(149 N.E.)

[4] The bananas in question were stored in a basement where the necessary plumbing to heat it by gas had been installed; the fixtures for that purpose having been purchased from appellant. There was no flue in the building. The basement was divided into three rooms, one of which was used for the storage of bananas partially ripened, the others for storing green stuff. These rooms were lined with paper in order to retain the heat, and were connected by doors, which were kept shut. The room in which some of the bananas were placed for ripening purposes was kept at a temperature of from 65° to 70°. Part of the bananas were kept in another room where the temperature was about 55°. A drop in the temperature sufficient to chill these bananas would cause them to

The evidence shows that appellant's employés, when they removed the meter, left the doors in the basement, including an outside door, open, and that, when appellee returned to his place of business, the temperature in the basement was so low that the bananas had become chilled. Appellant says appellee should have gotten oil stoves and put in the basement so as to have prevented the bananas becoming chilled. The evidence is sufficient to justify a finding that the bananas were chilled before appellee learned the meter had been removed. Without any further discussion of the evidence, we hold it is sufficient to sustain the finding. Judgment affirmed.

testimony of appellee, and relies entirely upon the testimony of Williams. This contention of appellant cannot be sustained in view of the testimony of appellee. Appellant also contends there is no evidence showing the existence of any contract requiring appellant to continue furnishing gas to appellee, and that there is no evidence to show that appellant was a public service corporation upon which the law imposed the duty, of continuing to furnish appellee a supply of gas. While no witness in so many words testified that appellant was a public service corporation, and as such was under an obligation to furnish gas to appellee, the evidence is sufficient to sustain a finding in appellee's favor on this question. The evidence discloses without dispute that for at least 18 years appellant had been in the business of turn black and render them unsalable. furnishing gas to various customers. One witness testified that he had been in the employ of appellant for that length of time, and that during that time he had been engaged in setting meters, taking them out, and making collections. Another witness testified that he was and had been the secretary and treasurer of appellant company for more than 11 years; that appellee's attorney called him at about 11 o'clock the next day after the meter was removed, and told the witness that the meter had been removed, and that there had been some damage to appellee's stock, at which time the witness stated that, if the meter had been removed and the bill had been paid, they would be glad to put the meter back at once; that shortly thereafter he told appellee that appellant would be glad to put the meter back; that he did not issue the order to remove the meter; that Boaz was a STANDARD OIL CO. OF INDIANA v. ROBB meter reader and collector, and had collected this bill, but had not reported its payment; (Appellate Court of Indiana. Nov. 19, 1925.) that appellee had $5 on deposit with appellant to guarantee the payment of final bills. Trial 143-Question of fact raised by upon the removal of the meter; that there was not anything due appellant at the time the meter was removed; and that, if it had known the bill had been paid, the meter would not have been removed. Appellant had adopted rules concerning the removal of meters upon failure to pay bills when due, and there is evidence tending very strongly to show that on another occasion appellee had to resort to court to enjoin the removal of the meter and the cutting off of the gas in his place of business. Without entering any further into the details of the evidence, it is, in our opinion, sufficient to justify the court in drawing the inference that appellant was a corporation engaged in the business of furnishing gas to the public as a public service corporation, and that the shutting off of the gas was unlawful. Appellant also contends the evidence was not sufficient to justify the court in finding that the shutting off of the gas was the proximate cause of the damage suffered by appellee.

et al. (No. 11956.)

conflicting evidence is for jury.

Question of fact raised by conflicting evidence is for jury.

2. Explosives 9-Lack of knowledge of seller of illuminating oil of inferior and dangerous quality held no defense in action by consumer injured by explosion.

Where illuminating oil sold by defendant oil company to retailers, from whom plaintiff purchased it, was inferior and dangerous within Burns' Ann. St. 1914, §§ 7888, 7907, prohibiting its sale, lack of defendant's knowledge of its dangerous condition when it sold it to retailers held no defense in action by consumer for damages sustained in explosion when she attempted to light fire in stove.

3. Explosives

9-Privity of contract between company selling illuminating oil and consumer purchasing from retailer held not necessary to render company liable for damages from explosion.

Privity of contract between a company selling illuminating oil of lower flash test than as prescribed by Burns' Ann. St. 1914, §§ 7888,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

6. Explosives 9-Evidence of quality of oil in merchandising in said county coal oil for

7. Explosives 9-Refusal of requested in- would not stand an open fire test of 140 destructions held erroneous.

Appeal from Circuit Court, Posey County; minating oil to fill said can and to place said Herdis Clements, Judge.

(149 N.E.)

that said oil or other substance would flash at a temperature below 120 degrees Fahrenheit, and thereby the Tretheways unlawfully sold to appellee's husband oil or other substance for illuminating purposes which would flash at a temperature below 120 degrees Fahrenheit. The oil was taken home, and on the following morning appellee, without knowledge that said can contained oil or other substance which would flash at a temperature below 120 degrees Fahrenheit, but in the belief that the same contained oil for illuminating purposes, and which would bear a flash test of 120 degrees Fahrenheit, poured some of the contents of said can upon certain kindling in said kitchen stove which contained no fire, for the purpose of starting a fire therein, and then placed said can, with its remaining contents, upon the floor of said kitchen some six or eight feet from said stove, and then applied a match to said kindling for the purpose of starting said fire, and immediately there was an explosion, wherein and whereby appellee was severely burned, bruised, and maimed, and her clothing burned from her body. That said injuries to appellee were caused by the unlawful sale of said oil for illuminating purposes, which would flash at a temperature of less than 120 degrees Fahrenheit, by the defendants to the said Edgar Robb, as aforesaid. The seventh paragraph of complaint is substantially the same as the sixth.

Appellant demurred to each of these paragraphs for want of facts with memorandum of the failure of the paragraphs to allege: (1) Knowledge on the part of appellant that said oil was in any particular defective; (2) that by the exercise of reasonable care it could have ascertained the same to be of said alleged defective quality; (3) negligence on the part of appellant in the manufacture, refining, testing, or delivery of said oil; (4) that said oil was uninspected, or that it had been inspected and rejected for illuminating purposes; (5) nor any facts showing privity of contract between appellee and appellant under which it could be claimed that it was sold under an implied warranty of its quality. Appellant's demurrer was overruled, and thereupon it filed its answer in general denial to each paragraph of the complaint, and its second paragraph alleging in substance that the cause of action set out in each of said paragraphs is a new and different cause of action from that alleged in each of the first five paragraphs, and did not accrue within two years before the flling of said amended sixth and seventh paragraphs. Appellee Robb filed a reply in general denial to the second paragraph of answer. There was a trial by jury, which returned two verdicts, one for appellees against Alice Tretheway and appellant jointly for $1,800, and the other in favor of Herbert Tretheway.

novo and its motion for a new trial were each overruled, it appeals to this court from the judgment against it, presenting as error the action of the court in overruling its demurrer to the sixth and seventh paragraphs of answer, in overruling its motion for a venire de novo, and in overruling its motion for a new trial.

[1] There is substantial evidence to sustain each of the allegations of the sixth and seventh paragraphs of complaint, as hereinafter appears. It is true that such evidence was forcefully contradicted, but the question was for the jury. When, therefore, we have determined as to whether there was error in overruling the demurrer to each of these paragraphs, we will have disposed of the principle which controls many of the questions presented by appellant.

It is provided by section 7888, Burns' R. S. 1914, that no oil or other substance, which, by the test therein described, flashes at any temperature below 120 degrees Fahrenheit, shall be allowed to be sold, offered for sale, or consumed for illuminating purposes in this state. By section 7907, being of the same act, it is declared to be the meaning of the provisions of the act that oil or oils, to be lawfully sold in this state after inspection, shall bear the flash test of 120 degrees Fahrenheit, as provided in the first-mentioned section. It thus appears that the state of Indiana has by statute prohibited the sale or use of coal oil that by the test flashes at a lower temperature than 120 degrees Fahrenheit, thereby in effect declaring such oil unfit for illuminating purposes, and inherently dangerous for such purposes. Sections 7889 and 7890, being of the same act, provide for the appointment of a state supervisor, whose duty is to make the inspection; but there is no evidence of such an inspection in this case. The only inspections made, so far as the evidence shows, were by employees of the oil company.

[2] It is appellant's contention that in order to make it liable, knowledge of the inferior condition of the oil sold must be brought home to it, and that it is only charged with reasonable care in determining the defective quality of the oil which it sells; further, that it must be shown that there was privity of contract between it and appellee in order to make it liable. But these contentions cannot prevail. Appellant fails to discern the rule that governs in the sale of an article that is inherently dangerous, and, by the averments of the complaint as well as by the proof, such was the oil that caused appellee's injury. The case of Hourigan v. Nowell, 110 Mass. 470, aptly states the rule as to knowledge and care that must govern here. In that case, the defendant asked the court to instruct the jury that in the case oil sold was such that it could not be lawfully sold, he must have After appellant's motion for a venire de knowledge of the fact, and, further, that if

the oil had been inspected by an authorized, he owes, of course, not only to his buyer, but, inspector and pronounced of the quality re- knowing that it is purchased for resale, he quired by law, then the defendant had no owes it to all who have occasion to purchase further duty to perform under the statute, some of the substance." which was similar in its provisions to the Indiana statute here involved, and would not be liable. But the court in its opinion used the following language:

"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 skillful and experienced in such matter. It is not at all a question of diligence or good faith. The law proceeds upon the assumption that the ordinary purchaser at retail, 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

We are in harmony with this statement.
Other authorities to the same effect as the

above, in states with similar statutes in ef-
fect as ours, are: Thornhill v. Carpenter-
Morton Co., 220 Mass. 593, 108 N. E. 474;
McLawson v. Paragon Refining Co., 198 Mich.
222, 164 N. W. 668; Kearse v. Seyb, 200 Mo.
App. 645, 209 S. W. 635; Killam v. Stand-
ard Oil Co., 248 Mass. 575, 143 N. E. 698;
Ellis v. Republic Oil Co., 133 Iowa, 11, 110
N. W. 20.

There was no error in overruling appellant's demurrer to the sixth and seventh paragraphs of complaint.

to be sold at all. For the protection of the a
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 dan-
ger."

While in that case it is held that even an inspection by an authorized inspector would not have protected the vendor of the oil, we do not need to decide that question, for here there was no inspection by an authorized inspector.

[3] The case of Cohn v. Saenz (Tex. Civ. App.) 211 S. W. 492, thus disposes of the question of privity of contract:

was

"The only proposition urged is that it affirmatively appears from the petition that Cohn owed no duty, contractual or otherwise, to the original plaintiff or his wife, and consequently could not have been guilty of negligence to them or either of them. It is alleged that Cohn a merchant who sold goods to Ramon Saenz, who had a small store, for purpose of resale to the public; that said Cohn negligently sold said Saenz a barrel of gasoline or some other highly explosive substance similar to gasoline, labled 'coal oil,' instead of coal oil, which had been ordered by said Saenz, and told said Saenz it was coal oil, and oil to be use in lamps for lighting purposes. **

[4] Appellant, contending that it was error for the court to overrule its motion for

venire de novo, argues that the two verdicts,

one in favor of appellee Herbert Tretheway, and one against appellant and Alice Trethe way for $1,800, are inconsistent, and that both verdicts cannot stand. Appellant's contention is that the same rule applicable to master and servant, principal and agent, and to partners should apply; but we are not in harmony with this contention. None of the defendants were liable because of any relation borne to another defendant, but each was liable as an individual person for the injury which resulted through a violation of the statute; appellant's liability independent of the others being because of its violation of the statute in delivering oil or other substance to Tretheways, knowing that it was to be used for illuminating purposes, which oil or other substance was not fit for the purpose. Had appellee's action been against appellant alone, under the authorities above cited, it can hardly be questioned that appellee would have been entitled to a judgment against it, and it is expressly provided by section 596, Burns' R. S. 1914, that:

"Though all the defendants have been summoned, judgment may be rendered against any of them, severally, when the plaintiff would be entitled to judgments against such defendants if the action had been against them severally."

[5] Appellant may not complain that there was no judgment against its codefendant, Herbert Tretheway.

It sufficiently appears from the averments that, when Ramon Saenz ordered from Cohn a barrel of coal oil for the purpose of resale in his store, it became the duty of Cohn, not only to the purchaser, but to the public, to deliver coal oil Appellant earnestly contends that the to Saenz, and it was his duty not to deliver in cause of action stated in the sixth and sevlieu of coal oil a substance exceedingly dan- enth paragraphs of complaint is a different gerous when used for purposes for which coal cause of action from that stated in the first oil is commonly used. The law imposes on five paragraphs, and that as these paraevery one the duty to avoid acts which are in graphs were filed after the expiration of two their nature dangerous to the lives and health years from the date of the accident, appelof others. * It is the duty of a seller lant's plea of the statute of limitations must of gasoline and coal oil, who knows the danger to life and health incident to the attempted prevail. But in our opinion the cause of use of gasoline, or any other highly explo- action as set forth in each of the sixth and sive substance similar to gasoline, for illuminat- seventh paragraphs of complaint filed was ing purposes, not to sell the same as coal oil the same as that in each of the first five suitable for illuminating purposes. This duty paragraphs. In Jeffersonville, etc., R. Co.

*

(149 N.E.)

[7] Appellant concedes that instructions 2, 4, 6, 8, and 10 requested by appellee and given by the court, and instructions 19 and 22 tendered by appellant and refused by the court, present the same questions that were presented by appellant's demurrer to the sixth and seventh paragraphs of complaint, the overruling of which we have held was not error. We hold, therefore, that the court did not err as to these instructions. Instruc-original action.

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