holding that demurrer improperly granted because dropping bottle of flammable liquid was reasonably probable such that it was not an intervening cause in action against bottle manufacturer
How later courts described this case
- holding that demurrer improperly granted because dropping bottle of flammable liquid was reasonably probable such that it was not an intervening cause in action against bottle manufacturer
Written by the judges who cited it.
The opinion
Jackson, J.,
concurring: Mr. Justice Schroeder has done well a difficult task imposed upon him by the unusual rule of this court. Certainly, we of the majority should at least add an “Amen.” I shall include also only a short collect.
The question has been definitely narrowed to one of whether the alleged negligence of the defendant in this case appears in the second amended petition as the possible proximate cause of the plaintiff's injury or whether the act of Loretta Jamison in dropping the fragile glass bottle containing a gallon of “highly inflammable and explosive substance” must be said, as a matter of law, to have been an independent, immunizing and insulating cause, thus relieving defendant of responsibility. It is suggested in the dissenting opinions of our brothers Schroeder and Price that Loretta Jamison, the person who is alleged to have dropped the bottle, cannot be assumed to have been innocent of the nature of the fluid in the bottle. Be that as it may, Loretta is not the plaintiff in this case.
With apologies to the late Joseph H. Beale, the situation can be put in this fashion: The defendant has put a force in motion (the container of nail polish remover); did he understand, or should-he have reasonably foreseen, that his force would act upon or be acted upon by another force over which he had no control (here, someone handling the bottle and possibly dropping it) and thereby cause injury? If there should have been reasonable foresight of the independent force and of the resulting injury or of injury of some kind, then defendant’s force remained the proximate cause of the injury.
*395 In G. S. 1949, 31-207, it is said, in part:
“That the state fire marshal shall make rules and regulations for the keeping, storage, use, manufacture, sale, handling, transportation, or other disposition of highly inflammable materials, gunpowder, dynamite, crude petroleum or any of its products, explosive or inflammable fluids or compounds, tablets, torpedoes, or any explosives of a like nature or any other explosive including fireworks and firecrackers, and may prescribe the materials and construction of receptacles and buildings to be used for any of said purposes . . .”
Article 5 of the regulations of the state fire marshal deals with the labeling of containers for inflammable cleaning fluids.
G. S. 1949, 21-2438, defines a criminal offense as follows:
“Grocers, druggists and all other vendors of gasoline in quantities of two hundred and fifty gallons or less are hereby required to put all gasoline by them hereafter kept for sale or sold in a red can, tank, barrel, or other receptacle, which receptacle shall be labeled “gasoline”; and vendors of kerosene in quantities of two hundred and fifty gallons or less shall not put kerosene in any red can, tank, barrel, or other receptacle.”
What danger was foreseen in the above statutes and regulations?
It would seem safe to suppose, at least as a matter of pleading, that defendant could foresee, or should have foreseen, that someone handling a gallon of “highly inflammable and explosive” fluid might likely drop the fragile glass bottle and thereby cause injury. It would seem that the likelihood of such injuries occurring has led to the above regulations as to containers of inflammable fluids.
Many of the authorities have been cited in the majority and dissenting opinions. Two fairly recent cases involving situations in which defendant’s “force” was acted upon by the independent forces of other persons may be found in Smith v. Kroger Grocery & Baking Co., 339 Ill. App. 501 , 90 N. E. 2d 500 , 20 A. L. R. 2d 1; and Hatch v. Small, 249 Wis. 183 , 23 N. W. 2d 460 .
In my opinion, the ruling of the district court sustaining a demurrer to the second amended petition in the case at bar should be reversed.