Victory Sparkler & Specialty Co. v. Latimer
| Decision Date | 20 October 1931 |
| Docket Number | No. 9139.,9139. |
| Citation | 53 F.2d 3 |
| Parties | VICTORY SPARKLER & SPECIALTY CO. v. LATIMER et ux. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles N. Sadler, of Kansas City, Mo. (Brown & Rollins, of Elkton, Md., and Phineas Rosenberg, of Kansas City, Mo., on the brief), for appellant.
Donald W. Johnson, of Kansas City, Mo. (J. M. Johnson and Arthur C. Popham, both of Kansas City, Mo., on the brief), for appellees.
Before STONE and GARDNER, Circuit Judges, and YOUMANS, District Judge.
The appellees, who are husband and wife, brought this action against appellant to recover damages because of the death of their minor child, Lawrence Lee Latimer, who at the time of his death was about three and a half years old. It is alleged that the child died of poisoning due to the ingestion of an article of fireworks known in the record as a "spit devil." It is alleged in the amended petition that defendant is engaged in the manufacture of fireworks and specialties, including a certain article of fireworks designated as a "spit devil." This is described as circular in shape, having a diameter of approximately one inch, a thickness of approximately one-eighth inch, wrapped in plain red paper without any poison label or warnings upon it, and containing ingredients which would cause it to ignite, burn, and explode when subjected to a blow or friction; that this article was manufactured, sold and distributed by the defendant for the purpose of being resold to, and used by, small children for amusement, and was so distributed and sold with the knowledge that small children would handle and use the same; that it contained a large quantity of deadly poisonous substance, sufficient to cause death if taken in the mouth and swallowed by a human being; that because of the color and appearance of its wrapping it was attractive to small children and likely to be placed in their mouths and swallowed, unless warned not so to do by the dealers or retailers supplying and selling the same. It is then alleged that certain of these spit devils were placed in the hands of one Posey, a retailer at Kansas City, Mo., for the purpose of being sold to small children, and on or about the 4th day of July, 1924, the said child purchased a quantity thereof and placed one of them in its mouth, swallowing some of the poisonous ingredients therein contained, and, as a result, was fatally poisoned; that the retailer was unaware of the nature and poisonous character of the article so sold, and that the defendant "negligently and in reckless and wanton disregard of the safety of said child and small children and possible users of said article, wholly failed to warn or cause said retailer or said child to be warned of the presence of said poison and the deadly effect thereof, and wholly failed to label said article or to label its container as poisonous, or to print or disseminate any warning or instructions as to the presence or effect of said poison and ingredients, and plaintiffs allege that the death of their said child resulted directly from the aforesaid negligence and recklessness and wantonness and conduct of defendant."
The answer put in issue all the material allegations of the amended petition, and, in addition, pleaded contributory negligence. At the close of all the testimony, the defendant moved for a directed verdict, which was denied, and the jury returned a verdict in favor of the plaintiff on all the issues.
On this appeal, it is urged that the court erred in denying defendant's motion for a directed verdict, and that the evidence is insufficient to sustain a verdict in favor of the plaintiff.
In view of the verdict of the jury, the cause of death may scarcely be said to be a matter of controversy. Clearly, under the evidence, the jury might properly have found that the child's death resulted from the ingestion of the poisonous ingredients contained in the spit devil. The real question at issue is whether or not there was substantial evidence of actionable negligence on the part of the defendant. The negligence charged is the failure of the defendant to give warning or notice to the retailer or purchaser by placing appropriate labels upon the articles of fireworks, or the containers in which they were packed and shipped. The articles of fireworks themselves bore no labels indicating that they were poisonous, and the evidence of plaintiffs tended to prove that the cartons in which they were contained bore no such warning labels. Mr. Posey, the retailer from whose store the fireworks had been retailed, called as a witness for the plaintiff, testified, among other things, that,...
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Boyd v. Frenchee Chemical Corporation, 1542.
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