Waters-Pierce Oil Co. v. Deselms
| Decision Date | 13 February 1907 |
| Citation | 89 P. 212,18 Okla. 107,1907 OK 33 |
| Parties | WATERS-PIERCE OIL CO. v. DESELMS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the statute, as in this territory, prohibits the sale of petroleum products except the same be of a specified degree of purity, held, that the passage and enforcement of such statute is within the police power of the territory, and may be strictly enforced.
Where a corporation engaged in the wholesale distribution of coal oil, after an inspection of a tank of oil as required by the laws of the territory, by accident mingles and mixes gasoline with the same, and sells the same to the general trade as pure and standard grade oil, without reinspection, and without notice, held, that such sale is an act of negligence for which it would be liable in damages resulting from such negligent act to a person purchasing the same as pure oil from the vendee of the corporation so selling and disposing of the same.
[Ed Note.-For cases in point, see Cent. Dig. vol. 23, Explosives §§ 5, 6.]
Where an accident has occurred resulting in the death of all the persons immediately connected therewith, and there is no direct proof as to how the accident occurred, the manner of it occurrance may be shown by circumstantial evidence, from which the jury may infer the manner and cause of the accident, if the inference is reasonable, although not a necessary resulting fact.
[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Death, § 94.]
Where on the trial of a case, a probative fact is the subject of consideration, and the existence of such fact is a matter of general knowledge, it is not reversible error for the trial court to direct the jury to determine the existence of such fact, without proof, if a usage or custom in performing the act sought to be established is so general and universal as to be a part of the general knowledge and experience of persons of average intelligence and experience, for the reason that jurors may act upon matters of common observation within their general knowledge without any testimony on those matters.
[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 624, 739.]
Where the verdict of a jury for damages resulting from the death of an individual is within the statutory limitations in such cases, and there is no special evidence shown by the record from which the court may determine that the damages awarded are excessive or given under the influence of passions or prejudice, this court may not interpose its judgment for that of the jury in determing the amount of the award.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3944-3946.]
Error from District Court, Logan County; before Justice Jno. H. Burford.
Action by Albert B. Deselms against the Waters-Pierce Oil Company. Judgment in favor of plaintiff, and defendant brings error. Affirmed.
This action was commenced in the district court of Logan county by the defendant in error, Albert B. Deselms, against the plaintiff in error, the Waters-Pierce Oil Company, to recover damages for the death of his wife and two children, occasioned, as alleged, by the wrongful and gross negligence of the plaintiff in error. The petition alleges that the Waters-Pierce Oil Company, at and previous to the 28th day of January, 1903, was engaged in the business of a jobber or wholesaler of coal oil and gasoline in the territory of Oklahoma, and in the conduct of that business to have had a tank station at the city of Guthrie, where it kept oil and gasoline in storage in large quantities for shipment to retail dealers. That at some time previous to the said 28th day of January, 1903, the defendant mixed and mingled a large quantity of gasoline with a large quantity of coal oil, and that on the same day when this was done the agents and employés of defendant discovered and were fully informed of the fact that said fluids had been mixed and mingled in one of the tanks of said defendant located at its agency at said city of Guthrie; and further alleges that this mixture of coal oil and gasoline was highly inflammable, liable to explode, and particularly dangerous to be used as coal oil, which defendant well knew. That the defendant, knowing and being fully informed that the said coal oil and gasoline had been mixed and mingled, and that the same constituted a dangerous and explosive mixture, knowingly vended and sold as P. W. coal oil three barrels of said mixture to the firm of Powers & Deselms, retail merchants at Orlando, Okl., and that the plaintiff purchased from said firm of Powers and Deselms one gallon of said mixture and took it to his home in an ordinary two-gallon oil can, and that neither the plaintiff nor either member of said firm or any clerk or employé of said firm had any notice or knowledge that said coal oil and gasoline had been mixed and mingled together, or of the dangerous character of said mixture, and that by reason of the dangerous and explosive character of said mixture, on the 4th day of February, 1903, it exploded, setting on fire the residence of plaintiff and causing the death of plaintiff's wife and two children. The defendant in due time filed its answer, which was a general denial and an allegation that, if the accident complained of occurred, it was caused by the negligence of plaintiff's wife, Rosalie Deselms, directly contributing thereto. To this answer plaintiff replied by a general denial. On the 28th day of February, 1905, plaintiff, by leave of the court first granted, dismissed his first cause of action (being the claim for the death of his wife, Rosalie Deselms), and the cause came for trial on the 3d day of March, 1905, before the court and jury.
On the trial of the cause defendant admitted that on the 19th day of January, 1903, there was an accidental mixture in a tank of oil containing 6,666 gallons of coal oil, in which there was mixed by mistake 305 gallons of gasoline, and that the defendant was at once apprised of the mixture, and, upon full consideration of the fact, directed its agent in charge of the tank to sell the contents of the tank as ordinary illuminating coal oil, with full knowledge of all the facts. The defendant's manager at Guthrie, N.M. Carter, testified to the same fact, and there was also introduced in evidence a letter, dated January 20, 1903, from the defendant's manager at Denison, Tex., disclosing full knowledge of the fact of the mixture and its extent. The letter above referred to is as follows: On the receipt of this letter the agent at Guthrie proceeded to sell the mixture of oil and gasoline to the various merchants in his territory as called for.
On January 28th three barrels of this oil, containing the mixture of gasoline, were sold to Powers & Deselms as ordinary coal oil, two barrels of which were emptied into a galvanized iron tank in their store at Orlando; the tank being empty at the time. The other barrel was disposed of by them to another merchant. The oil, after the mixture, was not inspected in bulk in defendant's tank; nor did the barrels shipped to Powers & Deselms bear any inspector's brand; nor was the contents of either barrel inspected while in the hands of Powers & Deselms and before sale. It appears from the invoice that inspection fees were added to the price of the oil in the sale to Powers & Deselms, and neither Powers & Deselms, nor plaintiff, had any knowledge of the mixture of gasoline with the oil until after the fire. After the fire, and on the following day, samples were taken from the tank of Powers & Deselms' store and sealed and submitted to Prof. Holter, chemist of the Agricultural and Mechanical College at Stillwater. On Sunday morning, February 1, 1903, the plaintiff, who was clerking in Powers & Deselms store, went to the store with a two-gallon galvanized iron oil can and drew off from the contents of the tank containing the mixture, one gallon of the same, and took it to his home, and on the afternoon of the same day plaintiff left home to go to Purcell, and was absent for several days, and at the time of the fire.
There is no surviving eyewitness to the origin of the fire. The plaintiff's dwelling was a small one-story building, 12 by 14 feet, standing lengthwise east and west, and divided into two rooms; the east room about 10 by 12, being used for kitchen, and the west room, about 12 by 12, as a general living and sleeping room. The cook stove was near the east wall of the kitchen, and the heating stove (one of the vertical cylindrical type, composed of a conical fire box and a cylindrical plate metal body with a door in the side) was on the east side of the living room, and both stoves connected with a brick flue in the partition wall. The walls of the building were constructed of studding, weatherboarded on the outside, and lathed on the inside; the lath being covered with cloth and paper, and not plastered. From the time of the delivery of the oil can containing the mixture of oil and gasoline at plaintiff's house, on Sunday, until Tuesday evening, the can was not used or handled; but on Tuesday the plaintiff's sister, Mrs. Emory, who was staying with his family during his absence,...
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