Orr v. Shell Oil Co.

• Decision Date: 06 December 1943
• Docket Number: No. 38581.,38581.
• Citation: 177 S.W.2d 608
• Parties: JAMES ORR v. SHELL OIL COMPANY, a Corporation, and PAUL STRAIN, Appellants.
• Court: Missouri Supreme Court

177 S.W.2d 608

JAMES ORR v. SHELL OIL COMPANY, a Corporation, and PAUL STRAIN, Appellants.

No. 38581.

Supreme Court of Missouri.

Division One, December 6, 1943.

Rehearing Denied, January 3, 1944.

Motion to Transfer to Banc Overruled, February 7, 1944.

Appeal from Circuit Court of City of St. Louis. — Hon. James E. McLaughlin, Judge.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

Jones, Hocker, Gladney & Grand and Lon Hocker, Jr., for appellants.

(1) The court erred in refusing to instruct the jury peremptorily to return a verdict for each defendant, because there was a failure of proof: That Strain was authorized by Shell to direct the method of mixing the insecticide; that defendant Shell assumed control of Orr; that defendants ordered Orr to work in a manner causing exposure; and that defendant Strain should have known that the chemical was likely to cause injury. Karr v. Rock Island R. Co., 341 Mo. 536, 108 S.W. (2d) 44; Restatement of the Law of Torts, A.L.I., sec. 314 Ill. 1; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W. (2d) 91; McGrath v. St. Louis, 215 Mo. 191, 141 S.W. 611; Wolf v. Terminal Rd, Assn., 282 Mo. 559, 222 S.W. 114; McFarland v. Dixie Mach. & Eq. Co., 348 Mo. 341, 153 S.W. (2d) 67; Ellegood v. Brashear Freight Lines, 162 S.W. (2d) 628; Forbis v. Hessing, 328 Mo. 699, 41 S.W. (2d) 378; McGinnis v. C., R.I. & P.R. Co., 200 Mo. 347, 98 S.W. 590; Wright v. Hannan & Everett, Inc., 336 Mo. 732, 81 S.W. (2d) 303. (2) The court erred in giving and reading to the jury plaintiff's Instruction 1. It is confusing and misleading and submits for findings four propositions of which there was no proof: That Strain was authorized by Shell to direct the method of mixing the insecticide; that defendant Shell assumed control of Orr; that defendants ordered Orr to work in a manner causing exposure; and that defendant Strain should have known that the chemical was likely to cause injury. Authorities under (1); State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W. (2d) 835. (3) The court erred in admitting evidence of Orr's exposure to carbon tetrachloride, and of its harmful qualities, because the petition alleged that his injuries arose from a wholly different chemical, alpha naphthyl isothiocyanate. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; McClaren v. G.S. Robins & Co., 349 Mo. 653, 162 S.W. (2d) 856. (4) The court erred in admitting in evidence rankly inflammatory letters (Plaintiff's Exhibits D, B and C) offered to show notice to defendants of the toxicity of the chemical, because the letters were written after the exposure hypothesized as the cause of the injury occurred. The letters were not shown to have been known to defendant Strain at any time, whose actions, after knowledge, were the basis of the claim. Feeherty v. Sullivan, 129 S.W. (2d) 926; Brown & Bigelow v. Laughead, 118 S.W. (2d) 74. (5) The court erred in commenting on the credibility and interest of the witness Whitmire, plaintiff's employer and the author of the letters, Exhibits D, B, C, called as a witness by plaintiff, and in refusing to discharge the jury on account thereof. Defendants had sought to show Whitmire's interest in the plaintiff's recovering against them. The court commented on plaintiff's direct examination that Whitmire was "an unwilling witness," thereby indicating that Whitmire's interests lay with defendants, contrary to their assertion. McElwain v. Dunham, 221 S.W. 773. (6) The court erred in permitting plaintiff to prove, over defendants' objection, that he had only received five or six hundred dollars of compensation benefits, and in refusing to permit defendants to prove that the benefits were no greater simply because Orr voluntarily declined to receive further benefits pending the outcome of this action. If the amount of compensation received was irrelevant, plaintiff's proof should have been rejected. If it was relevant, common fairness demanded defendant be permitted to show that it could have been greater but for plaintiff's voluntary declination of further benefits. (7) The court erred in rejecting Exhibit 6, the only contemporary publication on the subject, offered as proof of the state of the knowledge of the chemical world regarding alpha naphthyl isothiocyanate at the time defendants were charged with constructive knowledge of its toxicity. Mann v. Pulliam, 344 Mo. 543, 127 S.W. (2d) 426. (8) The court erred in permitting expert witnesses to express opinions for which they were not qualified, and in denying motions to strike out their testimony on that account: witness Heinrichs, a chemist, and witness Ambrose, a medical doctor, neither of whom had ever seen alpha naphthyl isothiocyanate, nor read any publication concerning it (Dr. Ambrose had read a U.S. Public Health Report furnished him by plaintiff's lawyer), were permitted to give their opinion that it was toxic, and about its effects on the body. 32 C.J.S. 261; Gates v. Dr. Nichol's Sanatorium, 331 Mo. 754, 55 S.W. (2d) 424; Fuchs v. St. Louis, 167 Mo. 620, 57 L.R.A. 196, 67 S.W. 610; Graney v. St. L., I.M. & S.R. Co., 157 Mo. 166, 57 S.W. 276; Culver v. Prudential Ins. Co., 6 Harr. 582, 179 Atl. 400. (9) The court erred in giving plaintiff's instructions 2 and 3. (10) The court erred in giving plaintiff's Instruction 8, which submitted as an item of recoverable damages future pain and suffering, of which there was no proof. Pelzer v. Zeltmann, 108 S.W. (2d) 980. (11) The judgment, after remittitur, is still grossly excessive. Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W. (2d) 311.

J. Edward Gragg and Wm. R. Schneider for respondent.

(1) The statements of an agent become admissible against the principal when a prima facie case of agency has first been established. Barz v. Fleishmann Yeast Co., 308 Mo. 288, 271 S.W. 361; Marion Steam Shovel Co. v. Bertino, 64 Fed. (2d) 409, second appeal 82 Fed. (2d) 941, 945, certiorari denied, 299 U.S. 556. (2) A master is liable to a third person, though his servant exceeds his authority in his employment. Marion Steam Shovel Co. v. Bertino, 82 Fed. (2d) 945. (3) Whether defendant might have foreseen the probable consequences of its act had it exercised reasonable precaution is for the jury. Johnson v. Ambursen Hydraulic Const. Co., 173 S.W. 1081; Dickey v. Western Tablet Co., 218 Mo. App. 253, 267 S.W. 431; Cleveland v. Laclede-Christy C.P. Co., 113 S.W. (2d) 1065; Marsanick v. Luechtefeld, 157 S.W. (2d) 537. (4) Appellants seek to predicate error on the admission of testimony relative to carbon tetrachloride when the petition was not considered broad enough to permit inquiry relative thereto. While it is true that appellants repeatedly objected and excepted to inquiry about it by plaintiff's counsel and was overruled, whatever error there may have been committed by such inquiry on the part of plaintiff's counsel was condoned, waived and induced by appellants' counsel's own repeated inquiries relative thereto. Ernst v. Union Depot Bridge & Terminal Ry. Co., 256 S.W. 223; 6 Jones on Evidence, p. 4975. (5) In a suit against a negligent third party, such party has no right to inquire how much compensation has the employee received for the same injury. Reiling v. Russell, 345 Mo. 517, 134 S.W. (2d) 33. (6) The court properly rejected an article by two men of the Kessler Chemical Corp., Tischler and Viehorver. Jacobson v. Johnson, 91 N.W. 465; 32 C.J.S., sec. 546, p. 326; People v. McDermott Dairy Co., 132 N.Y.S. 329. (7) The question of the qualification of expert witnesses rests largely in the discretion of the trial court. Ambruster v. Levitt R.E. & I. Co., 107 S.W. (2d) l.c. 80; 32 C.J.S., p. 262; 3 Jones on Evidence (2 Ed.), p. 2408. (8) An analytical chemist is held qualified to testify as to the poisonous effect of copper on an abrasion. Dickey v. Western Tablet Co., 218 Mo. App. 253, 267 S.W. 431. (9) If plaintiff's instructions were correct in the first instance, and if the defendants did not then make their limiting instruction harmonize, by appropriate language in order to avoid conflict, if there is a conflict, then under the authorities it was their own error, of which they are not in a position to complain. Yontz v. Shernamon, 94 S.W. (2d) 917; Williams v. Excavating & Foundation Co., 238 Mo. App. 973, 93 S.W. (2d) 123; Cleveland v. Laclede-Christy C.P. Co., 113 S.W. (2d) 1065. (10) The verdict is not excessive. Hoelzel v. Chicago, R.I. & P. Ry. Co., 337 Mo. 61, 85 S.W. (2d) 126; Cotton v. Ship-By-Truck Co., 85 S.W. (2d) 80; Gately v. St. Louis-S.F. Ry. Co., 332 Mo. 1, 56 S.W. (2d) 54; Whittington v. Westport Hotel Operating Co., 326 Mo. 1117, 33 S.W. (2d) 963; Mauck v. Atchison, T. & S.F. Ry. Co., 154 S.W. (2d) 73; Missouri Pacific Transp. Co. v. Simon, 135 S.W. (2d) 336; Truschel v. Rex Amusement Co., 102 W. Va. 215, 136 S.E. 30; certiorari denied, 274 U.S. 736; Forsyth v. Kuphal, 170 Wash. 202, 15 Pac. (2d) 115; Northern Indiana P.S. Co. v. Robinson, 18 N.E. (2d) 933; Bassett v. Milwaukee N.R. Co., 169 Wis. 152, 170 N.W. 944.

DOUGLAS, J.

This is an action for damages for personal injuries. Orr, the plaintiff, was employed as a laborer by the Whitmire Research Corporation, manufacturing chemists of St. Louis. Whitmire had a contract with the Shell Oil Company to compound, according to Shell's formulae, insect spray sold under the Shell name and label. Shell furnished the formulae and specifications, chemicals and other ingredients, cans and containers. Whitmire compounded the products on its premises, packaged and shipped them according to Shell's orders. One of the ingredients furnished by Shell for the insect spray was a chemical known by the trade name of Kesscocide. It was a synthetic, patented compound known chemically as alphanapthylisthiocyanate. A white chrystalline solid, it looked like salt or sugar. The chemical was dissolved in a base oil which acts as the carrier in a spray. Orr was employed in mixing the spray. He first had to break up the...