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Vol. IV.]

ELKINS v. MCKEAN.

[No. 1.

dence there appears to be none to justify the submission of the fact of the wilful sale by the defendants of such an explosive and unfit oil for burning purposes with such a wilful and malicious knowledge as that set forth in the instruction. Indeed there is no evidence what the precise business of Elkins, Bly & Co. was what they manufactured, or what they sold; or that the oil in question coming from their house was sold as illuminating oil. That they made and sold illuminating oil appears from the barrels bearing their name, and the fire test, 110°, marked upon them, and from the testimony of J. M. Torrence; but that their business. was confined to this branch alone does not appear. The contrary may well be inferred from the nature of the business of distilling crude petroleum in which various products are given off, used for different purposes. That the oil in the can out of which Steele & Hart filled McKean's lamp came from the manufactory of the defendants may also be inferred from the evidence; but that this particular oil was sold by them as illuminating oil appears nowhere. The only testimony tending to identify the purchase of this oil, as from the defendants, is that of J. M. Torrence, the salesman of Arbuckle & Co. who sold the oil to Caskey. But Torrence does not undertake in the slightest degree to identify the sale of this particular oil, or to state for what purpose it was sold by the defendants, or to prove facts which would show that if it was the same oil, it was not delivered through accident, but must have been an intentional sale for lighting purposes of a product known by them to be below the proper fire test. The sum of his testimony is that Arbuckle & Co. were in the habit of buying large quantities at a time of oil in barrels, and having it delivered in small quantities to suit their sales, and that the books of Arbuckle & Co. show the sale of a barrel of oil to Caskey on the 11th or 12th of January, 1873. But Caskey testifies that he frequently tried the oil bought of Arbuckle & Co. and found it always to bear the proper test. The only oil which did not bear the test was that found in the can a day or two after McKean's death; and whether this was the same oil with which McKean's lamp was filled is left to depend upon the contradictory testimony of Steele and the boy Fedder, as to when the new barrel of oil was pumped into the can by Steele. And if it were the same, we are still met by the difficulty that there is no evidence that this particular oil was sold by Elkins, Bly & Co. for illuminating purposes. It may have been sold in a mistake, or may not have been sold as bearing the fire test of 110°, but as one of their other products. Thus, upon the whole evidence, the turning fact of the case, viz.: a sale of this oil for illuminating purposes, with a guilty knowledge of its unfit and explosive character, is wanting in order to support the submission of the fact to the jury. This must reverse the judgment.

"The

The judgment must be reversed also on the third assignment of error, though I am inclined to believe it was an error of inadvertence. first question (said the judge) will be, was the death of James B. McKean occasioned by the explosion occurring at the time, and in the manner claimed by the plaintiff? In regard to this there can be no doubt what

But if the testimony of Mrs. Emma Bear be believed (and it was for the jury to determine this), McKean's death was the result of his tripping over a piece of wood in the cellar, in consequence of which he

Vol. IV.]

ELKINS v. MCKEAN.

[No. 1.

must have fallen and broken his lamp; and was not the result of a mere explosion of the gas in the lamp. The fact of such an explosion stood at the very threshold of the case, and in the face of this contradictory evidence it was too strong an affirmation of the fact, to tell the jury there could be no doubt that McKean's death was occasioned by the explosion at the time and in the manner claimed by the plaintiff. There is no doubt that his death was caused by the burning oil at the time and place claimed by the plaintiff, and this is probably all the learned judge meant. But we must take the record for our guide, and when he said there was no doubt that the death was caused by the explosion in the manner claimed by the plaintiff, he asserted too strongly, in view of the contradictory evidence.

The other assignments of error are not sustained. What McKean said as to the cause of the accident when found enveloped in the flames of the oil, or within a few minutes afterwards, was clearly competent evidence as a part of the res gesta. This is so fully reasoned out and sustained in the following case, nothing can be said to make it plainer. Tompkins v. Sattruck, 14 S. & R. 275; Deardorff v. Hildebrand, 5 Rawle, 226; Cattison v. Cattison, 10 Harris, 275. The case of Fawcett v. Bigley, 9 P. F. Smith, 411, was decided on a different principle. This was an attempt to make the narration of an agent of a past transaction evidence against his principal, and was not competent. It was especially so when the agent had an adverse interest to relieve himself by his statements of the consequences of his own negligence.

As to the second assignment of error the reason given for excluding the evidence of the tests applied to the oil was unfounded. On the question of the identity of the oil in the can to which the tests were applied, the testimony of young Fedder and Steele were in direct contradiction. If Fedder were believed Steele did not pump the new barrel of oil into the can until after the oil had been taken out which was the subject of the tests. The case must of necessity have gone to the jury on the facts.

Nor can the fourth assignment of error to the refusal to affirm the defendants' second point be sustained. The substance of that point is, that after the oil had passed from the defendants in large quantities to Arbuckle & Co., and from them in smaller quantities to Caskey, and from Caskey to Steele & Hart, who sold the lampful to McKean, there can be no recovery. The argument in support of this point is founded upon the alleged successive intervening liabilities of the persons through whose hands the oil had passed. But this proposition is unsound as a legal defence. The number of hands through which the oil had passed might furnish a strong argument on the question of identity, and the guilty knowledge of Elkins, Bly & Co. as to this particular oil, but could not constitute a legal bar to recovery, if the identity of the oil and the guilty knowledge were made clear. Certainly one who knowingly makes and puts on the market for domestic and other use such a death-dealing fluid, cannot claim exemption from liability for his terrible wrong, because he has sent it through many hands. The length of its passage may create a doubt of its identity, or that it was sent on its mission of destruction with a full purpose and knowledge of its dangerous qualities, but the facts being established, he cannot escape the consequences of his crime

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Vol. IV.]

SHERLOCK v. ALLING.

[No. 1.

against society. The maxim, Qui facit per alium facit per se, applies as clearly as the maxim, Sic utere tuo ut alienum non ladas. When he article is thrown into the current of trade on the faith of the affirmation of its manufacturers, that it is a fit oil for light and can be safely used in the family, or where it may be required for illumination, they cannot follow it, or avert its injuries, or determine how much of the responsibility is due to others. This is made more manifest by the testimony of Mr. Torrence, the salesman. He said: "We never draw the bungs. We sell the oil in perfect confidence, relying on the manufacturers. We sell it as we receive it." And so it may pass onward to the last person who retails it in the same confidence. A manufacturer who sells his product as an illuminating oil bearing the high and safe fire test of 110° when in fact he knows that its fire test will not exceed 64° or 65° by Fahrenheit, and that this is a most explosive and unsafe oil for domestic use, can plead nothing in defence of this wilful, terrible wrong done to a confiding community. He bears within him a heart regardless of social duty, evidencing malice in its legal sense in a high degree. But while the circuit through which the oil has travelled may be insufficient as a legal bar, proof which sustains the fact of a guilty knowledge should be clear in proportion to the great wrong thus charged against one who may be innocent. We have already said that the evidence offered in support of the guilty knowledge in this case was insufficient to be submitted to the jury. Judgment reversed, and a venire facias de novo awarded. WILLIAMS, J., concurred in the reversal of this judgment on the third assignment of error, but would not concur on the fifth and sixth assign

ments.

SUPREME COURT OF THE UNITED STATES.

[OCTOBER, 1876.]

CONSTITUTIONAL LAW.-REGULATION OF COMMERCE. -STATE ENACTMENT TO PROVIDE FOR SAFETY OF PASSENGERS ON VESSELS PROPELLED BY STEAM.

SHERLOCK v. ALLING.

1. Until Congress makes some regulation touching the liabilities of parties for marine torts resulting in death of the persons injured, the statute of Indiana giving a right of action to the personal representatives of the deceased, where his death is caused by the wrongful act or omission of another, applies, the tort being committed within the territorial limits of the state; and as thus applied it constitutes no encroachment upon the commercial power of Congress.

2. The action of Congress as to a regulation of commerce or the liability for its infringement is exclusive of state authority; but until some action is taken by Congress, the legislation of a state not directed against commerce or any of its regulations, but relat

Vol. IV.]

SHERLOCK V. ALLING.

[No. 1.

ing generally to the rights, duties, and liabilities of citizens, is of obligatory force within its territorial jurisdiction, although it may indirectly and remotely affect the operations of foreign or inter-state commerce, or persons engaged in such commerce. 3. The Act of March 30, 1852, "to provide for the better security of the lives of passengers on board of vessels propelled in whole or part by steam, and for other purposes," does not exempt the owners and masters of a steam vessel and the vessel from liability for injuries caused by the negligence of its pilot or engineer, but makes them liable for all damages sustained by a passenger or his baggage from any neglect to comply with the provisions of the law, no matter where the fault may lie; and in addition to this remedy, any person injured by the negligence of the pilot or engineer may have his action directly against those officers.

4. The relation between the owner or master and pilot, as that of master and employee, is not changed by the fact that the selection of the pilot is limited to those who have been found by examination to possess the requisite knowledge and skill, and have been licensed by the government inspectors.

MR. JUSTICE FIELD delivered the opinion of the court.

In December, 1858, the defendants were the owners of a line of steamers employed in navigating the river Ohio between the port and city of Cincinnati, in the State of Ohio, and the port and city of Louisville, in the State of Kentucky, for the purpose of carrying passengers, freight, and the United States mail. On the fourth of that month, at night, two boats of the line, designated respectively as The United States and The America, collided at a point on the river opposite the main-land of the State of Indiana. By the collision the hull of one of them was broken in, and a fire started, which burned the boat to the water's edge, destroying it and causing the death of one of its passengers, by the name of Sappington, a citizen of Indiana. The administrator of the deceased brought the present action for his death in one of the courts of common pleas of Indiana, under a statute of that state, which provides "that when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission."

The complaint in the action alleged that the collision occurred within the territorial jurisdiction of Indiana, above the line of low-water mark of the river, and charged it generally to the careless and negligent navigation of the steamboat United States by the defendants' servants and officers of the vessel, but especially to the carelessness of the pilot, in running the same at too great a speed down the stream; in giving the first signal to the approaching boat as to the choice of sides of the river contrary to the established custom of pilots navigating the Ohio, and the rules prescribed by the act of Congress; and in not slackening the speed of the boat and giving a signal of alarm and danger until it was too late to avoid the collision.

To defeat this action the defendants relied upon substantially the following grounds of defence: 1st, that the injuries complained of occurred on the river Ohio beyond low-water mark on the Indiana side, and within the limits of the State of Kentucky; and that by a law of that state an action for the death of a party from the carelessness of another could only be brought within one year from such death, which period had elapsed when the present action was brought; and, 2d, that

Vol. IV.]

SHERLOCK v. ALLING.

[No. 1.

at the time of the alleged injuries the colliding boats were engaged in carrying on inter-state commerce under the laws of the United States, and the defendants as their owners were not liable for injuries occurring in their navigation through the carelessness of their officers, except as prescribed by those laws; and that these did not cover the liability asserted by the plaintiff under the statute of Indiana.

Under the first head no question is presented for consideration of which we can take cognizance. It is admitted that the territorial limits of Indiana extend to low-water mark on the north side of the river, and the jury found that the collision took place above that mark. It is, therefore, of no moment to the defendants that the supreme court of Indiana held that the state possessed concurrent jurisdiction with Kentucky on the river, under the act of the Commonwealth of Virginia of 1789, providing for the erection of the district of Kentucky into an independent state, and that the legislation of Indiana could, for that reason, be equally enforced with respect to any matters occurring on the river as with respect to similar matters occurring within her territorial limits on the land.

The questions for our consideration arise under the second head of the defence. Under this head it is contended that the statute of Indiana creates a new liability, and could not, therefore, be applied to cases where the injuries complained of were caused by marine torts, without interfering with the exclusive regulation of commerce vested in Congress. The position of the defendants, as we understand it, is, that as by both the common and maritime law the right of action for personal torts dies with the person injured, the statute which allows actions for such torts, when resulting in the death of the person injured, to be brought by the personal representatives of the deceased, enlarges the liability of parties for such torts, and that such enlarged liability, if applied to cases of marine torts, would constitute a new burden upon commerce.

In supposed support of this position numerous decisions of this court are cited by counsel, to the effect, that the states cannot by legislation place burdens upon commerce with foreign nations or among the several states. The decisions go to that extent, and their soundness is not questioned. But upon an examination of the cases in which they were rendered, it will be found that the legislation adjudged invalid imposed a tax upon some instrument or subject of commerce, or exacted a license fee from parties engaged in commercial pursuits, or created an impediment to the free navigation of some public waters, or prescribed conditions in accordance with which commerce in particular articles or between particular places was required to be conducted. In all the cases the legislation condemned operated directly upon commerce, either by way of tax upon its business, license upon its pursuit in particular channels, or conditions. for carrying it on. Thus, in The Passenger Cases, 7 How. 283, the laws of New York and Massachusetts exacted a tax from the captains of vessels bringing passengers from foreign ports for every passenger landed. In the Wheeling Bridge Case, 13 Ib. 518, the statute of Virginia authorized the erection of a bridge, which was held to obstruct the free navigation of the river Ohio. In the case of Sinnot v. Davenport, 22 Ib. 227, the statute of Alabama required the owner of a steamer navigating the waters of the state to file, before the boat left the port of Mobile, in the

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