Opinion
10570
January 31, 1921.
Before MEMMINGER, J., Anderson, April term, 1920. Appeal dismissed.
Action by Mrs. A.A. Cabe, as Admx. of Marinda Bradley, deceased, against R.S. Ligon et al., partners as Ligon Ledbetter, and the Petroleum Oil Co. From order overruling demurrer to the complaint, the defendants appeal.
Messrs. John K. Hood and Bonham Allen, for appellants, cite: Action was one ex contractu: 108 S.C. 72; 21 Enc. P. P. 659; Ib. 650; Bliss Code PI., sec. 153; 78 S.C. 163. Act makes distinction between illuminating and heating oils: 28 Stats. 204. No tort at hands of Petroleum Oil Co.: 70 S.C. 117. To do a thing that is obviously dangerous is negligence: 94 S.C. 258; 56 S.C. 94; 94 S.C. 143; 110 S.C. 331; 111 S.C. 387. Contributory negligence would bar recovery: 73 S.C. 257; 111 S.C. 420.
Messrs. Dickson Miller and A.H. Dagnall, for respondent, cite: Purchaser of article has right of action against original vendee: 57 Am. Dec. 455 (N.Y.). Who, as a seller of a dangerous article, is liable for damages to any one who bought it, without notice of danger: 92 Am. Dec. 768; 104 Mass. 64; 212 U.S. 159; 53 L. ED. 453; 164 N.W. 668; 24 L.R.A. 679; 39 L.R.A. 607; 15 L.R.A. 818; Ib. 821; 31 L.R.A. 220; 22 Ann. Cas. 625; 110 N.W. 20; 264 Fed. 829; 222 S.W. 5. As to joint tort: 38 Cyc. 483. Where there is breach of common duty there is a joint and several liability: 85 P. 230; 6 R.C.L. 765; 88 C.C.A. 633; 95 S.C. 126; 67 S.C. 514. Distinction as to several liability: 38 Cyc. 484, 487; 92 S.C. 568. Use of kerosene in kindling fires is not per se negligence: 110 N.W. 20; 212 U.S. 159; 264 Fed. 829; 164 N.W. 668; Ann. Cas. 1912, 625; 170 P. 983; 170 P. 172; 164 N.W. 169; 110 N.W. 24; 123 N.W. 992; 222 S.W. 5.
January 31, 1921. The opinion of the Court was delivered by
The following statement appears in the record:
"This is an action for damages for the death of respondent's intestate, caused by an explosion of oil when she attempted to make a fire therewith, and which was purchased from the firm of Ligon Ledbetter, who had, in turn, purchased same from Petroleum Oil Company, as is alleged, and that her death was caused by the joint, concurrent, and several negligence of the appellants, as a result of the sale to her by the firm of Ligon Ledbetter of defective oil, and which in turn had been purchased by the firm of Ligon Ledbetter from Petroleum Oil Company.
"The amended complaint was served March 18, 1920, and each of the appellants demurred thereto for failure to state a cause of action as to each of them as well as collectively, on six grounds, but insisted on only the first, second, third, and sixth grounds thereof on the hearing before Judge Memminger at the April term of Court for Anderson county, who overruled same on the ground that the complaint was not demurrable on these several grounds. Each defendant demurred separately, but on the same grounds."
The appeal involves the first, second, third and sixth grounds of demurrer, which are as follows:
"1. Because it appears from the complaint that the cause of action is based on the breach of an alleged contract between plaintiff's intestate, Mrs. Marinda Bradley, and said Ligon Ledbetter, and there is no allegation that Petroleum Oil Company was in any manner a party thereto.
"2. Because it appears on the face of the complaint that there is no joint liability of the defendants, Ligon Ledbetter Company and Petroleum Oil Company, because there is no allegation in the complaint, nor intimation therein, that these defendants acted in concert, or collusion, or through any conspiracy or agreement, or other allegations, which, if true, would show joint liability.
"3. Because it appears on the face of the complaint that the approximate cause of the accident, and without which it would not have occurred, was the negligence or contributory negligence, of plaintiff's intestate, who poured the oil on the fire which caused the explosion from which she suffered injury."
"6. Because the act of the General Assembly approved ____ day of ____, 1913, regulating the sale, inspection, analysis, and test of oils, etc., provides that the act shall not apply to the retail dealer unless such retail dealer shall sell or offer to sell oils of a manufacturer, wholesaler, or jobber who refuses to comply with the provisions of the act, and there is no allegation in the complaint that Petroleum Oil Company had refused to comply with the provisions of the act."
No reasons were assigned by his Honor, the Circuit Judge, in overruling the grounds of demurrer. We will consider them in regular order.
First ground: The complaint alleges negligence, wilfulness, wantonness, and recklessness. These are appropriate to an action arising ex delicto, and the context of the complaint shows that the allegations as to a contract were merely preliminary to the action for tort. Pickens v. Ry., 54 S.C. 498, 32 S.E. 567; Hellams v. Tel. Co., 70 S.C. 83, 49 S.E. 12; Harrison v. Tel. Co., 71 S.C. 386, 51 S.E. 119.
Second ground: So far as concerns the number of individuals who may be held responsible, torts are either single or joint. The class within which a particular instance of wrongdoing may be placed depends in general, not upon the inherent nature of the tort itself, but upon the method of its accomplishment, for nearly every tort is susceptible of commission by one or many. Where different persons owe the same duty, and their acts naturally tend to the same breach of that duty, the wrong may be regarded as joint, and both may be held liable." 38 Cyc. 483.
"Where, although concert is lacking, the separate and independent acts, or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone, might not have caused it. It has been said that to make tort feasors liable jointly, there must be some sort of community in the wrongdoing, and the injury must be due in some way to their joint work, but it is not necessary that there be acting together or in concert, if their concurring negligence occasions the injury." 38 Cyc. 488, 489.
To the same effect are the principles announced in Mathews v. Ry., 67 S.C. 499, 46 S.E. 335, 65 L.R.A. 286.
Third ground: Whether the use of kerosene oil in kindling a fire constitutes negligence as matter of law depends upon the facts of the particular case. The facts alleged in this case do not show that the defendant was guilty of negligence per se. Waters-Pierce Oil Co. v. Deselmes, 212 U.S. 159, 29 Sup. Ct. 270, 53 L.Ed. 453.
Fourth ground: The facts upon which the appellants rely can be interposed only by way of defense.
Appeal dismissed.
MR. JUSTICE GAGE did not participate in this case, being absent on account of sickness.