Doe v. Saracyn Corp.

• Decision Date: 03 July 1951
• Citation: 82 A.2d 811,138 Conn. 69
• Court: Connecticut Supreme Court
• Parties: DOE et al. v. SARACYN CORP. et al. Supreme Court of Errors of Connecticut

Page 811

82 A.2d 811

138 Conn. 69

DOE et al. v. SARACYN CORP. et al.

Supreme Court of Errors of Connecticut.

July 3, 1951.

J. Kenneth Bradley, Bridgeport, with whom were Frederick Pope Jr., Bridgeport, and, on the brief, Martin E. Gormley, New Haven, for the appellant-appellee (defendant Saracyn Corp.) and the appellee (defendant Sterling).

John J. Hunt, Bridgeport, for the appellant (plaintiff Marie Doe) and for the appellee (plaintiff Gerald Doe).

Before BROWN, C. J., JENNINGS, INGLIS and O'SULLIVAN, JJ., and KING, Superior Judge.

O'SULLIVAN, Judge.

Gerald Doe and his wife, Marie, joined in this action to recover damages for personal injuries occasioned, they alleged, by the unlawful acts of the Saracyn Corporation and Edward C. Sterling. During the course of the trial Doe dropped Sterling as a party. The jury returned a defendants' verdict in Mrs. Doe's action. Comment on her appeal will be postponed until after disposition of the appeal taken by the Saracyn Corporation from the refusal of the court to set aside the verdict in favor of Doe and from the judgment entered thereon. We refer to Doe as the plaintiff and to the corporation as the defendant.

The plaintiff offered evidence to prove and claimed to have proved the following facts: On March 31, 1947, Sterling hired the plaintiff to work in a small chemical plant in West Redding. He began his work on the following day. Since he was living at that time in Danbury, he was obliged to commute by train. The plant was located on land owned by Sterling but under lease to the defendant. On the property was a small house, to the rear of which were open sheds where the chemical operations were carried out. A room in the house served as an office, and an adjoining one as a shower room for the employees. The rest of the house consisted of a four-room apartment. An artesian well, located close by, had been drilled for Sterling in 1943. It supplied water to the house and the sheds. From 1943 on, the property was in the possession and control of the defendant, but Sterling was permitted to use the premises for the manufacture of a chemical known as cacodylic acid. The process required large quantities of arsenic trioxide, a fine white powder which is partially soluble in water. This chemical is a poison of great toxic potentialities.

The defendant was organized as a corporation in 1942. Although Sterling provided all of its paid-in capital, he did not become one of its stockholders. All of the shares of stock except those given to qualify two other persons as directors were owned by his father-in-law, William H. Parks. Although the defendant was the lessee of the property, the entire operation of the plant was directed and controlled by Sterling. All of the men working there, including the plaintiff, were employees of Sterling. He paid their wages and withheld such deductions for social security and income taxes as were required by law. The only person on the defendant's payroll was its president, Parks. The defendant was not engaged in any trade or business.

The shed immediately adjoining the house was used by Sterling as a mixing room to blend the chemical components. Occasionally some of the arsenic trioxide was spilled and some, escaping as dust into the atmosphere, settled on the concrete floor, which was frequently washed down with a hose. The water, with whatever it picked up, was carried off through a drain in the floor to a septic tank close to the house. The overflow from this tank, into which sewage from the house also entered, was discharged into a leaching system of loosely jointed tile pipe, set in course gravel to permit the liquid to soak into the ground. The arsenic which was washed into the septic tank passed into the leaching system without being affected by the biological process occurring in the septic tank. The ground was further contaminated as the result of the practice of storing arsenic-tainted waste products in drums set out in the open on the ground. The drums became corroded and their contents frequently leaked out. The soil around the premises was coarse, sandy and gravelly to a depth of four feet. Below was limestone bedrock. The artesian well had been drilled through this rock to a depth of ninety-seven feet. It was equipped, for thirty feet, with a steel casing sealed to the limestone with cement. Throughout the underlying bedrock there were numerous cavities, cracks and fissures which made conditions on the property ideal for the transmission of any water-soluble substance, such as arsenic trioxide, from the ground into the water feeding the well.

On April 3, 1947, Andrew Popp moved into the apartment, which, until that time, had never been occupied. On the following day he became ill. His illness continued unabated, and after living in the house for a month he left. It was later discovered tht he was suffering from arsenic poisoning. When he moved out, the defendant sublet the apartment to the plaintiff under an arrangement that he would pay the agreed weekly rent of $8 by working for Sterling eight extra hours each week on the chemical operations. He did not immediately bring his wife and child to West Redding. The apartment needed to be cleaned up, and, in addition, he wanted to make certain repairs to it. He continued to commute until he had finished these tasks. On June 15 he and his family moved into the house. A few days later he became ill. His condition grew so serious that he left at the end of the week with his wife and child. He entered a hospital, where it was found that he was afflicted with arsenic poisoning. Arsenic is a cumulative poison. Some persons have a greater tolerance for it than others. At times there is a lag between ingestion and the onset of symptoms. Very minute quantities are capable of producing poisoning. An analysis of the water in the well made on June 25 revealed the presence of 50 milligrams of arsenic per liter. The plaintiff had consumed water from faucets in the apartment from the time he obtained the lease in May. He had also drunk on occasions from faucets in the plant during the entire period of his employment.

After the plaintiff became sick, Sterling notified his workmen's compensation insurer of the illness. The defendant fied no such report, although it had accepted the terms of the Workmen's Compensation Act, Gen.St.1949, § 7416 et seq., and was subject to its provisions. The only relationship between the plaintiff and the defendant was that of tenant and landlord.

The plaintiff claimed that the defendant permitted a nuisance to be created and maintained on premises under its control; that it was negligent in allowing others to discharge arsenic on the ground, in failing to test the water from time to time, and in failing to warn the plaintiff that the water in the well might become contaminated; and that he was not guilty of contributory negligence and did not assume the risk of poisoning by drinking water.

So far as they are material to a review of the court's charge, the facts which the defendant offered evidence to prove and claimed to have proved are the following: In 1942 Sterling organized the defendant in order that it might engage in the chemical business at West Redding. It began to manufacture a crude grade cacodylic acid under the supervision of its president, Parks. It bought most of its raw materials from Sterling, to whom it sold all of its manufactured products at a price so set as to preclude the making of a profit. The plant was under the complete charge of Parks until he became incapacitated in 1946. Thereafter, Sterling took over the general supervision and directed and controlled all operations for the defendant. He did all of the hiring. He paid the wages of the defendant's employees with his own money and personally retained the deductions incidental to a payroll. He charged the defendant for disbursements thus made. All of his activities at West Redding were performed for the defendant and not for himself.

Extensive precautions were taken to ensure the safety of those handling the arsenic. Rules were posted and an established routine of personal hygiene was set up. The employees were furnished with special working clothes and gloves. Dust masks and gas masks were provided as a protection against the powdered chemicals and fumes. Signs on the walls stressed the importance of washing before meals. Inspections of the premises were regularly made by the state department of health, but no order was ever received to change the operational procedure at the plant.

In March, 1947, Sterling hired the plaintiff to work for the defendant. The plaintiff was given full information of the nature of his job and of the danger of poisoning. In May, he asked Sterling for the use of the apartment. It was agreed that the plaintiff could have the place as long as he kept the grounds and building in good condition. He was to act as a watchman, take care of the furnace, clear away the brush and perform similar additional tasks. He was expected to work eight hours each week on these chores. He was thoroughly familiar with the dangers of arsenic poisoning. He was injured by his own negligence and assumed the risk. Although the defendant, through Sterling, sublet the...