129 Ky. 546 | Ky. Ct. App. | 1908
Opinion of the- Court by
Affirming.
This penal action was instituted in the name of the Commonwealth against the Standard Oil Company for a violation of section 2209 of the Kentucky Statutes of 1903, providing that: “If any person or persons in this State shall sell, or offer to sell, to he consumed or used in this State for illuminating purposes, any of the oils or fluids specified in section 2202, that will ignite or permanently burn at a temperature less than 130 degrees Fahrenheit, or shall sell or offer for sale, to be consumed in this State for illuminating purposes, any of the oils and fluids aforesaid, which have been condemned by an authorized inspector of this State, and the barrels, casks or packages containing the same been branded or marked by him ‘Unsafe for illuminating purposes,’ the persons so offending shall be guilty of a misdemeanor, and, on conviction, be punished by a fine not exceeding one hundred dollars, and the oils and fluids be forfeited and sold, and the proceeds go to the State.’’ The petition charged, in substance, that the appellee company did offer for sale about 8,000 gallons of
. This leaves to be considered only the question whether or not the pleadings alone supported the judgment. The petition stated a good cause of action for the Commonwealth, and the second paragraph of the answer presented a good affirmative defense. The statute prohibits the selling or offering for sale oil that will ignite or permanently burn at a temperature less than 130 Fahrenheit, or oil that has been branded “Unsafe for illuminating purposes.” But it does not prohibit the owner of oil that has been found to be below the test, or that has been condemned, from mixing it before it is sold or offered for sale with other oil, thereby bringing the entire quantity up to the statutory test. In this particular the appellee company, after the 8,000 gallons of oil had been condemned and branded “Unsafe for illuminating purposes,” had the right to pump the condemned oil into a larger tank in which there was
The answer set up a defense that was more than a traverse of the allegations of the petition and involved new matter entirely separate from and independent of the original transaction, upon which the
The judgment must be affirmed.