133 Iowa 11 | Iowa | 1906
The case made by the plaintiff’s petition is, in substance, as follows: The defendant, the Republic Oil Company, is a corporation engaged in the wholesale gasoline and kerosene oil trade at the city of Des Moines, Iowa, and as such dealer sold said products to Anderson & Bergman, a firm of retail grocers in said city. On July 20, 1904, in response to an order from Anderson & Bergman, defendant undertook to deliver to them a quantity of kerosene oil, and deposited what it claimed tó be the designated quantity of that product in a tank kept by the grocers for such purpose.
To make the situation clearer, we will briefly recite the conceded facts concerning the manner in which the business was carried on. Appellant kept stored in separate receptacles gasoline and two brands of kerosene oil, known as “ Paladine ” and “ Prime White.” These products were distributed and delivered to retail dealers in the city by the use of tank wagons. These wagons were divided into several compartments for the different grades or kinds of products above mentioned. The compartments were not labeled, and, as we read the record, they were not always filled with the same product, but sometimes one, and other times two or more would be filled with gasoline or with kerosene, as the demands of the trade required. The wagons were loaded by the use of a hose or pipe leading from separate storage tanks at appellant’s warehouse and attached as occasion required to the proper compartment of the wagon. The driver of the wagon would then proceed to the place of business of the retail dealer and fill his order by drawing the oil or gasoline into buckets from which he poured it into the receptacles kept by the dealer for that purpose. Anderson & Bergman were regular customers of appellant, and dealt in gasoline and in both brands of kerosene. On July 20, 1904, they had in use three tanks of about 55 gallons capacity each, one of which was used for the storage of gasoline and the others
If any mixture or substitution of gasoline for oil took place, there is nothing to suggest that it was intentional; and the possibility of its having been done by negligence or mistake seems to be limited to (1) mistake by appellant’s driver in loading the tank wagon; (2) use of a wrong faucet in drawing from the tank wagon to fill the grocer’s white oil tank; (3) pouring into the white oil tank the contents of buckets intended for the gasoline tank; or (4) mistake by Anderson & Bergman’s driver in filling the cans from which he made the deliveries to Nelson and others. Both drivers-swear to their care and to their feeling of certainty that they were in no manner negligent. The fact that Anderson
There is no reversible error in the record, and the judgment of the district court is affirmed.