Hourigan v. Nowell, 110 Mass. 470

Hourigan v. Nowell

110 Mass. 470 | Mass. | 1872

Ames, J.

For the purpose of protecting the community against the dangers incident to the use of explosive illuminating oils, it is provided by the St. of 1869, o. 152, §§ 2, 7, that any person who *473shall sell illuminating oil mixed with naphtha, or any illuminating oil, made from coal or petroleum, of a quality below the prescribed standard, shall be punished by fine and imprisonment, and shall also be liable in damages to any person injured by the explosion or ignition of any such oil thus unlawfully sold. He is furthermore liable to the forfeiture of all such oil thus unlawfully kept for sale; and upon complaint by an inspector, selectman or other proper officer, a search warrant may be issued against him, and his premises may be searched for the discovery and removal of all such articles kept for sale in violation of the statute. The third section provides also that all illuminating oils made from coal or petroleum, and having certain characteristics distinctly pointed out in the statute, shall be deemed to be mixed with naphtha, and unsafe for illuminating purposes. The meaning of the statute is that certain descriptions of oils, particularly specified in its terms, shall not be sold at all, except for the purpose of re-manufacture. It would be of no avail to the vendor to offer the excuse that he did not know that the oil in question was dangerous, or that he had relied upon any information or certificate from any other person, even though skilful and experienced in such matters. It is not at all a question of diligence or good faith. The law proceeds upon the assumption that the ordinary purchaser at staff, or for domestic use, is not in a position to know whether the oil that he buys is such as the statute allows to be sold. It therefore provides expressly that all such oils, having certain qualities, are dangerous and unfit for ordinary use, and are not to be sold at all. For the protection of the community, the law throws upon the vendor the responsibility and burden of keeping himself, at his peril, within the terms of the statute, in dealing with a kind of article the use of which has been found to be attended with great danger. See Wellington v. Downer Kerosene Oil Company, 104 Mass. 64, and cases there cited. See also Commonwealth v. Raymond, 97 Mass. 567; Commonwealth v. Darren, 9 Allen, 489; Commonwealth s. Nichols, 10 Allen, 199; Commonwealth s. Waite f 11 Allen, 268 ; in all of which, although cases arising under criminal statutes, the scienter was held to be immaterial.

*474The rulings of the court furnish the defendant no ground of complaint. The plaintiff was required to prove that the oil was a portion of that purchased of the defendant, and that it did not conform to the standard prescribed by the statute. The intestate had a right to suppose that the oil was of the legal standard, and if she used that degree of care which would have been necessary and proper, if the oil had been of the proper quality, the jury might find that at the time of the injury she was in thé exercise of due care. Exceptions overruled.