The opinion of the Court was delivered by
Poché, J.This is a suit for damages in the sum of $17,275, in which plaintiff appeals from a judgment rejecting his demand.
The principal facts are as follows :
*349A rice mill, situated iu tlie parish of Plaquemines, about 45 miles below this city, and owned by plaintiff, was totally destroyed by Are on the night of Septeihber 11, 1885.
The Are originated in a warehouse adjoining the mill, in which was stored a barrel of petroleum oil or fluid, used for illuminating purposes when the mill was run at night. While two of the mill employees were engaged, a short time after midnight, in drawing some oil from the barrel, in order to replenish the lamps of the mill, an apparently spontaneous combustion occurred in the room, which ignited the barrel. The Are then spread from the warehouse to the mill, which was in a short time destroyed with all its appurtenances.
The barrel of oil or fluid had been purchased by plaintiff from the defendant company, by which it had been shipped by boat to the mill on ihe 7th of September, according to plaintiff’s directions.
Tn his pleadings, plaintiff holds the defendant company responsible for the destruction of his mill, for the following reasons, substantially:
1st. That his order of September the 7th was for a barrel of “puroline,” a burning fluid extensively used in illuminating- sugar-houses and rice mills with safety, and that instead thereof, the defendant shipped to his mill a barrel of “gasoline,” an exceedingly dangerous fluid.
2d. That with .a fraudulent design the defendant caused the barrel of “gasoline” thus shipped to his mill, to be branded as “puroline,’> and purposely omitted to mark said barrel of oil, as “dangerous and explosive,” as required by law.
3d. That through the deception thus practiced on him by the defendant; plaintiff used said “gasoline” in his mill contrary to a prohibition against the use of the same, in the fire insurance policy which he held, in consequence of which he was .defeated in an action which he instituted in the Circuit Court of the United States, Eastern District of Louisiana, for the recovery of the amount of said policy.
4th. That the.Are resulted from defendant’s fraudulent substitution of “gasoline” for “puroline,” and not through the carelessness or negligence of plaintiff or of his employees.
Hence he claims damages for the value of his mill and appurtenances which he fixes at $11,275, and for the profits, which he lost by the fire during that season, in the sum of $6000.
The defense is a general denial, followed by the special averments that the article which was delivered to plaintiff was a fluid of the nature and quality which he had ordered; that the barrel was marked “explosive and dangerous ; ” that the damages sustained by plaintiff *350were brought about by his gross carelessness and negligence, in making use of said fluid in an improper manner.
The pivotal point in the controversy is the alleged deception practiced on the plaintiff by the defendant, in the substitution of “gasoline” for “puroline,” and designedly omitting- to brand the barrel with "the words “explosive and dangerous.”
Its proper discussion involves an investigation of the difference which may exist between tlie dangerous and explosive character of the two fluids.
In this connection the voluminous record in the case discloses to our minds the following facts:
“Puroline” and “gasoline” as sold and used for illuminating purposes are both petroleum products, and both are gas generating fluids. From tiie testimony of chemists, and of other experts, and of dealers in such .articles, it appears to our entire satisfaction, that the difference of danger between “puroline” and “gasoline” of 74° gravity, is so slight and insignificant that it is hardly measurable, or, even perceptible.
It also appears that in the trade, orders for “puroline” are frequently and almost usually filled by delivering 74° “gasoline.” And circulars issued and distributed all over the State by different dealers in these articles, contain the statement that 74° “gasoline” is of the same gravity as “puroline.” In both, the danger is not from explosion while burning in lamps, hut from handling in the proximity of a light, on account of the gas which they generate and liberate from packages which are not air-tight, and which gas is inflammable.
Under the provisions of Act 37, approved April 2, 1877,. entitled an act“To provide for gauging and inspecting coal oils and.illuminating oils or fluids, derived wholly or in part from coal or petroleum, to regulate the sale or disposition of the same,” etc. An inspector is appointed in the city of New Orleans to carry out the purposes of the act.
Among other duties which are imposed on him by the act, the inspector is- required after inspection, to brand the barrel or other vessel con taiuing any such products of coal or petroleum, whose flashing point shall he less than 125°, with the words “ explosive and dangerous,” to he stamped with stencil or otherwise in a conspicuous place. •
Now the present inspector, who has been in office since 1880, testifies •that in hi's inspection he ranks “ puroline”. and “ gasoline ” alike as io the flashing point, and that he invariably brands them both as “ explosive and dangerous,” and from the testimony of his predecessor’s deputy, it appears that the same rule was followed in his time.
*351It is ill proof that plaintiff, who resides in this city, liad entrusted the management of his mill to' an agent who was to participate with him in the profits of the enterprise, and that the barrel of oil had been ordered at his request, which was based on his experience in the use of that kind of illuminating fluid. Plaintiff himself was not familiar with it, and was tlironghont these transactions guided by the judgment of his agent, to whom the bills for all supplies sent to the mill were forwarded, and they were paid only on his approval.
Now, it appears that on the 13th of August previous, a similar order had been filled by the defendant, who had shipped thereunder precisely the same article, which was delivered on the 7th of September, stamped in the same manner, and that the bill which the company presented described the goods delivered as “gasoline, 74°.” The bill was forwarded to the agent, the fluid was used by him, and no complaint was made by him or by plaintiff.
The agent had died before the trial of this case, and the Court is thus deprived of the benefit of his testimony on a subject peculiarly within his knowledge.
We conclude that the mere substitution of “gasoline, 74°,” for “ puroline,” under circumstances showing that the difference is only •in the name of the goods, was not deception or fraud on the part of defendant.
But plaintiff’s main.contention on this point is that the barrel under discussion was not branded in the manner required by law, with the werds “ explosive and dangerous,” and that the omission in that particular was part of the- scheme of deception practiced on him by the • defendant.
He rests that part of his case on the testimony of five witnesses, all employees in and about his mill, who testify that they saw' the barrel in question after it had been landed from the boat, and that it did not contain the words “explosive and dangerous.”
These witnesses were skilled laborers at rice-milling; neither of them was entrusted with the care or eoutrol of the lamps or of the -oil used therein ; that duty was incumbent on another employee, whose testimony w'as not taken. They did not, and they dd not even pretend that they did, examine the barrel in a particular manner, or with a definite object in view, and their testimony was given in April, 1886, more than six months after the fire; which had also destroyed the very barrel which was the subject matter of their testimony.
From impressions produced from the stencil plates used by the defendant and by the inspector, it appears that the company stamps one *352end of the barrels as follows: “ Insurance Oil Tank Co., New Orleans, La., Trade-mark Puroline, 95 and 97 Gravier street, N. O. I. O. T. Co;” and that the inspector brands on the other end the following words: “Eugene Legardeur, Gauger and Inspector coal oils (50) gallons, flashing point., 0 degrees; New Orleans, May, 1886. Explosive and dangerous.”
In both inscriptions the words are grouped together in a circular form, the circle in the inspector’s brand being not quite completed, so as to leave room for the address of the purchaser or consignee.
Now, the witnesses who have testified on this point, when asked lo specify the particular inscriptions which they had noticed on the barrel in question, all stated with striking unanimity that they had seen the following words: “ Chess-Carley Company, Puroline, 50 Galls.”
It thus appears that they saw words which are not at all in either stencil plate, which is branded puroline, and that they saw the word “gallons” on that end of the barrel which never contains that word according to the stencil plates. These circumstances illustrate the natural unreliability of human memory, as well as the innate weakness of negative testimony. The same uncertainty is further illustrated by the testimony of one of those witnesses, who had gone from this city to the mill on September 9, on a steamboat, and who could not remember the name of the boat on which he had made the journey, but who remembered specially the letters which were inscribed on the end of the barrel.
In contrast with this testimony which leaves the judicial mind in a state of painful uncertainty and doubt, we have that of the inspector and his deputy, and of several clerks, warehousemen and other employees of the defendant, who state positively that no barrel oil or fluid leaves the warehouse without inspection, and without the proper branch One of the clerks remembers the brand and the address of plaintiff on the barrel, which corresponds in date with the order of September 7, and with the entry in the shipping or delivery book.
Postive testimony on a given point always predominates over negative testimony on the same point. Story vs. Insurance Co., 37 Ann. 255; Guesnard vs. Bird, 33 Ann. 796.
We conclude that the barrel of oil shipped to plaintiff by the defendant on September 7, .1885, did contain in a conspicuous place the words “explosive and dangerous,” and that the company is not amenable in this suit to the penal clause in the act of 1877, which reads as follows: “Any person, firm, compauy or corporation, violating any of the provisions of this section, shall be liable to a penalty not exceeding *353the sum of two hundred dollars for each and every offense. It is further provided that, in the event of any injury or .damage to person or property resulting from or caused by such oil or fluid not so stamped, the party thus suffering shall have a right of action in damages against the person, firm, company or corporation selling, giving or delivering such oil or fluid, for the full amount of such injury or damage, together with all costs of court. * * * Provided further, that such injury or damage shall not have been the result oí gross negligence or carelessness.”
We now.reach the point at which we must consider what cause in our opinion led to the destruction of the mill.
As already shown in this opinion, the consumers of the oil or fluid which had been shipped to plaintiff on the 7th of September, 1885, were warned of its dangerous character under the authority of the State itself, by means of the stamp which she required from all dealers in that kind of illuminating oil.
It is also in proof that with every package containing such fluid, even when stamped with the trade-mark “ Puroline,” the dealers sent to their customers printed circulars containing directions for the proper use of the fluid.
These circulars contained cautions of which the following is a sample :
u Puroline is absolutely non-explosive, but like alcohol is inflammable ; therefore, the reservoir should not be filled when the gas is burning or near a flame. Lamps should always he filled in day time.”
It also appears that from the volatile character of the fluid, the principal danger was from the generating and liberating of gas, if the package was not air-tight. Hence in the warehouse great caution is exercised in that direction, in trying to make barrels as safe as possible by fresh paint outside and by means of glue inside.
All these circumstances and elements of danger were known to the agent, who, in consequence had placed the whole control and management of the lamps and fluids under the exclusive charge of one man, and had issued orders forbidding the handling of fluids in order to replenish the lamps, at night, or soon after 5 o’clock p. m.
But it happened that the man in charge of that department was sick at the time that the barrel was delivered at the landing during the night of September 7, and that the barrel was not stored for two days during which time it laid exposed to a September sun in Louisiana. It ceases to be a subject of wonder to acconnt for the gas which was subsequently liberated from that barrel.
*354Now, it appears that in spite of all these elements of danger, of all these warnings and 'conditions, and. in utter disregard and violation of the rules of the mill, two employees went into the room where that barrel was stored at midnight, with a burning lantern, in order to draw therefrom the fluid needed to replenish some of the lamps used in the mill. The result was the fire which destroyed the mill and subjected its owner to a heavy loss.
For the purpose of our decree it is not necessary that We should charge the loss to the gross carelessness or negligence of plaintiff, or of his employees, but we are thoroughly convinced that plaintiff has utterly failed to fasten responsibility therefor on the defendant company.
In view of plaintiff’s averment that, owing to the use of “gasoline” as an illuminating fluid in his mill, under the deception practiced on him or hie agent by the defendant, he had been defeated in his suit for the recovery of the insurance thereon, we have given full and more than ordinary consideration to every feature of his case, and to every circumstance which might tend to relieve him from the hardship of an entire loss, notwithstanding his prudent caution on the subject of insurance. But we are powerless to afford him any re-life on the score of his lost policy. We have no concern with the judgment rendered in that controversy by a court of competent jurisdiction and of his own choice.
We have even no means of ascertaining the precise ground on which the insurance company was relieved of the burden of its contract.
But, in so far as our record goes, we are inclined to think that the assertion that the judgment of the Circuit Court vested solely on the broken condition which prohibited the use of “gasoline” in the mill, is not borne out.
The condition in the policy reads : “ The generating or evaporating within the building, or contiguous thereto, of any substance for a burning gas, or the use of gasoline for lighting, is prohibited.”
Now, the Circuit Court may have had evidence satisfactory to show that under (lie prohibition there was no practical difference between “purolino” of 08° and “gasoline.” of 74°.
Wc noted also that in its answer the insurance company had set. up the additional defense, that plaintiff had run his mill at night without previously obtaining the company’s written consent. Tn its reasons *355for judgment tlie Circuit Court “finds the issues of fact in favor of the defendant,” and it is not a violent presumption to believe that the judge had considered both grounds of defense as good.
It is thus clear to our minds that that judgment and our decree are not absolutely irreconcilable, and both may stand in law and justice, on their respective grounds.
Judgment affirmed.