Chapman v. PfarrChapman v. Pfarr
- Reporters:
- ,
- Before:
- McClain
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 *199put some of tlie oil from the barrel into a saucer and took it into the alley at the rear of the storej where he tested it by lighting matches and holding them at the surface of the oil, without securing any flame or flash. Thereupon the daughter telephoned -to Booth that the oil had been tested and was all right. About two weeks after this test the wife of plaintiff purchased a gallon of oil, which she took home with her in a can, and with plaintiff’s assistance used it for lighting a fire in a cook stove, in which-there had been no fire since the preceding day. The oil was poured upon cobs in the stove, and the open -can was placed on tlie floor near by. When a match was applied to the cobs, there was an explosion, resulting in slight in-, jury to plaintiff and severe injuries to his wife and three of his children, from which the wife and children died within a short time. On information sent to the chief oil inspector at Des Moines immediately after the accident, a deputy, one Cousins, was sent to inspect the oil in the barrel from which the sale had been made to plaintiff’s wife, and this inspector discovered by putting some of the oil into a cup and holding a lighted match above the oil and below the top of the cup, that there was a flash. ■ This the deputy inspector testified was the usual way of making a test where there was no special apparatus at hand. A subsequent thorough test of the oil showed it contained twenty-one percent of gasoline.
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 *200had knowledge to the contrary, or, such notice as would put a reasonably prudent man upon inquiry which would lead, to such knowledge, he had the right to rely upon the inspector’s stamp or brand upon the barrel from which the-oil was taken. If, however, such information came to him prior to the accident as would put an ordinarily prudent person upon inquiry and investigation that would have developed, through inspection by the state oil inspector, the fact that the oil ‘in question was not up to the required test, then he was negligent in not making such investigation, or having it made before making further sales of the oil. In this connection it becomes important to determine ‘whether the test which Strong made and the results which he obtained therefrom were such as to justify an ordinarily prudent man in believing that the oil in question was up to the required standard. The statute, you will observe, required a closed test. In determining this question you should take into consideration, not only the manner in which he made the test, but also the testimony of experts as to what such a test would disclose, so far as it bears thereon, and all the facts and circumstances known to Strong at the time, and therefrom, together with all the evidence bearing thereon, determine whether the. said Strong was negligent in not having the oil inspected by a state oil inspector, and if you find he acted as a man of ordinary prudence would under like circumstances, then he was not negligent, and plaintiff can not recover herein.
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 *202regulations for inspection prescribed by the state board of health, and with the instruments and apparatus prescribed by said board, shall inspect and test all illuminating oils kept for sale within the state, and reject all oils for illuminating purposes which will emit a combustible vapor at a temperature of une hundred and five degrees “closed test,” and brand barrels or packages containing oil which is found to meet the statutory requirements as “Approved,” with the degree of flash test as determined by him, and it is further provided that any persons selling any product of petroleum for illuminating purposes, which has not been inspected .and branded as provided, or shall knowingly or negligently sell any product of petroleum not inspected and tested, or any such product which will emit a combustible vapor at a temperature of less than .one hundred and five degrees, closed test (except as otherwise specified), shall be subject to fine and liable in civil action for damages sustained on account of such sale. The seller is not required by statute to make such closed test as is required to be made by the oil inspectors. It is true that the statute seems to specifically prohibit the sale of any illuminating oil which will emit a combustible vapor at a temperature of less than one hundred and five degrees, closed test, but we think the plain purpose of the statute, reading all of its provisions together, ‘is to relieve the seller from responsibility for the sale of illuminating oil properly branded, so as to indicate its compliance with the statutory standard, unless there is negligence. There is no requirement that the seller provide himself with apparatus for making a closed test such as the statute requires to be made by the inspector, and there is no specific requirement that the seller shall under any circumstances call upon a state inspector to determine the character of oil which has been purchased in a barrel properly branded. We think, therefore, that the duty of the seller, on receiving information such as would lead a reasonably prudent man to think that the oil which he is *203selling does not correspond to the brand on the barrel, is to ’ make, or to cause to be made, such inspection as would reasonably determine whether’ the oil which he is selling is in fact dangerous; that is, of a lower standard than that required by statute. The circumstances might be such as to require the calling of the inspector, or the making of a closed test by an expert; but we can not say that this is his duty as a matter of law. The court should have left this question to the jury, instead of directing them that Strong was negligent if, after the information was received he continued to sell oil which, as subsequently disclosed by the oil inspector, or an expert making the closed test, with the apparatus prescribed by the state board of health, was below the required standard. It would have been proper, no doubt, to leave to the jury the determination of the question whether, by the means at hand and with the knowledge which the ordinarily prudent dealer would be presumed to have as to the nature of illuminating •oil, and the method of determining its safety for use, Strong was negligent in selling this oil to plaintiff, in view of the information which had_been communicated to him that it seemed to be dangerous; provided, of course, the allegations of negligence were broad enough to cover such action on his part. But wTe think it was not’ proper to direct the jury to test his negligence by determining what an expert or an inspector using the statutory methods might have discovered.
Eor the reasons pointed out, the judgment is reversed.