Dickey v. Western Tablet Co.

• Decision Date: 10 November 1924
• Docket Number: No. 15138.,15138.
• Citation: 267 S.W. 431
• Parties: DICKEY v. WESTERN TABLET CO.
• Court: Missouri Court of Appeals

267 S.W. 431

DICKEY v. WESTERN TABLET CO.

No. 15138.

Kansas City Court of Appeals. Missouri.

November 10, 1924.

Certiorari Denied January 2, 1925.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Edna Dickey against the Western Tablet Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Randolph & Randolph and A. M. Evans, all of St. Joseph, for appellant.

Mytton & Parkinson and Sam J. Wilcox, all of St. Joseph, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $3,000, and defendant has appealed.

The facts show that prior to November 11, 1922, plaintiff, a married woman, was employed by the defendant in its factory as a wrapper of tablets. She had worked for five years for the defendant, who was engaged in the manufacture of tablets in the city of St. Joseph, Mo. These tablets consisted of ink tablets and pencil tablets, the latter known as the "Big Chief tablet." There was a design on the front cover of the Big Chief tablet consisting of the head of an Indian done partly in gilt or bronze, inclosed in a double frame of the same decorative material. The greater part of plaintiff's work was to wrap the Big Chief tablets. These tablets were brought to plaintiff upon a dolly, to be wrapped in bundles of 12. She would lift them off of the dolly and count out the tablets for the bundles, placing 6 of them with the top or bound edge in one direction, and 6 in another direction. She would then end them up so as to make an even pile and wrap them with paper. She would then secure them with tape, which consisted of a tough piece of paper about seven-eighths of an inch wide, with mucilage or glue on one side of it. She used her right thumb in counting and taping the tablets. In wrapping the tablets she rubbed the tape down with her right thumb in order to make the tape stick, and the glue on the tape adhered to her fingers.

The tablets at `the top were bound in green tape. This was glued, and would often come loose, and in order to securely fasten the leaves of the tablets this tape would be wet by defendant, and plaintiff required to rub it down with her thumb. The green coloring of this tape when wet would cause her thumb to become discolored with the green, and the constant use of her thumb in the way described caused the skin to wear off, and her thumb to become worn, raw, sore, and to bleed. This was the condition of her thumb on November 11, 1922, when it began to swell. When she returned to the factory she was put on other work at which she continued until December 17th, and on the 18th the thumb had become so swollen and painful that it was lanced to the bone by Dr. Gray. The doctor advised plaintiff to go home and soak the thumb and "put flaxseed poultices on it. This she did. When she removed the poultice she and her sister saw green and small particles of the bronze that had come out of the thumb. She suffered for some time with her thumb, and finally the first joint had to be removed.

"Plaintiff testified that in handling the tablets the bronze would fly into the air and would get "all over the ends" of the tablets. The tablets would at times be stuck together at the green tape, and in pulling them apart the tape would come off, "and the bronze flying in the air settle all over you." Plaintiff further testified that during the five years that she had been there it was a common thing for the fingers of the girls to wear off and bleed from handling the tablets as she did. There was other evidence to the same effect. Plaintiff's sister also worked at the factory, and testified, in answer to a question as to what difference she had noticed between the girls who worked on the Big Chief tablets and those that worked on other tablets, that the girls who worked on the former would have bronze all over their necks, hands, and arms caused by bronze flying in the air, and that this caused them to have a light rash. The man who ran the stripping machine that put the green tape on the top edge of the tablets testified that in running the machine he skinned his finger, and in putting the tablets through the machine bronze was rubbed on this finger, " which afterwards swelled up and "pus started in it."

Plaintiff's chemist testified that he analyzed the composition of the Indian head on one of the tablets; that he took an erasing knife and peeled the bronze off of the tablet thin as he could; that some paper was attached to the bronze; that he found copper present in the material used to the extent of 3.14 per cent. by weight. He also found a trace of arsenic, but not in an sufficient to be injurious; that he was unable to say what was the relative percentage of paper and bronze in the material, but that there was much more paper by than bronze. He also testified that open wounds are commonly kept from being contaminated by copper because copper is considered to be infectious, and it aggravates the trouble.

Defendant's chemist testified that copper is not poisonous or infectious, but that copper, reacting with other substances, forming a soluble copper compound, was poisonous, and plaintiff's chemist testified that, if copper powder is moistened by coming in contact with sweaty hands, it might generate salts, which would be injurious; that in time you would get a chemical reaction from perspiration upon copper. There is no evidence that the green dye on the binding of the tablet was in any way poisonous or infectious.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given. In support of this defendant points out the well-known fact that infection in a sore or abrased part of the skin may be caused by its coming in contact with many objects; that harmful germs are very generally present; that copper articles, such as pennies and cooking utensils, are commonly used without `any deleterious and points to defendant's evidence that 70,000,000 tablets are made by it each year and used by school children generally over the country, and that there had been no to defendant of any injury caused these tablets. Defendant attacks the testimony of plaintiff and her sister that they green and small particles of bronze that come out of the thumb. In this connection could not have been absorbed into the abrased and bleeding portion of the thumb; that it could only have got in the thumb after the doctor lanced it, and, if it had been there at the time he lanced it, the disinfectant he used in washing out the wound would have destroyed any germ present.

Plaintiff testified that a day's work consisted in wrapping 1,400 to 1,600 tablets. Of course, in handling these tablets her hands and fingers would necessarily come in submitted as a part of the negligence of the defendant. The evidence shows that it was on account of the nature of the work being done that plaintiff's thumb became raw and bleeding, and the instruction in this part merely follows the petition and the evidence. What possible harm it could have done defendant we are not able to see. Nor does the instruction disclose that the jury could have obtained an erroneous idea from the instruction that plaintiff was entitled to recover on this account. The negligence of the defendant submitted in the instruction had to do solely with the poison or infectious bronze on the tablet. The instruction told the jury: "* * * If you further find from the evidence that the defendant carelessly and negligently made and furnished plaintiff to handle and wrap tablets with the back or cover upon the same bearing a figure or design which contained poison or other substance or ingredient which was likely to and would cause infection when it came in contact with the raw, sore or bleeding part of the hand or thumb, if any." (Italics ours.)

In reference to the italicised part of the instruction just quoted, it is insisted that it gave the jury a roving commission to "wander and speculate as to whether there were other substances or ingredients likely to cause infection." The only substance in the tablet which was poisonous or could have caused infection was copper. If the instruction had used the word "copper" instead of poison, there might be some merit in defendant's contention, but it used the word poison, and the phrase "or other substances or ingredients which was likely to and would cause infection," following that word, is merely another way of describing the material in the tablet that caused the infection. In a number of defendant's instructions the jury were told that, if plaintiff was poisoned or infected from any other cause than the copper contained in the bronze, their verdict should be for the defendant. If it can be said that plaintiff's instruction was somewhat obscure upon this point, and certainly there is no more serious defect in it, defendant's instructions removed the obscurity in plaintiff's instruction by making the matter perfectly plain, and there was no reversible error. Sutter v. Met. St. Ry. Co. (Mo. App.) 208 S. W. 851.

There was no error in the court's amending defendant's instruction No. 5. The court struck out of that instruction, which is a long one, submitting a great many separate and distinct circumstances which would cause the jury to find for the defendant, a paragraph stating that, if defendant exercised ordinary care in bronzing the tablets and in the selection of material therefor, their verdict should be for the defendant. Of course, it is not the exercise of ordinary care in bronzing the tablets to make...