defendant for his own use, and it had been placed in a green can with a siphon pump. Subsequently kerosene had been placed therein. Mr. Coleman testified, however, that before putting the kerosene in he had emptied out the gasoline. The sale of the kerosene to plaintiff's little daughter was made by Mr. Coleman, mother of the groceryman, who had no knowledge that the can had been used for gasoline.

The facts do not appear to be much in dispute. Counsel concede that defendant's driver delivered the gasoline to Coleman and placed it in a green can, but they argue that his act was not the proximate cause of the explosion, but that the intervening act of Coleman either in selling gasoline or gasoline and kerosene mixed for kerosene was the proximate cause. This is the principal question discussed by both parties in their briefs.

1. From the view we take of the matter it will be unnecessary to discuss the question of proximate cause. Our view is that both defendant's agent and Coleman were engaged in doing an act expressly prohibited by the statute (C. L. 1915, § 6293), and this joint wrong was responsible for the explosion which followed. Coleman was present at his place of business when the gasoline was delivered, and requested defendant's agent to place it in the green can. The agent hesitated about doing it, but finally complied with Coleman's request, with the admonition that he would have to look out for it.

The statute cited was passed as a police measure to protect the individual. Molin v. Wisconsin Land, etc., Co., 177 Mich. 527, 143 N. W. 624,48 L. R. A. (N. S.) 876. It was passed to avoid just such mistakes being made as were made in this instance, on account of the similarity in appearance and odor of gasoline and kerosene. The explosion which took place is traceable directly to the joint act of both of these parties, and it may safely be assumed that the explosion would not have occurred had it not been for this joint wrong. Under this theory either one or both, defendant and Coleman, were liable to the plaintiff.

Defendant's counsel seek to avoid the effect of the statute by showing that Coleman bought the gasoline for his own use, but this does not avail, as the statute expressly provides that:

‘Every person purchasing gasoline, benzine or naphtha for use or sale at retail shall procure and keep the same only in barrels,’ etc., ‘painted and lettered as hereinbefore provided.’ Section 6293.

If defendant's theory of proximate cause were to be permitted to defeat the action in this instance, wholesalers of gasoline could violate the law with impunity, and would be practically immune from the penalties of the statute. The wholesaler sells to the retailer, and the retailer nearly always does some act, in connection with the gasoline before sale, which could be ascribed as an intervening act. The idea back of this legislation was to so segregate gasoline that it could be easily identified wherever it might be, and it was made equally incumbent upon wholesaler, retailer, and user to see that the precaution prescribed by the statute was complied with.

2. A further defense is asserted by counsel that inasmuch as the proofs showed that the agent violated the law, and knew that he was violating it when he delivered the gasoline into a green can, he was acting outside of the scope of his authority and therefore the master would not be liable.

Thompson, the driver of the tank wagon, was the servant of defendant for the purpose of delivering gasoline and oils to customers. While engaged in this work he was acting within the scope of his authority. There is nothing in the testimony from which we can conclude that he momentarily stepped aside from his regular duties and acted maliciously or willfully. In putting the gasoline into the green can he simply yielded to the request of his customer, and while doing so we think it must be said that he was about the business of his master. The cases of Smith v. Webster, 23 Mich. 299, and Ducre v. Sparrow-Kroll Lumber Co., 168 Mich. 49, 133 N. W. 938,47 L. R. A. (N. S.) 959, are cited in support of defendant's contention. In the latter case cited the case of Smith v. Webster is quoted from. Mr. Justice Campbell, in that case, stated the rule as follows:

‘The acts complained of were done in the regular course of their employment, and not by willful wrong. In such cases the master is bound to keep his servants within their proper bounds,...