
    The Standard Oil Co. v. Armbruster.
    (Decided November 3, 1930.)
    
      Messrs. Holliday, Grossman & McAfee and Mr. Elwin C. Peck, for plaintiff in error.
    
      Mr. H. H. Dumuth, Mr. Bussell V. Maocwell and Mr. Charles E. Scott, for defendant in ebror.
   Richards, J.

This case was commenced by Fred Armbruster to recover damages for the destruction, of his property by fire, caused by gasoline, delivered to him by the Standard Oil Company, the plaintiff contending that he had ordered kerosene. The trial resulted in a verdict and judgment in his favor for $2,144.

The record discloses that in April, 1929, Clinton De Groff was the agent of the oil company at its station in West Unity. The company had a telephone listed in its name, and on April 16,1929, Armbruster desired to order 125 gallons of kerosene and called the company on its telephone. The telephone was answered by Mrs. De Groff, wife of the agent, who testified that she at times took orders as they came in over the telephone, her husband being engaged on the road much of the time in delivering kerosene and gasoline. Armbruster testified that he ordered, over the telephone from her, 125 gallons of kerosene. She testified that the telephone was not working very well and she had difficulty in understanding the order, but knew that he wanted fuel, and wanted the wagon that delivered it to come in from the east. Not being certain as to the exact order, she wrote down, “Fuel until noon. Go in from the east,” and, on her husband’s return, delivered that to him. The direction to go in from the east was given because the road from the other direction was undergoing repairs. On his return, De Groff, the agent, without calling Armbruster on the phone to verify the order and ascertain with certainty whether it was for gasoline or kerosene, delivered 125 gallons of gasoline to Armbruster at his home. The company’s agent placed this gasoline in some barrels or drums belonging to Armbruster in a building owned by him. Armbruster was at the time operating a tractor, in which he was using kerosene, and desired more kerosene for that purpose. This was the only tractor that he owned, but in the preceding winter he used a borrowed tractor with gasoline as fuel, and he had on some occasions ordered gasoline of the company. About the time the delivery was completed Armbruster came to the place of delivery, and a quantity of the fuel was placed by the agent directly from his truck into the tractor. Thereupon he produced a receipt and laid it on the tractor, and Armbruster, without reading the receipt, signed it. The receipt is a printed one and is for 125 gallons of Red Crown gasoline at 15 cents per gallon.

Within a few days Armbruster had occasion to fill a lantern, which he did by means of a funnel from one of these barrels or drums, while the lantern was lighted. After he had completed the operation of filling the lantern, he set it on the floor from four to six feet from the drum, and very shortly thereafter it took fire, the fire spreading to the building and adjoining buildings and resulting in the damages involved in this action.

It is insisted that the order for kerosene which Armbruster undertook to give never reached the company, and to sustain this contention it is said that Mrs. De Groff, who was not employed by the company, was a mere intermediary made use of by Armbruster to communicate his order for kerosene to her husband, the company’s agent. In view of the fact that this telephone was listed in the name of the company, and the business of De Groff required him to be on the road much of the time, delivering kerosene and gasoline, during which time his wife was in the habit of receiving orders for kerosene and gasoline, all of which must have been known by the company, we think the jury was justified in finding that Mrs. De Groff was not a mere intermediary employed by Armbruster, but that she had implied authority to act for the company in receiving orders. In any event, she communicated to her husband, the agent of the company, that Armbruster desired fuel, and, without ascertaining whether the fuel which was desired was gasoline or kerosene, he filled the order by delivering gasoline, and failed to inform the purchaser of that fact.

The receipt signed by the purchaser was in no sense a contract and was clearly open to explanation, and it was a question of fact for the jury to determine whether the purchaser was or was not guilty of negligence in signing it without discovering that it was for gasoline instead of kerosene. Counsel for the Standard Oil Company rely on Riggs v. Standard Oil Co., (C. C.), 130 F., 199, in which it was held that a party who poured kerosene oil from a can on wood and kindling in a stove in which he knew there were live coals, and there was an explosion, was chargeable with negligence as a matter of law and would be precluded from recovery. That case, differs in at least two material respects from the one at bar. That was a case in which kerosene was poured directly onto burning coals, while in the case at bar it was poured into an opening existing for that purpose in a lantern which was lighted, and, in addition to this, in the Riggs case there was an explosion, and in the case at bar there was no explosion. Furthermore, the fire in the instant case did not occur while the lantern was being filled, but after it had been filled and set down on the floor from four to six feet from the place where it had been filled. The case at bar is more like Catlin, Admx., v. Union Oil Co., 31 Cal. App., 597, 161 P., 29. In that case the fire resulted from a man filling .a lighted lamp while he wore a miner’s cap on which was a lighted miner’s lamp, and it was held that the question of contributory negligence was one for the jury.

Following the latter line of authorities, this court holds that Armbruster was not guilty of such contributory negligence as a matter of law as to bar his recovery, but that the issue was one to be determined by the jury under proper instructions.

It is urged that the trial court erred in its general charge in instructing the jury as follows: “In this connection you will carefully examine the evidence as to the circumstances of the delivery of the gasoline by the defendant’s agent and the receiving of the same by the plaintiff. There has been introduced as evidence in the case a slip of paper known in the record as defendant’s ‘exhibit No. 3.’ This slip of paper, as a matter of law in this case, has no significance as to any contractual relations that might exist or did exist at the time between the plaintiff and defendant. But it is for you to say, ladies and gentlemen, in considering this evidence and all the evidence and circumstances of the case, whether or not the plaintiff exercised ordinary care in receiving from the defendant said gasoline.”

Exhibit 3, referred to in the charge, is the receipt for 125 gallons of gasoline, and the court was entirely correct in instructing the jury that the question for determination was whether the plaintiff exercised ordinary care in receiving, from the defendant, the gasoline. We are not entirely satisfied with the statement in this portion of the charge that the receipt had no significance as to any contractual relations which might exist between the parties, but the brief for the Standard Oil Company concedes that Exhibit No. 3 had no significance as to any contractual relations.

We have examined all the other claimed errors, but find, none to the prejudice of the plaintiff in error, and the judgment will be affirmed.

Judgment affirmed.

Williams and Lloyd, JJ., concur.  