Lindroth v. Walgreen Co.

• Citation: 67 N.E.2d 595,329 Ill.App. 105
• Decision Date: 12 June 1946
• Docket Number: Gen. No. 43011.
• Parties: LINDROTH v. WALGREEN CO. et al.
• Court: United States Appellate Court of Illinois

329 Ill.App. 105

67 N.E.2d 595

LINDROTH

v.WALGREEN CO. et al.

Gen. No. 43011.

Appellate Court of Illinois, First District, Second Division.

May 29, 1946.

Rehearing Denied June 12, 1946.

Appeal from Superior Court, Cook County; Frank M. Padden, Judge.

Action by Bruce Lindroth, a minor, by Alban Lindroth, his father and next friend, against the Walgreen Company, a corporation, and the Knapp-Monarch Company, a corporation, to recover for burns sustained by the plaintiff because of allegedly defective vaporizer manufactured by the Knapp-Monarch Company and purchased from the Walgreen Company. From a judgment on a directed verdict for defendants, the plaintiff appeals.

Judgment reversed in toto and cause remanded for a new trial as to both defendants.Ryan, Sinnott & Miller, of Chicago, for appellant.

Crowin D. Querrey and Joseph Harrow, both of Chicago, for appellee Knapp-Monarch Co.

Lord, Bissell & Kadyk, of Chicago, for appellee Walgreen Co.

SCANLAN, Justice.

An action brought on behalf of Bruce Lindroth, aged fourteen months at the time of the accident, against Knapp-Monarch Company, the manufacturer, and Walgreen Company, the seller, of a certain vaporizer. At the close of plaintiff's evidence the trial judge directed a verdict for both defendants and plaintiff appeals from a judgment entered upon the verdict.

Plaintiff's complaint alleges, in substance, that defendant, Knapp-Monarch Co., negligently manufactured and sold, with knowledge that it would ultimately be offered for sale to the general public, a ‘Kwikway’ vaporizer which was defective in that it was likely to melt and set fire to nearby objects and thereby cause persons using it to be severely burned; that said defendant failed to provide any device or means by which the electric current used in its operation would be cut off or disconnected automatically before the vaporizer reached a temperature at which it would set fire to surrounding objects. The complaint alleges that Walgreen Company, the seller of the vaporizer, negligently breached its express warranty that the vaporizer was reasonably safe and fit for the purpose for which it was to be used and that the mother of the infant, who purchased the vaporizer, purchased it in reliance on said warranty.

Plaintiff strenuously contends that he proved a case against both defendants by direct and circumstantial evidence and that the action of the trial court in directing a verdict for defendants amounts to a miscarriage of justice.

“A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff's declaration. In reviewing the action of the court of which complaint is made, we do not weigh the evidence; we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414, 99 N.E. 687;McCune v. Reynolds, 288 Ill. 188, 123 N.E. 317;Lloyd v. Ruch, 273 Ill. 489, 113 N.E. 122.'Hunter v. Troup, 315 Ill. 293. 296, 297,146 N.E. 321, 322.'Rose v. City of Chicago, 317 Ill.App. 1, 12, 45 N.E.2d 717, 722.' See, also, Mahan v. Richardson, 284 Ill.App. 493, 495, 1 N.E.2d 100;Thomason v. Chicago Motor Coach Co., 292 Ill.App. 104, 110, 10 N.E.2d 714;Wolever v. Curtiss Candy Co., 293 Ill.App. 586, 597, 13 N.E.2d 197;Olympia Fields Club v. Bankers Indem. Ins. Co., 325 Ill.App. 649, 656, 60 N.E.2d 896.

Plaintiff had the right to prove his case by direct or circumstantial evidence. In criminal as well as in civil cases a verdict may be founded on circumstances alone. See Norkevich v. Atchison, T. & S. F. Ry. Co., 263 Ill.App. 1, 5, 6 (appeal denied by Supreme Court, id. xiv), and cases cited therein. See, also, Gardner v. Railway Express Agency, 274 Ill.App. 626, 631. Other cases to the same effect might be cited if it were necessary.

Observing the rules that govern us in our consideration of this appeal, we find the following facts and circumstances in evidence: Bruce Lindroth was injured on May 8, 1940. A vaporizer is a vessel heated by electricity, which is designed to direct medicated vapor in concentrated form toward the patient. The child's mother had previously owned another vaporizer, somewhat smaller than the ‘Kwikway’ vaporizer and of a different model, which had a cut-off or safety device which automatically disconnected the current when it became too hot, thus preventing overheating, with its attendant dangers. This vaporizer had been broken and the mother decided to buy another in order to treat the child, who had a cold. She went to her local Walgreen store and asked for a vaporizer, and the clerk showed her one. The vaporizer was in a cardboard box, which the clerk opened. The mother (hereinafter called Mrs. Lindroth) stated that she had never heard of the ‘Kwikway’ brand and asked the clerk if there was a ‘shut-off’ on it. The clerk told her that it had no shut-off, but that the vaporizer ‘is good for about two hours.’ ‘It holds enough water, it can't boil down.’ Mrs. Lindroth then asked the clerk: “Well, are you sure it doesn't have to be watched all the time.' I said, ‘I have one at home that has an automatic shut-off on it, and I have never had any trouble with it. Will this be safe to leave?’ She said, ‘Yes, I am sure it is safe for at least two hours.” Mrs. Lindroth testified that she bought the vaporizer because she relied upon the statements made by the clerk; that after returning home she took Bruce into the bathroom, sponged him off, and rubbed him with camphorated oil; that before doing this she opened the box containing the vaporizer, read the directions, and tested the vaporizer. On the outside of the carton in which the vaporizer was packed appeared the words: ‘Quick, safe, no-flame, electrical.’ A circular containing directions was packed with the vaporizer and Mrs. Lindroth read it before she used the vaporizer. In the circular appears inter alia, the following: ‘No danger from flame.’ After bathing Bruce Mrs. Lindroth put him to bed clad in a ‘snuggle bunny,’ a garment which fastened around the baby and was made fast to the bed. Mrs. Lindroth set the vaporizer on a stool, or doll's high-chair, which was alongside the bed and about two feet distant from it. She then applied some medicine on the cotton pad in the spout, put the top on the vaporizer, having already filled the vaporizer with warm water up to an inch or an inch and a half from the top, in accordance with the written directions, and then connected the vaporizer with the electric current. She stood there until the vapor was coming out of the spout, saw that it was pointed in the right direction, and then left the room. After performing some household duties downstairs she went upstairs to the room where Bruce was, saw that he had just finished his orange juice and was turning over on his stomach to go to sleep. The vaporizer was then working all right. She then went downstairs and performed some household duties and talked with a Mrs. Kays, a friend. About forty-five minutes after the time that she had looked into the bedroom and saw that everything was all right, a neighbor ran over to the Lindroth home and told her that there was smoke coming out of the bedroom upstairs. Mrs. Lindroth rushed upstairs, opened the bedroom door, and discovered the bedroom in flames. The stool, or high-chair, on which the vaporizer stood was partly burned, the curtains in the room were burning, also the bed clothing, the crib and the ‘snuggle bunny.’ Plaintiff's evidence also tended to prove that within the forty-five minutes that elapsed from the time the current was applied until the fire was discovered a considerable part of the vaporizer had burned or melted away. On the bottom of the vaporizer several patent numbers appear: ‘Pat.Nos. 1,976,939 2,061,148.’ Plaintiff introduced in evidence as an exhibit a certified copy of letters patent issued by the United States Patent Office on November 17, 1936, to Knapp-Monarch Company. The certificate of the Commissioner of Patents certifies: ‘This Is To Certify that the annexed is a true copy from the records of this office of the Letters Patent of William H. Fischer, assignor to Knapp-Monarch Company, Number 2,061,148, Granted November 17, 1936, for Improvement in Vaporizers.’ (Italics ours.) Attached to the certificate is a copy of the application for the proposed improvement to the vaporizer. The certificate shows that this application was filed by ‘William H. Fisher, St. Louis, Mo., assignor to Knapp-Monarch Company, St. Louis, Mo., a corporation of Missouri.’ Attached to the application is a drawing of the proposed vaporizer and specifications in reference to the same, the drawing showing the proposed cutout. The application contains, inter alia, the following:

‘When the water W in the receptacle 12 has been completely vaporized, there is danger of overheating and damaging the heating element H. I therefore provide a thermal cutout comprising contact springs 66 and 68. These are mounted on and insulated from brackets 70 and 72 respectively which are secured to the bottom plate 20 and project upwardly therefrom. The spring 68 is of bimetal so that upon its being heated to a predetermined temperature it will warp to the dotted line position in Figure 3, thus releasing the spring 66 and allowing it to assume its dotted position, thus breaking the circuit between the free ends of the springs 66 and 68. The springs, it will be noted by referring to Figure 6, are included in series circuit with the heating element H whereby energization thereof is discontinued when the thermal cutout trips.

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