Killam v. Standard Oil Co. of New York

Carroll, J. This action of tort is brought by the administrator and husband of Mary E. Killam, to recover for — 579 — her conscious suffering and death, caused by burns resulting from the explosion or ignition of the contents of a kerosene lamp at her home, on Monday night, October 28, 1918. There was evidence to the effect that the defendant sold and delivered to Mrs. Killam on October 1 and October 15, 1918, cans supposed to contain kerosene oil; that a small glass lamp was partly filled with oil from one of these cans, on the Saturday previous to the accident; that a few moments before the accident the intestate was seen at the door of her tenement with a lighted lamp in her hand; that a short time later she was seen walking in one of the rooms, holding a lighted lamp; that the noise of an explosion was heard, and “ smoke filled up the place; ” that when assistance came, the body of Mrs. Killam was found on the floor; that the clothing and a portion of the carpet were burned, a part of her body was burned, and the remains of the glass lamp were found near her right elbow. There was evidence that she consciously suffered and that the fire came from the kerosene lamp. Samples of the oil were examined and it was found that one sample had a naphtha content of six and nine tenths per cent and its initial boiling point was two hundred and eight degrees Fahrenheit. One sample had a naphtha content of six and four tenths per cent, and the naphtha content in each of the other samples was five and three tenths per cent and five and five tenths per cent respectively. Each of the samples evaporated a gas under one hundred degrees Fahrenheit. The defendant moved for a directed verdict, which was denied. R. L. c. 102, § 106, so far as material, provided that, “ Whoever mixes for sale naphtha and illuminating oils . . . or sells or offers for sale such mixture, or sells or offers for sale, except for remanufacture, illuminating or fuel oils made from coal or petroleum, which will evaporate a gas under one hundred degrees Fahrenheit, or ignite at a temperature of less than one hundred and ten degrees Fahrenheit, to be ascertained by the application of Tagliabue’s or some other approved instrument,” shall be punished and be liable for damages caused by the explosion, or ignition of such oil. — 580 — Under § 107 of this statute, illuminating oils made from coal or petroleum and having an ignition point of less than one hundred and ten degrees Fahrenheit, determined in the manner provided in the preceding section, are to be deemed to be mixed with naphtha. Under § 108, whoever sells, keeps or offers for sale naphtha under an assumed name, shall be liable to the penalties mentioned in § 106. The jury could have found that the kerosene oil taken from the can which was used in filling the lamp, contained six and nine tenths per cent of naphtha, existing as a distinct, independent product, retaining its nature and characteristics; that the substance sold was a mixture of kerosene oil and naphtha. The defendant, however, contends that the naphtha found in the kerosene was not mixed with it within the meaning of the statute; that there was no evidence that the naphtha shown by the distillation process was not an original part of the crude" petroleum, and remained after the process of refining by which kerosene had been produced; that there was no mixture of kerosene with naphtha in violation of the statute; and that the mixture contemplated by the statute is an artificial mixture. On this question the trial judge instructed the jury in substance that a mixture means the commingling in which the ingredients retain their independent properties, or separate chemical nature; that the substance sold was a mixture, if the different ingredients retained their essential properties after they were mixed; that if the jury found there was naphtha in the kerosene sold to the plaintiff’s intestate by the defendant, existing as a distinct and independent thing, they could find the sale of a mixture prohibited by the statute. The instructions were right and the defendant’s requests bearing on this aspect of the case were refused properly. The statute was passed for the protection of the public. The vendor of illuminating oil containing naphtha, sells it at his peril. It is not material whether it was artificially mixed with the substance sold; if the naphtha was allowed to remain in the kerosene oil and was not removed by the process of refining, and was found in the oil as testi — 581 — fied to, the statute was violated. See Hourigan v. Nowell, 110 Mass. 470; Gately v. Taylor, 211 Mass. 60, 64. The statute further prohibits the sale of illuminating oil made from coal or petroleum, which evaporates a gas under one hundred degrees Fahrenheit. The evidence tended to show that the oil sold to Mrs. Killam was made from petroleum and evaporated a gas under one hundred degrees Fahrenheit. On cross-examination the plaintiff’s expert testified that it appeared that there is no fluid which will not evaporate a gas under one hundred degrees Fahrenheit. Notwithstanding this evidence, the statute relating to the sale of illuminating oil, in express terms prohibits its sale when made from coal or petroleum, if it evaporates a gas under one hundred degrees Fahrenheit; even if the gas is not inflammable under one hundred degrees Fahrenheit, the statute prohibits the sale of illuminating oil of this character. It must be construed to mean what it says, namely, prohibiting the sale of such oil if it evaporates a gas under one hundred degrees Fahrenheit, if this fact is ascertained by the Tagliabue or some other approved instrument. The evidence shows that this fact was determined by using an approved instrument. The statute also provides that if the oil ignites at a temperature of less than one hundred and ten degrees Fahrenheit, to be ascertained in the manner indicated, its sale is prohibited. There was no evidence that the oil would ignite at a temperature of less than one hundred and ten degrees Fahrenheit and the plaintiff did not contend that this part of the section was violated, nor that § 107 of the statute was infringed. The sale of illuminating oil of the kind mentioned, which will evaporate a gas at a less temperature than one hundred degrees Fahrenheit is forbidden. The reference to the ignition of the gas at a temperature of less than one hundred and ten degrees, to be determined in the manner specified, relates to another and different offence; and, it being shown that the gas was given off at a temperature less than one hundred degrees, the offence was made out, even if no ignition point was shown at that temperature, or at a — 582 — temperature of less than one hundred and ten degrees. The instructions given the jury on this point were in accordance with the statute and were correct. By § 108, the sale of naphtha under an assumed name was prohibited. There was evidence that the oil was sold under the name of kerosene; that naphtha was contained in it and remained as naphtha, its nature and characteristics were not changed, and it did not become chemically a distinct product. The fact that the amount of naphtha contained in the mixture was relatively small is not material. On the evidence the jury could have found that naphtha was sold under the name of kerosene, contrary to the statute. In addition to this, there was evidence that kerosene oil with a naphtha content of six and four tenths per cent was unsafe to use as an illuminating oil in an ordinary glass lamp. Irrespective of the statute, the plaintiff had the right to have the jury pass on the question of the defendant’s negligence. Gately v. Taylor, 211 Mass. 60. Thornhill v. Carpenter-Morton Co. 220 Mass. 593, and cases cited. We find no error in the instructions given to the jury: they were fully and accurately instructed concerning the burden of proof; they were told that upon all the evidence they must find that none of the samples of oil taken from the plaintiff’s premises would ignite at less than one hundred and ten degrees Fahrenheit. The case was not one of mere conjecture: there was substantial evidence to establish the plaintiff’s contentions. The defendant excepted to the exclusion of the answer of one of the experts in cross-examination to the question, “ And by those tests did you find anything that indicated that any of those samples were not within the prescription of the statute? ” the answer being, “ No, I did not.” The witness had previously testified that “ the way he . . . reads the statute it calls naphtha anything that has a flash point below one hundred degrees Fahrenheit; that the statutory test as he understands it of kerosene is that defined by flash point and fire point.” The question excluded called upon the witness to interpret the statute, and for this reason the answer was excluded properly; but aside from this, the defendant cross-examined the witness at length as to the — 583 — method of testing, the instruments used, the results obtained. All the details were gone into. We do not think the defendant was harmed by the exclusion of this testimony. We discover no. error in the conduct of the trial. jExceptions overruled.