Gall v. Union Ice Co.

• Decision Date: 21 December 1951
• Docket Number: No. 14781,14781
• Citation: 108 Cal.App.2d 303,239 P.2d 48
• Court: California Court of Appeals Court of Appeals
• Parties: GALL et al. v. UNION ICE CO. et al.

Page 48

239 P.2d 48

108 Cal.App.2d 303

GALL et al. v. UNION ICE CO. et al.

No. 14781.

District Court of Appeal, First District, Division 1, California.

Dec. 21, 1951.

Hearing Denied Feb. 18, 1952.

Edward J. Niland, Santa Clara, for appellant, Braun-Knecht-Heimann Chemical Co.

Campbell, Hayes & Custer and Robert E. Hayes all of San Jose, Cal. (Frederick W. Mielke, Jr., San Francisco, of counsel), for appellant, Stauffer Chemical Co.

Keith, Creede & Sedgwick, San Francisco, for respondents.

BRAY, Justice.

From a judgment in the sum of $100,000 in favor of plaintiffs based on a jury verdict, all three defendants appealed. Apparently, however, defendant Union Ice Company ¹ has abandoned its appeal. Our consideration, therefore, is solely of the appeals of defendants Stauffer Chemical Company ² and Braun-Knecht-Heimann Chemical Company. ³

Questions Presented.

In addition to the sufficiency of the evidence as to liability and damages, the main questions are: (1) What is the degree of care required of the producers and sellers of sulphuric acid as regards giving warning to users? (2) What was the proximate cause of the accident?

General Facts.

There is no dispute as to the cause of the accident upon which this action is based. On February 28, 1947, two drums of sulphuric acid were delivered to the San Jose plant of Union. They were purchased by Union from Braun, who, in turn, bought them from Stauffer, the producer. From date of delivery until August 4 the drums were left out in the sun and weather at Union's plant, on which date one of them burst. No one was assigned by Union to care for these drums. They were never opened or vented in any way to relieve pressure. When sulphuric acid comes in contact with the steel interior of the drum, it gradually corrodes the metal, producing hydrogen gas and iron sulphate in the process. The gas causes an increase of pressure inside the drum and sooner or later the drum will burst. Heat hastens the process. It is necessary that these drums be kept out of the sun and that about once a week the bungs be opened, thereby releasing the pressure. The drum that burst was badly bulged before it burst. The other drum was also bulging.

Plaintiffs are the widow and daughter of William T. Gall, Jr., deceased. At the time of the accident he was a sergeant in the United States Army on temporary duty at Union, supervising the purchase of meats for the Army, some of which meats were in storage there. He was standing several feet from the drums when the one burst. He was hit by the head of the drum, receiving injuries from which he died two days later. The main factual dispute is whether when delivered these drums were warning-labeled and whether Union had been warned and knew of the dangerous propensities of sulphuric acid in steel drums and how they should be handled.

Were There Warning Labels, and did Union Know of the Danger?

None of the Braun or Stauffer employees testified to the condition of these drums as to warning labels at the time of delivery. It is the custom among manufacturers and sellers of sulphuric acid to place labels on the drums, instructing users not to store them in the sun or near heat and to vent them at least weekly. The Stauffer plant superintendent testified that he personally inspected every drum in the shipping pile to make certain it had the warning label; that no drum of sulphuric acid ever went out of the plant without having a label pasted to it, stating, 'Keep the plug up to prevent leakage, do not drop, keep drum out of sun, and away from heat; relieve internal pressure when received and at least weekly thereafter by slowly loosening plug.' It was Stauffer's custom and practice to place warning paper labels on the drums with 'tin paste.' However, concentrated sulphuric acid falling on paper will quickly decompose and disintegrate it, as well as the glue or paste used. One of the experts for Braun and Stauffer testified that in his opinion the burst drum had been bathed in sulphuric acid. Stauffer's shipping department had been instructed that every drum before being sent out was to have the warning label on it. All drums were shipped out by the Clark Drayage Company whose drivers also checked the labels on the drums and called to Stauffer's attention any labels which were torn or mutilated in loading. One of Stauffer's salesmen said he had seen many drums ready for shipment, but had never seen one that was not labeled. Stauffer advises its customers to vent drums at least once a week. It passes on to its customers circulars and instructions received from the Manufacturing Chemist's Association. Before the war, the district sales manager had prepared a mimeographed sheet condensing the pertinent directions given by the association. This sheet was sent to all Stauffer's customers and is still given to new customers. This stated that drums should be vented weekly by loosening the bung to prevent possibility of explosion. While he was sure one was sent to Braun he could not swear to it. The same applied to a copy of Manufacturing Chemist's Association Manual Sheet D 31 which called attention to the danger of the drum bursting unless internal pressure is periodically vented, and that drums should not be stored in the sum.

The custom and practice of Braun was confined to checking for the labels put on by Stauffer and to replace any which were missing or defaced. The drums are checked for labels when received by the foreman of the warehouse and by the order clerk, and double checked when shipped out. Seldom did a drum come in from Stauffer with the label missing. In checking for labels Braun operated under a number of different regulations and requirements, including those of the Bureau of Explosives, the Federal Caustic Poison Act, 45 U.S.C.A. § 401 et seq., requirements of the State of California on the sale of economic poisons, the Industrial Accident Commission, and the recommendations of the Manufacturing Chemist's Association. The warehouse personnel is given lists of commodities requiring markings, and a part of their duties is to inspect the packages to be sure that the required markings are shown. Braun's customary procedure was to store sulphuric acid drums in a cool place and vent at least once a week. In 1943 the sales manager had sent to all purchasers of sulphuric acid a letter warning them about the proper methods of handling and storing these drums. Braun's salesman kept instruction warning sheets and handed some of these out to his customers. He did not recall whether he had given any to Union.

Stauffer has been selling these drums of sulphuric acid to Braun for over 30 years. Union has purchased 260 drums from Braun since 1931. Thirty-three were bought in the year of the accident and 48 the year before. Union has 50 to 60 plants in California. At its San Jose plant it used about three drums a year.

The chief engineer of that plant was a member of the safety committee of the plant. About a week before the accident he noticed that the ends of both drums were bulged out. He did not report this although he had noticed that the ends were flat when the drums were received and he assumed that the bulging was caused by some sort of internal pressure. After the accident, the ends of the non-bursted drum were found to be very obviously bulged. Its bung could not be loosened because it had become too corroded with iron sulphate. After the accident no warning labels could be found on either drum. Two labels that were not warning labels were found on the drums. They were badly weathered, mutilated and difficult to read. A metallurgical engineer with extensive experience in the handling of sulphuric acid testified that there was an area on the exploded drum which had the 'common appearance of an area bearing a label which has been spattered with sulphuric acid in the glue.' It was an area where Stauffer had customarily attached its warning label.

The Union plant engineer to whom the drums were originally delivered testified that while he saw labels on the drums to the effect that when empty they should be returned, he saw no warning labels, nor did he see any during the entire time the drums were there. He looked the drums over to see if they had any stickers giving their weight and was sure there were no warning labels there. Union's chief engineer, who was then working at the San Jose plant, was present at the delivery of the drums and helped roll them off the truck, testified that there were no warning labels on them, just a label having to do with their return when empty. He examined the drums after the accident and found no warning labels. A licensed private investigator and two testing laboratory engineers, examining the drums for warning labels the day after the accident, found none, nor any indication that there had been any. A salesman for Stauffer examined the burst drum and was unable to find trace of any warning label. The words 'sulphuric acid' were stencilled in large letters across the end of each drum.

There was no evidence that the Union employees knew of the danger of leaving the drums in the sun and unvented. Chief Engineer Graves, chairman of the plant's safety committee, the assistant foreman, and the assistant chief engineer, all testified that they had never received instructions concerning the danger from nor the method of handling the drums, and did not know of such danger.

Our duty on the factual end of the case is to determine whether there is substantial evidence, together with the reasonable inferences therefrom, to support the implied findings of the jury. The testimony of the two Union employees who were present at the delivery of the drums, together with that of a number of the witnesses who examined the drums after the accident, substantially supports the jury's implied finding that there were no warning labels on the drums at the time of delivery to Union, in spite of the testimony of defendants'...