Kapp v. EI Du Pont de Nemours & Co.

• Decision Date: 07 August 1944
• Docket Number: No. 3476.,3476.
• Citation: 57 F. Supp. 32
• Parties: KAPP v. E. I. DU PONT DE NEMOURS & CO., Inc.
• Court: U.S. District Court — Western District of Michigan

57 F. Supp. 32

KAPP v. E. I. DU PONT DE NEMOURS & CO., Inc.

No. 3476.

District Court, E. D. Michigan, S. D.

August 7, 1944.

COPYRIGHT MATERIAL OMITTED

Kerr, Lacey & Scroggie and Wilfrid C. Dilworth, all of Detroit, Mich. (Elmer H. Groefsema, of Detroit, Mich., of counsel), for plaintiff.

Butzel, Eaman, Long, Gust & Bills, Rockwell T. Gust, and Addison D. Connor, all of Detroit, Mich. (Carl E. Geuther, of Philadelphia, Pa., of counsel), for defendant.

LEDERLE, District Judge.

This is an action in which plaintiff, Elmer Dennis Kapp, a citizen of Michigan, seeks to recover damages in the amount of $200,000 from the defendant, E. I. Du Pont de Nemours & Co. Inc., a Delaware corporation, arising out of a chemical explosion in which plaintiff's vision was destroyed. Defendant corporation being regarded as a citizen of the state which created it, Sun Printing & Publishing Ass'n v. Edwards, 194 U.S. 377, 24 S.Ct. 696, 48 L.Ed. 1027, this court has jurisdiction of the action as a controversy between citizens of different states involving more than $3,000. 28 U.S.C.A. 41(1). For brevity, said defendant will be hereinafter designated as "Dupont".

The cause of this explosion was the violent release of gas pressure which had formed within a closed 5 gallon glass bottle of aqua ammonia. The product, known in the trade as "28% Aqua Ammonia," was aqua ammonia 29.4% or 26°, a solution of ammonia in water. Ammonia is a colorless gaseous compound of nitrogen and hydrogen, NH3 Aqua ammonia is volatile, alkaline and caustic. In commercial handling of aqua ammonia, there is practically always some slight liberation of ammonia gas out of the solution. The application of heat accelerates the gas release. When confined in a closed container, this process tends to develop gas pressure greater than normal air pressure, making imminent an explosion, the force of which will be in proportion to the degree of gas pressure developed. This propensity renders aqua ammonia dangerous unless stored in a cool place.

To avoid the mild explosions, evidenced by "popping" of stoppers, commonly encountered in normal handling of aqua ammonia, it is customary to control the slight gas pressure which usually develops by leaving a free air space in the container, securely fastening the container's stoppers, and, in opening, to loosen the stopper slowly permitting a gradual and orderly exhaustion of the gas.

At the time of this unfortunate occurrence, plaintiff, who was then a minor, had been in the employ of Detroit Steel Products Company, at Detroit, for some 5 months as a helper operating a blueprint machine. Shortly before, plaintiff's employer had commenced using aqua ammonia in developing blueprints. On the afternoon in question, plaintiff's superior instructed him to get a gallon of aqua ammonia for the blueprint department. Plaintiff went to the stationery stockroom, where he found a 5 gallon wood-crated glass bottle filled with aqua ammonia, to which was glued a 2 by 2½ inch red and white paper label, inscribed as follows:

"Aqua Ammonia 28% "Poison (skull & cross bones) Caution "External Antidote: Flood with water then with vinegar. "Internal Antidote: Give vinegar or juice of lemon, grapefruit or orange copiously. Follow with olive oil. "Call physician. "Eyes: Wash out with 5 per cent boric acid solution. "Call physician. "Frank W. Kerr & Company "Wholesale Manufacturing Chemists "Detroit, Michigan."

This bottle had remained where plaintiff's fellow employees placed it upon receipt 3 days previously, on a metal-topped table adjacent to twelve 1½ inch steam pipes, which supplied heat for the stockroom. The stockroom was normally kept warm to facilitate printing operations carried on there. Neither plaintiff nor any stockroom employee knew anything about the propensities of aqua ammonia. Plaintiff removed the bottle from the table and placed it on the floor. He bent over it, and was in the act of removing strings securing the rubber stopper when the stopper shot out and about half the contents gushed upward. Part of the fluid struck plaintiff's face and eyes. The stopper and upgushing fluid which did not strike plaintiff reached the ceiling, 12 feet above. Plaintiff received first aid at the plant, and was then removed to a hospital, where he underwent treatment for a considerable period of time. Later, he was treated in an eye hospital in Pennsylvania. His condition did not respond to treatment, and the undisputed proof is, that he has suffered permanent loss of vision as a result of this accident.

The case was originally commenced against defendant Dupont and five other defendants, namely,

Frank W. Kerr & Company, a Michigan corporation, from which company plaintiff's employer obtained the 5 gallon bottle of aqua ammonia 3 days before the accident;

Eaton Clark & Company, a Michigan corporation, from which company the Kerr Company, 10 days before the accident, obtained a 750 pound (110 gallon) drum of aqua ammonia, identified as "Eaton-Clark Company Drum No. 474", out of which the Kerr Company repackaged this 5 gallon bottle;

Three individual citizens of Michigan, who are officers of the Kerr Company.

At the first pre-trial hearing under Rule 16, Rules of Civil Procedure 28 U.S. C.A. following section 723C, this court dismissed the case without prejudice as to all Michigan defendants for lack of jurisdiction because there was no diversity of citizenship between them and plaintiff. See: Kapp v. Frank W. Kerr & Co., D.C., 2 F.R.D. 509. Thereafter, plaintiff instituted a second case in the Wayne County (Michigan) Circuit Court against the defendants here dismissed. Later, plaintiff amended his complaint herein to allege a cause of action against defendant Dupont as sole defendant. At the opening of the trial in the instant case, plaintiff announced that the state court action against the Kerr Company and its officers had been compromised for $19,000, which amount he intended to credit in mitigation of any recovery against defendant Dupont in this case, in accordance with the provisions of the recent Michigan statute which abrogates the common law rule barring suit against one joint tort feasor after settlement with another, namely, Act 303, Public Acts of Mich. for 1941; M.S.A. 27.1683(1) et seq. The state court case against Eaton Clark & Company is still pending.

At the close of plaintiff's proofs, defendant moved for a directed verdict of no cause of action in accordance with Rule 50, claiming that no liability had been established against it. Counsel suggested a written opinion on this motion for assistance in future proceedings.

Plaintiff's counsel conceded that his claim is predicated solely upon a charge of common law negligence. Plaintiff's main reliance is upon the theory of a negligent act of omission on the part of defendant Dupont, namely, a failure to properly label the drum it delivered to Clark Company, which instigated a chain of circumstances proximately causing the accident.

To establish actionable common law negligence in Michigan, plaintiff has the burden of proving each of the following elements thereof: (1) That plaintiff was injured; (2) that plaintiff was free from negligence contributing to his injury; (3) that defendant was negligent; and (4) that defendant's negligence was the proximate cause of plaintiff's injuries. Apparently conceding that plaintiff had introduced evidence sufficient to carry the case to the jury on the first two elements, defendant concentrated its argument on the proposition that plaintiff's proofs fail to establish either of the latter two elements.

As stated in Eaton v. Consumers Power Co., 256 Mich. 549, 552, 240 N.W. 24, 25:

"There is no direct evidence of want of care on the part of the defendant. If negligence is found, it must be on presumption arising from the conditions and circumstances attending the accident. The rule of res ipsa loquitur is not recognized in Michigan; so that the mere fact that the accident happened is no evidence of negligence. But the plaintiff is not restricted to direct evidence. A want of care may be presumed from established facts and circumstances. * * * In the instant case, the question is whether the record shows facts and circumstances of a nature to raise a presumption that the accident would not have happened save for a want of care on the part of the defendant. Such a presumption would make a prima facie case for the plaintiff."

Negligence is defined in Mikulski v. Morgan, 268 Mich. 314, 316, 256 N.W. 339, as, a "want of due care; the failure to exercise that degree of care and caution which an ordinarily prudent person usually exercises under the same or similar circumstances."

The case of Southern R. Co. v. Chatman 124 Ga. 1026, 53 S.E. 692, 697, 6 L.R.A., N.S., 283, 289, 4 Ann.Cas. 675, defines actionable negligence as, "the unintentional failure to perform a duty implied by law, whereby damage naturally and proximately results to another."

At the outset, for one to be guilty of actionable negligence, there must be a duty owing to the injured person, which duty has been violated. In other words, paraphrasing, to fit plaintiff's position in the instant case, a statement in Kelly v. Michigan Cent. R. Co., 65 Mich. 186, 190, 31 N.W. 904, 8 Am.St.Rep. 876:

"Negligence in law is a relative term, and implies the non-observance of, or omission to perform, a duty which is prescribed by law, or which arises from the situation of the parties and circumstances surrounding a transaction. There is no provision of law * * * requiring a manufacturer to affix a warning label to drums of aqua ammonia which it sells. If a duty arises, the non-observance of which would be negligence in defendant, to * * * so label, it must spring from the situation of the parties and the circumstances of the case."

It is plaintiff's theory that there was no label, warning handlers of the product's propensities and as to proper methods of handling and...