McClaren v. G. S. Robins & Co.

• Decision Date: 17 June 1942
• Docket Number: 37618
• Parties: Flora B. McClaren, Administratrix of the Estate of James A. McClaren, Appellant, v. G. S. Robins & Company, a Corporation
• Court: Missouri Supreme Court

162 S.W.2d 856

349 Mo. 653

Flora B. McClaren, Administratrix of the Estate of James A. McClaren, Appellant, v. G. S. Robins & Company, a Corporation

No. 37618

Supreme Court of Missouri

June 17, 1942

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge.

Affirmed.

Jones Hocker, Gladney & Grand, Lon Hocker, Jr., and William G. O'Donnell for appellant.

(1) The court erred in holding that carbon tetrachloride was not contemplated by the Illinois poison statute and, pursuant to this ruling, in refusing plaintiff's Instruction B because where the evidence is conflicting as to whether a substance is "usually denominated as poisonous" within the meaning of that phrase as contained in the Illinois statute, the question should be submitted to the jury. Hendry v. Judge & Dolph Drug Co., 245 S.W. 358; Genesee County Patrons Fire Relief Assn. v. Sonneborn Sons, Inc., 263 N.Y. 463, 189 N.E. 551; Fisher v. Golladay, 38 Mo.App. 531, 538. (2) The court erred in giving Instruction 2 of his own motion and in refusing plaintiff's Instruction E, because where two shipments of carbon tetrachloride were purchased but labeled differently, labels on both shipments should have been considered by the jury in determining whether the users of the substance were adequately warned; and because it is not essential that defendant could have anticipated the very injury complained of, but it is sufficient if his negligence was the proximate cause of the injury. McLeod v. Linde Air Products Co., 315 Mo. 407.

Moser, Marsalek & Dearing, Alva C. Trueblood and Wm. H. Allen for respondent.

(1) The Illinois statute relied upon nowhere appears in the record. It was not before the trial court, and is not before this court, for the reason that it was not pleaded as the law requires. A foreign statute cannot be pleaded by merely alleging that it is a certain numbered section of a certain numbered chapter of some revised statutes of the foreign state. McDonald v. Des Moines Bankers' Life Assn., 154 Mo. 618, 55 S.W. 999; State Natl. Bank v. Levy, 141 Mo.App. 288, 125 S.W. 542; Swing v. Karges Furniture Co., 150 Mo.App. 574, 131 S.W. 153. Section 958, R. S. Mo. 1939, has not dispensed with the necessity for properly pleading a statute of another State. Rositzky v. Rositzky, 339 Mo. 662, 46 S.W.2d 591. (2) Furthermore, the statute, as set out in appellant's revised brief has no application to the sale of a "volatile solvent," in large containers, for commercial purposes, to be used as a cleaning fluid. In construing such a statute the rule of ejusdem generis must necessarily be applied. Puritan Pharmaceutical Co. v. Pennsylvania Ry. Co., 230 Mo.App. 848, 855, 856; Pure Oil Co. v. Gear, 83 P.2d 389, 395. The words "or other substance usually denominated as poisonous" in the statute (as it appears in appellant's revised brief) are to be taken as meaning any other substance of the same kind or class as arsenic, strychnine, corrosive sublimate or prussic acid. Obviously a grease solvent, sold commercially in large cans for cleaning purposes, which no one would ever think of taking internally, is not a substance of the same kind or class as the poisonous drugs mentioned in the statute. (3) Being a penal statute, it is to be strictly construed. State v. Barley, 304 Mo. 58. (4) And appellant has no ground to complain that it was error to require the jury to find, in substance, that the "volatile solvent label" was insufficient, that respondent knew or ought to have known this, and knew or ought to have known that, despite the warning given by the label, the substance was likely to be used by an employee of the engineering company in a close and unventilated place; that the injury occurred "in a way that might reasonably have been expected" under the circumstances. McLeod v. Linde Air Products Co., 318 Mo. 397, 403, 404. (5) The general rule is that the vendor of an article or substance is not liable to third persons, having no contractual relations with him, for negligence in the sale of such article or substance. And this case does not fall within any exception to the rule. McLeod v. Linde Air Products Co., 318 Mo. 397, 403, 404. (6) Since it was conceded at the trial that this "Volatile Solvent Label" had been adopted some years previously by the manufacturers of the product, and had been approved by the Surgeon General of the United States as being sufficient and proper, and was universally used by such manufacturers throughout the land, no jury will be permitted to find that it was insufficient or that respondent was negligent in using it. No man is held by the law to a higher degree of care or skill than that customarily employed by those engaged in his trade or profession. The standard of due care is the conduct of the average prudent man. Schaum v. S.W. Bell Telephone Co., 336 Mo. 235; Coin v. Talge Lounge Co., 222 Mo. 488, 121 S.W. 1; Pevesdorf v. Union Electric Light & Power Co., 333 Mo. 1155, 64 S.W.2d 939; Knott v. Mo. Boiler & Sheet Iron Works, 299 Mo. 613, 253 S.W. 749; Williams v. St. Joseph Artesian Ice & Cold Storage Co., 214 S.W. 385; Spindler v. American Express Co., 232 S.W. 690; O'Brien & Co. v. Shelton's Admr., 55 S.W.2d 352; Ketterer v. Armour & Co., 247 F. 921, L. R. A. 1918D; Cheli v. Cudahy Bros. Co., 267 Mich. 690, 255 N.W. 414; Barker v. Hemphill Lumber Co., 217 S.W. 585. (7) It is the settled rule of decision in this State that if the injury is not one which could reasonably have been anticipated as a natural and probable sequence of the act with which the defendant is charged, then such act is not, in law, the proximate cause of such injury. Tayer v. York Ice Machinery Corp., 342 Mo. 926, 119 S.W.2d 240; American Brewing Assn. v. Talbot, 141 Mo. 683, 684; State ex rel. Lusk v. Ellison, 271 Mo. 463, 474; Wecker v. Ice Cream Co., 326 Mo. 451; Borack v. Mosler Safe Co., 288 Mo. 83; Larsen v. Webb, 332 Mo. 370, 378; De Moss v. Kansas City Rys. Co., 296 Mo. 526, 534.

OPINION

Tipton, P. J.

This is an action brought in the circuit court of the City of St. Louis for the wrongful death of James A. McClaren by the administratrix of his estate against the respondent for having sold to the deceased's employer, Combustion Engineering Company, carbon tetrachloride in containers that did not have proper labels showing that the contents were poisonous. The deceased, using the carbon tetrachloride to clean a boiler that was being installed by his employer, became poisoned and died. The jury returned a verdict for the respondent, and the appellant has duly appealed.

Several rulings of the trial court are assigned as errors by the appellant, but since the respondent so earnestly insists that its demurrer to the evidence should have been sustained, we will examine that question.

The evidence showed that during the time from March 4, 1938, until May 4, 1938, the deceased was in the employ of the Combustion Engineering Company, which was installing a large, new boiler at the plant of Armour & Company in Illinois. The pipes, tubes, and other parts of the new boiler, and the pre-heater connected therewith, had been covered with grease to prevent rusting, and this grease had to be removed. On March 19, 1938, the Combustion Engineering Company obtained from respondent, located in St. Louis, Missouri, four five-gallon cans of carbon tetrachloride to be used as a solvent for removing this grease. The labels on these four cans each contained the words, "Five Gallons Carbon Tetrachloride," but contained no warning or direction for using the liquid.

On April 19, 1938, respondent delivered to the Combustion Engineering Company two more five-gallon cans of carbon tetrachloride for the same purpose. Upon each of these two cans appeared the words, "G. S. Robins & Co., Carbon Tetrachloride," and upon each was a label which read as follows: "Volatile Solvent, Use With Adequate Ventilation. Avoid Prolonged Breathing." This was a hurry-up order which was wanted that very day. On May 4 1938, the deceased was working in the pre-heater of the boiler, having carbon tetrachloride in an open pail. A rag was saturated in carbon tetrachloride and "sloshed" around the part from which the grease was to be cleaned. The pre-heater was a cased-in box about fourteen feet long, eight feet high and about forty inches wide, and it was uncomfortably hot in the pre-heater. The deceased worked inside of this pre-heater from three to six hours that day. There was considerable heat in the...