Baker v. Stewart Sand & Material Co.

• Decision Date: 06 November 1961
• Docket Number: No. 23312,23312
• Citation: 353 S.W.2d 108
• Parties: W. D. BAKER, Appellant, v. STEWART SAND & MATERIAL COMPANY, a Corporation, Respondent.
• Court: Missouri Court of Appeals

Page 108

353 S.W.2d 108

W. D. BAKER, Appellant, v. STEWART SAND & MATERIAL COMPANY, a Corporation, Respondent.

No. 23312.

Kansas City Court of Appeals, Missouri.

Nov. 6, 1961.

Warren S. Earhart, Loeb H. Granoff, Kansas City, for appellant.

Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Charles F. Lamkin, Jr., Kansas City, for respondent.

BROADDUS, Judge.

This is an action for damages for personal injuries sustained in the use of ready-mixed concrete. Plaintiff recovered a verdict and judgment against defendant Stewart Sand & Material Company in the amount of $5000. The trial court set aside the verdict and entered judgment for defendant in accordance with its motion to set aside the verdict, and in the alternative, the trial court sustained defendant's alternative motion for a new trial. Plaintiff has appealed.

Plaintiff is a real estate salesman. He is a high school graduate and also took a business course in a college at Minneapolis, Minnesota. His testimony was that in July, 1958, he decided to rebuild a concrete patio adjacent to his house and built forms and poured a concrete base with ready-mixed concrete. His previous experience with concrete had been as a boy to assist his father, with concrete mixed by himself and brother, in building a foundation for a house; in 1950 building with ready-mixed concrete the original patio; in 1952 building some steps with ready-mixed concrete; and in 1953 or 1954 purchasing two sacks of cement, of which he used only part for patching. Plaintiff stated that he did not know that cement contains lime, understands that lime has a caustic effect, but does not know whether it has a poisonous effect. He did not know that cement contains material which is harmful on prolonged contact.

On August 2nd, 1958, defendant delivered two cubic yards of ready-mixed topping concrete to plaintiff, which plaintiff had ordered on advice of a friend. Plaintiff did not tell defendant how he wanted the material mixed. Plaintiff when using the concrete was dressed in a short sleeved T-shirt, blue jeans, cotton socks and rubber hunting boots and wore leather gloves. The defendant's truck unloaded the concrete topping and a friend of plaintiff hauled it to the patio in a wheel-barrow. Plaintiff spread the concrete on the patio, using a shovel and rake, leveled with a two by four board, putting one and one-half inches on the top of the concrete base. Plaintiff had to stand in the material in order to level it, and, in unloading and spreading, the material splashed on him and his clothing, so that parts of his clothing became saturated with the concrete topping, and some of the material dripped into his boots. It took about two hours to do the work.

After placing and smoothing the topping concrete plaintiff took a bath and laid down to rest and fell asleep for an hour or longer. When he awoke his legs itched and red spots on his legs were oozing a brown substance. He then changed his clothes and spread the top of the concrete with a trowel by kneeling on a piece of plywood with an old piece of rug under it. This took about three hours.

Around five o'clock plaintiff's legs began to get sore and by ten p. m. began to hurt. His legs and feet were red and swollen and draining the next day and very sore, and his feet and legs hurt when he put his weight on them. Monday, August 4, 1958, he couldn't stand on his feet and he dressed and consulted Dr. Robert H. Hodge. The doctor prescribed moist applications and other treatment. Plaintiff was confined to bed for five or six days. He returned to work August 21 but only worked half days until October 1st. It was September or October before he could take the bandages off and when he did his legs were scarred and discolored. His legs and feet were still scarred at the time of the trial and the scars itched and bled if scratched. Dr. Hodge found plaintiff's condition to be as above described and diagnosed it as contact (caused by something with which he came in contact) dermatitis, and expressed the expert opinion it was caused by exposure to the concrete mixture.

Plaintiff contends that the trial court erred in setting aside the verdict in his favor and rendering judgment for defendant in accordance with its motion for a directed verdict.

The theory of the plaintiff was that the cement and concrete were dangerous and unsafe because of the caustic material contained therein, and that the defendant knew it would be dangerous to the plaintiff, but failed to warn him. The facts showed that the concrete was a standard mixture, and that the cement contained therein met all standard specifications. There was no probative evidence to the contrary. The question is whether the defendant, under the circumstances, should have reasonably contemplated that the plaintiff's injuries would naturally and probably follow from the furnishing by defendant to the plaintiff of a building material in universal use down through the years, unless it warned him that prolonged exposure without proper clothing in hot weather might irritate his skin--a warning shown by the undisputed evidence never given in the industry.

We have found no Missouri case directly in point. However, the question has been before the courts of other states and in all of those cases a recovery was denied.

The case of Katz v. Arundel-Brooks Concrete Corporation, 220 Md. 200, 151 A.2d 731, 78 A.L.R.2d 692 (1959) involved practically the same facts as those appearing in the instant case. Plaintiff wanted to put down a concrete floor in the basement of a building. He ordered four cubic yards of ready-mixed concrete. Plaintiff, with a helper, spread the concrete with rakes and other tools to a depth of four inches. He had never worked with concrete before and made no inquiries of anyone as to the proper precautions to be taken. Plaintiff spent five hours on his hands and knees in and around the concrete. He wore no gloves, pads or protective clothing except ordinary work trousers. The knees of his trousers were thoroughly saturated with the liquid mixture. When he finished the spreading job, he found that he had sustained third degree burns on his knees. He suffered no injury to his bare hands.

Plaintiff in that case sued on a negligence theory. He alleged that the concrete was unfit for the purpose intended, and that the defendant gave no warning of the dangerous, or potentially dangerous, properties of the concrete, which were known and should have been known to the defendant. Plaintiff's main witness was a chemical engineer who qualified as an expert on cement (30 years with the U. S. Bureau of Standards). This witness testified as to the chemical properties of cement, as follows:

'That all cement contains some alkaline ingredients such as sodium and potassium hydroxides in amounts up to 1% and some small amounts of calcium oxide which on prolonged contact with the skin can produce a chemical burn, particularly if the skin is sensitized by cuts, bruises, or chafing as by the sand in a concrete mix. Among people who work with cement, these properties are well known and it is customary to use some protection, such as boots, pads or burlap wrappings. Some wear gloves, however, the palms of the hands are not particularly sensitive to injury. There has never been any government directive requiring sellers of mixed concrete to post a warning notice on the product or to warn of its chemical properties or caustic action when wet.'

The court, in holding that the defendant had no duty to warn, stated: 'We take it that this is not a claim for breach of warranty of fitness. There was no showing that the concrete delivered was defective, that it contained anything unusual, or that it was not safe...