Fort Wayne Drug Company v. Flemion
| Decision Date | 14 April 1931 |
| Docket Number | 13,933 |
| Citation | 175 N.E. 670,93 Ind.App. 40 |
| Parties | FORT WAYNE DRUG COMPANY v. FLEMION |
| Court | Indiana Appellate Court |
Rehearing denied August 13, 1931.
From Huntington Circuit Court; Summer Kenner, Judge.
Action by John H. Flemion against the Fort Wayne Drug Company. From a judgment for plaintiff, the defendant appealed.
Affirmed.
Arthur W. Parry, for appellant.
Eggeman Reed & Cleland and James P. Murphy, for appellee.
The appellee instituted this action to recover damages of appellant. Trial was before a jury, which returned a verdict in favor of appellee and the court rendered judgment on the verdict. The tenor of the second and third paragraphs of complaint, the first paragraph having been stricken out on motion, was that appellee had received permanent and bodily injuries as a result of burns received from an explosion of benzol; that the benzol was negligently carelessly and mistakenly supplied and furnished by appellant when crude oil was ordered and requested, and that appellant negligently failed to label the container containing the benzol, so that the contents thereof might be known, it being alleged that benzol was a highly explosive, dangerous and inflammable liquid.
Appellant assigns error in overruling its motion for a new trial. The several causes for a new trial, to wit: (1) That the verdict is not sustained by sufficient evidence; (2) that the verdict is contrary to law; (3) errors in the giving and refusal to give certain instructions; (4) errors in the admission of certain items of evidence--all of which are presented.
A resume of the evidence favorable to appellee: That appellee was, on June 23, 1928, the day of his injury, 37 years of age, a steam fitter by trade, earning approximately $ 50 per week in the employ of one Anthony Haberstock, who was engaged in the plumbing business in the city of Fort Wayne, Indiana; that the appellant, on the above-named date, was a corporation, with place of business in the named city and engaged in the sale of drugs, medicines, etc., including crude oil and benzol, both wholesale and retail; that, on the above-named day, the appellee, while in the employ of Anthony Haberstock, was engaged in cleaning a boiler in the basement of a building in the city of Fort Wayne; that the method used by appellee in his work was to take a wire brush, scrape off the soot on the inside of the boiler, then spray crude oil in the fire box and on all parts surrounding the same; that the appellee, on the morning of June 23, 1928, called at the home of his employer and requested that he be furnished and supplied with three gallons of crude oil; that the wife of Anthony Haberstock, Haberstock being absent from the city, directed her son John Haberstock, to whom she gave some currency, and Christ Zimendorf, her brother, to purchase crude oil and deliver the same to appellee; that the son was 12 years of age; that Zimendorf, after receiving the message, went to the shop of Anthony Haberstock and obtained a five-gallon, square tin can, which had been previously used by Haberstock and his employees for the purpose of containing therein a supply of crude oil; that the can was loaded on a truck, and Zimendorf and John Haberstock, the son, proceeded to the place of business of appellant; that the son alighted from the truck, took the can, which was dirty and greasy on the outside, into the drug store, offered the can to an employee of appellant, whose duty it was to take orders, and requested that three gallons of crude oil be placed inside the can; that at the time John Haberstock offered to appellant's clerk the can, it contained therein about one gallon of crude oil, but there were no marks or labels thereon to indicate its contents; that the clerk who received the order made out a request for three gallons of benzol in writing and sent the can and request to the basement of appellant's place of business, where another clerk received the same, filled the can with three gallons of benzol and returned it to the clerk who received the order in the first instance, and John made payment for the purchase, received a receipt therefor and placed the same in his pocket; that the can so filled by appellant's employees did not bear any label or mark on the exterior thereof, or otherwise, indicating the contents therein, and the exterior appearance of the can had not been changed; that Zimendorf did not accompany the boy into appellant's place of business; that the can containing the benzol was placed in the truck and by them delivered to appellee at the building where he was engaged in cleaning the boiler as heretofore stated; that, when the appellee received the can, there were no indications by mark or label thereon to indicate that the same contained benzol; that appellee prepared to spray the interior of the boiler, and, in order to do so, it was necessary that he place a cylindrical pump in the can, which he did through an opening in the top of same; that to the pump was attached a hose and the can was placed in the boiler pit in the front part thereof; that appellee might see where he was spraying the fluid into the interior of the boiler, he made use of an electrical extension cord, one end of which was connected with the electric current and the other end contained an incandescent bulb, and the bulb was thereupon lighted and was hanging over the fire door illuminating the boiler; that appellee proceeded to pump and spray the contents of the can which had been delivered to him by the brother and son, believing at the time the can contained crude oil, and when he had about half of the contents sprayed into the boiler, he noticed and detected by the sense of smell a peculiar odor; he then ceased pumping, took hold of the light cord and, when he was in the act of removing the light attached to the extension cord in order to make an investigation of the peculiar odor, an explosion occurred, enveloping the appellee in fire and flames, severely injuring him; that the extent of the explosion was such that the floor of the gymnasium was raised about six inches; that benzol is colorless, like water--transparent, while crude oil varies from yellow to almost a black in color; that benzol gives off a gas or fume, and if the gas emitted from benzol is confined in a boiler, and a spark is brought into contact with it, an explosion will follow; that the particular substance contained in the can when examined by a chemist disclosed that it contained 80 per cent benzol and 20 per cent crude oil; that the mixture with the proportions above set out, would ignite easily, and would flash at room temperature of 70 degrees Fahrenheit and 22 degrees centigrade and was inflammable, combustible and explosive; that the greater per cent of crude oil in the mixture the less likelihood of an explosion; that it is necessary for the gas emitted by the benzol to come into contact with a spark before an explosion will take place; that if, while withdrawing the cord which conducted electricity through the same to the incandescent light, a spark was emitted therefrom, it would be sufficient to ignite the gas coming from the substance sprayed into the boiler by the appellee; that there was no fire in the basement near or in the boiler or the fire-box thereof at the time of the explosion; that Tony Haberstock had, on many occasions in his business, sprayed crude oil into a boiler for the purpose of covering the castings; that, at such time or times, no fumes arose from the oil while being sprayed and no explosion had ever taken place although he had used a lighted candle for the purpose of illumination and it was his opinion that the crude oil would not explode when sprayed into the boiler in the manner as heretofore set forth, even though it would be brought into contact with a "light."
It is the law that a person engaged in the sale of those articles which are inherently dangerous to human life--a druggist who compounds a deadly poison or one who sells gas, gasoline, gunpowder or dynamite--must so conduct his business as "to avoid acts in their nature dangerous to the lives of others and one who is negligent in the performance of such duty is liable for damages to any person injured thereby." Knoefel v. Atkins (1907), 40 Ind.App. 428, 81 N.E. 600; Weiser v. Holzman (1903), 33 Wash. 87, 73 P. 797; Peaslee-Gaulbert Co. v. McMath's Admr. (1912), 148 Ky. 265, 146 S.W. 770, 39 L. R. A. (N.S.) 465, Ann. Cas. 1913E 392; Davis v. Guarnieri (1887), 45 Ohio St. 470, 15 N.E. 350, 4 Am. St. 548; Tremblay v. Kimball (1910), 107 Me. 53, 77 A. 405, 29 L. R. A. (N. S.) 900, Ann. Cas. 1912C 1215.
It often has been held by appellate tribunals that a druggist who negligently supplies a deadly drug in lieu of a harmless one requested, either by prescription or otherwise, and who fails to label or mark the prescription or the article in order that those who might get hold of it would be warned of its fatal character and injury results from taking it, such negligence being the proximate cause of the injury, will be liable in damages. Davis v. Guarnieri, supra; Peterson v. Westman (1903), 103 Mo.App. 672, 77 S.W. 1015; Fisher v. Golladay (1890), 38 Mo.App. 531; Brown v. Marshall (1882), 47 Mich. 576, 11 N.W. 392, 41 Am. Rep. 728; Tucker v. Graves (1920), 17 Ala.App. 602, 88 So. 40.
in the case of Weiser v. Holzman, supra which is approved by the Supreme Court of the United States in Waters-Pierce Oil Co. v. Deselms (1908), 212 U.S. 159, 29 S.Ct. 270, 53 L.Ed. 453, the Supreme Court of Washington said: ...
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Ft. Wayne Drug Co. v. Flemion
... ... Appeal from Huntington Circuit Court; S. Kenner, Judge.Action by John H. Flemion against the Fort Wayne Drug Company. Judgment for plaintiff, and defendant appeals.Affirmed.Arthur W. Parry, of Ft. Wayne, for appellant.Eggeman, Reed & Cleland and ... ...