145 Iowa 196 | Iowa | 1909
The evidence, so far as it is necessary to consider it on this appeal, tended to show the following state of facts: Defendants were conducting at the town of Pisgah a department store under the management of one Strong, in which coal oil was kept for sale at retail. Three or four weeks prior to the accident Strong received at the store a barrel of coal oil bearing the stamp of the state oil inspector, showing a flash test of the contents at one hundred and six degrees, and this was the only barrel of oil from which sales were' made to customers from the time of its receipt until after the accident. Strong used oil from this barrel for filling lamps in the store, and for sprinkling the floor, without discovering that it was not' of the purity and standard indicated by the inspector’s stamp. It was sold to and used by various customers without complaint, save that -about a week or ten days after the receipt of the barrel Strong’s daughter, who was employed in the store, received from one Booth a telephone message to the effect that his landlady told him that in lighting a fire from the oil there was a flash, as though it might contain gasoline or something of that kind, and that a test ought to be made of it. This communication was transmitted to Strong by his daughter, and in her presence he
I. An instruction in -the following language was given to the jury:
The specific allegation of negligence made in the petition is that A. L. Strong, agent of the defendants, failed to have the oil in question-inspected or examined by an oil inspector. On this point you are instructed that as Strong was the agent of the defendants, carrying on their store, his negligence, if any, would in law be the negligence of' the defendants. It was his duty to use reasonable and ordinary care not to sell oil which did not conform to the test required by law. In the first instance; and until he
Italics are used in the instruction as here printed for the purpose of pointing out the special clauses of which appellant complains.
The statute with reference to the inspection and sale of petroleum products for illuminating purposes (Acts 30th General Assembly, chapter 87; Code Supp. 1907, sections 2503-2510) provides for the appointment of a chief inspector and fourteen other inspectors, who, under rules and
Eor the reasons pointed out, the judgment is reversed.