147 Iowa 315 | Iowa | 1910
Plaintiff claims that her mother sent her and her brother Guy, a boy of six years of age, to defendants’ store to buy ten cents worth of kerosene; that they took with them a dark red two-gallon can which did not have the word gasoline printed on it; that the children went to the defendants’ store, called for the kerosene, and that defendants, instead of putting kerosene into the can, put in gasoline and delivered it to the children, who took iit home with them in the can which they took to the store. After they had brought the can home, plaintiff, by the direction or consent of her mother, undertook to start or replenish the fire in a cook stove preparatory to the preparation of a meal, and in so doing she turned some of the contents of the can into a cup and put it on the fire, resulting in an explosion which caused the injuries complained of. There is much dispute in the testimony regarding the character of the can into
The witness had already testified as to his having a can about his place, and that immediately after the accident he sent it' back to defendants, and that he had once himself purchased gasoline which was put into the said can. • lie further said, that the can was painted red. Moreover, there was testimony tending very strongly to show that this can was not sent back to defendants as claimed, but that it was in possession of plaintiff’s family the next day after the accident, and that it had lettering upon it. In view of this record, we think the trial court was in error in the rulings above set out. - The testimony was certainly impeaching in character, and should have been received.
. Again, certain of plaintiff’s children were seen in possession of a gasoline can the morning after the accident, and a witness was asked as to their declarations while in possession of the can as to what they were going to do with it. The testimony tended to show that this can was properly painted and labeled. As it was competent to show their possession of this can, their declarations as to what they were going to do with it was admissible as verbal acts explanatory of their possession. This is fundamental law.
For the errors pointed out, the judgment must be, and it is, reversed.