
    The Paragon Refining Co. v. Higbea, Admr., et al. The Paragon Refining Co. v. Clarke, Admx., et al.
    
      Summons — Alias summons may be issued before original invalid service quashed — Service in county valid without first quashing foreign summons — Negligence—Gasoline mistakenly delivered to purchaser of kerosene — Question for jury — Contributory negligence in starting fire with kerosene — Pouring kerosene or gasoline on live coals not negligence per se — Verdict for wrongful death not excessive, when — Measure of damages to beneficiaries — Evidence of health of beneficiaries subsequent to decedent's death, admissible — Husband and wife not engaged in joint enterprise, when — Negligence of one not attributed to others, when.
    
    1. Where service of original summons is not valid, party-seeking service is not required to wait until first service is quashed before issuing an alias summons.
    
      2. Service of summons on a non-resident defendant within the county, without quashing the service of summons in a foreign county previously made, is not invalid where both services are regularly made and the first service is rendered invalid because the plaintiff secures a verdict in his favor against the non-resident defendant only.
    3. Contributory negligence of deceased in the act of building a fire with gasoline, which evidence tends to show he was informed and believed was kerosene, was under the peculiar circumstances of the instant case a question for the jury, for the reason that the facts, about which there was little dispute, were such that different minds might reach different conclusions.
    4. Deceased would not necessarily be guilty of negligence by placing what he supposed was kerosene on kindling before lighting it.
    5. $1,250 for wrongful death held not excessive.
    6. $8,645.35 for wrongful death and for expenses held not excessive.
    7. Limitation of recovery for wrongful death is pecuniary loss sustained by beneficiaries.
    8. In an action for wrongful death, evidence as to health of beneficiaries subsequent to decedent’s death was admissible.
    9. Pouring gasoline or kerosene into stove in which there was burning fire or live coals was not negligence on the part of the defendant unless the presence of such fire or coals was known to him, or could have been known by exercise of ordinary care.
    10. Instruction that negligence of either husband or wife, engaged in joint enterprise at time of explosion from gasoline used in starting fire would be chargeable to other was properly refused, in absence of some evidence tending to show a joint enterprise.
    (Decided October 30, 1925.)
    Error: Court of Appeals for Williams county.
    
      Messrs. Denman, Wilson, Miller & Wall, Mr. H. H. DeMuth, and Mr. W. H. Shinn, for plaintiff in error.
    
      
      Mr. Charles E. Scott and Mr. Charles A. Thatcher, for defendants in error.
   Williams, J.

These actions were begun in the court of common pleas of this county, one by John Higbea as administrator of the estate of Grace A. Clarke, deceased, against the Paragon Refining Company and the Rank Market Company, to recover for the wrongful death of the decedent, Grace A. Clarke; and two others by Gertrude M. Clarke, administratrix de bonis non of the estate of Lawrence E. Clarke, deceased, against the Paragon Refining Company and the Rank Market Company. Of the latter two, one was for the wrongful death of the decedent, Lawrence E. Clarke, and the other for expenses incurred in connection with the care and treatment and death of decedents.

In the first case the jury returned a verdict in favor of the plaintiff against the defendant the Paragon Refining Company in the sum of $1,250, but found in favor of the defendant the Rank Market Company. The other two cases were consolidated, and a verdict was returned by the jury in favor of the plaintiff against the Paragon Refining Company in the sum of $8,645.35, and in favor of the Rank Market Company. Special findings were made by the jury in the latter case, and $5,000 was awarded as damages for'wrongful death, and $3,645.35 for expenses incurred.

Judgment was rendered upon the verdicts in each case, and this proceeding in error is brought by the Paragon Refining Company, as plaintiff in error in each case, to reverse the judgments of the court below.

The evidence shows, in substance, that the Paragon Refining Company was a distributor of gasoline and kerosene in Bryan, Ohio, and operated a bulk station at that place from which to distribute its goods to retailers in the city. On the afternoon of February 5, 1924, the Paragon Refining Company, through some mistake, delivered to the Rank Market Company gasoline instead of kerosene as ordered; the latter company being a dealer in the latter, but not in the former. Late in the afternoon of the same day Virgil Daft went to the Rank Market Company to purchase some kerosene for the decedent, Lawrence E. Clarke.

The Rank Market Company caused the can to be filled, believing that what was put into it was kerosene, whereas the evidence tends strongly to show that it was gasoline. Thereupon Virgil Daft took the can to the house of the decedent, Lawrence E. Clarke, and left it there. On the morning of February 20, 1924, while Lawrence E. Clarke was in the kitchen of his house, attempting to build a fire, apparently with the gasoline, there was a terrific explosion, which injured Lawrence E. Clarke and his wife Grace A. Clarke so severely that both of them died within a few days thereafter.

A portion of what appeared to be the can was found near at hand after the explosion.

We shall refer to the action brought by John Higbea, administrator, as the Higbea case, and the action resulting from the consolidation of the two actions brought by Gertrude M. Clarke, administratrix, as the Clarke case.

Summons was issued in these cases and served upon the Rank Market Company in Williams county, Ohio, and at the same time summons was issued to Lucas county for the Paragon Refining Company, and served upon that company in Lucas county. Thereafter, and without quashing the service upon the Paragon Refining Company in Lucas county, a summons was issued for that company to the sheriff of Williams county, Ohio, and service made in that county. The claim is made that, as the verdicts were in favor of the defendant the Rank Market Company, service upon the Paragon Refining Company in n foreign county was invalid, and that service on the same defendant in Williams county was invalid also, for the reason that an alias summons cannot be issued during the life of the original summons. Therefore it is claimed that there was no valid service whatsoever. We think the correct rule in Ohio is, that, where the service of an original summons is not valid, the party seeking service is not required to wait until the first service is quashed before issuing an alias summons. Williams’ Admrs. v. Welton’s Admr., 28 Ohio St., 451; State ex rel. Wachenheimer v. Standard Oil Co., 15 C. C. (N. S.), 212, 31 C. D., 52. There was a valid service of summons upon the defendant the Paragon Refining Company, for, if the service in Lucas county was invalid, the service in Williams county was valid.

The claim is made that the court should have directed a verdict in favor of the defendants in each case. In support of this claim the plaintiff in error relies upon Smith’s Adm’r. v. Curtis, 10 C. C. (N. S.), 149, 20 C. D., 29. In this case Judge Haynes uses the following language:

“After we get through reading this record and sit down to talk about it, we are still in the land of conjecture; the cause of the accident may have been one of a number of things.”

We believe that the case relied on is to be distinguished from the instant case, for the reason that the facts in the instant case tend strongly to show that the death of the decedents was caused by gasoline negligently furnished through mistake to the Rank Market Company, purchased for kerosene by the agent of one of decedents, and used by the latter for the purpose of starting a fire, under the belief that it was kerosene. We think that in the instant case the finding was not ' a guess or conjecture, but was an inference warranted by the evidence, if the jury saw fit to draw it. The evidence was largely circumstantial, but the plaintiff had a right to make his case by circumstantial, as well as direct, evidence. Of course, if the plaintiff’s decedent were guilty of contributory negligence as a matter of law, a verdict should be directed. We think the question of contributory negligence was for the jury. The evidence is circumstantial as to how the inflammable liquid was ignited, and the inference might well be drawn that the decedent, Lawrence E. Clarke, was building a new fire by placing the liquid on the kindling before lighting it, and, if he believed it was kerosene, he would not necessary be guilty of negligence. McLawson v. Paragon Refining Co., 198 Mich., 222, 164 N. W., 668. We are of the opinion that the court below did not err in refusing to direct a verdict.

The claim is also made that the verdicts are manifestly against the weight of the evidence, and are excessive. We have examined and weighed the evidence in the eases, and cannot say that the verdicts are so manifestly against the weight of the evidence that this court ought to disturb them. As to the claim that the verdicts are excessive, we need only say that the dollar has not more than half the purchasing power that it had ten years or so ago, and we are not inclined to disturb the verdicts upon the ground that they are excessive.

It is claimed in the Clarke case that the court erred in admitting the evidence of injuries received by Arville Clarke in an accident occurring after the death of the decedent, and that the court erred in its charge in that it permitted the jury to take into consideration the physical condition of the beneficiaries after the death of the decedent, and especially that of Arville Clarke. The limitation of recovery in such cases is the pecuniary loss sustained by the beneficiaries. Steel, Admr., v. Kurtz, 28 Ohio St., 191; Cincinnati Street Ry. Co. v. Altemeier, Adm’r., 60 Ohio St., 10, 53 N. E., 300; and Kennedy, Adm’r., v. Byers, 107 Ohio St., 90, 140 N. E., 630.

The rule, however, as to the scope of the proof to show that pecuniary loss is established in Ohio by the leading case of Cincinnati Street Ry. Co. v. Altemeier, Adm’r., supra. In the syllabus of that case the following language is used:

“And for the purpose of showing that such beneficiaries needed and would likely have received such aid from the deceased, the circumstances, age, health and means of support of the beneficiary, if a parent or next of kin of the deceased, as well as the age, health, disposition and thrift of the deceased may be shown.”

We quote from the opinion in that case at page 15 (53 N. E., 301) as follows: “It may also be shown that the beneficiary is in such financial circumstances and health as to need the aid of the deceased, coupled with the fact that such aid was to some extent supplied during the life of the deceased, and a reasonable expectation under the circumstances that such aid would continue in the future.” (Italics ours.)

If the health of the beneficiaries is competent, it would seem to be proper to show that it had become worse after decedent’s death, or that it had improved. However that may be, we think that the Supreme Court has settled the question by the decision in the Altemeier case. We have taken the pains to secure a copy of the final record and briefs of counsel from the clerk of the Supreme Court, and we find that the principal question relied upon by the plaintiff in error for the reversal of the case was the admission of evidence of one of the beneficiaries as to his financial means, his ability to work, and the support he received from his children at a time subsequent to the decedent’s death. There can be no doubt that under the law as it exists in Ohio to-day, as shown by the decision in the Altemeier case, evidence as to the health of a beneficiary, subsequent to the decedent’s death, is admissible in evidence.

In the Higbea case it was claimed that the court erred in refusing to give the following request before argument:

“It is negligence as a matter of law to pour either gasoline or kerosene into a stove in which a fire is burning or in which there are live coals or embers.”

Plaintiff in error in that case claimed that the request should have been given. There is no evidence in the Higbea case tending to show that the inflammable liquid was poured either upon a burning fire, live coals, or embers, from which it could ignite. It may well have been that the decedent Lawrence E. Clarke laid his fire, poured on the gasoline, in the belief that it was kerosene, and, when he attempted to ignite it with a match the explosion occurred, which would not have taken place had the liquid been kerosene. On the other hand, even if there were evidence to show that the explosion was caused because the inflammable liquid was poured upon fire or embers, the request ignores the element that the fire or embers in the stove were apparent to the decedent, Lawrence E. Clarke, upon the exercise of ordinary care. In other words, it would not be negligence to pour gasoline or kerosene into a stove in which there was a fire burning, or in which there were live coals or embers, unless the party doing it knew of such fire or embers, or could have known thereof by the exercise of ordinary care. The court did not err in refusing the request.

It is further claimed in the Higbea case that the court erred in charging the law as to contributory negligence, in that he did not submit to the jury the question whether or not the husband and 'Wife were, at the time of the explosion, engaged in a joint enterprise, and did not charge that, if they were, the negligence of either, while carrying on such joint enterprise, would be chargeable to the other. A very careful examination of the evidence in the Higbea case discloses that there was no evidence in the record tending to show such a joint enterprise. The only witness who has any knowledge of the matter is Beatrice Daft. She testified, in substance, that Mrs. Clarke came into the room where she sat, which was the room next to the kitchen, and said that the fire did not burn, and that her husband said he would go and rebuild it; that thereupon he went into the kitchen, and, after a short time, Mrs. Clarke followed him: that she could see Mrs. Clarke from where she sat, but not Mr. Clarke; that Mrs. Clarke stood just inside of the kitchen, a little way from the door that came into the dining room; and that while Mrs. Clarke stood there the explosion took place. The evidence fails to disclose that Mrs. Clarke was participating in the building of the fire at the time the explosion took place.

Other questions were raised in the cases, but we have aimed only to discuss those which we regard as the most important.

"We find no prejudicial error in the record of either of these cases. The judgments will therefore be affirmed.

Judgments affirmed.

Young, J., concurs.

Richards, J., not participating.  