Bragg v. Ohio Chemical & Mfg. Co.

• Decision Date: 16 December 1941
• Docket Number: 36611
• Citation: 162 S.W.2d 832,349 Mo. 577
• Parties: Marjorie Bragg v. The Ohio Chemical & Manufacturing Company, a Corporation, and Midvale Dental Supply Company, a Corporation, Appellants
• Court: Missouri Supreme Court

162 S.W.2d 832

349 Mo. 577

Marjorie Bragg v. The Ohio Chemical & Manufacturing Company, a Corporation, and Midvale Dental Supply Company, a Corporation, Appellants

No. 36611

Supreme Court of Missouri

December 16, 1941

Rehearing Denied May 5, 1942. Motion to Transfer to Banc Denied June 17, 1942.

Appeal from Audrain Circuit Court; Hon. William C. Hughes Judge.

Reversed.

Clark Boggs, Peterson & Becker, Howard B. Lang, Jr., and Barnes & Barnes for appellants.

(1) The demurrers to the evidence of the manufacturer, The Ohio Chemical & Manufacturing Company, should have been sustained because there was not sufficient evidence to submit the case to the jury. The case was not submissible for the following reasons: (a) The respondent failed to prove that the manufacturer negligently represented to the deceased that the Analgesor might be used by the deceased on himself without an attendant with absolute safety. (b) There is no evidence that the manufacturer should have reasonably expected the deceased to use the Analgesor on himself without an attendant, relying upon its absolute safety. Harper v. Remington Arms Co., Inc., 156 Misc. 53; Razey v. J. B. Colt Co., 106 A.D. 103, 94 N.Y.S. 59; Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409, 88 A. L. R. 521; Met. Street Ry. Co. v. Broderick & Bascom Rope Co., 156 Mo.App. 640. (c) There is no evidence that the deceased was unaware of the nature of nitrous oxide gas or the mechanical principles of construction and operation of the machine. Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S.W. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. 1913B, 689; Isbell v. Biederman Furniture Co., 115 S.W.2d 47. (d) There is no evidence that the deceased used the machine as directed by the manufacturer. (e) There is no evidence that the machine failed to function as represented. (f) There is no evidence that there was any defect in the construction or assembly of the machine furnished to the deceased. Morris v. E. I. du Pont de Nemours, 109 S.W.2d 1222. (g) Mere occurrence of death of the deceased while experimenting with the machine is not proof of negligence on the part of the manufacturer. Fryer v. St. Louis-San Francisco Ry. Co., 333 Mo. 740, 63 S.W.2d 47; Reusch v. Ford Motor Co., 82 P.2d 556; Rotche v. Buick Motor Co., 358 Ill. 507, 193 N.E. 529. (h) There is no substantial evidence that the death of deceased was caused by failure of the machine to function. Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600; Evans v. Massman Const. Co., 122 S.W.2d 924; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Hart v. Emery, Bird, Thayer Dry Goods Co., 118 S.W.2d 509. (i) There was a full disclosure to the deceased of the possibility of the exhaling valve becoming stuck in the open position. (j) The deceased was guilty of contributory negligence in using the Analgesor upon himself without an attendant. Razey v. J. B. Colt Co., 94 N.Y.S. 59; Slagel v. Nold Lbr. Co., 138 Mo.App. 432. (k) The deceased was a trained dentist, educated in the use of anaesthesia, mechanically inclined, and a student of advanced mechanical devices used in dentistry, and voluntarily assumed all risks connected with the use of the machine on himself without an attendant. Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345. (2) The demurrers to the evidence of the dealer, Midvale Dental Supply Company, should have been sustained because there was not sufficient evidence to submit the case to the jury against the dealer. The case was not submissible against the dealer because of the reasons stated in Point (1) hereof, and for the further reason that the dealer is not responsible for the acts of the manufacturer's agent, Stehlin, and is not chargeable with any knowledge of any danger connected with the use of the machine. See authorities under Point (1); Schroeder v. Barron-Dady Motor Co., 111 S.W.2d 66.

Anderson, Gilbert, Wolfort, Allen & Bierman for respondent.

(1) The order was taken for the benefit of the appellant Midvale Company, and that appellant cannot sit by and obtain the benefit of the order without being responsible for the means by which the order was obtained. Bruen v. Fair Association, 40 Mo.App. 425, l. c. 432; Millard v. Smith, 119 Mo.App. 701, l. c. 711; Hart v. Brown, 216 S.W. 552. (2) The court did not err in overruling appellants' demurrers to the evidence. (a) Appellants' agent Stehlin represented the Analgesor to be absolutely safe for deceased to use on himself. The printed advertising matter distributed by appellants also contained the representations that the danger of obtaining too much nitrous oxide was eliminated in the use of the machine. (b) The questions of the decedent to Mr. Stehlin inquiring whether he could safely use the machine on himself constituted notice that he intended to use it on himself. (c) Even if there had been no proof that the decedent had been using the instrumentality as directed, the presumption would be that he was so using it with due care for his own safety. Sing v. Railroad Co., 30 S.W.2d 37; Pulsifer v. City, 226 Mo.App. 529. (d) The burden was on the appellants to prove their plea of contributory negligence. There is a presumption against it. Cech v. Chem. Co., 323 Mo. 601; Clark v. Railroad Co., 234 Mo. 396. (e) If there were any other cause of death than nitrous oxide, the burden was on the appellants to prove it, under the pleadings. State ex rel. v. Haid, 325 Mo. 107. (f) Language in advertisements is construed against the party who made the advertisements. McManus v. Gregory, 16 Mo.App. 375. This is but an application of the general rule that writings will be construed against the parties preparing such writings. Union Bank v. Surety Co., 23 S.W.2d 1038, 324 Mo. 438; State ex rel. v. Hostetter, 108 S.W.2d 17, 341 Mo. 488. (g) The decedent did not assume the risk that the danger of an excess amount of nitrous oxide was not eliminated in the use of the machine. This danger was known to appellants but not to the decedent, hence was not assumed by the decedent. Arnold v. May Co., 85 S.W.2d 748. (h) The decedent was not using the machine on his own initiative but was acting under the assurances of the appellants and therefore did not assume the risk. Stein v. Battenfeld Co., 327 Mo. 804, 39 S.W.2d 345.

OPINION

Ellison, J.

The original opinion in this case was written by Bohling, C. We granted a rehearing because we feared we misunderstood the workings of the machine involved. The case was reargued and assigned to the writer who prepared an opinion which was adopted. Both of these opinions reversed the judgment for respondent. Now on second rehearing, she urges that we still fail to comprehend the workings of the machine, and that seems to be true. Appellants have filed a motion to strike out, respondent's second motion for rehearing under Rule 21 of this court, which provides that no second motion for rehearing by the same party will be entertained. But in the interest of justice and in order that the facts may be correctly stated, we have decided to reexamine the case. The statement of facts is taken largely from the opinion of Bohling, C., without quotation marks.

Marjorie Bragg recovered a $ 10,000 judgment against The Ohio Chemical & Manufacturing Company, an Ohio corporation authorized to do business in Missouri, and Midvale Dental Supply Company, a Missouri corporation, for the death of Minter K. Bragg, her husband. Minter K. Bragg was a dentist engaged in the practice of his profession at Mexico, Missouri, under the firm name of K. R. Bragg & Son. The Ohio Chemical & Manufacturing Company is the manufacturer of and the Midvale Dental Supply Company is a dealer in a machine known as the Ohio Analgesor, used for the administration of nitrous oxide gas, sometimes called "laughing gas," to produce analgesia or an absence of sensibility to pain. The record establishes that it is common knowledge within the dental profession that nitrous oxide gas in uncontrolled quantities produces death. Dr. Bragg's lifeless body was found seated in his dental chair on June 16, 1937, with the nasal attachment of an analgesor over his nose. Issues involving the submissibility of plaintiff's case, the competency of certain testimony, and the propriety of giving and refusing certain instructions are presented.

Respondent's petition did not predicate negligence on a defectively constructed analgesor but on negligent representations of what the analgesor would do "when the appellants knew, or by the exercise of ordinary care could have known" that the analgesor was not so constructed that it would function safely as represented. It alleged appellants represented that "said device could be safely used by her said husband upon his own person for experimental or other purposes;" that her "husband by reason of and in reliance upon the representations . . . undertook to use and did use said device . . . upon his own person in the way and manner prescribed and directed by the defendants; and that said machine, when so used by her said husband, caused and permitted a large and uncontrolled amount of nitrous oxide gas to suddenly enter his lungs and to thereby cause his instant death," et cetera.

The analgesor was operated by compressed air. Its construction and operation are outlined hereinafter. Respondent's brief points out there was evidence that if the compressed air did not escape through an air vent nitrous oxide gas would continue to flow until the supply was exhausted. He says: "A particle of dust could clog it (the air vent) and make the flow of gas uncontrollable." "If a little piece of dust or other particle were lodged in the pinhole vent, that might cause the machine to fail to function. That might have been blown out when the machine was next...