December 12, 1938.
An actor will be liable for all such harm as a reasonably prudent person would or should have anticipated as the natural and probable consequences of his act; and the act must be of such character and done in such a situation that the actor should reasonably have anticipated that some injury to another would probably result.
2. EVIDENCE. Negligence.
"Probability" in the law of negligence, as respects actor's liability for foreseeable results of his act, arises when viewed from the standpoint of the judgment of a reasonably prudent man, as a reasonable thing to be expected, while probability exists in the procedural law only when the proof is such that the alleged fact probably happened or existed in the past, in the sense of "probability" as commonly understood.
Where inquiry is whether a certain alleged fact existed or happened in the past, it is not sufficient to prove a mere possibility, however substantial, but the fact must be established as a "probability," using the word in its ordinary and common acceptation.
Where the inquiry is upon foreseeability of a thing that may happen in the future, to the anticipation of which the law of negligence holds a party as a measure of duty, inquiry is not whether the thing is to be foreseeable or anticipated as one which will "probably" happen, according to the ordinary acceptation of the term, but whether it is likely to happen, even though the likelihood may not amount to a comparative probability.
Remote possibilities are not within the rules of negligence as respects foreseeability, and such rules do not demand that a person should prevision or anticipate an unusual, improbable or extraordinary occurrence.
The test of foreseeability of injury, as affecting actor's liability, is not the balance of probabilities that damage will result, but the existence of some real likelihood of damage, of such appreciable weight and moment as would induce action to avoid it on the part of a reasonably prudent person.
The vendor of an inherently dangerous commodity, such as gasoline, must use cautious care to distribute it in reasonably safe containers, to a degree commensurate with the danger, and his obligation is not dependent upon contractual relations, but extends to all who may lawfully use or be in the vicinity of the container.
Where defect in threads of bung cap on gasoline drum, known to employees of seller of gasoline, caused outburst of fire when buyer's employee tried to remove the cap, seller should have foreseen probability of the accident, and hence was liable for injuries to buyer's employee.
APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.
Green, Green Jackson, of Jackson, for appellants.
The peremptory instruction requested by defendants should have been granted. There was no actionable negligence on the part of the defendants.
It is the contention of the appellants that they may not be held liable to the plaintiff because it is probable for a thing to happen in a certain way; that they are only chargeable with the reasonable probabilities of an occurrence within the knowledge of reasonably prudent men.
Commonwealth v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; Lenz v. Standard Oil Co., 186 A. 330; A.L.I., Restatement of Law of Torts, sec. 388; Cliff v. California Spray-Chemical Co., 257 P. 102; Baker v. Sears Roebuck Co., 16 F. Supp. 925.
There is no proof in this record that the gasoline container was in any way inherently dangerous and there is no proof in this record whatsoever that if this particular drum was in fact harmful that these appellees had any notice thereof or was constructively charged with information thereasto, except through Percy Virden, a negro laborer.
Walstrom Optical Co. v. Miller, 59 S.W.2d 895.
Where buyer of eyeglasses sustains injuries caused by dye on glass frames and dye was harmless to ordinary persons and injuries were due to idiosyncrasy of buyer's skin, buyer could not recover against seller.
Smith v. Kresge Co., 79 F.2d 361; Bird v. Ford Motor Co., 15 F. Supp. 590; Hruska v. Parke, Davis Co., 6 F.2d 536; A.L.I., Restatement of Torts, sec. 289, page 762; 45 C.J. 888; Woolworth v. Haney, 170 So. 150.
As to the liability of the manufacturer of a defective article for injury to the person or property of the ultimate consumer, the purchaser from the middleman, as is appellee, compare 105 A.L.R. 1502.
Opposite counsel may urge for recovery upon the doctrine of res ipsa loquitur, but counsel is not to be allowed to recover through that doctrine.
We submit that the defendants could not have anticipated that the accident and injury would occur, and not having any knowledge that such a thing would occur, the defendants can not be charged with any actionable negligence such as would permit a recovery under all of the foregoing authorities when applied to the facts without dispute in this case. The peremptory instruction should have, therefore, been given to both of the defendants.
There was no contractual relationship between the plaintiff and these defendants.
Pate Auto Co. v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; Ford Motor Co. v. Myers, 151 Miss. 73, 117 So. 362; Kilcrease v. Motor Co., 149 Miss. 703, 115 So. 193; Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469.
The container was law conforming.
The defendant obtained the drum from a reputable manufacturer.
A.L.I., Restatement of Torts, sections 399 and 405; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726; Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N.E. 474; Noble v. Sears Roebuck Co., 12 F. Supp. 181; Hercules Powder Co. v. Calcote, 161 Miss. 860, 138 So. 583; Pate Auto Co. v. Westbrook Elevator Co., 141 Miss. 419, 107 So. 552; Royal Feed Milling Co. v. Thorn, 142 Miss. 92, 107 So. 282; Rainwater v. Hattiesburg Coca-Cola Bottling Co., 131 Miss. 315, 95 So. 444; Masonite Corp. v. Dennis, 168 So. 613; Masonite Corp. v. Hall, 170 Miss. 158, 154 So. 295, 95 A.L.R. 157.
We submit that there being no showing that the container or drum had changed in any particular since its manufacture and the fact that it was purchased from a reputable manufacturer, entitled the defendants to a peremptory instruction, they not being the manufacturers of said container.
The plaintiff assumed the risk incident to the method used by him in opening the drum.
Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74; Holman v. Bennett, 44 Miss. 322; McInnis v. State, 52 So. 634; Potter v. Fidelity Deposit Co. of Maryland, 101 Miss. 823, 58 So. 713; Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333, 94 So. 228; McDonald v. Wilmut Gas Oil Co., 176 So. 395.
The court erred in admitting testimony as to custom and practice in the particular industry.
22 C.J. 176, sec. 116.
Jack M. Greaves, of Madison, and Barnett, Jones Barnett, of Jackson, for appellee.
As explosives are intrinsically dangerous to human life, the seller's liability is not limited to injuries sustained by the purchaser, but extends to injuries sustained by third persons. His liability is not based on a contractual relation, but upon the duty of the vendor of an article dangerous in its nature, or likely to become so in the course of ordinary usage to be contemplated by the vendor, either to exercise due care to warn users of the danger, or to take reasonable care to prevent the article sold from proving dangerous when subjected only to customary usage.
11 R.C.L. 701; 45 C.J. 845.
The manufacturer and distributor of an inherently dangerous substance owes to the public the duty to exercise care commensurate with the danger of its distribution.
45 C.J. 650, 847 and 849; 61 L.R.A. 306; Palacine Oil Co. v. Philpot, 289 P. 281; Hamblin v. Gano, 76 So. 633; Opple v. Ray, 195 N.E. 81; Robertson v. G. S.I.R.R. Co., 158 So. 350; Miss. Central R.R. Co. v. Lott, 118 Miss. 816.
In 55 A.L.R. 194, are found full and complete annotations of the duties owing by the seller of explosives to guard against the improper condition of containers, some of the annotations being the following:
Hallenback v. S. Wander Sons Chemical Co., 197 App. Div. 855, 189 N.Y. Supp. 334; Texas Drug Co. v. Cadwell, 237 S.W. 968; Hooper v. Cooper Co., 139 A. 19, 55 A.L.R. 187; Guinea v. Campbell, Rap. Jud. Quebec, 22 C.S. 257; Keep v. National Tube Co., 154 Fed. 121.
In an action for the loss of an eye, due to the explosion of a bottle of coca-cola, it has been held that the manufacturer or vendor of such an article must take reasonable precautions to have receptacles suitable for the use to which they are put.
Wheeler v. Laurel Bottling Works, 111 Miss. 442, L.R.A. 1916E, 71 So. 743; Cashwell v. Fayetteville Pepsi-Cola Bottling Works, 174 N.C. 324, 93 S.E. 901; Stolle v. Anheuser-Busch, 307 Mo. 520, 39 A.L.R. 1001, 271 S.W. 497, 24 N.C.C.A. 727; Grant v. Graham Chero-Cola Bottling Co., 176 N.C. 256, 4 A.L.R. 1090, 97 S.E. 27, 18 N.C.C.A. 869; Bates v. Batey Co., 3 K.B. (Eng.) 351; Griffith v. Atlantic Refining Co., 157 A. 791.
As to experimental evidence as to inflammability of explosives see 8 A.L.R. 45 and 85 A.L.R. 479; also 3 Shearman Redfield on Negligence, sec. 690.
As a general rule, a manufacturer or vendor of a machine or other instrumentality rendered dangerous by the defective construction is liable only to his customer or vendee unless it is contemplated that the thing shall be resold or it is in its nature imminently dangerous, or the act itself unlawful or recklessly dangerous.
1 Shearman Redfield on Negligence, sec. 117 (a); 2 A.L.I., Torts, sec. 388; Robertson v. G. S.I.R.R., 158 So. 350; Miss. Central R.R. Co. v. Lott, 80 So. 277; Cooley on Torts (3 Ed.), pages 1486, 1488, 1489; 6 Blashfield, page 17; Morris v. Texas Co., 115 A. 643.
As to any assumption of risk on the part of Willie Williams, we refer the court to the case of Standard Oil Company v. Evans, 122 So. 735.
The defendant said that it could not anticipate or foresee that this drum was likely to cause an explosion and injure Willie Williams. We insist that its duty as a vendor of an inherently dangerous commodity required it to exercise the highest degree of care and that this duty imposed a requirement of careful inspection of that drum for the purpose of discovering bad caps or defective bung holes which would render it unsuitable and unsafe for such a dangerous commodity as gasoline, because this Honorable Court and all persons will know that the rubbing together of two pieces of iron will create a spark and that gasoline when confined will evaporate and give off fumes and vapors, which fumes will expand suddenly and with great force when the pressure is removed and the defendant cannot be heard to say that it could not have anticipated an explosion would occur as shown in this case.
As to the defendant's duties of anticipating injuries likely to occur as they did occur in this case, we cite the court the cases picked at random from the several states which are decisive of the point here raised by the defendant.
Bisson v. Kelly, 170 A. 142; Rosebrock v. General Electric, 236 N.Y. 227, 140 N.E. 571; St. Louis Expanding Metal Fireproofing Co. v. Dawson, 70 S.W. 450; McGlone v. Angus, 161 N.E. 469; Pennsylvania Steel Co. v. Elmore, 175 Fed. 176; Commonwealth v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; Ward v. Pullman Co., 128 S.W. 606.
Argued orally by Forrest B. Jackson, for appellant, and by Ross R. Barnett, for appellee.
Appellants are the distributors of petroleum products, including gasoline. Shortly before the injury here complained of, appellants, from their station at Canton, sold and delivered to a planter in that vicinity a drum of gasoline for use in farm tractors. Appellee was the planter's employee and was engaged in operating a tractor. The drum of gasoline had been taken to the field, but no attempt had been made to use it, until, for the first time since its delivery, appellee undertook to remove the bung-hole cap from the drum in order to replenish the fuel in the tractor, whereupon there was a sudden outburst of fire, caused, as the jury was justified in concluding upon the evidence, by a spark which was produced by the condition of unrepair in the threads of the bung cap, as will be later mentioned.
Appellee was severely burned by the sudden fire, and recovered judgment in an action therefor, from which judgment this appeal is prosecuted.
The chief argument of appellants is that the proof shows that an explosion or fire in drawing gasoline from a drum when, or on account of, taking off the bung cap is an unusual, extraordinary, and improbable occurrence, so much so that some of the witnesses say that no such happening had every before been heard of by them; and that, therefore, appellant cannot be held liable as for a failure to anticipate the danger of any such improbable occurrence. And appellants call attention to language used by the courts wherein the declaration is made that there is no liability when the occurrence is unusual, extraordinary, and improbable. Such terms are used in some of our decisions, one of which we will later cite. This language refers, however, to remote possibilities, — to occurrences outside of what is to be reasonably anticipated in the very nature of the harm-producing agency, or harm-producing situation, which is being considered. The argument that there is no negligence because an injury rarely occurs, or never before occurred, in a given situation was expressly rejected in Crawford v. City of Meridian, 174 Miss. 875, 879, 165 So. 612.
All the above might be disposed of by the observation that it is not shown that ever before was any gasoline sent out by a distributor in a drum or container in the condition of unrepair which the evidence discloses in this case; but the argument before us merits consideration beyond that available disposition.
The general language of the courts in stating the rule of the law of negligence in regard to the ability of the actor as to harmful results which are foreseeable is that he will be liable for all such harm as a reasonably prudent person would or should have anticipated as the natural and probable consequences of his act. Or that, in order that a person doing a particular act which results in injury to another shall be liable therefor, the act must be of such character and done in such a situation that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom.
This general language has lead to the occasional misunderstanding as to what may be termed the degree of probability which is meant by these expressions, as used in the law of negligence; and it is sometimes supposed and argued that unless such a foreseeable consequence is one which is more likely to happen than not to happen there can be no liability. But these references to probability are in a different sense as compared with what is meant in the procedural law when there is under inquiry whether a certain event happened, or probably happened, in the past.
"Probability arises in the law of negligence when viewed from the standpoint of the judgment of a reasonably prudent man, as a reasonable thing to be expected," Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 617, 145 So. 333, 336 — that is to say, in the future; while probability exists in the procedural law only when the proof is such that the alleged fact probably happened or existed in the past, in the sense of probability as commonly understood under every day language.
When the inquiry is upon an issue whether a certain alleged fact existed or happened in the past, it is not sufficient to prove only or no more than a possibility, however substantial the possibility may be, so long as it is only a possibility. There the proof must establish the fact as a probability, using that word in its ordinary and common acceptation. This has so often been declared by this Court and all other courts that the citation of authority upon it is no longer necessary. But when the inquiry is one of foreseeability, is as regards a thing that may happen in the future, and to which the law of negligence holds a party to anticipation as a measure of duty, that inquiry is not whether the thing is to be foreseen or anticipated as one which will probably happen, according to the ordinary acceptation of that term, but whether it is likely to happen, even though the likelihood may not be sufficient to amount to a comparative probability.
It is true, as already mentioned, that remote possibilities are not within the rules of negligence as respects foreseeability. As said in Illinois Central Railroad Co. v. Bloodworth, supra, these rules do not demand "that a person should prevision or anticipate an unusual, improbable, or extraordinary occurrence, though such happening is within the range of possibilities. . . . Remote possibilities do not constitute negligence from the judicial standpoint." On the other hand, in order to bring the rule of liability into operation, it is not necessary that the chances that a damage will result shall be greater than the chances that no damage will occur. The test as respects foreseeability is not the balance of probabilities, but the existence, in the situation in hand, of some real likelihood of some damage and the likelihood is of such appreciable weight and moment as to induce, or which reasonably should induce, action to avoid it on the part of a person of a reasonably prudent mind. Tullgren v. Amoskeag Mfg. Co., 82 N.H. 268, 133 A. 4, 46 A.L.R. 380, and the numerous cases cited; 45 C.J., pp. 657, 658. See, also, Sec. 289, A.L.I. Restatement Torts, Vol. 2, Negligence, and City of Greenville v. Laury, 172 Miss. 118, 159 So. 121.
The vendor of an inherently dangerous commodity, such as gasoline, is under duty to use cautious care to distribute the same in reasonably safe containers, the degree of care thereinabout to be commensurate with the danger, and the obligation of this duty is not dependent upon contractual relations, but extends to all who may lawfully use, or be in the vicinity of, the container, 11 R.C.L., pp. 701, 702; 45 C.J. 845, 847, 849. There is a sufficient number of cases cited in the notes to Hopper v. Cooper Co., 104 N.J.L. 93, 139 A. 19, 55 A.L.R. 187, 194, to fully disclose the rule as stated on this point, when those cases are carefully examined.
The drum, or gasoline container, involved herein was of standard material, construction and manufacture, and of the kind in general use; and had it been in reasonably good repair there would, of course, be no liability. But the proof is that the drum had been in use nine years; that the threads in the bung plug or bung cap were broken, bent and jagged; that this condition had been brought about by repeated hammering on the bung cap during the course of its use, — a condition which had attracted the attention of one of appellants' employes before the container was sent out on this occasion. There is no adequate proof to show that appellee had equal knowledge or appreciation of the significance of this fact, or any knowledge which was sufficient to put the use at his risk as by the so-called assumption thereof, as contended for by appellants, — leaving aside whether, if the facts were otherwise, there would be assumption of risk, rather than contributory negligence. Compare Standard Oil Company v. Evans, 154 Miss. 475, 122 So. 735. The proof is sufficient to show that a person of ordinary prudence, and mindful of the duty of cautious care with which appellants were charged, should have known of the condition aforesaid and should reasonably have anticipated, as a likelihood of weight and moment, that a sudden fire or explosion would be caused by the stated condition of unrepair; and hence appellants are liable for the injury to appellee which resulted.
The other assignments have been considered, and we do not find in them sufficient to require a reversal.