Tegler v. Farmers Union Gas & Oil Company

• Decision Date: 10 February 1933
• Docket Number: 28312
• Parties: ERNEST TEGLER, ADMINISTRATOR, APPELLANT, v. FARMERS UNION GAS & OIL COMPANY, APPELLEE
• Court: Nebraska Supreme Court

246 N.W. 721

124 Neb. 336

ERNEST TEGLER, ADMINISTRATOR, APPELLANT, v. FARMERS UNION GAS & OIL COMPANY, APPELLEE

No. 28312

Supreme Court of Nebraska

February 10, 1933

APPEAL from the district court for Hall county: EDWIN P. CLEMENTS JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Generally, no cause of action in tort can arise from the breach of a duty existing by virtue of contract, except as between the parties thereto.

2. An exception to the general rule, that privity of contract is essential to right of action for a tort, may occur when a third party is injured by reason of a failure in the duty of inspection and of the use of ordinary care on the part of a manufacturer or dealer to see that a manufactured article is not put upon the market in a defective condition, where such condition makes the article imminently dangerous to persons who will use it.

3. There is a presumption that an official oil inspector did his duty and that kerosene inspected by him comes up to the official test.

4. Assigned errors considered, and held that the judgment for defendant should be affirmed.

Appeal from District Court, Hall County; Clements, Judge.

Action by Ernest Tegler, administrator of the estate of Juanita Tegler, deceased, against the Farmers' Union Gas & Oil Company. From a judgment in favor of the defendant, the plaintiff appeals.

Affirmed.

Benjamin J. Cunningham, for appellant.

Clearly Suhr & Davis, contra.

Heard before GOSS, C. J., DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

GOSS, C. J.

This is an action for damages for alleged negligence causing the death of Juanita Tegler, four year old daughter of Ernest Tegler and Amanda Tegler. The suit is brought by Ernest Tegler, as administrator, against defendant corporation, a dealer engaged in buying and selling gasoline, kerosene and other oils. At the close of evidence offered by plaintiff and defendant the court directed a verdict for defendant.

The death of the child was caused by burning as a result of an explosion while the mother was filling an incubator lamp. On Saturday, April 19, 1930, the father had purchased three gallons of kerosene from Donald Miquez at Ovina, about two miles away, who ran a store and had a gasoline pump and a kerosene pump outside. Tegler himself got it at the kerosene pump at the instance of Miquez, who was busy in his store. He took it home in his can used for that purpose. On Sunday, without mishap, the mother filled from this can three lamps used to furnish heat for an incubator. This was done in a small room called the incubator room, next to the kitchen. Two of the lamps held hardly a quart each, but the third held about a half gallon. The lamps furnished heat to the incubator Sunday night and Monday. On Monday afternoon about 5 the mother undertook to fill the two smaller lamps; the one of larger capacity did not need it. She set all three lamps in a row on the top of the incubator, which was 36 inches long. She left the large lamp burning. The child was close beside the mother, who had filled one of the smaller lamps and was filling the other, when, as the mother testified, she first "noticed a fire in the funnel," the room was filled with smoke and fire and Juanita's clothes caught fire. She was taken to a hospital and died the next day. The three-gallon can was wrecked, but the incubator lamps remained intact with kerosene still in them.

Defendant maintained storage tanks near the Burlington tracks at Grand Island, including one storage tank for kerosene with a capacity of about 12,000 gallons. It furnished petroleum products, including kerosene, delivered by truck, to Miquez, at Ovina, a few miles away, and to other retail dealers. Plaintiff claims Miquez was defendant's agent, but fails to point out the specific evidence from which this might be inferred. On the contrary, the evidence indicates that Miquez was a customer only, who bought his kerosene from defendant. It is shown by the evidence that all the kerosene bought by Miquez came from defendant's said tank at Grand Island.

All kerosene purchased by defendant from September 16, 1929, to April 21, 1930, the date of the accident, was traced. In that period defendant received from the refiner and unloaded into its kerosene tank four tank cars of kerosene, each car containing more than 8,000 gallons. This was all bought from Champlin Refining Company of Enid, Oklahoma, as kerosene and was so billed. The statute (Comp. St. 1929, secs. 66-301 to 66-317) puts all petroleum products as to tests and inspection, offered for sale in this state, under the state department of agriculture. Section 66-304, Comp. St. 1929, requires that illuminating oils offered for sale "shall not give a flash test below one-hundred twelve degrees Fahrenheit when tested by the oil tester known as the Foster apparatus."

This is a tort action. "It is a general rule that no cause of action in tort can arise from the breach of a duty existing by virtue of contract, except as between the parties thereto. Privity of contract is essential to the right of action. 20 R. C. L. 49, sec. 44." 42 A. L. R 1249, stating the foregoing rule and the reasons therefor in the annotation, and suggesting a rule affording a basis for liability, not inconsistent with the present trend of the courts to liberalize rules of liability for negligent acts which result in injuries to third parties. Briefly sketched, that enlarged rule suggests a duty of inspection and the use of ordinary care to see that a manufactured article, which, if defective, is...