Thornhill v. Carpenter-morton Co.

• Decision Date: 02 April 1915
• Citation: 108 N.E. 474,220 Mass. 593
• Parties: THORNHILL v. CARPENTER--MORTON CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 593

108 N.E. 474

THORNHILL v. CARPENTER--MORTON CO.

Supreme Judicial Court of Massachusetts, Worcester.

April 2, 1915

SYLLABUS

The evidence introduced and defendant's requests follow:

The plaintiff called as a witness James E. Grogan, who testified that he was and had for 11 years been a dealer in paint and oils on Main street, Worcester, and had oil stain for sale put up in slip-top cans, which he purchased from the defendant by mail order. On cross-examination he testified that he had been a paint dealer for some 10 or 12 years handling paints and their accessories, stains and varnishes that the stain is a thin solution of any color; that there are oil stains, varnish stains, alcohol stains, and water stains; that oil stains were made of oil, turpentine, and dryer, the dryer being mostly plain manganese; 'Oh, I don't know just the process;' that these stains are used to color wood to look like other wood,--walnut stain to look like walnut, etc.; that they are put upon soft wood and dry quickly because of the dryer in it; that the body is mostly oil dryer and some turpentine and some benzine; that the benzine is a petroleum product; that some of them smell strongly of benzine, and some of them do not; that by taking off the top of the can you could smell the benzine whenever it is there; that all the stain he ever saw would burn pretty easily; that every paint dealer has to pay an unusual rate of insurance, as do all who are in the building with a paint shop; that it is a matter of common knowledge that paints burn, and that any of these having alcohol, turpentine or benzine will take fire very easily and burn very hot, and that the thinner they are, if thinned with spirits, the more easily they will burn, so that every one using these has to exercise reasonable precaution in handling them; that he had been selling these stains for a good many years, had been in that line of business 28 years, and that these stains, walnut oil stain and manganese stain, this whole class of products had been on the market during the whole time, and were made in the same general way so far as witness knew; that all of them were more or less inflammable; so far as he knew, if he sold any of these stains in 1908, they were in the same general condition as those he had been selling for years, all of them liable to take fire if fire got near them; that the difference between a stain and paint is that stain strikes into the wood and colors it, and paint coats it; that stain ignites far more easily than paint, but paint itself burns pretty easily; that the first he heard of any injury to the plaintiff was in July, 1908, from plaintiff's counsel Thayer & Perry; that he had no knowledge whether she or her husband ever bought anything in his store; that he had at that time stains that he had bought of Carpenter, Morton & Co., but even if they were labeled by Carpenter, Morton & Co., he did not know whether they were manufactured by them or manufactured by somebody else and sold to them; that it was a matter of common practice in the paint business, as in other lines of business, for the dealers to have the goods manufactured for them and labeled as their own product, although the real manufacturer was somebody else; that witness himself labeled goods as his own, so as to keep his trade for himself; that all through the mercantile world people put their own labels on things which they do not themselves manufacture, in order to keep their own trade to themselves, and that it was common practice among wholesale dealers to have articles labeled as manufactured by them when they were actually manufactured by somebody else, so as to keep their own trade; that there were a large number of these stains in the market, put out by various well-known houses; that, so far as he knew, the stains he was carrying in 1908 were not different in kind and quality from other stains commonly sold on the market; that these volatile oils, such as benzine, naphtha and turpentine, have been used in that class of goods ever since he has been in the paint business, and are necessarily used to give stains the striking-in quality which makes them stain; that the witness sold benzine and naphtha; that they are commonly used by housekeepers for various purposes, apart from the use made of them in stains; that they are both articles of common use in households.

On redirect examination, witness said that he had manufactured oil stains, but bought his dryer, did not prepare it himself and did not know the ingredients of the liquid dryer; that in order to set fire to paint, he had got to get rather close, but he could not say how close; that he had never set fire to any cans of stain on the floor; did not know how near the flame would have to be.

On recross he testified that he was now making his own stains, using substitute turpentine and dryer, but that the liquids were substantially the same in all stains, the pigment varying; that substitute turpentine was a petroleum product, of lower gravity than benzine or naphtha.

Benjamin S. Merigold testified that he had been a professor of chemistry in Clark College 8 to 10 years, and before that was for 3 years an instructor at the Worcester Polytechnic Institute; that on December 6, 1908, he made an analysis of a can of stain, which he produced, with a label 'Walnut Oil Stain, manufactured by the Carpenter-Morton Company, Boston,' and on the other side the directions for using the oil stains:

'Stir the contents of the can well after opening, so that they will be thoroughly mixed. Use a coarse soft sponge or cloth to apply the same. Do not brush it on when the grain of the wood is to be filled. Apply the stain before filling. When a deep shade is required, apply two coats of stain.'

That he could give the result of his analysis. The defendant objected to that analysis of the particular stain without showing the analysis of other stains, for that the declaration alleged that volatile oils 'were not fit and proper to be used in stains, and further that volatile oils were used in large and unusual quantities in this stain, and that, therefore, to show an analysis of this stain without showing an analysis of other stains was incompetent.' The court admitted the testimony and the defendant excepted.

Witness testified that he found the vehicle of the liquid part of the stain made up of volatile oil, 14 per cent. turpentine and 36 per cent. petroleum products, partly benzine, but that it was pretty difficult to separate petroleum products present in a mixture of that kind; that by volatile substances he meant substances which vaporize easily and give off vapors; that volatile substances give off vapors on opening the receptacle in which they are confined; that they may be distinguished by their odor; that the smell is about the only way in which any idea can be obtained easily; that in this particular case the odor of benzine was present; that this liquid was volatile to such an extent that it gave off very easily distinguishable odors at a distanceof perhaps a foot or 15 inches, which would indicate, at the ordinary room temperature, that it was distinctly more volatile than turpentine, or very much more so than a substance like water although volatile; that it is very difficult to tell in exact form just how volatile it is.

'A. How as to the inflammability of this? I will ask you as to the vapor given off by that?

'Mr. Anderson: I pray your honor's judgment, as this is a matter of theory or a matter of experimentation.

'The Court: I do not think it is as to inflammability. You may examine him further in that respect, and see what acquaintance he has on that point.

'Q. You may state what your experience has been as to the inflammability of these vapors which you describe as given off by these substances.

'Mr. Anderson: That I object to. If he made any particular test as to this particular can, but without waiving my general exception, I should think he might present it.

'The Court: His general present experimental knowledge.

'Mr. Anderson: Yes, any general knowledge.

'A. I have made such experiments with regard to turpentine, benzine, and gasoline in general, and in connection with such paints and stains as this is.

'Q. Now, I would like to ask you a further question--to state as to the inflammability of the vapors given off by these particular substances that you examined.

'Mr. Anderson: I pray your honor's judgment. He has not stated anything, except that he has made experiments.

The Court: Are you able to determine the inflammability of these substances to which your attention is now called?

'A. Yes.

'The Court: I permit the question.

'Mr. Anderson: Save me an exception.

'Q. You may answer.

'A. The vapors which were given off by this particular can might be ignited by being brought in contact with a match, as I determined experimentally. I did not attempt to determine the limit to which that took place, for the reasons that they vary entirely if the contents of the can be heated and if the contents of the can were not heated. In this particular case, the vapor was inflammable when brought in contact with the flame, or brought in contact within perhaps about three inches of the dish in which the liquid was held.

'Q. Can you state the limit of distance as to the possibility of flame igniting these?

'The Court: Can you tell within what distance it was ignitable?

'A. In this particular case, I didn't make experiments to determine that.

'Q. Have you ever made experiments in regard to volatile substances which this particular can gave off?

'A. I have.

'Q. Now, then, I ask that question.

'Mr. Anderson: That I object to.

'The Court: Can you give any idea? Your general knowledge as to the...