Bean v. Ross Mfg. Co.

• Decision Date: 13 February 1961
• Docket Number: No. 47433,47433
• Citation: 344 S.W.2d 18
• Parties: Paul BEAN, Respondent, v. ROSS MANUFACTURING COMPANY, Appellant.
• Court: Missouri Supreme Court

Page 18

344 S.W.2d 18

Paul BEAN, Respondent, v. ROSS MANUFACTURING COMPANY, Appellant.

No. 47433.

Supreme Court of Missouri, En Banc.

Feb. 13, 1961.

Motion for Rehearing or to Modify Opinion Denied March 13, 1961.

Douglas Stripp, Melvin J. Spencer, Robert B. Olsen, Kansas City, for appellant; Watson, Ess, Marshall & Enggas, Kansas City, of counsel.

Don M. Jackson, Kansas City, August L. Fowler, Marion, Ill., for respondent; Rogers, Field, Gentry & Jackson, Kansas City, of counsel.

EAGER, Judge.

An opinion in this case was written and adopted in Division One, but the case was subsequently transferred to the Court in Banc. It has been briefed and argued anew; the original opinion failed of adoption in Banc.

Plaintiff, a plumber, sustained injuries while using a drain solvent manufactured by defendant. The result was substantially total blindness. The sole theory on which the case was submitted was that defendant was negligent in not adequately warning plaintiff of the dangers inherent in the use of this product, 'Rossite.' The injury occurred in Belnap, Illinois, and plaintiff lived in nearby Vienna. The jury, by a nineman verdict, awarded plaintiff $116,349.61. Motions for judgment and for a new trial were overruled. It will be necessary to state the facts in some detail. Plaintiff had been working for approximately six years as a plumber, the first three as an apprentice, the last three as a licensed journeyman plumber. He was not quite 45 years old at the time in question; he had graduated from High School, and had attended two colleges for periods totaling approximately three terms. In one of these he had taken a course of about four months in general chemistry. He had made no study of plumbing, except in and through the practical experience of working with others; all of this work was done as an employee of Upton Bros. of Vienna, Illinois, a town of 1,200 or 1,300 population. On the ill-fated occasion, February 22, 1955, plaintiff and one Ray Evers, an unlicensed apprentice, were called to open a stopped-up drain in the basement of the grade school building at Belnap. Evers had worked for Upton about three years. The drain pipe was three inches in diameter. The men first tried a 'stool auger,' a flexible apparatus or cable which is projected from an encasing handle by a crank; after they had inserted two or three feet of the auger, it hit something which felt or sounded like metal. Getting nowhere with this, they tried water pressure through a 'test plug and hose.' This plug (highly material here) was a metal device with a hard rubber expanding gasket or base which could be tightened by a thumb screw to fit the pipe dimension; above this was about a foot of steel pipe, slightly bent. Plaintiff and his associate connected to this device a hose leading from the building water supply; they tightened the plug with pliers, and turned on the water. The exact water pressure was unknown, but it was between 18 and 40 pounds per square inch. This pressure did not force the plug out, but it accomplished nothing toward opening the drain. The plug was removed and the hose taken from the plug; plaintiff suggested to Evers that he get a can of Rossite from the truck. While Evers was gone, plaintiff dipped out the water in the drain until it was about eight inches below the floor level, and capped the test plug with a solid fitting. When Evers returned he poured the entire can of Rossite, 20 ounces, into the drain, with plaintiff squatting beside him; plaintiff immediately inserted the test plug; during this time both remained squatted down by the drain, and plaintiff tightened the wing nut with pliers 'fairly tight,' but not as tight as he had for the water pressure. Plaintiff testified that the reason he used the test plug was to keep the odor or 'stink' out of the room, and he specifically denied trying to force the obstruction with pressure. After thus tightening the plug, both stood up. A 'little bit' later, possibly two minutes or so, plaintiff saw a few bubbles around the edge of the plug; he squatted down again, put his left hand on the plug, and reached toward the wing nut with his pliers to tighten it more. He said that he was doing this 'more or less to have something to do,' and with no particular motive or reason. At that time, either just before or just after he reached the wing nut, there was a sound like a 'shot-gun,' the test plug blew out, and plaintiff felt a terrific pain in his head. Some of the liquid from the drain had blown out across his face, eyes and ears as he squatted near the drain. Evers, standing, felt his eyes sting but suffered no serious effects; there were little blisters on his face. Evers testified that the nine or ten foot ceiling was 'all white,' and that there was much of the whitish material on the floor. Evers promptly got help for plaintiff, and brought vinegar which plaintiff called for; by that time plaintiff had crawled to the faucet and had thrown water in his eyes and on his face. A doctor came, and as soon as possible plaintiff was taken to a hospital and to an eye specialist. Days later he was transferred to a St. Louis hospital and to the care of other specialists. There will be no need here to relate the treatment or his progress. The ultimate result was total blindness, except for light perception, and the ability to see the movement of a hand at approximately six inches with one eye and one foot with the other.

Rossite, manufactured by defendant, consists of sodium hydroxide (caustic soda or lye), sodium nitrate, an alloy of aluminum and zinc, and casein. Sodium hydroxide is extremely caustic to human tissues, which means that it burns or destroys by chemical action. In the presence of water Rossite induces several chemical reactions; the aluminum reacts with the sodium hydroxide forming hydrogen gas and certain byproducts; some of the hydrogen gas reacts with the sodium nitrate to form ammonium gas and some of it escapes; some of the ammonium gas is dissolved in the water, and some of it also escapes. A temperature of approximately 180 to 212 degrees would normally be created by such a mixture of Rossite and water as was used here. The casein, a milk product, forms a sort of foam over the reaction, filters out some of the gas bubbles, and also forms a 'skin' over any gas bubbles which may be ejected. There was much expert testimony from chemists, pro and con; each of these men had made calculations or conducted experiments, or both. The stated estimated pressure on the 'test plug' here varied from 486 pounds per square inch (by calculation of one witness) down to 42 pounds by one experimental method and to 12 pounds on another. The heat and churning created by these chemical reactions was said to operate effectively upon congealed greases, animal and vegetable matter found in ordinary clogged drains. It seems to be undisputed that in this particular occurrence a highly caustic mist, carried by bubbles of gas which had passed through the caustic liquid, escaped violently when the plug blew out. The space within which gases are confined necessarily bears a direct relation to the pressure created. One witness testified that in his experiment, with an open three-inch drain and similar proportions of Rossite and water, droplets of the mixture surged from six to eighteen inches above the drain and approximately twenty-four inches out to the sides. We deem it wholly unnecessary to detail further or to compare the highly controversial and complex testimony concerning the pressures created or the respective merits of the different experiments and calculations. We know from substantial, direct evidence to which we are required to give credence, that there was enough pressure to eject this plug violently and to spray the caustic mist and bubbles around the nearby area and to the ceiling. We are not concerned with further technical details.

As already stated, the case was submitted by plaintiff upon the sole theory that defendant did not adequately advise and warn plaintiff of the dangers inherent in the use of this product. This, of course, requires a detailed consideration of the label and some reference to plaintiff's previous experience and knowledge. We take these in inverse order. Plaintiff's education has been stated. In his plumbing experience, all in small towns without sewer systems, he had worked on water and heating systems, hot water heaters, drains and septic tanks; he knew that water when heated expands. He had some scant knowledge of safety valves. He had used Rossite to some extent for at least three years and previously had used a very similar product called 'Blue Seal.' He had only used Rossite in kitchen sinks, in wash basins and very occasionally on a tub drain; he had not previously used more than approximately one tablespoonful at a time, not measured; he had noticed that this made the drain pipe warm, but not so hot that he could not touch it. In this previous use, he and his helper had generally held a rubber suction cup or plunger over the drain in order, he said, to keep out the very disagreeable odor or 'stink.' We interpolate here that some of the experts testified that the only distinguishable odor from Rossite was of ammonia, and that any other smell, if present, must have come from decayed matter in the drain. Plaintiff had occasionally seen a yellowish foam come up around the edge of the plunger. He had never used Rossite on a basement drain. He knew nothing of the elements composing Rossite, nor would he have known anything of their properties or chemical reactions, had he known their names. He did not know, according to his statement, that it would create any type of explosive reaction, even if he plugged the drain. He was permitted to testify that he would not have used the plug if he had known that the product would explode thus. He further testified that he had no knowledge of any danger in plugging the drain.

The can was...