Wellington v. Downer Kerosene Oil Co.
104 Mass. 64
Mass.
1870
Check Treatment
Gray, J.

This is аn action of tort. Both counts of the declaration are framed, not upon any supposed privity between the parties, but upon a viоlation of duty in the defendants, resulting in an injury to the plaintiff. The first count is upon the St. of 1867, c. 286, and the second upon the common law. It will be convenient to сonsider the general question of the liability of the defendants at common law, before examining the construction and effect of the statute.

It is well settled that a man who delivers an article, which he knows to be dangerous or noxious, to another person, without notice of its nature аnd qualities is liable for any injury which ‍‌‌‌​‌​​‌​‌‌​​​​​​‌​‌​​‌​​​​‌​‌‌‌‌​‌‌‌​‌‌‌‌​‌‌‌‌‌‍may reasonably be contemplated as likely to result, and which does in fact result, therefrom, to that person or any other, who is not himself in fault. Thus a person who delivers a carboy *68which he knows to contain nitric acid, to a carrier, without informing him of the nature of its contents, is liable for an injury occasioned by the leaking out of the acid upon another carrier to whom it is delivered by the first, in the ordinаry course of business, to be carried to its destination. Farrant v. Barnes, 11 C. B. (N. S.) 553. So a chemist who sells a bottle of liquid, made up of ingredients known only to himself, representing it to be fit to be used for washing the hair, and knowing that it is to be used by the purchaser’s wife, is liable for an injury occasioned to her by using it for washing her hair. George v. Skivington, Law Reр. 5 Ex. 1. And a druggist who negligently labels a deadly poison as a harmless medicine, ana sells it so labelled to dealers in such articles, is liable ‍‌‌‌​‌​​‌​‌‌​​​​​​‌​‌​​‌​​​​‌​‌‌‌‌​‌‌‌​‌‌‌‌​‌‌‌‌‌‍for an injury tо any one who afterwards purchases and uses it, if there is no negligence on the part of the intermediate sellers or of the person injured. Thomas v. Winchester, 2 Selden, 397. Davidson v. Nichols, 11 Allen, 519, 520. McDonald v. Snelling, 14 Allen, 290, 295.

The second count of the declaration expressly avers that the defendants sold naphtha to Chase for the purpose of being retailed and resold to be burned in a lamp for illuminating purposes, knowing it to be explosive and dangerous to life when so used, and knowing Chase’s business to be that of a retailer and • his purpose to retail and resell the same to the public to be so used; that Chase resold a part thereof to the plaintiff' to be so used, and, while he was so using it, it ignited and exploded, and injured his person and property; and that both Chase and the plaintiff were ignorant of its dangerous qualities. Proof of the facts thus alleged would show that the defendants were guilty of a violation of duty in selling an article which they knew to be explosive and dangerous, for the purpose of being resold in the market, without giving information of its nature, and were therefоre bound to contemplate, as a natural and probable consequence of their unlawful act, that it might explode or ignite, and injure an innocent purchaser or .lis property, and to answer in damages for such a consequence if it should come to pass, The ruling of the lеarned judge who presided at the trial was therefore erroneous, and the exceptions must be sustained.

*69In Carter v. Towne, 98 Mass. 567, cited for the defendants, a declaration alleging that the defendants negligently and unlawfully sold and delivered gunpowder to the plaintiff, a boy eight years old, having neither experience nor knowledge in the use of gunpowder, and being an unfit person to be intrusted with it, all of which the defendants well knew, and that the child, in ignorance оf its effects, and using that care of which he was capable, exploded the gunpowder and was burned thereby, was jeld good upon demurrer. In that case, no question was raised of the defendants’ liability to any other person than the one to whom they delivered the article. The plaintiff was afterwards held not entitled to recover of the defendants, because it appeared that the gunpowder had been carried home by the child, and put in the custody of his parents, and a part of it been fired off by him with their permission, before the explosion by which he was injured; and as the gunpowder had passed into the custody of adult persons who knew its dangerous qualities and had allowed him to use it, and was retaken by the сhild from their custody, before the accident sued for, the sale by the defendants was not the direct, proximate or efficient cause of the injury. S. C. 103 Mass. 507.

We cannot accede to the suggestion made by the counsel for the defendants in the case at fiar, in opposition to the prоof ‍‌‌‌​‌​​‌​‌‌​​​​​​‌​‌​​‌​​​​‌​‌‌‌‌​‌‌‌​‌‌‌‌​‌‌‌‌‌‍offered at the trial, that Chase and the plaintiff must be deemed to have known the dangerous qualities of naphtha.

The question remains to bе considered of the liability of the defendants under the St. of 1867, c. 286, §§ 3, 5, which declares that any person “ who shall sell, or keep or offer for sale, nаphtha under the name of oil,” shall be subject to a penalty, and “ shall also be liable therefor to any person, suffering damage from the еxplosion or ignition of such oil thus unlawfully sold.”

The bill of exceptions states that the plaintiff at the trial offered evidence to support all the ‍‌‌‌​‌​​‌​‌‌​​​​​​‌​‌​​‌​​​​‌​‌‌‌‌​‌‌‌​‌‌‌‌​‌‌‌‌‌‍allegations in either count of the declaration, which would include the defendants’ knowledge of the dangerous character of the artiсle sold; and it was assumed at the argument that the defendants, when they sold the article, knew that it was naphtha. It is therefore unnecessary *70to deсide whether such knowledge must be proved in order to charge them, criminally or civilly, under the statute, or whether the legislature has imposed upоn every one the duty of ascertaining that any article which he undertakes to sell as oil is not naphtha. See Herne v. Garton, 2 El. & El. 66; Commonwealth v. Flannelly, 15 Gray, 195, 196; Commonwealth v. Farren, 9 Allen, 489. Nor have we considered whether the first count sufficiently alleges that the plaintiff" was in no fault which contributed to his injury; because ‍‌‌‌​‌​​‌​‌‌​​​​​​‌​‌​​‌​​​​‌​‌‌‌‌​‌‌‌​‌‌‌‌​‌‌‌‌‌‍that objection also was not particularly аrgued. In both these respects, the declaration may be amended, if necessary, before another trial.

In all other respects, the first сount is sufficient to charge the defendants upon the St. of 1867. That statute does not confine the civil liability of the offender, for the explosion оr ignition of the article unlawfully sold, to injuries suffered by persons to whom he sells or offers it, but makes him “ liable therefor to any person suffering damage.” Thеse words are broad enough to include all persons to whom any purchaser from him may give or sell it. And they doubtless include injuries to property, as well as to the person. Brewer v. Crosby, 11 Gray, 29. The object of the legislature would appear to have been to make any one who (at least knowingly) sеnds this article out into the community, under a name which does not disclose the degree of danger attending its keeping or use, himself bear the risk of аll damages from its explosion or ignition to any person whose own fault or negligence does not contribute to his injury. The first count alleges a sаle by the defendants to Chase of one barrel of naphtha under the name of oil, contrary to the statute; a resale by Chase to the рlaintiff of one pint thereof for the purpose of being burned in a lamp for illuminating purposes; and that, while the plaintiff was so using the same, it ignited аnd exploded, and injured him and his property. Proof of these facts would show that the defendants’ act caused an injury to ihe plaintiff, for which the defendants would be responsible un ier the statute. Exceptions sustained.