Lindroth v. Walgreen Co.

• Court: Appellate Court of Illinois
• Writing for the Court: SCANLAN
• Citation: Lindroth v. Walgreen Co., 338 Ill.App. 364, 87 N.E.2d 307 (Ill. App. 1949)
• Decision Date: 14 June 1949
• Docket Number: Gen. No. 44152.
• Parties: LINDROTH v. WALGREEN CO. et al.

338 Ill.App. 364

87 N.E.2d 307

LINDROTH

v.WALGREEN CO. et al.

Gen. No. 44152.

Appellate Court of Illinois, First District, Second Division.

June 14, 1949.

Appeal from Superior Court, Cook County; John J. Lupe, 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 injuries received by the minor as result of burns received in a fire allegedly caused by a vaporizer manufactured by the Knapp-Monarch Company and sold by the Walgreen Company. From a judgment for plaintiff, the defendants appeal.

Judgment affirmed.Lord, Bissell & Kadyk, Chicago (Gordon R. Close, Leonard F. Martin, Chicago, of counsel), for appellant Walgreen Co.

Werner W. Schroeder, Querrey & Harrow, Chicago (Werner W. Schroeder, Corwin D. Querrey, Joseph Harrow, Theodore W. Schroeder, James E. Hastings, Chcago, of counsel), for appellant Knapp-Monarch Co.

Joseph D. Ryan, Louis P. Miller, Chicago, for appellee.

SCANLAN, Justice.

An action on behalf of Bruce Lindroth, a minor, against Knapp-Monarch Company, the manufacturer, and Walgreen Company, the seller, of a certain vaporizer, for damages for personal injuries to plaintiff as the result of burns received in a fire which plaintiff claims was caused by said vaporizer. In a previous trial, at the close of plaintiff's evidence, a verdict was directed for both defendants and judgment was entered thereon. Plaintiff appealed to this court and we reversed the judgment and remanded the cause for a new trial as to both defendants, see 329 Ill.App. 105, 67 N.E.2d 595. Upon the present trial the jury returned a verdict against both defendants for $65,000, and judgment was entered thereon. Defendants jointly and severally appeal.

Upon the appeal from the judgment entered in the first trial the sole question before us was, under the facts and circumstances in evidence, Did plaintiff make out a prima facie case against defendants? After a review of the facts and circumstances in evidence we held that plaintiff made out a prima facie case against both defendants. As the facts proved by plaintiff in the first trial were substantially proved upon the second trial, we quote from our opinion upon the first appeal in order to show the pertinent facts and circumstances in evidence, 329 Ill.App. at pages 107-111, 67 N.E.2d at page 597.

‘* * * 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 [the vaporizer in question] 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 dolls'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. Fischer, 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.

“* * *

“The element 76 is a stop for limiting excessive movement of the button 76 inwardly. The thermal cutout is set so as to trip when the heating element H attains a temperature somewhat above the boiling point of the water so that after the water has boiled away and the heating element becomes excessively heated, it will be de-energized by the thermal cutout tripping, but the thermal cutout will not trip as long as water remains in the receptacle 12 and thereby keeps the temperature of the heating element sufficiently low.'

‘Wilder A. Chapman, manager of the laboratories of the Robert W. Hunt Company, testing engineers, and a man of wide experience in testing materials and devices of all sorts, testified for plaintiff. He stated that he was familiar with vaporizers that are used to give off vapors or fumes used in the household for the purpose of treating colds or bronchitis or asthma or diseases of the throat and lungs; that he was familiar with the type of vaporizer known as Knapp-Monarch Kwikway; that a thermal cutout is a device which, by expansion, will break an electrical circuit, that the purpose is to prevent overheating of an electrically operated device; that such a device has been known to the trade for a considerable number of years before 1936; that such a device is practical in installation; that thermal electric cutouts have been used for a good many years in a variety of appliances; that ‘I have used them for many years in preventing overheating of laboratory ovens which are left unattended for a considerable period of time. They are used in electric flatirons. They are used in refrigerators. And very commonly used in electrical devices to prevent overheating. From my own observation, they do prevent overheating, and they do function properly. There are a number of types of cut-outs. One very common type consists of two...