#### GREEN v. PFEFFER.

No. 14254.

Court of Appeal of Louisiana. Orleans.

Feb. 27, 1933.

James E. Courtin and John T. Charbonnet, both of New Orleans, for appellant.

Buck, Walshe & Buck, of New Orleans, for appellee.

HIGGINS, Judge.

This is a suit for damages for personal injuries and loss of wages alleged to have resulted from the defendant negligently selling the plaintiff unlabeled gasoline, instead of kerosene, which exploded as she attempted to pour it into a kerosene lamp. Defendant denied having sold the plaintiff either gasoline or kerosene and, in the alternative, pleaded contributory negligence. There was judgment in favor of the defendant dismissing the suit, and plaintiff has appealed.

The plaintiff and her paramour testified that they sent a twelve year old negro girl from their residence at 731 Antonine street to the defendant’s oil station at the corner of Peniston and Constance streets for the purpose of buying five cents’ worth of kerosene; that they gave her a square varnish can as a receptacle in which to carry the oil; that the defendant’s place of business is about four squares from their residence; that there were other places in the neighborhood where kerosene was sold, ■ but, as it was .Sunday, those places were closed; that the girl left their home and about fifteen or twenty minutes later returned with a liquid in the can; that there was no label on the can to show the contents was gasoline; that the kerosene lamp was burning and that plaintiff unscrewed the burner and moved it to the side in order to pour the supposed kerosene into the oil receptacle of the lamp; that the can exploded, spraying the flaming contents over plaintiff and severely burning her; that the paramour wrapped the plaintiff in a quilt, and extinguished the flames and thereafter' had her sent to the Charity Hospital for treatment, where she remained over two-months.

Alice Burrell, the twelve year old girl whcr went to get the kerosene for the plaintiff,, testified that she told the defendant to give' her five cents’ worth of kerosene oil and that he took the oil from the long hose connected with the gasoline tank, which presumably was used in servicing automobiles; that she took the varnish can with its contents directly to the plaintiff’s home.

The defendant, who has been in the oil busi: ness for a number of years, testified that he always kept a record of all sales of gasoline and kerosene made by him and labeled each receptacle in which he placed gasoline sold to customers; that he had never seen either the plaintiff or Alice Burrell before the day of the trial; and that neither of them had purchased gasoline or kerosene oil from him. Defendant also showed that the plaintiff had caused a letter, dated September 24, 1930, to be-written to Mr. N. C. Pittman, 3729 Constance street, making claim upon him for damages for having sold her unlabeled gasoline instead of kerosene, as ordered, and that it was some time in October before any claim was made against him.

Defendant also produced as a witness Peter Beekerieh, who was in charge of the oil station at night, and he corroborated defendant’s testimony that a record was kept of all sales of kerosene and gasoline and that receptacles containing gasoline were labeled; but his testimony shows that he came on duty at 7:30 p. m., whereas the gasoline is said to haye been purchased about 6:30 p. m„ and therefore did ■not know anything about the sale in question.

*172The case in its last analysis resolves itself into a question of the credibility of Alice Bur.-rell, the twelve year old colored girl, and the defendant. She asserts that in obedience to the instructions of the plaintiff she went to the defendant’s place of business to buy the kerosene, and that he sold her unlabeled gasoline instead. The defendant denies ever having made the alleged sale. The testimony was taken two years after the alleged accident.

The trial court, after a full hearing on the merits, rendered Judgment in favor of the defendant. It is incumbent upon the plaintiff to establish with legal certainty that the defendant sold her unlabeled gasoline, instead of kerosene oil, as ordered. We do not believe that the evidence preponderates in favor of the plaintiff to that effect.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.