STANDARD OIL CO. v. MURRAY, 119 F. 572

JENKINS, Circuit Judge, delivered the opinion of the court. 1. There can be no recovery under the first count of the declaration. Murray’s employer, and not Murray, was the purchaser of the oil. There was no privity of contract between the Standard Oil Company and Murray, and a breach of that contract cannot be taken advantage of by him. Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621. 2.

The second count proceeds upon the ground that the oil was sold to Murray’s employer to be used by Murray in that service, as the Standard Oil Company knew; that the oil was of a vaporous and volatile character, likely to generate inflammable or explosive gas, as the oil company knew or ought to have known; and the company failed to warn Muiray of the dangerous properties of the oil as was its duty. We said in Goodlander Mill Co. v. Standard Oil Co., 24 U. S. App. 7, 11 C. C. A. 253, 63 Fed. 400, that: “It is not every one who suffers loss from another’s negligence who may recover therefor.

Negligence, to he actionable, must occur by breach of a legal duty arising out of contract, or otherwise owing to the person sustaining the loss. Kahl v. Love, 37 N. J. Law, 5; Sav. Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621. Mr.

Wharton defines legal duty to be ‘that which the law requires to be done or forborne to a determinate person or to the public at large, and as correlative to a right vested in such determinate person or the public at large.’ Wharton, Neg. (2d Ed.) § 24.” The acceptance by a vendee of a thing sold, except under special circumstances, relieves the vendor from liability to a stranger for an injury resulting to him from the negligent manufacture or construction of the thing sold. Bragdon v. Perkins-Campbell Co., 30 C. C. A. 567, 87 Fed. 109; Necker v. Harvey, 49 Mich. 517, 14 N. W. 503.

The duty owing to the public, for breach of which one injured may recover, has respect to and is limited to instruments and articles in their nature calculated to do injury, such as are essentially and in their elements instruments of danger, and to acts that are ordinarily dangerous to life and property. If the wrongful act be not imminently dangerous to life or property, the negligent vendor is liable only to the party with whom he contracted. McCaffery v. Manufacturing Co. (R. I.) 50 Atl. 651, 55 L. R. A. 822. Petroleum oil, as we held in Goodlander Mill Co. v. Standard Oil Co., supra, and in Railway Co. v.

Ballentine, 28 C. C. A. 572, 84 Fed. 935, is not a dangerous agency within the rule that he who uses it does so at his peril. It is dangerous only when in considerable quantities it is brought into contact with fire. That is a fact of common knowledge, with which every one is chargeable. 3. There was no proof of negligence in the manufacture of the oil, unless culpable negligence is to be inferred from the mere fact of an explosion. We do not doubt the rule that an accident may be of such a nature that presumption of negligence will be indulged from its happening.

The evidence here shows that the oil was refined with care, and at the ordinary temperature of an engine room would not generate an appreciable amount of gas, and that it would not take fire or burn at a less temperature than 4250 Fahrenheit, while gasoline will at, .a temperature of 8o°. The temperature of the room at the time of the injury was 95o. The oil had been in the possession of Murray’s employer, and in the care of Murray, for more than two months. It was placed in the room in which gasoline was used. There was an explosion upon igniting the match, but the oil did not take fire.

Gasoline at an ordinary temperature gives off an inflammable vapor, impregnating the air, and, in contact with flame, causing an explosion. Under such circumstances no presumption of negligence can arise with respect to the manufacture of the oil. 4. The cause of the explosion rests in mere speculation. It may have occurred from the presence of gas generated from the oil, or more probably from the presence of gasoline, in conjunction with flame from a lighted match. The burden of proof was upon Murray, assuming that he could avail himself of negligence in the manufacture of the oil.

None was shown, the mere fact of the explosion under the circumstances raising no presumption of negligence. It is not, therefore, necessary to consider the question whether, assuming negligence in the manufacture of the oil, such negligence was the proximate cause of the injury; or whether the act of lighting the match was not an intervening cause, superseding the original wrong, so as to make it remote in the chain of causation, although it may have remotely contributed to the injury as an occasion or condition. The judgment is reversed, and the cause remanded, with a direction to grant a new trial.