213 Wis. 619 | Wis. | 1934
Plaintiff, as administrator of .the estates of Elvira and Arvilla Warrichaiet, deceased, who were respectively his wife and his daughter, and who sustained injuries on September 10, 1932, upon an explosion of a mixture of kerosene and gasoline oils, which resulted in their deaths, sued the defendants to recover the damages sustained by reason of those injuries and deaths. The oil which exploded was part of one gallon which was purchased on September 6, 1932, for plaintiff by his daughter at the retail store of the defendant Safford. The latter claimed that that gallon was part of a fifty-gallon delivery which was put into his kerosene storage tank at his store on August 22, 1932, during his absence, by the defendant Telford, an employee of the defendant Standard Oil Company, in charge of its bulk storage station at Oconto. Undisputed evidence established that from that station the Standard Oil Company delivered gásoline, kerosene, and similar products to customers in the surrounding territory by-means of two tank trucks, one of which was usually driven by Telford, and the other by Fred ■Koeppen; that on August 22, 1932, Telford received .-by telephone an order from Safford’s store for kerosene.;-.-that .no amount was specified; but Telford knew the capacity of Safford’s kerosene tank and that he’would; want-either fifty or fifty-five gallons. ■ - • ■ ■
.Telford and Koeppen testified that when that order was received, Telford’s truck was loaded to full capacity with
It was established by undisputed evidence that Safford’s kerosene storage tank was in the basement of his store. That basement was approximately six and one-half feet deep and had concrete and stone walls two feet thick and a concrete floor. The kerosene tank was in the southwest corner and from it to a pump on the first floor there was a pipe, which was used to pump up kerosene directly into the customers’ containers. That tank held from fifty-eight to sixty gallons and was filled by carrying the kerosene in five-gallon buckets into the cellar through an outdoor cellar entrance, which was located thirty-five feet from the tank, at the middle of the east side of the store. A concrete platform, about three feet high, extended along the front of the store, which faced south. It was thirty feet from the east end of that platform to the cellar entrance. On that platform on the
Telford testified that during the preceding twelve years he had, on but one other occasion, delivered kerosene to Saf-ford’s store in a barrel and that at all other times he had hauled it in the tank of the truck. It appears that after filling the tank, Telford gave to Safford’s wife a delivery slip for fifty gallons of kerosene, and then drove away. Mrs. Safford had been in the rear of the store while the oil was being delivered, and no one else than Telford and Koeppen testified as to how the delivery was made. Safford and his wife, and two other persons who occasionally assisted in and about the store during 1932, and were the only persons so employed, all testified that they hád never put any gasoline or similar liquid into Safford’s kerosene storage tank. Saf-ford returned to the store late that afternoon, and at about
On the evening of September 10th, plaintiff’s wife, Elvira Warrichaiet, put some.’ dry wood in the kitchenj stove, in which' there was no fire. .Then she poured a very small amount of the oil from the can onto the wood,' She either set the can down on the floor or held it in her hands. Then she took a match and set fire to the wood and placed, some pans on. the stove over an opening. Next she picked up the can and started to return it to -the pantry, when a loud explosion took place inside of the can and blew out-the bottom thereof and scattered the oil. therein onto Arvilla; a thirteen-
There had been no explosion whatsoever in the stove and the fire continued burning therein. None of its doors were broken open although it was very old and dilapidated, with burned-out grates, and the pans on the stove at the time of the explosion of the can were not disturbed. The explosion had occurred entirely within the oil container.
On learning of the explosion the next morning Mrs. Saf-ford telephoned to Telford and he had Clifford Swanson, a safety supervisor employed by the Standard Oil Company, accompany him to Safford’s store to investigate the accident and whether his employer was involved. Swanson took all of the kerosene, approximately four gallons, which was left in Safford’s storage tank and put it in a can, which he labeled. He made a flash test thereof and found that it flashed at 95° Fahrenheit, which showed it to be an illegal mixture. The next day he again went with Telford to Safford’s store to locate and pick up all kerosene which had been sold from Safford’s storage tank after August 22d. Safford gave Swanson a list of all customers to whom it was sold, and Swanson called on them and obtained all the kerosene that they still had on hand, including part of the two gallons sold by Safford to Arnold Plum shortly after Telford filled the tank. Swanson also took about three gallons which he found in a five-gallon can standing alongside of Safford’s storage tank. Telford testified that one Gaunthier, a driver
Under, sec. 168.06, Stats., the sale or use of kerosene oil for illuminating or heating purposes which has a flash point of less than 105° Fahrenheit, open test, is prohibited and illegal. The sample taken from the five-gallon can which was next to the storage tank and tested, flashed at 70° Fahrenheit. The samples obtained from ten of those eleven customers flashed respectively as follows: at 60°, 72°, 73°, 76°, 78°, 80°, 80°,'82°, 83° and 88°; and that obtained from Arnold Plumb, who was the first purchaser, flashed at 66°. A sample of the oil which was left in one of plaintiff’s lamps after the explosion, and which was delivered to plaintiff’s attorney the morning after the accident, flashed at 78° Fahrenheit. On the other hand, a sample taken from the Standard Oil Company’s kerosene storage tank at Oconto flashed at 156° Fahrenheit, which indicated pure kerosene, and there was testimony that the oil in that tank, when it was officially tested by the state inspector upon its arrival on May 19, 1932, flashed at 154°.
On the trial, as well as on this appeal, Telford and the Standard Oil Company contended that they were entitled to a directed verdict and for judgment because there was insufficient evidence as to who made the mixture to take the case out of the realm of conjecture. However, the court submitted to the jury questions for a special verdict, pursuant to which the jury found, in addition to assessing damages, that Telford, and the Standard Oil Company by and through its employees, did cause the liquid, which was in Safford’s kerosene tank and one gallon of which was sold to the plaintiff on September 6, 1932, to be mixed with gasoline; that the character of that mixture was a cause of the
At the outset it must be noted that, if the oil which was delivered to plaintiff by Safford was kerosene mixed with gasoline in such proportion as to be highly explosive and dangerous, then it is obvious that some person or persons were negligent in respect thereto. Ellis v. Republic Oil Co. 133 Iowa, 11, 110 N. W. 20. A review of the record discloses ample credible evidence which convincingly establishes that the oil sold from Safford’s kerosene storage tank, commencing within three hours after Telford’s delivery and including the last sale made therefrom on September 7th, was highly explosive and dangerous because it contained from five to ten per cent, of gasoline. Gasoline in that highly dangerous proportion was undoubtedly in all of the fifty-five to sixty gallons which were in that tank when Saf-ford first pumped therefrom the two gallons which he sold to Plumb on August 22, 1932, as well as during the entire period thereafter, in which at least fifty-one gallons thereof were pumped from that tank and sold to ten other purchasers. As all of those sales with the exception of three gallons were made before Safford, on September 4th, poured back into the tank the one gallon which he had just pumped therefrom, the jury could well consider it improbable that the dangerous mixture occurred by reason of Safford’s pouring that gallon back into the tank. Likewise it was within the jury’s province under the evidence to believe that no gasoline was ever poured into that tank by Safford, his wife, the two persons whom he had occasionally employed, or any unknown person.
On the other hand, if the jury believed the testimony of Telford and Koeppen that the only oil which they put in Safford’s keroséne tank on August 22, 1932, was kerosene
Under the evidence in this case, as under the evidence in Ellis v. Republic Oil Co., supra, it was within the province of the jury to find that the balance of probabilities under the evidence indicated that as between Telford and his employer, on the one hand, and Safford, on the other hand, the probabilities were greater that the former were at fault because of a mistake in either leaving gasoline in the barrel or in the compartment of the truck before putting in the kerosene, or in opening the wrong faucet and drawing a bucket of gasoline from the tank of the truck instead of kerosene, when putting the liquid in Safford’s tank at his store. In the case at bar, as in the case of Hertzler v. Manshum, 228 Mich. 416, 200 N. W. 155, in relation to an analogous state of affairs under the evidence in a case to recover for damages sustained because of poisoned flour gold by a retail dealer,
The Standard Oil Company and Telford also contend the court erred in admitting testimony as to the result of tests of kerosene claimed to have been purchased from Safford’s store about the time the plaintiff purchased the kerosene which exploded, without any evidence that such kerosene actually came from Safford’s store, and without any evidence as to how the kerosene, if it was purchased at that store, was kept by the customers up to the time of the tests. It was established without objection that those tests were of samples which were gathered on the 12th and 13th of September, 1932, by the Standard Oil Company’s representative Swanson, directly from the customers who had purchased their kerosene at Safford’s store between August 22d and September 1st. Swanson gathered all of that oil that the customers had left. It was all kept and the samples thereof were all tested by the Standard Oil Company. After these actions were commenced, plaintiff demanded, under sec. 327.22, Stats., that the defendants Standard Oil Company and Telford admit or refuse to admit the existence of certain facts set forth in plaintiff’s demand. Pursuant thereto those defendants admitted that the tests were made and the results thereof showed the flash points varying from 60° and 66° to 83° and 88°, which have heretofore been mentioned. Other proof, likewise received without objection, showed that the oil left in Warrichaiet’s lamp, and which was part of that purchased by him on September 6, 1932, flashed at 78°. The evidence as to the circumstances and care under which the Standard Oil Company obtained and accepted that oil, after its investigations, as oil which had been procured from Safford between August 22d and September 10th by his customers, and the established similarity of the proportions of kerosene and gasoline in the mixture,
Telford and his employer also assign as error the refusal of the court 'to grant a new trial because of excessive damages. That contention is made principally in relation to the amounts awarded as damages for pain and suffering. There was no dispute as to the expenses for hospital, doctor, and funeral bills. The court approved the jury’s assessment for the pain and suffering of plaintiff’s wife at $10,400, and for his damages for pecuniary loss at $6,350, and his loss of her society at $2,000. They had been married fourteen years. She had been in good health and was thirty-two years of age when she died. Plaintiff was thirty-five years of age. They had six children, of which five, ranging from two to eleven years, survived after the death of Arvilla. The wife was able and industrious. In addition to attending to the children and the housework she assisted plaintiff in all of the farm work, without any other help for either the house or the farm, excepting that of Arvilla, who was thirteen years of age when she died. As a result of the explosion and fire, both the wife and daughter were severely burned about the arms, abdomen, limbs, and feet. As to the wife, the attend,-ing physician testified:
“Then I proceeded to .clean up' the burns. I found that many areas were burned to a crisp. . . . There were areas when the serum had gotten under the skin and elevated it from the tissues underneath; it was cooked white. The*633 soles of her feet were detached so that they almost could be removed like a slipper. - I removed them. They were attached near the toes and came off very easily. The burns were first, second and third-degree burns. . . . She cried when the nurses appeared in the room, for whenever the dressing's were to be done she started to cry and begged that it not be done. She continued for an hour after the dressing had been done. We gave her as little opiates as we could, because in a case like that if there is a chance of recovery we don’t want to make them an addict. She had about twenty doses supplemented by other sedatives, allonal and luminal. That relieved the pain, but I think she still suffered pain.”
During the seventy-three days that she lived after the accident her pains and suffering were so excruciating that the jury’s assessment of $10,400 as her damages on that account is not excessive. That averages at about $142 per day, which is considerably less per day than this court has approved in other cases involving pain and suffering that was not as severe as in the cases at bar. Thus, this court approved as damages for pain and suffering, because of injuries that resulted in death: $500 for three hours, Wasicek v. M. Carpenter Baking Co. 179 Wis. 274, 191 N. W. 503; Prange v. Rognstad, 205 Wis. 62, 236 N. W. 650; $500 for three days, Rogers v. Lurye Furniture Co. 193 Wis. 496, 211 N. W. 782, 215 N. W. 457; and $750 for thirty hours, Theby v. Wisconsin Power & Light Co. 197 Wis. 601, 222 N. W. 826, 223 N. W. 791. Awards at that rate are not unreasonable in comparison with awards for pain and suffering which have been approved in other jurisdictions, as for instance, $5,000 for approximately one-half hour, St. Louis, I. M. & S. R. Co. v. Craft, 237 U. S. 648, 35 Sup. Ct. 704, 59 Lawy. Ed. 1160; $4,000 for four hours, Stone v. Sinclair Refining Co. 230 Mich. 472, 202 N. W. 1004; $6,750 for six days, Bowling Green Gas Light Co. v. Dean’s Ex’x, 142 Ky. 678, 134 S. W. 1115; $5,000 for seventeen hours,
By the Court. — Judgments affirmed.