Shirley v. Drackett Products Co.

• Decision Date: 30 September 1970
• Docket Number: Docket No. 7349,No. 3,3
• Parties: Julia SHIRLEY, Plaintiff-Appellee, v. The DRACKETT PRODUCTS COMPANY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 726

182 N.W.2d 726

26 Mich.App. 644

Julia SHIRLEY, Plaintiff-Appellee, v. The DRACKETT PRODUCTS COMPANY, Defendant-Appellant.

Docket No. 7349.

Court of Appeals of Michigan, Division No. 3.

Sept. 30, 1970.

Leave to Appeal Denied Dec. 8, 1970.

Released for Publication Jan. 22, 1971.

John L. Collins, Foster, Campbell, Lindemer & McGurrin, Lansing, for defendant-appellant.

Byron P. Gallagher, Lynch, Gallagher, Lynch & Kerr, Mt. Pleasant, for plaintiff-appellee.

Before HOLBROOK, P.J., and BRONSON and BROWN, ^* JJ.

BROWN, Judge.

This is a products liability case in which the plaintiff claimed that upon using a toilet bowl cleaner called 'Vanish' she suffered severe and permanent respiratory injuries from the inhalation of harmful fumes. The complaint alleges negligence and breach of warranty. The jury returned a verdict in favor of the plaintiff in the amount of $100,000.00.

On December 12, 1961, plaintiff, a reasonably healthy 56-year-old woman, prompted by advertising, purchased a can of Vanish from a local store. At approximately 11 o'clock that night she decided to clean the toilet bowl in her apartment. In accordance with the directions on the can she sprinkled Vanish into the bowl and vigorously scrubbed the interior of the bowl with a short-handled brush. In doing so, her face was about 12 inches from the top of the bowl. She started choking and coughing and couldn't catch her breath. She then left the bathroom and went outside on the porch to breathe some fresh air. Her son, who had been upstairs in his room, came down and found his mother coughing, choking and quite weak. The son took his mother to the hospital where she was placed in oxygen and treated with adrenalin and ACTH. Dr. Wood, who treated her, testified that her breathing was rapid and labored, with wheezing which was audible several feet away. His diagnosis was that she was suffering from a combination of acute bronchitis and bronchial asthma. Plaintiff claims that she has been and will continue to be permanently disabled as a result of this incident. The medical testimony tends to support this contention.

On appeal defendant seeks reversal alleging eight errors which can be summarized as follows: (1.) the complaint is against the wrong corporate entity; (2.) the trial court committed error in denying motions for a directed verdict and a judgment notwithstanding the verdict; (3.) the verdict is against the great weight of the evidence; (4.) the plaintiff's medical witness did not qualify as an expert and hypothetical questions to him were improper and his answers to those questions were inadmissible; (5.) the plaintiff's attempt to introduce a letter regarding an unrelated claim was prejudicial; (6.) there was jury misconduct; (7.) the verdict was excessive; and (8.) the court failed to give requested instructions and gave other instructions that were misleading and confusing.

The first question raised by this appeal is whether or not the trial court erred in holding as a matter of law that defendant, as the distributor, was chargeable with the manufacturer's negligence, the two being separate corporate entities. As a general rule, a vendor who distributes a product acquired in the open market is not liable for its negligent manufacture. Clement v. Rommeck (1907), 149 Mich. 595, 113 N.W. 286; Pesavento v. E. I. DuPont De Nemours & Co. (1927), 240 Mich. 434, 215 N.W. 330; Camden Fire Insurance Co. v. Peterman (1937), 278 Mich. 615, 270 N.W. 807. However, that rule is not applicable in view of the facts in this case.

Vanish is manufactured by The Drackett Company. The defendant bore the corporate name 'The Drackett Products Company' and was a wholly-owned subsidiary and the exclusive distributor of all of the manufacturer's products. The parent and subsidiary had their principal offices at the same address in Cincinnati, Ohio. There were interlocking officers and directors and there was some interchange of employees. The subsidiary (the defendant) existed solely as the distributing arm of the manufacturer and the manufacturer's only source of revenue was from the sales of its subsidiary. Where a corporation is so organized and so controlled as to make it a mere instrumentality or an agent of another corporation, its separate existence as a distinct corporate entity will be ignored and the two corporations will be regarded in legal contemplation as one unit. These facts must be held to deny this defendant the insulation from liability that ordinarily protects a retailer or distributor. Bathory v. Procter & Gamble Distributing Co. (CA 6, 1962), 306 F.2d 22. The trial court's ruling that the facts warranted piercing the corporate veil was sustained by the evidence. Swearngin v. Sears Roebuck & Company (CA 10, 1967), 376 F.2d 637.

Defendant's principal contention at the trial and on appeal is that there was no competent evidence from which the jury could find, or reasonably infer, that the product Vanish was the cause of the respiratory condition complained of and because of this lack of competent evidence the trial court erred in denying defendant's motions for a directed verdit and for entry of a judgment notwithstanding the verdict. In this connection, the defendant further argues that the verdict of the jury was against the great weight of the evidence and warrants a new trial. Generally, the mere occurrence of an injury is not alone evidence of negligence. But, of course, negligence may be established by circumstantial evidence and where the circumstances are such as to take the case out of the realm of conjectuee and to bring the case within the field of legitimate inference from established facts, at least a Prima facie case is made. Gadde v. Michigan Consolidated Gas Company (1966), 377 Mich. 117, 139 N.W.2d 722.

Dr. Wood, the plaintiff's attending physician, testified that in his opinion the plaintiff's physicial condition was not due to infection but was caused by an irritant and that one must assume that there was a direct relationship between the plaintiff's symptoms that were produced when she used the cleanser and the use of the cleanser. Approximately two years after the incident, Dr. Filson, a professor of chemistry at Central Michigan University, chemically analyzed the contents of the actual can of Vanish used by plaintiff. He testified that both hydrogen chloride gas and chlorine gas could be released when Vanish is used because Vanish contains sodium bisulfate and a chloride ion which would react together and with iron oxide (in the rust of the toilet bowl) since iron oxide is both an oxidizing agent and a catalyst. This witness further testified that these gases are irritants and would produce harmful effects.

To be sure, the defendant offered testimony contradicting the testimony offered by the plaintiff's witnesses but as the trial court noted: 'It is not for the court to tell the jury whose testimony is reliable or which testimony is more reliable.' Conflicting evidence is, of course, a matter for the jury to determine. The record in the instant case contained sufficient evidence, both direct and circumstantial, to support the plaintiff's position. As the court said in Bathory, supra:

'* * * We think that the total of this evidence and the justifiable inferences that could be drawn therefrom were adequate to permit a finding that Pin-It was the proximate cause of plaintiff's trouble. We believe that the facts in this case lead with equal facility and logical sequence to a justified conclusion that the injury was proximately caused by the procuct as did the facts found sufficient for such purpose in the case of Gerkin v. Brown & Sehler Co. (1913), 177 Mich. 45, 53--54, 143 N.W. 48, 48 L.R.A.,N.S., 224.'

Decision in this case finds ample support in Bronson v. J. L. Hudson Company (1965), 376 Mich. 98, 135 N.W.2d 388. In Bronson, Mrs. Berke purchased a cotton slip, wore it without washing it, and the same day that she wore it suffered severe dermatitis. The plaintiff was not required to prove a defective product, breach of...