Sunday v. Wolverine Service Stations , 265 Mich. 19 ( 1933 )

Winifred Sunday, six years of age, was with her mother in the home kitchen when the mother poured oil into the cook stove from a kerosene can. The kerosene can exploded and both mother and daughter died from burns within a few hours. This action was brought, in behalf of the estate of the little girl, against the alleged purveyor of the oil and resulted in a verdict of $9,000.

It was claimed at the trial that defendant negligently permitted gasoline to pass from one compartment in a tank upon a delivery truck to that of another compartment containing kerosene, thereby rendering the kerosene oil highly explosive. The oil was procured by the Sunday family, some days before the explosion, from a neighbor who vended to a few of his neighbors as an accommodation, and it was furnished to him by defendant company.

At the trial a can of oil, procured by a neighbor from the same source, was admitted in evidence, together with testimony of a chemist that he had analyzed the contents and found the same explosive. This was objected to, on the ground that the can of oil tested was not properly identified in passing to the chemist, and, besides, was not sufficiently identified with the oil used in the home of the Sundays. The evidence presented a question of fact for the jury.

Plaintiff's case was based upon the claim that gasoline passed from its compartment and fused with kerosene in an adjoining compartment of a tank used for delivering both oils. The tank was furnished by defendant company and installed upon a truck belonging to and operated by a third party. It was claimed by defendant at the trial that the two compartments mentioned were not only separated by metal ends, but as well by a baffle plate and subsequent inspection and cutting into the tanks disclosed no possible connection between the two. The tanks were inspected by the jury, and it is claimed in behalf of plaintiff that the riveting disclosed but a single metal plate between the two compartments and no baffle plate. View by the jury constituted proper evidence.

The circuit judge instructed the jury as follows:

"The statute provides that no person shall adulterate with benzine or other substance, for the purpose of sale, or for use, any kerosene oil, to be used in lighting or heating, in such manner as to render it dangerous to use; nor shall any person, knowingly, sell or offer to sell, or, knowingly, use such adulterated oil; nor shall any person, knowingly, sell, or offer for sale, or knowingly use, any coal or kerosene oil, or any products of petroleum for illuminating or heating purposes which, by reason of being so adulterated, or for any other reason, will emit a combustible vapor at a temperature of 120 degrees, or less, of Fahrenheit thermometer, where tested as provided by law of this State."

This instruction was based upon 1 Comp. Laws 1929, § 601. The court was in error in so instructing the jury. That statute prohibits a trade practice or an intentional act, and bears no relation to unintentional and negligent infusion of the two oils.

For the error pointed out the judgment is reversed and a new trial granted, with costs to defendant.

POTTER, NORTH, FEAD, and BUTZEL, JJ., concurred with WIEST, J.