Allen v. Lake Catherine Footwear Corp.

• Citation: 246 Ark. 237,437 S.W.2d 803
• Decision Date: 03 March 1969
• Docket Number: No. 5--4827,5--4827
• Parties: W. F. ALLEN, Admr., Appellant, v. LAKE CATHERINE FOOTWEAR CORP., Appellee.
• Court: Supreme Court of Arkansas

Page 803

437 S.W.2d 803

246 Ark. 237

W. F. ALLEN, Admr., Appellant, v. LAKE CATHERINE FOOTWEAR CORP., Appellee.

No. 5--4827.

Supreme Court of Arkansas.

March 3, 1969.

Jim C. Cole, Malvern, for appellant.

Wright, Lindsey & Jennings, Little Rock, for appellee.

HARRIS, Chief Justice.

Appellant, as administrator of the estate of Elwood Allen, deceased, brought a wrongful death action against appellee, Lake Catherine Footwear Corporation, in the Circuit Court of Hot Spring County. Appellee operates a shoe manufacturing plant in Garland County, and J. R. Stanage held a contract with appellee to haul off waste and trash from its plant. Stanage, stipulated to be an independent contractor, hauled this waste and trash six days per week. It is also stipulated that Lake Catherine Footwear had no control over the means or methods of his operation in disposing of the waste material. The waste consisted of scrap leather, cloth, rubber, outsole and insole material, and other similar remnants. Included was a flammable, combustible, and volatile naphtha base liquid cleaning material. ¹ The pattern for disposition position of the trash was for Stanage to park his truck at the plant, and the company's employees would load it with all of the scrap material except the naphtha base liquid. This was placed in barrels or drums on the dock, and picked up last by Stanage. These drums were ordinarily marked with a red or yellow label with the word 'caution' in large letters and 'inflammable material, volatile solvent' painted thereon. No witness was able to say whether the drums loaded on February 18, 1966, were so marked.

Stanage had known Elwood Allen for approximately twelve years, and Allen had worked for him, off and on, during that period; also, Allen had worked intermittently for Stanage during the six or seven years that he had been disposing of the trash. The witness said that Allen, who could not read nor write, and perhaps was to some extent mentally retarded, could only be used for ordinary labor, though he was able to operate a Ford tractor. He (Stanage) said that he had been advised by company employees that the solvent should not be thrown in when the trash was burned--that it might be explosive.

On February 18, after picking up the trash and solvent, the trash was dumped in a ravine selected by Stanage, and the solvent was poured over it. Subsequent events are then described by Stanage:

'Well, when I got that on there, I got on this machine I had there and shoved it over in the pit with it, and started driving it away. I asked if anyone had matches. No one had any. I said there are usually some in the truck. I said, 'get the matches.' Doug got the matches and started back with them. So, Elwood said, 'Let me have them.' He gave them to him. As I was watching there he started down in this ravine. There is a kind of little pathway like deal going down in there. I said, 'Judge, don't go down in there and light that stuff off, you are liable to get blown up.' So, I am moving out on the machine at the time I said that. So I went over and parked it and come back over there. He was still down in there attempting to strike the matches, little book type matches. One of my boys, I believe Dave--said, 'He is not going to get that lit down there.' I said, 'Come out of there, Judge and let's light the thing from up here.' I don't really remember whether he said anything or not. Usually he didn't whenever I would talk to him like that, so I stood there another instant. I said, 'Come on up here, Judge and give Doug those matches and let him light a piece of paper and throw over there and we will do it from up here,' and I said, 'Everything will be all right' or something to that effect. That is all I said. About the time I completed that statement he was still in the operation of striking the match and so I guess this thing must have sparked. I don't think he threw the match in the fire. When he made the arc, the air was full enough of these vapors coming off this stuff, it exploded.'

Allen was severely burned, and subsequently died. Suit was then instituted, appellant asserting that the company, its agents and employees, were negligent and careless in placing the solvent in unmarked or inadequately marked drums; in failing to adequately warn the deceased and others of the high and unusual danger involved; and in placing the dangerous liquid waste in the possession and control of persons without educating those persons as to the danger involved in the use and disposition thereof. On trial, at the conclusion of appellant's evidence, the company moved for a directed verdict; after argument of counsel, the motion was granted, and the jury was instructed to return a verdict for appellee. From the judgment dismissing appellant's complaint, comes this appeal.

Appellant has submitted an able brief, relating to liability of persons supplying chattels which are known to be dangerous for the use of others. It is also argued that the manner in which the solvent was disposed of involved an unreasonable risk of bodily harm to the decedent, and that the company knew, or should have known, that Elwood Allen was mentally retarded, and that he would probably use the solvent in a manner involving unreasonable risk of bodily harm to himself or others. Though Allen's mental condition is mentioned by appellant several times, the evidence of any mental deficiency is meager indeed. In fact, the only evidence relating thereto was given by the witness, Stanage. He was asked, 'Was Mr. Allen to some extent mentally retarded, or mentally slow?' The answer was, 'Well my impression of it was yes. I am not an authority. My impression was yes.' Since apparently Allen had practically no education, and could not read nor write, he could well have appeared retarded without that actually being the case. The brother of the deceased, W. F. Allen, also testified, but he only said that his brother was unmarried, and unable to read or write; there was not the slightest reference to a lack of mental competency. It might also be pointed out that there is no showing that any company employee had any reason to believe that Allen was...