Lorenc v. Chemirad Corp.

• Decision Date: 19 March 1962
• Docket Number: No. A--72,A--72
• Citation: 179 A.2d 401,37 N.J. 56
• Parties: Theodore LORENC, Plaintiff-Appellant, v. CHEMIRAD CORPORATION, a corporation, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 56

37 N.J. 56

179 A.2d 401

Theodore LORENC, Plaintiff-Appellant, v. CHEMIRAD CORPORATION, a corporation, Defendant-Respondent.

No. A--72.

Supreme Court of New Jersey.

Argued Jan. 22, 1962.

Decided March 19, 1962.

Bernard Chazen, Hoboken, for plaintiff-appellant (Baker, Garber & Chazen, Hoboken, of counsel, Archie Elkins, Jersey City, attorney).

William L. Brach, Newark, for defendant-respondent (Zucker & Brach, Newark, attorneys).

The opinion of the court was delivered by

FRANCIS, J.

Plaintiff, a medical doctor, received a jury verdict of $25,000 against defendant, Chemirad Corporation, for personal injuries suffered while in the course of opening a metal cylinder containing a bottle of ethylene imine. At the conclusion of the trial, defendant moved for judgment in its favor. Decision on the motion was reserved and the case was submitted to the jury, which found defendant liable. Thereafter, the trial court held that the evidence of negligence was sufficient to raise a jury question and declined to enter judgment for defendant notwithstanding the verdict. R.R. 4:51--2(a). On appeal the Appellate Division concluded that the record was barren of proof of want of due care, and not only reversed the award but remanded the record for entry of judgment for defendant. We granted certification. 36 N.J. 134, 174 A.2d 922 (1961).

The case was submitted to the jury on a charge which dealt exhaustively with the doctrine of Res ipsa loquitur and of circumstantial evidence of negligence. The Appellate Division not only declared that no direct evidence of negligence was supplied by plaintiff but also that no inference of negligence could be drawn from the circumstances proved. Our study has convinced us that the facts shown provided adequate basis for permissible inferences of negligence, and therefore required the course of action taken by the trial judge.

I.

LIABILITY.

Dr. Lorenc, who was 39 years of age at the time of trial, was licensed to practice medicine in 1952. He was engaged in general practice in Mountainside, New Jersey. During medical school days, he took an elective course in cancer study and, as the record reveals, his interest in the subject continued thereafter. For about a year and a half prior to the accident in question, he had been experimenting with various compounds and formulas for treatment of cancer. The work was done in an improvised, or makeshift, laboratory in the garage which was at the rear of and attached to his combination home and office in Mountainside; the basement of the house was also used at times. In the course of experimentation, formulas compounded by him would be injected into mice to ascertain if they were tumor-producing, and in some cases to observe the effects on already existing tumors.

Sometime prior to October 9, 1958, he decided to experiment with a formula which included as an ingredient a chemical known as ethylene imine. That chemical is caustic, corrosive, highly flammable, and volatile; it is dangerous when touched or inhaled.

Defendant Chemirad Corporation manufacturers ethylene imine and on October 9, 1958, following a telephone call, plaintiff visited the plant in East Brunswick, New Jersey, to purchase a quantity of it. There he talked with Dr. Hans Osborg, defendant's executive director and vice president, about his experimental work with cancer and the use he intended to make of the ethylene imine. Dr. Osborg agreed to sell him 50 grams and went into the plant to obtain it. The chemical was poured into a glass bottle by a chemist, who also capped it with a bakelite cap. The bottle was then given to the shipping clerk, who completed the packing for delivery. The procedure said to have been followed was this: First, he rechecked the cap to make certain it was tight; he tightened it 'a little tighter' to make 'sure' it was 'snug and tight.' After checking for leakage, he wrapped heavy masking tape around the cap. The tape covered the sides of the cap and some of the neck of the bottle. The top surface or crown of the cap was not taped, although the proof revealed that some of the tape extended (in this instance) over a portion of the crown. The sealed bottle was put into a cylindrical metal can, which was specially prepared to received and hold it firmly in place, as well as to absorb any possible leakage. Vermiculite, a chemically treated, absorbent material, similar to sawdust, was first poured into the can; then the bottle was inserted so as to rest thereon; more vermiculite was poured in, and a stick (of undescribed proportions) was used to pack it down and around the sides and over the top of the bottle to hold the bottle firmly in place, and eliminate movement. Thereafter, a metal top was placed on the can and masking tape drawn around its sides and over the adjoining portions of the can. Labels on both bottle and can warned the purchaser that the contents were caustic and flammable. There is no doubt that Dr Lorenc was aware of the dangerous qualities of the chemical he had acquired.

After receiving the container from Dr. Osborg, plaintiff said he carefully placed it in his automobile. On arriving home, he took the container into the garage, stood it, top up, in a corner near his workbench, and 'propped' it in that position.

On November 23, 1958, a little more than six weeks later, Dr. Lorenc decided to unpack the bottle. He put the container on the workbench, removed the masking tape and the top. No odor was emitted (ethylene imine has a strong odor); the vermiculite appeared dry and not discolored. He titled the container with his right hand to allow the top and side covering of the vermiculite to filter through the fingers of his left hand into a cardboard box on the bench. The intention was to stop the bottle as it slid out. While the vermiculite was sieving through his fingers, there was a sudden gush of ethylene imine over them. As this happened he caught the bottle, righted it and put it on the workbench. The entire top or crown of the cap had come off in one piece and passed between his fingers into the cardboard box. The rest or sides of the cap with the masking tape undisturbed remained in position on the bottle. The liquid had poured on the toughter palmar surface of his fingers and had run between them and around on their dorsum surfaces. On righting the bottle, he plunged the hand into a nearby water-filled basin to dilute the chemical and wash off as much of it as possible. After doing so, he put acetic acid on the fingers in a further attempt to ameliorate the corrosive effects. In spite of these efforts, severe burns were suffered, the nature and sequelae of which will be discussed at a later point in this opinion.

In the trial of the action, plaintiff charged defendant with negligence in packing the ethlyene imine and in using a bakelite cap for the bottle. Some expert opinion evidence was offered to support these specific allegations but the substance of it was either rejected or stricken on motion by the trial judge, or removed from jury consideration in the course of his charge. At the close of the plaintiff's case, however, defendant's motion for dismissal was denied on the theory of Res ipsa loquitur. Of course, allegations of specific acts of negligence in pleadings or pretrial orders, or efforts to prove such acts at trial, do not preclude reliance upon Res ipsa loquitur where the facts warrant its application. Reiter v. Max Marx Color & Chemical Co., 35 N.J. 37, 42, 170 A.2d 785 (1961).

In defense, Chemirad established the manner of packaging the ethylene imine, as has already been described above, and Dr. Osborg testified that approval of the method had been obtained from the United States Bureau of Explosives. He asserted, as well as an expert witness produced by defendant, that bakelite caps are suitable and in frequent use for capping bottles containing ethylene imine. It was shown, however, that Dr. Osborg had given an answer to interrogatories which reflected somewhat on that proof. The question and answer follow:

'Q. State fully and completely and in all details the type of container in which the aforesaid ethylene imine was packed, the manner in which it was packed, the type of cork used?

A. Ethylene imine is poured into a glass bottle. This glass bottle is closed with a cap, Preferably a steel cap, which is lined with a polyethylene washer, * * *.' (Emphasis ours)

On another occasion, while testifying in a pretrial deposition, he was asked:

'Q. What type cap did you use?'

He answered:

'Steel caps.'

On direct examination by defense counsel at this trial, the following appears:

'Q. And has your company in shipping this particular size bottle used both steel caps and bakelite caps?

A. Yes, but the steel caps for this particular size usually sit on the shoulder of the bottle, and may not provide as tight a seal at the mouth of the neck of the bottle as this bakelite cap does.

Q. Well, are there circumstances under which the steel caps are preferable for shipping ethylene imine?

A. No, not necessarily. For larger bottles it's the general feeling that the larger the bottle the more you prefer to have a steel cap on it instead of a plastic cap.'

The obvious conflict in these answers was not reconciled. As we read the record, the doctor's attempted explanation on cross-examination of the interrogatory answer, that it 'refers to the entire packing, not just one little bottle,' is not very enlightening or satisfactory. in any event, assuming the case was properly submitted to the jury for consideration, evaluation of the answer and explanation was a problem for that fact-finding body.

During the examination of defendant's witnesses, plaintiff suggested on the basis of the packing clerk's testimony about his practice to tighten the cap a little more after the bottle came to him from the chemist to make sure that it was snug and tight, that in doing so he may have cracked or started a crack...