Hampton v. Loper
| Citation | 402 S.W.2d 825 |
| Decision Date | 08 April 1966 |
| Docket Number | No. 8466,8466 |
| Parties | Wilbur HAMPTON, Plaintiff-Respondent, v. Ruth LOPER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Marvin E. Jones, Powell, Jones & Ringer, Dexter, J. Lee Purcell, Hyde, Purcell & Wilhoit, Poplar Bluff, for defendant-appellant.
Joe C. Welborn, James E. Spain, Briney, Welborn & Spain, Bloomfield, for plaintiff respondent.
This is an action to recover damages for personal injuries sustained as a result of a termite spraying operation. The plaintiff had judgment on a jury verdict in the sum of $1,500.00, and the defendant has appealed.
In September 1963, the plaintiff and his wife lived in one of three rental houses owned by the defendant. They rented the house on a month-to-month basis, and at the time in question they had lived there 'around twelve years.' Nothing is shown about the size or construction of the house other than that it had a living room, a kitchen, a bathroom, at least one 'back bedroom,' and no basement.
The work involved--the termite spraying operation--was done by Mr. Charles Bradshaw, who said he had been in the termite spraying business for about twelve years and 'worked' the area regularly. A day or two before the actual spraying was done, either Mr. Bradshaw or one of his employees asked the defendant's permission to inspect her property to determine if the houses were infested with termites. Finding that all of them were, Mr. Bradshaw solicited the job of extermination. The agreement with Bradshaw was oral; Mrs. Loper's description of it was that 'the three houses were to be termited and I was to pay him a certain sum, and that was all there was * * *.' Mr. Bradshaw selected the exterminating compound, applied it with his own equipment, and was assisted by his own employees. He also undertook to guarantee his work in advance. Before he began his work, Mr. Bradshaw presented Mrs. Loper with a 'Warranty Bond,' a writing which represents that 'the chemicals used by the Bradshaw Termite Control for Termite Extermination are guaranteed to be highly toxic to subterranean termites and other wood eating insects and to be entirely effective for the control of such pests,' and goes on to state that if reinfestation of the property should appear within five years the warrantor will treat the property again without cost. It does not appear that there was any discussion between Mrs. Loper and Mr. Bradshaw about the methods of applying the pesticide, nor that Mrs. Loper had any knowledge, through past experience or otherwise, of the nature of the extermination process or of the chemical compound to be used, other than such information as may have been imparted by the 'Warranty Bond.'
On September 18, 1963, using a compound known as chlordane, diluted eighty to one with water, which he applied with his own equipment and with the assistance of his own employees, Bradshaw undertook to exterminate the termites in the house occupied by the plaintiff and his wife. The record is not at all clear as to where the chemical was applied; there are some references to the 'understructure' of the house, and it is inferable that Bradshaw went under the house to spray the foundation and the subfloor. He applied the diluted chlordane with a power sprayer and, depending on whether one accepts his trial testimony or his pre-trial deposition, used either eighty gallons or two hundred gallons of the emulsion.
Mr. Hampton and his wife were both employed, and on September 18, 1963, when the extermination work was done, they were away from home. When they returned in the afternoon, about 5:00 P.M., they immediately entered the house and 'noticed a strange odor.' Mr. Hampton then went to the 'back bedroom' and turned on an exhaust window fan. He then went to the kitchen and ate a piece of apple pie which his wife had baked that morning before leaving home. The pie was sitting on a kitchen cabinet near the sink, which was near an open window. After eating the pie, Mr. Hampton went to the 'back bedroom' to take a nap, but within fifteen, possibly thirty, minutes he became violently ill. There is no question that Mr. Hampton was ill for some time after this incident, and there was medical evidence that Mr. Hampton had been poisoned by the spray.
Originally, the plaintiff joined Mr. Bradshaw, Mrs. Loper and the distributor of the pesticide as defendants, setting up in his petition Mrs. Loper's negligence in failing to inform him of the spraying operation, Mr. Bradshaw's negligence in applying the pesticide, and the supplier's negligence in labeling it, all as direct causes of his injuries. On motion, the case was dismissed as to the supplier, and at the close of all the evidence the plaintiff voluntarily dismissed without prejudice as to Mr. Bradshaw. The cause went to the jury solely upon Mrs. Loper's negligence in failing to warn the plaintiff of the presence of chlordane on the premises, and recovery was predicated upon the defendant's actual or constructive knowledge that chlordane is a poisonous and toxic substance to human beings, and her constructive knowledge that the spraying operation was likely to be dangerous to the plaintiff. The defendant filed a motion for directed verdict at the close of all the evidence, on the ground that there was no evidence of any...
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