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conditional vendor, under a contract expressly authorizing him to retake the goods at any time before the whole of the purchase price was paid, had an implied and irrevocable license to enter the premises of the vendee and retake the property at any time before it was paid for.

The reported case (LYNCH V. SABLEOBERTEUFFER-PETERSON, ante, 180) held that it was not necessary for the conditional vendor of an automobile to resort to court in order to repossess the automobile, upon default in payments, under a contract providing that in case of default in payments the conditional vendor is "authorized to enter any place where said property may be found, and take and remove the same."

In North v. Williams (1888) 120 Pa. 109, 6 Am. St. Rep. 695, 13 Atl. 723, the court sustained the right of the vendor to retake the goods upon default in payment, where no force was used and no damage caused, although the seller's agents, in order to retake the goods, obtained entrance into the buyer's house by giving false reasons, where the contract provided that in default of monthly payments the lessor of the personal property was to be permitted to enter upon any premises where the property might be and without let or hindrance take it away.

In Abel v. M. H. Pickering Co. (1914) 58 Pa. Super. Ct. 439, the court said that the correct view was that where possession of property has been lawfully acquired, as by a conditional sale or bailment, and the agreement between the parties allows the owner to retake when certain conditions arise, he may retake if he can do so without force, but when the taking is resisted he may not use force; he must have his remedy by proceedings at law.

And in Shireman v. Jackson (1860) 14 Ind. 459, where a mare and a colt were sold under a conditional sale contract, the vendee expressly agreeing not to sell or trade either of the

animals, and before paying the final instalment the vendee sold the colt to a third party and was making efforts to sell the mare, the court held that the conditional vendor had the right peaceably to retake the mare. The court observed that if the conditional vendor had applied to a court for its interference, it would undoubtedly have been in the power of the court to have returned to him the possession of the property, if necessary to his security; and, said the court, if a party can peaceably obtain by his own act the same redress which a court would afford him, he may do so.

In Stowers Furniture Co. v. Brake (1908) 158 Ala. 639, 48 So. 89, where the terms of the contract, if any, in relation to taking possession do not appear, the court observed that the vendor in a conditional sale contract has the right to take peaceable possession of the property, after breach of the condition, but the taking must be a peaceable one.

In Proctor v. Tilton (1888) 65 N. H. 3, 17 Atl. 638, where personal property was sold upon an agreement that payment was to be made within a reasonable time, the property to remain that of the vendor until the purchase price was paid, and it did not appear from the case whether there was any provision in the contract as to retaking of the property upon default, the court held that upon default, after a reasonable time, the vendor had the right to retake the property without legal process. And see to the same effect, Bankston v. Hill (1923) 134 Miss. 288, 37 A.L.R. 88, 98 So. 689.

In Blackford v. Neaves (1922) 23 Ariz. 501, 205 Pac. 587, the court held that under a conditional sale contract, even in the absence of an express agreement to that effect, on the failure of payment, the vendor may retake possession of the property sold, nor does he need to resort to the courts if he can obtain the property without a breach of the peace.

R. P. D.

(— N. J. L., 139 Atl. 19.)






SAME, Appt.

JAMES KELLY, Admr., etc., of James M. Kelly, Deceased, Respt.,


SAME, Appt.

CHARLES J. O'NEILL, Admr., etc., of John P. O'Neill, Deceased, Respt.,


SAME, Appt.

New Jersey Court of Errors and Appeals


October 17, 1927.

(N. J. L., 139 Atl. 19.)

Negligence, § 41 — explosives — duty as to container for hydrofluoric acid. 1. A dealer in hydrofluoric acid which explodes when put into a corked container containing silicious matter is not relieved from the duty to use reasonable care in examining containers before filling and delivering them, by the fact that they are furnished by the customer to be filled. [See annotation on this question beginning on page 194.]

Nuisances, § 47-container of hydro

fluoric acid.

2. A corked container filled with hydrofluoric acid in contact with silicious matter, delivered by a dealer to be transported along a public highway, is a public nuisance.

[See 20 R. C. L. 407.]

Negligence, § 41 - explosives - duty to examine container for hydrofluoric acid.

3. A dealer in hydrofluoric acid, which is liable to explode when in contact with silicious matter in a sealed container, must, upon receiving a container to be filled with such substance, use due and reasonable care commensurate with the danger of explosion to be apprehended, to make a careful examination and inspection of the container for foreign matter before filling it.

[See 20 R. C. L. 52; 5 R. C. L. Supp. 1076; 6 R. C. L. Supp. 1174.]

Negligence, § 41 — question for jury

negligence in inspecting container for acid.

4. In an action to recover damages for injuries caused by the explosion of a container filled with hydrofluoric acid, the jury must determine whether or not the dealer used due and reasonable care in making examination of the container delivered to him to receive the acid, commensurate with the danger to be apprehended from the acid coming into contact with silicious matter in a sealed container. [See 11 R. C. L. 662.] Trial, § 63 question for jury sence of paraffin from cork. 5. Upon evidence that a dealer, in filling containers with hydrofluoric acid, placed a paraffined cork in one, and not in the other, and that the container without the paraffin exploded, the jury must determine whether or not the failure to paraffin the cork had any bearing upon the explosion. [See 11 R. C. L. 662.]

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Explosions, § 7-contributory negligence absence of knowledge. 6. One taking a container to a dealer to be filled with hydrofluoric acid, who has no knowledge or warning as to its propensity to explode when placed in a sealed container in con

tact with silicious matter, is not chargeable with contributory negligence or assumption of risk in case he is injured by such explosion.

[See 20 R. C. L. 107; 3 R. C. L. Supp. 1030; 4 R. C. L. Supp. 1336; 5 R. C. L Supp. 1081; 6 R. C. L. Supp. 1191.]

(Gummere, Ch. J., and Trenchard, Parker, Katzenbach, Kays, and Hetfield, JJ, dissent.)

APPEAL by defendant from a judgment of the Hudson County Circuit of the Supreme Court (Ackerson, J.) in favor of plaintiffs in consolidated actions brought to recover damages for personal injuries and for deaths, alleged to have been caused by defendant's negligence. Affirmed. The facts are stated in the opinion of the court. Messrs. Lindabury, Depue, & Faulks and J. Edward Ashmead, for appellant:

Where a condition exists in a container presented by another to be refilled with a specified article or liquid, the plaintiff, in order to hold the dealer for damages resulting from a defective condition of the container, must show that the defendant had actual knowledge of the defective condition of the container causing the injury.

Barnett v. Sinclair Ref. Co. 82 Ind. App. 372; 145 N. E. 894; Smith v. Pawtucket Gas Co. 24 R. I. 292, 96 Am. St. Rep. 713, 52 Atl. 1078; Greed v. Manufacturers' Light & Heat Co. 238 Pa. 248, 86 Atl. 95; Triplett v. Alabama Power Co. 213 Ala. 190, 104 So. 248; Okmulgee Gas Co. v. Kelly, 105 Okla. 189, 232 Pac. 428; National F. Ins. Co. v. Denver Consol. Electric Co. 16 Colo. App. 86, 63 Pac. 949; Memphis Consol. Gas & E. Co. v. Speers, 113 Tenn. 83, 81 S. W. 595, 16 Am. Neg. Rep. 596; Caldwell v. Alley, 70 Ind. App. 313, 123 N. E. 432.

One who purchases a container or other article of general commerce has the right to assume that it has no latent defects, and for this reason is held not to be under any duty to inspect, and consequently is not chargeable with knowledge of any defect that he might have found by an inspection.

Bates v. Batey & Co. [1913] 3 K. B. 351; Simons v. Sun Ray Water Co. 162 N. Y. Supp. 968; Miller v. Svenson, 189 Ill. App. 355, 7 N. C. C. A. 1073; Gould v. Slater Woolen Co. 147 Mass. 315, 17 N. E. 531; Stassett v. Taylor Iron & Steel Co. 82 N. J. L. 631, 83 Atl. 881.

Plaintiff Hopper was guilty of con

tributory negligence, which negligence was the proximate cause of the injury. Curtin v. Somerset, 140 Pa. 70, 12 L.R.A. 322, 23 Am. St. Rep. 220, 21 Atl. 244; Styles v. F. R. Long Co. 70 N. J. L. 301, 57 Atl. 448; 33 Harvard L. Rev. 637.

The court erred in refusing to charge that the defendant was under no duty to inspect the jug presented by the plaintiff Hopper.

Barnett v. Sinclair Ref. Co. 82 Ind. App. 372, 145 N. E. 894; Smith v. Pawtucket Gas Co. 24 R. I. 292, 96 Am. St. Rep. 713, 52 Atl. 1078; Greed v. Manufacturers' Light & Heat Co. 238 Pa. 248, 86 Atl. 95; Triplett v. Alabama Power Co. 213 Ala. 190, 104 So. 248; Okmulgee Gas Co. v. Kelly, 105 Okla, 189, 232 Pac. 428.

Defendant was not obliged to use more than reasonable care under the circumstances.

Pesin v. Jugovich, 85 N. J. L. 256, 88 Atl. 1101, 5 N. C. C. A. 324; 29 Cyc. 650.

Messrs. Armstrong & Mullen, George Cutley, and William George, for respondents:

Hydrofluoric acid, standing by itself, is, undisputedly, a dangerous substance, and, when placed in contact with elements upon which it reacts, is an explosive.

Schuck v. Maine, 39 Misc. 251, 79 N. Y. Supp. 399; Laugabough v. Anderson, 12 Ohio C. D. 341, 22 Ohio C. C. 178; Washburn v. Miami Valley Ins. Co. 2 Flipp. 664, 2 Fed. 633; Hill v. Meyer Bros. Drug Co. 140 Mo. 433, 41 S. W. 909, 3 Am. Neg. Rep. 229; Bradford Glycerine Co. v. St. Mary's Woolen Mfg. Co. 60 Ohio St. 560, 45 L.R.A. 658, 71 Am. St. Rep. 740, 54 N. E. 528, 6 Am. Neg. Rep. 674; La Rue

(— N. J. L., 139 Atl. 19.)

v. Pott, 91 N. J. L. 606, 103 Atl. 197; Maher v. Magnus Co. 1 N. J. Mis. R. 469, affirmed in 99 N. J. L. 514, 123 Atl. 868; Hoboken Land & Improv. Co. v. United Electric Co. 71 N. J. L. 430, 58 Atl. 1082.

The handling of such acid imposes upon defendant the duty to inspect every circumstance connected with its sale and delivery; this applies with equal force to the quality of the material and its constituent parts, as to the examination of containers in which said material is to be packed.

Hoboken Land & Improv. Co. v. United Electric Co. supra; Suburban Electric Co. v. Nugent, 58 N. J. L. 658, 32 L.R.A. 700, 34 Atl. 1069; Heckel v. Ford Motor Co. 101 N. J. L. 385, 39 A.L.R. 989, 128 Atl. 242; Van Winkle v. American Steam Boiler Co. 52 N. J. L. 240, 19 Atl. 472; Styles v. F. R. Long Co. 70 N. J. L. 301, 57 Atl. 448; Piraccini v. Director Gen. (Piraccini v. Hines) 95 N. J. L. 114, 36 A.L.R. 294, 112 Atl. 311, 20 N. C. C. A. 501; Brown v. Freeman, 84 N. J. L. 360, 86 Atl. 384; McCaffrey v. Mossberg & G. Mfg. Co. 23 R. I. 381, 55 L.R.A. 822, 91 Am. St. Rep. 637, 50 Atl. 651; Wellington v. Downer Kerosene Oil Co. 104 Mass. 64; Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311; Maher v. Magnus Co. 1 N. J. Mis. R. 469, affirmed in 99 N. J. L. 514, 123 Atl. 868.

The occurrence complained of in the complaints was such as to place it squarely within the doctrine of res ipsa loquitur.

Mannon v. Vesper Lodge, 97 N. J. L. 215, 116 Atl. 784; Beck v. Hines, 95 N. J. L. 158, 112 Atl. 332; Monroe v. Pennsylvania R. Co. 85 N. J. L. 688, 90 Atl. 254, Ann. Cas. 1916A, 140; Polony v. James Brady's Sons' Co. N. J. L., 126 Atl. 675.

A person undertaking a duty, although not required so to do, must perform that duty with reasonable care and skill.

Van Winkle v. American Steam Boiler Co. 52 N. J. L. 240, 19 Atl. 472; La Brasca v. Hinchman, 81 N. J. L. 367, 79 Atl. 885; Panglorne v. Weiss, 85 N. J. L. 154, 88 Atl. 826.

A nonsuit or a direction of verdict in a case premised upon the negligence of the defendant cannot be granted, even if the facts be conceded, provided more than one inference might reasonably flow from said facts.

Bahr v. Lombard, 53 N. J. L. 233, 21 Atl. 190, 23 Atl. 167, 15 Am. Neg.


Cas. 689; Holmes v. Pelligrino, — N. J. L. 133 Atl. 194; Bunnell v. Waterbury Hospital, 103 Conn. 520, 131 Atl. 501; Atlantic City R. Co. v. Smith (C. C. A. 3d) 12 F. (2d) 658.

If two or more persons, though not acting in concert, occasion an injury through their negligence, they are severally liable for the consequences.

Lombardi v. Yulinski, 98 N. J. L. 332, 119 Atl. 873; Fort v. Reid Ice Cream Co. 98 N. J. L. 559, 119 Atl. 638; Hoboken Land & Improv. Co. v. United Electric Co. 71 N. J. L. 430, 58 Atl. 1082; Heckel v. Ford Motor Co. 101 N. J. L. 385, 39 A.L.R. 989, 128 Atl. 242; Sarno v. Gulf Ref. Co. 99 N. J. L. 340, 124 Atl. 145, affirmed in N. J. Eq. —, 130 Atl. 919.

It was for the jury to say whether or not Hopper, assuming he had knowledge of what was transpiring, could have, within those few minutes, have avoided the consequences, either to himself or to his invited guests.

Higgins v. Goerke-Krich Co. 91 N. J. L. 464, 103 Atl. 37, affirmed in 92 N. J. L. 424, 106 Atl. 394; Murray v. Earl, 282 Pa. 517, 128 Atl. 436.

The fact whether or not the defendant had knowledge of the defective condition of the jugs is a jury question.

Noonan v. Great Atlantic & P. Tea Co. N. J. L. 135 Atl. 822.

The court did not err in its charge as to the degree of care necessary to be exercised by defendant.

New Jersey Fidelity & Plate Glass Ins. Co. v. Lehigh Valley R. Co. 92 N. J. L. 467, 105 Atl. 206; Newark Electric Light & P. Co. v. McGilvrey, 62 N. J. L. 451, 41 Atl. 955, 5 Am. Neg. Rep. 187; Heckel v. Ford Motor Co. 101 N. J. L. 385, 39 A.L.R. 989, 128 Atl. 242; Tomlinson v. Armour & Co. 75 N. J. L. 748, 19 L.R.A.(N.S.) 923, 70 Atl. 314.

Kalisch, J., delivered the opinion of the court:

The four cases, which are here for review on an appeal from the supreme court, arose out of the same accident, and by consent of counsel were tried together, at the Hudson circuit, and in each case there was a verdict for the plaintiff.

The plaintiffs respondents brought four separate actions, two of which were for the recovery of damages for personal injuries sus

tained by them through the negligence of the defendant appellant, and the other two actions were brought under the Death Act (2 Comp. Stat. 1910, p. 1907, §§ 7 et seq.), by the administrators plaintiffs respondents against the same defendant appellant, to recover from it pecuniary loss sustained by the next of kin as a result of negligently causing the death of plaintiff's decedents.

There are nineteen grounds of appeal, two of which are founded upon the refusal of the trial judge to nonsuit the plaintiffs and in refusing to direct verdicts for defendant. A careful perusal and consideration of the testimony in the case, and of the grounds urged for a nonsuit and for a direction of verdicts for the defendant, and of the charge of the learned trial judge to the jury, make it manifest that his action in refusing to grant either motion embodies. in one form or another, with one or two minor exceptions, all the questions presented in the 19 grounds of appeal; therefore it becomes unnecessary to deal separately with each ground of appeal.

The facts of the case are briefly these: The plaintiff Hopper started from Jersey City, in his father's automobile, with four lead jugs given him by a florist, with instructions to go to the Charles Cooper Chemical Company, at Newark, to have two of the jugs filled with hydrofluoric acid and to obtain a rebate on the other two. On his way to the Cooper manufactory he met three friends, and invited them to come with him on his errand, which invitation they accepted. Upon arriving at his destination he took the four jugs into the Cooper plant and ordered 20 pounds of hydrofluoric acid to be put in two of the jugs10 pounds in each jug-and asked a rebate on the other two jugs. A rebate was refused, the cashier stating that the company could not use them. Upon the request of Hopper the cashier then selected the two best jugs to be filled with acid, and the remaining two jugs Hopper took

with him and placed them in the back of the car and got into the car to wait for the jugs which he left to be filled.

About twenty minutes elapsed between the time when the two jugs were taken to be filled by an employee of the company and brought back filled to the automobile in which Hopper was waiting for them. They were brought to and placed in the automobile by one of the appellant's employees. The distance from the place at which the jugs were filled to Hopper's car was a block and a half. After the jugs had been placed and arranged in the car, Hopper took his seat at the wheel and started the car, and had partially turned the car around to return to Jersey City, when the cork from the tall jug blew out, followed by a portion of the acid, which sprayed over the occupants of the car. It is conceded in appellant's brief that two or two and a half minutes had elapsed from the time the jugs were placed in the car until the happening of the accident. As a result of the explosion Hopper, Carroll, Kelly, and O'Neill were injured. jured. The two former recovered and the latter, Kelly and O'Neill, died within an hour afterwards of their injuries.

There was testimony to the effect that when the jugs were placed in the car they were hot, one hotter than the other; that the jugs were corked with plain corks; that there was no paraffin wax around the cork which blew out; that the usual practice was to place paraffin paper around the cork and tie it with twine; that the common and safe practice was, and had been the practice of the appellant company, to let an hour and a half to two hours elapse after filling a jug with hydrofluoric acid before delivering it to the purchaser. There is a unanimity of opinion of the expert witnesses, produced by plaintiff and defendants in the court below, to the effect that hydrofluoric acid is a highly dangerous substance when brought in contact with silicates or

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