Eddy v. Missouri Public Service Co., 22590

• Decision Date: 06 January 1958
• Docket Number: No. 22590,22590
• Citation: 309 S.W.2d 4
• Parties: Mildred EDDY, Respondent, v. MISSOURI PUBLIC SERVICE COMPANY, a corporation, Appellant.
• Court: Missouri Court of Appeals

Page 4

309 S.W.2d 4

Mildred EDDY, Respondent, v. MISSOURI PUBLIC SERVICE COMPANY, a corporation, Appellant.

No. 22590.

Kansas City Court of Appeals, Missouri.

Jan. 6, 1958.

F. L. Thompson, E. E. (Tom) Thompson, Sam Mandell, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, W. T. Bellamy, W. T. Bellamy, Jr., Marshall, for appellant.

Robert D. Johnson, Herbert F. Butterfield, Johnson & Butterfield, Marshall, for respondent.

HUNTER, Judge.

This is an appeal by defendant, Missouri Public Service Company, from a judgment entered on a jury verdict for plaintiff, Mildred Eddy, in the sum of $500 for personal injuries allegedly resulting from her inhalation of a natural gas odorizer negligently permitted by defendant to saturate the air where she was working.

Defendant utility distributes natural gas in the City of Marshall, Missouri. This natural gas, purchased by it from the pipelines of Cities Service Pipeline Company, has no odor, and its presence cannot be discovered by sight, smell or taste. According to the evidence, defendant is required by law as a safety measure to add to this natural gas an odorizer so as to make its detection possible if it should escape through pipe leaks or otherwise. The odorizer used by the utility was made by the Natural Gas Odorizing Company of Texas. According to the uncontroverted testimony of its chemical engineer, this odorizer, known as captan, consists of approximately 53 per cent captan, which is a petroleum product something like gasoline, 34 per cent sulphur and about 11 per cent hydrogen, all bound up in a molecule. The product has a very distinctive odor, and one gallon of it will properly odorize one million cubic feet of natural gas. Defendant maintains a border station at the west edge of Marshall where the gas is taken from the larger pipeline to the smaller feeder lines that go into the City to defendant's customers. It is at this station that defendant maintains underground a 30-gallon tank to hold the captan which as a result of a mechanical arrangement is mixed with the natural gas that goes on to these customers. There is a small 'filler pipe' running from several feet above ground directly into this 30-gallon tank. When defendant wishes to refill the captan tank as is necessary about three times a year, one of its employees pours the captan from a 5-gallon container into the filler pipe with the aid of a funnel.

James Martin, gas foreman of defendant utility company, testified that on July 7, 1954, he undertook to replenish the captan tank. Oliver Yates, a fellow employee, was with him. Martin first unloosened the cap on the steel container of the captan. He poured the captan into a 5-gallon container. He then unloosened the cap on top of the filler pipe, and with the aid of a funnel proceeded in this manner to pour a total of ten gallons of captan through the filler pipe into the 30-gallon underground captan tank. The entire process took between fifteen and twenty minutes. During that time the captan being poured was exposed to the air. He was asked if any was spilled there that morning and answered, 'Oh, there might have been two or three drops, something like that,' and that he was 'awfully careful.'

According to other evidence, on this same morning captan odor was very noticeable to many persons in the central section of Marshall. Wind from the southeast was bringing the odor from the border station to the town. John Hughes, news editor of a Marshall Radio station, while on the street outside the courthous in Marshall smelled this odor of gas (captan) and 'thought perhaps there would be a story in it, in that a gas main had broken, and * * * checked it with Turner (defendant's manager). Mr. Turner told me that there was no trouble whatsoever, outside of the fact that in putting in this chemical, captan, in the tank south of town, or west of town-west of town, some of it had spilled over.' Doris Blackerby, employed by defendant was asked 'Could you smell it very plainly and easily up on the square (of Marshall) here? A. Yes, I would say so.' Mrs. Edwin Smith, a witness for defendant, testified that on the morning in question she smelled the odor of gas all through the house, and also outside. She called out several of her neighbors who also smelled it. She called defendant utility company to report what she thought might be a leak. She had lived in the same place thirteen years. She couldn't remember if she had smelled it on previous occasions but if she did, 'it wasn't anything like that.' 'Q. And it was particularly strong, was it not? A. Yes. Q. It permeated your house? A. Well, I could smell it all through the house.'

On this same morning plaintiff, age forty, was doing her customary work of grading eggs at the Phillips Poultry Company plant in Marshall. This plant was located 5,029 feet to the east and north of the border station. She and another employee, Mrs. Stolberg, were working in a room about 50 to 55 feet long, north and south, 8 to 10 feet wide with an 8 or 10 foot ceiling. The room was kept dark and the doors closed to aid in the work being done. It had only two windows. One, on the north wall, was occupied with a 3-foot intake fan which pulled air from the outside through a small water mixture into the room. The other window, toward the south, permitted the cool air to go on to another worker located in another room.

Plaintiff testified in substance as follows: Commencing at 8:00 a. m. she was working in the center of three spaces provided for workers. It was a very hot day. There was a small fan on the table northeast of her blowing toward her and directly in her face, and another fan on the floor between her and Mrs. Stolberg. about 10:00 a. m. plaintiff and Mrs. Stolberg both smelled the odor of captan. According to plaintiff the odor seemed to be coming from the outside, drawn in by the large window intake fan. She immediately got a severe headache, sick at her stomach, dizziness, couldn't see straight, had difficulty in breathing, broke out in a cold sweat, was awfully hot, and it seemed like her arms wouldn't work, and that she was getting numb. She was assisted to the office and placed on a cot. According to Ted Phillips, plaintiff's employer, who then went into the grading room, it did smell like gas there, and the gas office was called and a man came out and didn't find any gas leaks. The odor seemed just as severe to plaintiff even outside her work room. It was all over the plant. Dr. Lawrence was called. On arrival, he sent her to Fitzgibbon Hospital. While there she experienced difficulty in breathing, her chest hurt, she had severe headaches, and was very nervous, had numbness in her legs and arms and her back hurt. The first day she was given oxygen. She remained in the hospital five days. She was off from her work four or five weeks. She still has nervousness, headaches, sinus trouble, some numbness in her legs and trouble in her back. Other than a little prior nervousness she had never had any of these complaints before she 'had that gas'. The hospital records for July 7, 1954, stated: '* * * patient was brought to hospital, nausea and vomiting; weakness and perspiring and feeling quite sick * * *.' She testified she had a little nervousness prior to July 7, 1954, but no other trouble before that. She had a hysterectomy five years ago and was operated on for a thyroid cyst in April, 1954. She had a repair operation prior to the hysterectomy and in July, 1955, was confined in the hospital for thirty-two days for sciatica and was given traction.

Plaintiff's witness and physician, Dr. Lawrence, who examined her shortly after she became ill at her place of employment found 'her pulse fast and she was perspiring and very cold.' '* * * From the history she gave, she told me she inhaled some gas from a fan--I mean an exhaust fan of some type. From the history she gave--I can't identify the gas--but from the history she gave I felt this patient inhaled some type of gas which I was unable to determine. The results were only temporary. The patient felt badly for a few days. There was some irritation of the chest for several weeks, and as far as I was able to determine from physical examination and x-ray there was no trouble or residue following this episode of July 7th.' Later in his testimony he stated that people who are in shock, whether from gas inhalation or injury, become cold and clammy, are short of breath, weak, nervous, perspiring, sick at the stomach, have thready pulse, headache; that plaintiff said she noticed a peculiar odor from the intake fan, and her head began to ache and she noticed dizziness, and became sick at her stomach. When asked on cross-examination to explain how plaintiff could have been made ill and her fellow employee working in the same room the same length of time who was also exposed to the exhaust fan did not become ill, he replied: 'Well, everybody is a little different; it might affect me differently than it did you. You might be able to stand a lot, and after you got fresh air you might be able to go on; somebody else might get a whiff and it would make them sick, and for a day or so.

'Q. Wouldn't it be because that particular individual was particularly sensitive? A. It might be possible; everybody is different; everybody is sensitive to one thing or another.

'Q. I believe you doctors call it idiosyncrasies? A. That's right.

'Q. That would be your logical opinion if others were similarly exposed to it and did not become ill? A. Very possible.

'Q. That she had an idiosyncrasy to the particular odor, is that right? A. That's right.'

On behalf of defendant, the chemical engineer for the Natural Gas Odorizing Company, who held a degree of Bachelor of Science in chemical engineering, testified that there was no poisonous ingredient or element in the product, and that about twenty employees of the Natural Gas Odorizing Company handled captan, day in and day out, and that he...