Wilkinson, Carter & Co. v. Stewart , 1878 Pa. LEXIS 243 ( 1877 )

Mr. Justice Paxson

delivered the opinion of the court, January 7th 1878.

The first specification alleges that the court below erred in assuming in its charge to the jury that the oil in defendant’s tank was uninjured by the mixture. This would have been error had any such question of fact been distinctly raised upon the trial. The learned judge says in that portion of the charge: “ The property, as manifest from the treatment of all parties] was uninjured by the mixture, and no wrong is done to any one by each taking out his proportion of the common mass.” This language leaves us no room to doubt that the court was under the impression at least that no question had been seriously made on the trial as to the quality of the oil in defendants’ tank. A careful examination of the evidence leads us to the conclusion that the court was correct in this respect. The evidence of Mr. Sterritt, relied upon by the plaintiffs in error, is not essentially in conflict with this view. He says he examined the Carter tank prior to March 31st 1876, and there was three feet of liquid; one foot of sediment and two feet of what the witness supposed to be good oil. He examined the tank again after it was filled up by oil from the Caledonia tank, on the date last mentioned, and found about eleven feet of liquid, of which two feet eight inches was sediment and the balance good oil. The amount of sediment would seem to bear more upon the question of the quantity than the quality of the oil — the sediment being deducted in estimating quantity, and the superincumbent oil not being essentially affected in quality thereby. The evidence also tends strongly to show that Johnson & Co. practically, exhausted the Carter tank prior to the last run from the Caledonia tank in the latter part of March 1876, from which it would follow that the oil in the Carter tanks, after said run, having been almost if not wholly drawn from the Caledonia tank, must have been of one quality. Hot only does the evidence fail to disclose any serious contention as to the quality of the oil, but the points put to the court by the defendants below make no reference to any such question. Had the oil been so mixed in defendants’ tank as to change its quality in an essential degree, so that one barrel drawn out would not be the equivalent of any other barrel previously put in, it was an important fact to have shown, and would not have escaped the vigilance of counsel either in the examination of the witnesses or the points submitted to the court. We do not think this specification is sustained.

The second specification is not free from difficulty. The learned judge at the conclusion of his charge submitted to the jury as a question of fact, whether the oil restored to the Caledonia tank by Johnson & Co. was placed there in return for the oil which it was conceded they drew out, or whether they put it back to satisfy the claim of the plaintiffs below, for the injury caused by Johnson & Co. in pumping a quantity of worthless stuff from their slop tank into the tank of plaintiffs. I find no evidence in the cause that Johnson & Co. restored any oil for any other purpose than that of replacing the oil taken out by them. There may be therefore technical error in this portion of the charge. We do not think it, however, a sufficient ground of reversal. In any proper view of the case I am unable to see how the defendants below could have been injured by this portion of the charge. The evidence on the part of the plaintiffs as to the quantity of slops pumped into their tank by Johnson & Co. had reference more especially to the'quantity of the oil than to its quality, or to any injury resulting from the mixture. The effect of it was to show that with a given number of feet of fluid in the tank, a certain proportion bf it was tar, benzine, sediment, &c. By deducting the sediment and the ten per cent, of tar and benzine diffused through the oil the amount of the latter fluid could he ascertained with reasonable accuracy. It matters not, therefore, for what purpose Johnson & Co. put back oil into the Caledonia tank. All that had been drawn out by them into the Carter tank and not restored could be followed and replevied by the plaintiffs below. That Johnson & Co. had pumped a given number of barrels of worthless stuff' from thoir slop tank into plaintiffs’ tank was no restoration of the oil drawn out thereof by them. Hence what Johnson & Co. intended to do when they put back oil was of little consequence. The question of how much oil they took out, and how much they returned, was fairly submitted to the jury.

The third and fourth specifications allege error in the answers to points. It was urged that the answer to the plaintiffs’ first point should at least have been qualified; that it refers only to quantity and ignores quality and every other essential element in the case. We have already said that the record fails to disclose any serious contention in regard to the quality of the oil. Under the facts of the case we do not regard either the point or the answer objectionable. The defendants’ first point, which was refused, raised the question of the right of the plaintiffs to maintain replevin where the oil had been mixed without tho act of the defendants. In the recent case of Hutchison v. The Commonwealth, 1 Norris 472, the question of the effect of commingling oil in tanks and pipe lines %vas discussed at some length. It is not necessary to go over the ground again. It is wrell settled as a general principle that, in Pennsylvania, replevin lies wherever one man claims goods in the possession of another, and this whether tho claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession: Harlan v. Harlan, 3 Harris 507, and cases there cited. In this case both the plaintiffs and the defendants had a large oil tank, situated near each other. Johnston & Co. had an oil-refinery near said tanks, and had also the right of storage in each of them to the extent of two thousand barrels. The tank of tho defendants w’as connected with the refinery by means of a pipe, and was used by Johnson & Co. as a supply tank. They drew out oil for the refinery and replaced it in whole or in part from time to time. Finally they connected the two tanks by a pipe, and the plaintiffs’ tank being higher than the defendants’ the oil would flow from the former to the latter. When Johnson & Co. drew oil from defendants’ tank for their refinery they replaced it on several occasions by drawing from the plaintiffs’ tank. They acquired no title to the oil thus unlawfully abstracted. Nor did the defendants acquire any title by having it thus run into their tank by Johnson & Co. to replace the oil taken out by themi*

The plaintiffs had a clear right to follow and reclaim their oil by a writ of replevin, unless prevented by the fact of its mixture with other oil of the defendants. A given number of barrels of plaintiffs’ oil having been unlawfully drawn out of their tank and placed in defendants’ tank, they were entitled to have the same number1 of barrels of oil put back again. Had the character of the oil been so essentially changed by the mixture that one barrel would not be the equivalent for another barrel, the case would have presented a different question — one that we are not now required to pass upon. We are not prepared to say that the defendants are wholly without responsibility for the mixture. They allowed Johnson & Co. to use their tank as a supply or feeder for their refinery; to draw out oil at will, and replace it. This necessarily involved a mixture of the oil. The right of the owner of oil in tanks or pipe lines to take out his aliquot part was distinctly recognised in Hutchison v. The Commonwealth, supra. As bearing upon the same principle, we may refer to Wood v. Fales, 12 Harris 246; Tripp v. Riley, 15 Barb. 333; Fobes v. Shattuck, 22 Id. 568; Kimberly v. Patehin, 19 N. Y. 330. The judgment is affirmed!