A. Cohen & Co. v. Rittimann

• Decision Date: 22 March 1911
• Parties: A. COHEN & CO. v. RITTIMANN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

139 S.W. 59

A. COHEN & CO. v. RITTIMANN.^†

Court of Civil Appeals of Texas. San Antonio.

March 22, 1911.

On Motion for Rehearing, June 29, 1911.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Louis Rittimann against A. Cohen & Co. Judgment for plaintiff, and defendant appeals. Reversed on rehearing, and remanded.

C. A. Davies, for appellant. Salliway & McAskill, for appellee.

FLY, J.

This is a suit for damages instituted by appellee against appellant, in which it was alleged that appellee and his family were residing on the same block in San Antonio on which appellant was conducting a business of curing hides of cows and horses and other animals, which were brought to the place of business in a green state, and were allowed to remain in a condition of decay and decomposition; that the flesh was cut from the hides and piled up and left to rot and decay, and hides were hung up in a decaying condition, which caused great numbers of flies to accumulate, and that they were poisoned by substances used in curing the hides, and that they drifted into residences in the vicinity and died in great numbers; and that the odors from the hides and meat filled the atmosphere, which entered residences, causing sickness and death. Appellee alleged that his daughter, Anna Bell Rittimann, 25 years of age, sickened from breathing the poisoned atmosphere, and died, and that appellee had been deprived of her labor in his house to his damage in the sum of $20,000. Appellant filed general and special demurrers and a general denial, and specially answered that the appellant was engaged in his lawful business and had exercised due care in curing hides, and that appellee had moved into the vicinity of the place of business of appellant knowing the kind of business conducted by appellant, in a locality set apart by an ordinance of the city of San Antonio for slaughterhouses and other like industries. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee for $1,000.

A physician who treated appellee's daughter in her last sickness swore that she suffered with asthma, and that disease and malarial fever caused her death. He stated that malarial fever is produced in no other way except through the bite of a certain kind of mosquito, but stated further: "Decomposing, decaying, rotting matter is in small particles disseminating themselves into the air all the time, and a person breathing that air, it would have a tendency to depreciate human health, to undermine it; every day coming in contact with things like that it would get into the system through the lungs. The lungs are a kind of sifter. You take air into the lungs, through that the blood receives the oxygen, and then it is disseminated through the body generally. The lungs and the body would become, more or less, impregnated with the dead matter. The tendency to affect a person of a weak disposition would be to undermine the health of the person in that condition of health. A person in a weak condition would not be so apt to throw it off as a person who is robust. I saw Mr. Rittimann's daughter frequently. I believe the condition of that atmosphere undermined her health to such an extent that she was not in such condition to throw off diseases that she would otherwise have been. I say that condition weakened her, run down her health, caused her to be weakened and in a condition she would not have been in had she lived in other surroundings. Her chances for recovery would certainly have been decidedly better if she had been in different surroundings where there were other conditions and she had continued healthy and strong. When a person's physical condition is run down and emaciated, they are more susceptible to diseases, and of course, their ability to resist diseases is less. This girl was depleted and weak. She was run down when she was taken down with this malarial form of fever that she had. I do not know how long she was sick with the fever. I can't say, I don't remember." It was shown that a place like appellant's was a menace to health and that the place was not conducted in a sanitary way, nor as it should have been. A witness stated that the condition of it was improved after the death of the girl, and that "there was decidedly room for improvement."

There was testimony conflicting in a degree with that of Dr. Berry given by Dr. Caffery, who testified that no particles of decaying matter accompany the odors, and that such odors are not disease bearers, and are not dangerous except in close rooms where they consume the oxygen. Dr. Caffery said: "I say it is absolutely impossible for bad atmosphere, an atmosphere from putrid matter, or scent, or odors to be disseminated in the blood and in the system by getting in contact with the lungs. Absolutely impossible for the system to become charged with decaying matter through odors. Ordinary odors arising from either decomposed vegetable or organic matter are not poisonous in themselves." He, however, admitted that, if the atmosphere was full of gases, it reduces the amount of oxygen and the person becomes sick by a lack of oxygen, so he and Dr. Berry arrived at the same conclusion, that of sickness from filthy gases, by different methods of reasoning.

Dr. Aurelio Garcia de la Lama swore that the preparations used on the hides were injurious to health, and that "decaying meats get into the air and a person's lungs and hurt the blood. A person breathing decaying particles of meat that fill the air it hurts them. There is a whole lot of sickness caused by that. The odor in the air is caused on account of the hides; such odor or scent would hurt the health. The continual breathing of this atmosphere, impregnated with that odor, would always be sickness. It would produce all kinds of sickness." Among the diseases he enumerated were typhoid fever, colic, sores on the body, and sores in the mouth. One physician stated that he did not know "whether there is any other way for the communication of malaria, except by mosquito bite, but that is the theory of the present date." He testified further: "If you were to sit down by a dead horse and breathe the air week in and week out, breathe particles of that dead horse, it would always be detrimental. It takes a great deal of decay of that kind to affect the body. I do not think an hour would do it, nor a day wouldn't do it; but very likely continuously living in it would vitiate the entire system." Another physician testified that inhaling putrid matter might produce bilious fever, and also testified: "The effect of this smell would make the surrounding atmosphere unhealthy to breathe. Rotting is a process of decomposition, and the meat is gradually giving off an odor. Inhalation of this odor vitiates the system, generally, if it got into the circulation. When the air gets into the lungs, impregnated with putrid matter, it is taken into the entire system. Where a person is continually breathing such air, the blood is not pure. It cannot be healthy. We would all have a hideyard in the room for that purpose if it was healthy. The putrid matter in the air when you breathe it is transferred from the tissues through the blood."

Of the five doctors who testified as to the cause of malarial fever, four stated that it came only through the bite of the mosquito known as "anopheles," and the other testified that was the theory, but that he did not know whether mosquito bites were the sole cause of malaria or not; so that even this matter was one of contested fact to be determined by a jury, although to laymen who have read of the tests and most complete demonstrations made by several governments, as well as by some of the most scientific men of the world, it seemed, if there was one proposition in all the field of medical discovery that was so firmly established that enlightened doctors could not disagree about it, the theory that malarial fever could never be imparted save through the medium of one species of mosquito and yellow fever through that of another was that proposition. Still, at least so far as this case is concerned, the mosquito theory was contested, as there was testimony to the effect that "stagnant water is calculated to produce malaria. They get malaria by living near stagnant water. They get malaria from the water, whether mosquitoes carry it or not." If the young woman had an attack of malaria, and that with other complications caused her death, as was testified by one of the physicians, the jury was justified in finding that the malaria was caused by stagnant pools of filthy water permitted by appellant to stand on the premises and even run out into the street. The same physician also testified: "The fly is called the great typhoid messenger. Flies can communicate always anything that is carriable; that is transportable on their bodies. Neither flies or mosquitoes either would communicate the disease of asthma." The jury could have inferred from that testimony that malaria was transportable by flies. The proof showed that there were great swarms of flies about appellant's establishment, and that they went from there in vast hordes to the adjacent residences. But if the mosquito theory has been thoroughly demonstrated, as a large preponderance of the evidence showed and as seems to be the consensus of opinion of the scientific medical world, still there was evidence that tended to show that the filth and stench arising from the decaying poisonous matter that was allowed to remain on the premises of appellant weakened and undermined the health of appellee's daughter to such an extent that, when she had malaria communicated by mosquitoes, she was unable to resist it and rapidly succumbed to its inroads and died.

As said by this court in the case of Railway v. Sweeney, 6 Tex. Civ. App. 173, 24 S. W. 947: "By proximate cause is meant such an act, wanting in ordinary care, as actively aided in producing the injury as a...