Marsanick v. Luechtefeld

• Decision Date: 06 January 1942
• Docket Number: No. 25810.,25810.
• Citation: 157 S.W.2d 537
• Parties: MARSANICK v. LUECHTEFELD.
• Court: Missouri Court of Appeals

157 S.W.2d 537

MARSANICK v. LUECHTEFELD.

No. 25810.

St. Louis Court of Appeals. Missouri.

January 6, 1942.

Appeal from Circuit Court, City of St. Louis; William K. Koerner, Judge.

"Not to be reported in State Reports."

Personal injury action by Charles Marsanick against Joseph Luechtefeld, doing business as the Forest Park Lumber and Supply Company. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded for new trial.

N. Murry Edwards, of St. Louis, for appellant.

Maurice J. Gordon and Charles F. Mueller, both of St. Louis, for respondent.

ANDERSON, Judge.

Defendant brought this appeal from a judgment rendered against him, in an action for damages for personal injuries which plaintiff claims to have sustained, during the course of his employment by defendant, as a result of burns caused by muriatic acid used in cleaning the outside brick walls of a building. The petition charged the following negligence: (1) That plaintiff was directed to wash said walls with a brush dipped into muriatic acid, without being furnished gloves or a mask, or other covering, to protect his hands, arms, and face from being burned, when defendant knew, or by the exercise of ordinary care could have known, that in doing said work without such protection plaintiff was likely to be burned by said acid; and (2) that defendant negligently failed to warn plaintiff that said acid was likely to, and would, burn plaintiff, when defendant knew, or by the exercise of ordinary care would have known that plaintiff did not know and appreciate such danger, and when by the exercise of ordinary care defendant could have warned plaintiff of such danger. The petition then alleged that as a direct result of said negligence plaintiff's face, hands, arms, and mouth were burned, blistered, swollen, inflamed, infected, and discolored. A judgment for $5,000 damages and costs was prayed. Defendant answered by a general denial, coupled with a plea of contributory negligence and assumption of risk.

Since appellant's principal contention on appeal is that plaintiff failed to make a case for the jury, we will review the testimony in its most favorable aspect to plaintiff's case, disregarding all evidence by defendant which contradicts plaintiff's evidence.

Plaintiff started to work for defendant in September, 1938, doing various jobs on an eight-family apartment belonging to defendant at 7600 Dale Avenue. In the early part of January, 1939, defendant directed plaintiff to wash the brick walls of said apartment building with a brush and a solution composed of 50% water and 50% muriatic acid, which plaintiff did off and on over a period of about three or four weeks. He had not been furnished with gloves or any other form of protection. While doing this work the solution splashed from his brush onto his face and hands, and after the third or fourth day plaintiff noticed his face and hands were breaking out. When he told defendant about this condition, the latter told him to forget about it and to put linseed oil on it, which he did, but his condition became worse and he then went to Dr. Stein for treatment.

Plaintiff's testimony with respect to the circumstances surrounding his alleged injury was as follows: "I started to work for defendant Joseph Luechtefeld in September, 1938. It might have been around the first of January, or maybe the early part, in 1939, that I started washing brick. I continued to do that work about three or four weeks off and on. About the third or fourth day I noticed my face was breaking out. I told Mr. Luechtefeld about it, and he told me to forget about it and put some linseed oil on it. I did, but it got so bad I had to go to the doctor. My face and hands broke out. It was after I was on this job three or four days that this condition started and it got worse. After it got worse, my wrists, hands, cheeks, lips, and nose were affected. While in that condition, I was washing the walls. I showed my sores to Mr. Luechtefeld. He told me to put on linseed oil. My condition got worse.

"Q. How long did you continue to wash the walls after you showed them to Mr. Luechtefeld? A. Then I got laid off.

"He told me he didn't need me any more. When I was laid off, my face and skin and nose were all broke out."

Dr. Stein testified that he treated plaintiff on February 9, 1939, for a first degree burn about the face. He found no burns on any other part of plaintiff's body. His examination revealed small areas of first degree burns, and for treatment he administered a liquid known as calamine zinc oxide lotion. He treated plaintiff only on this one occasion. He testified the burns would not prevent plaintiff from working.

Plaintiff testified that he applied the medicine prescribed by the doctor, but the condition remained the same, and he then went to the St. Louis County Hospital Clinic, making 8 or 10 trips to the clinic, for treatment. The clinic furnished him with a salve to be applied on his hands and face three times a day. With this treatment the condition of his face improved, and his hands cleared up in about two weeks without any recurrence. However, the condition reappeared on his face six or seven times thereafter, again breaking out on his face shortly before the trial. (He appeared at the trial with his face covered with salve.) He stated that it took 3 or 4 days to clear up the condition on each occasion of its reappearance.

The records of the St. Louis County Hospital Clinic were introduced in evidence, and showed the following: "* * * February 16, 1939. The whole area about the mouth is arythemaous, crusted, purging and fissured; dry, scaly patches are present on the hands and arms. * * * The eruption began after patient spilled some muriatic acid on self while working in cleaning brick. * * * February 18, improved considerably, subsiding of all activities. 2/21, improved. Another prescription B. A. 2/28, no sign of activity. C. T. October 17, 1939, return of dry scaling and erythema in some places on face as before, began three days ago. Job now is that of concrete worker. No muriatic acid used as far as he knows. Dermatitis."

F. W. L. Peebles, a witness for plaintiff, testified he was an engineer, devoting much of his time to chemical engineering, and had acted as a chemist since he left school in 1910. He stated that the effect of commercial muriatic acid if allowed to get on the skin of a human being would be a reddening of the skin, accompanied by an itching, and then a further destruction of the skin. The reddening appears on the face in two or three minutes, and somewhat later on the hands if callused. This reddening is the first indication of burning. He further testified that if muriatic acid diluted with water 50% would get on the skin the same itching and destruction of the skin would follow.

Plaintiff testified that he had had no prior experience washing brick; that no one had told him the kind of acid used; that he did not know the danger of burning his skin in washing those walls; and that he had asked the defendant about the danger and defendant said there was nothing to it.

Appellant assigns as error the trial court's failure and refusal to give and read to the jury the instruction in the nature of a demurrer to the evidence offered by defendant at the close of the whole case, and in support of his assignment contends: (1) that there was no evidence that defendant knew, or by the exercise of ordinary care would have known, that said muriatic solution would burn; (2) that the risk of injury was one incidental to the work being done, and, hence, one assumed by the servant; and, (3) that plaintiff was guilty of contributory negligence as a matter of law.

It is well settled that an employer is bound to exercise reasonable precaution against injury to his servant while employed in his service. Not only must the master provide suitable and safe instruments and means with which the servant may carry on his work, but the master must warn the servant of all dangers to which he will be exposed in the course of the employment, except those which the servant may be deemed to have foreseen as necessarily incidental to the employment in which he engages, or which may be open and obvious to a person of experience and reasonable understanding, and except also such as the master cannot be deemed to have foreseen.

We will address ourselves to defendant's first point, namely, that there was no evidence that defendant knew, or by the exercise of ordinary care, would have known that said muriatic solution was harmful.

In this connection it should be borne in mind that it is a general rule of law that an employer is under an obligation to inform himself of those matters of scientific knowledge possessed by men of general education relative to the dangers and hazards involved in the use of substances and processes used in his employment, and to acquaint his employees with those dangers to which in their ignorance the employees might otherwise be subject. 35 Am.Jur. 582; Cunningham v. Chicago, B. & Q. R. Co., 156 Mo.App. 617, 137 S.W. 600; Reickert v. Hammond Packing Co., 136 Mo.App. 565, 118 S.W. 525; Omans v. Hammond Packing Co., 151 Mo.App. 557, 132 S.W. 283; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; Adams v. Grand Rapids Refrigerator Co., 160 Mich. 590, 125 N.W. 724, 27 L.R.A.,N.S., 953, 136 Am.St.Rep. 454, 19 Ann.Cas. 1152; Smith v. Peninsular Car-Works, 60 Mich. 501, 27 N.W. 662, 1 Am.St.Rep. 542.

The witness Peebles, whose testimony showed that he had some knowledge of chemistry, stated that if muriatic acid were allowed to get on the skin of a human being, it would cause a reddening of the skin, accompanied by itching, and then further destruction of the skin. Plaintiff's doctor testified that he treated the plaintiff for first degree burns. This combined evidence was such that a jury would be justified in finding that the muriatic acid solution would and did cause...