Orr v. Shell Oil Co.
| Decision Date | 03 January 1944 |
| Docket Number | 38581 |
| Parties | James Orr v. Shell Oil Company, a Corporation, and Paul Strain, Appellants |
| Court | Missouri Supreme Court |
[Copyrighted Material Omitted]
Reported at 352 Mo. 288 at 297. Motion to Transfer to Banc Overruled February 7, 1944.
Original Opinion of December 6, 1943, Reported at 352 Mo. 288.
On Motion for Rehearing.
In its motion for rehearing Shell says "the opinion imposes liability upon this defendant for a tort which was neither pleaded nor submitted to the jury." Some repetition of what is stated in the opinion is necessary in answering this charge. We reiterate this is an action for damages for personal injuries resulting from the handling of a poisonous chemical furnished by Shell to Orr's employer and used as Shell specified in written directions. It is not disputed that Shell furnished the chemical. Shell's own chemist testified he knew the chemical was toxic.
As we read the record the tort pleaded and submitted was the failure of Shell to warn of the danger known to it in using the chemical. In order to impose this duty to warn on Shell, plaintiff attempted to prove that Strain, Shell's inspector on the premises, was authorized by Shell to direct the handling of the chemical, assumed control of Orr and ordered him to work in a manner causing exposure to the chemical when Strain should have known the chemical was toxic. But plaintiff did not need to assume such burden because of the well-established rule that imposes directly a duty to warn on one who supplies an article he knows is likely to be dangerous for the use intended.
What was the charge pleaded? We repeat the words of the petition, omitting such as are unnecessary to this discussion:
What was the charge submitted? We repeat the words of plaintiff's principal instruction again omitting such as are unnecessary to this discussion: "The court instructs the jury that if you find the plaintiff was ordered by his employer to work at mixing or compounding certain insecticides according to prescribed formula of Shell in a manner that his skin and body was exposed to and did have contact with said chemicals and that as a direct result plaintiff was made sick and unhealthy, and if you further find that plaintiff had no knowledge of the likely serious and dangerous effects to health from contacts with said chemicals and was not warned thereof by Shell or by plaintiff's employer and if you further find that Shell knew of the danger to the human body and particularly to plaintiff by such contact with said chemicals and if you further find Shell knew that plaintiff had no knowledge of said likely danger in said mixing then Shell was negligent in failing to warn plaintiff."
Thus it appears to us failure to warn, the tort relied on and proved, was both pleaded and submitted.
Shell has other complaints about our decision. It says since we have reversed the judgment against Strain, the individual resident defendant, we should remand the case to permit Shell, as a nonresident, to remove it to the United States Court and retry it there. It offers no authority in support of this contention. Those we find rule to the contrary. The elimination of the party defendant, whose presence prevents removal, by a ruling on the merits adverse to the plaintiff and without his assent does not make the case a removable one. 45 Am. Jur. 901; 54 C.J. 285. "It is well established that if a case is nonremovable when begun it can be made removable only by a voluntary dismissal or nonsuit by the plaintiff, as to the resident defendant . . . The sustaining of the demurrer to the evidence as to the resident defendant was a ruling in invitum and the case was not removable. . . ." citing cases. Garnett v. S.S. Kresge Co. (Mo. App.), 85 S.W.2d 157, 163 [11].
Shell also complains our opinion fails to pass upon and dispose of points decisive of the case which it presented in its brief. The opinion states "other assignments of error are argued but they are either not supported by the record as we find it or by the cases relied on."
The first such point is that plaintiff's principle instruction submitted four propositions for which there was no proof, namely Strain by authority directed the mixing assumed control of Orr, and ordered Orr to work in the manner causing exposure when Strain knew the chemical was dangerous. We ruled the evidence was insufficient to show Strain knew the chemical was dangerous. We stated it was unnecessary to consider the evidence about the other propositions as they were not required for pl...
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