Spruill v. Boyle-Midway, Incorporated

Citation308 F.2d 79
Decision Date08 September 1962
Docket NumberNo. 8589.,8589.
PartiesNeil S. SPRUILL, Administrator of the Estate of Marion William Spruill, Jr., Deceased, Appellee, v. BOYLE-MIDWAY, INCORPORATED, a foreign corporation, and American Home Products Corporation, a foreign corporation, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)


Edwin J. Rafal and Frederick T. Stant, Jr., Norfolk, Va. (Parsons, Stant & Parsons, Norfolk, Va., on brief), for appellants.

Arnold H. Leon, Portsmouth, Va. (Stanley J. Bangel, and Bangel, Bangel & Bangel, Portsmouth, Va., on brief), for appellee.

Before SOPER and BELL, Circuit Judges, and BARKSDALE, District Judge.

J. SPENCER BELL, Circuit Judge.

This is an appeal by the defendants, Boyle-Midway, Incorporated, and American Home Products Corporation, from a judgment of the District Court for the Eastern District of Virginia entered upon a jury verdict for the plaintiffs in a wrongful death action. The defendants having preserved their rights by proper motions throughout the trial now ask us to set aside the judgment and rule that the case ought properly not to have gone to the jury; or that if it was properly submitted to the jury that the evidence in the case does not support the verdict.

The defendants are manufacturers and distributors of a product identified as "Old English Red Oil Furniture Polish". The plaintiffs in the court below were the parents and siblings of a fourteen months old infant who died as a result of chemical pneumonia caused by the ingestion of a small quantity of the defendants' product.

The mother of the deceased stated that she had purchased the polish on the morning of November 13, 1959, and later in the day was using it in her home to polish furniture. While using it in the deceased's bedroom she noticed a catalog which her mother had asked to see. While still in the course of polishing the furniture, she left the room and took the catalog next door to her mother's home. She testified that she was out of the room for four or five minutes.

At the time she left the room the deceased was in his crib in one corner of the room which was near one end of a bureau. The child could reach the end of the bureau nearest the crib but could not reach articles beyond the very edge of the bureau. The mother placed the polish, prior to leaving the room, upon the end of the bureau that was out of the child's reach. When she returned she found that the child had pulled a cover-cloth which was on the bureau into the crib, and the bottles and other articles sitting on the cloth came into the crib with it. The child had removed the cap of the bottle and had consumed a small portion of the polish.

The child was admitted to a hospital that same day, and according to the testimony of Dr. Barclay ultimately died on November 15th from hydrocarbon pneumonia. This particular type of pneumonia is a form of chemical pneumonia which usually results from the ingestion or inhalation of a petroleum distillate.

Old English Red Oil Furniture Polish is a liquid of a bright cherry red color contained in a clear glass bottle which is about 6¾" tall and 2¼" in diameter. The bottle has a red metal cap. The evidence shows that there are one and one-half to two threads upon the neck of the bottle and the cap.

The ingredients of Old English Red Oil Furniture Polish are 98.2% mineral seal oil, 1.8% cedar oil, a trace of turpentine, and oil soluble red dye. Chemical analysis of the product states: "This preparation consists almost entirely of a petroleum distillate which is somewhat heavier than kerosene and commonly designated as Mineral Seal Oil, or 300 degree oil, as it distills near 300 degrees C."

The label consists of a piece of paper of deep red hue which passes completely around the bottle at its center. On the front part of the label appear the words "Old English Brand Red Oil Furniture Polish" in large letters; beneath this in small letters "An all purpose polish for furniture, woodwork, pianos, floors". The reverse side of the label, the background of which is white, contains the following printed matter: at the top in red letters about 1/8th of an inch in height, all in capitals, "CAUTION COMBUSTIBLE MIXTURE". Immediately beneath this in red letters 1/16th of an inch high "Do not use near fire or flame"; several lines down, again in letters 1/16th of an inch in height, in brown ink, all in capitals, the word "DIRECTIONS"; then follow seven lines of directions printed in brown ink in letters about 1/32nd of an inch in height. On the eighth line in letters 1/16th of an inch high in brown ink appear the words "Safety Note"; following this in letters approximately 1/32nd of an inch in height:

"Contains refined petroleum distillates. May be harmful if swallowed, especially by children."

Following this is the name of the manufacturer and various other information with which we are not here concerned.

There was testimony that mineral seal oil is a toxic substance, and that it is a petroleum distillate. The defendants' expert chemists testified that one teaspoonful of this product would kill a small child. There was uncontroverted evidence of several doctors that the child died of hydrocarbon pneumonia resulting from the ingestion of the defendants' polish. Dr. Julius Caplan, one of the doctors treating the deceased, attributed death to the nature of the polish, and stated that because of its toxic quality it was capable of penetrating the intestinal tract, thus getting into the blood stream and thereby setting up fatal lung damage. Dr. James Morgan, another treating physician, testified that this polish contained a hydrocarbon that was toxic and that such resulted in the death of the child.

The mother testified that she had no knowledge that the defendants' product would have caused injury or death to her child. She stated that she had read the statement at the top of the label in large colored letters "Caution Combustible", but did not read the directions because she knew how to use furniture polish.

At the trial the plaintiffs were allowed to put into evidence certain interrogatories they had served upon the defendants together with the defendants' answers and admissions which showed that the defendants had knowledge or notice of at least thirty-two cases of chemical pneumonia since 1953 resulting from the ingestion of this product. Ten of these thirty-two cases resulted in death. At least seven of these thirty-two cases were infants; four of these infants died as a result of chemical pneumonia. The defendants vigorously objected to the admission of this testimony, and on this appeal assigned its admission as error.

The jury in returning its verdict excluded the mother from sharing in any part of the judgment. The defendants made no request for a special verdict; therefore, the jury returned a general verdict. It was in favor of the plaintiffs other than the child's mother.

The issues raised by this case are: (1) Whether the case ought properly not to have gone to the jury because the injury to the deceased was, as a matter of law, unforeseeable to the defendants since ingestion of the polish was not within its "intended use"; (2) Whether the evidence of prior accidents, to show knowledge on the part of the defendants that it was being consumed by humans, was improperly admitted since there was no showing that the circumstances of these prior accidents were similar to those of the present one; (3) Whether the negligence of the mother was the sole proximate cause of decedent's death. Since jurisdiction is here founded on diversity, we are bound by the substantive law of Virginia.

The defendants here have at no time raised the issue of lack of privity between themselves and the deceased and it appears that the point is conceded. In any event it is apparent that this case comes within the exception to the doctrine of Winterbottom v. Wright, 10 Mees & W. 109, 152 Eng.Reprint 402 (1842) which is made for inherently dangerous products. There can be no doubt but that this exception to that doctrine is well established in Virginia. General Bronze Corp. v. Kostopulos, 203 Va. 66, 122 S.E.2d 548 (1961); Norfolk CocaCola Bottling Works v. Krausse, 162 Va. 107, 173 S.E. 497 (1934); Robey v. Richmond Coca-Cola Bottling Works, 192 Va. 192, 64 S.E.2d 723 (1951). Indeed it is significant to note that the product involved in the leading case of Thomas v. Winchester, 6 N.Y. 397, 57 Am.Dec. 455 (1852), which firmly established the exception made for inherently dangerous products, was a poison.

Within the last year the courts of Virginia held that the test of whether a product is inherently dangerous is whether, "the danger of injury stems from the product itself, and not from any defect in it." General Bronze Corp. v. Kostopulos, supra. We hold that the danger of injury from the product stems from the product itself and not from any defect arising out of, or resulting from, negligence in the course of manufacture. It is therefore, an inherently dangerous product.

The defendants have contended throughout that they are liable only for injuries caused in the course of the intended use of their product. Since their product was not intended to be consumed, they say, there is no liability for death or injury resulting from consumption of it. We agree with the general principle but the application the defendants would have us make of it here is much too narrow. "Intended use" is but a convenient adaptation of the basic test of "reasonable foreseeability" framed to more specifically fit the factual situations out of which arise questions of a manufacturer's liability for negligence. "Intended use" is not an inflexible formula to be apodictically applied to every case. Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold; thus he is expected to...

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