Stertz v. Briscoe

• Decision Date: 24 January 1959
• Docket Number: No. 41190,41190
• Citation: 334 P.2d 357,184 Kan. 163,70 A.L.R.2d 1021
• Parties: , 70 A.L.R.2d 1021 Leonard STERTZ and Morene Stertz, Appellees, v. L. J. BRISCOE and Alice Hobbs, Appellants.
• Court: Kansas Supreme Court

Page 357

334 P.2d 357

184 Kan. 163, 70 A.L.R.2d 1021

Leonard STERTZ and Morene Stertz, Appellees, v. L. J. BRISCOE and Alice Hobbs, Appellants.

No. 41190.

Supreme Court of Kansas.

Jan. 24, 1959.

Syllabus by the Court.

1. In an action under the wrongful death statute (G.S.1957 Supp., 60-3203) it is not required that the petition state how the plaintiffs were injured pecuniarily to state a cause of action; nor is it necessary that such pleading allege special damages, to entitle the plaintiff to a verdict.

2. A consulting chemist and chemical engineer, who has taken a course in biological and toxicological work, is qualified to testify as to the effect of certain poison (parathion) upon the human system, although he is not a physician or surgeon.

3. The record, in an action by parents to recover damages for the wrongful death of their seven year old daughter, is examined and held to disclose no error warranting a reversal of the judgment.

Horace A. Santry, Salina, argued the cause, and Joseph B. Crowther, Salina, was with him on the briefs for appellants.

Clarence N. Holeman, Wichita, argued the cause, and Robert S. Lomax and Fred J. Gasser, Wichita, were with him on the briefs for appellees.

PARKER, Chief Justice.

This was an action, brought by the parents of a deceased child under the wrongful death statute, against the owner of certain rental property and his agent. After a trial by jury the court approved the verdict and rendered judgment for plaintiffs. The defendants appeal.

At all times here pertinent the defendant, L. J. Briscoe, owned a greenhouse in Lincoln, Kansas, and a four room residence on adjoining property. Defendant Alice Hobbs was manager of the greenhouse and agent for Briscoe in the rental of the residence property. On August 29, 1955, Miss Hobbs rented the house to plaintiffs, Leonard and Morene Stertz, for use as a home by the Stertz family. At that time Miss Hobbs informed Mrs. Stertz that the house had been sprayed with an insecticide and would be sprayed again before the family moved in. Mrs. Stertz testified that she was told a 'gas bomb' was used, while Miss Hobbs claimed she informed Mrs. Stertz the house was sprayed with a 'parathion bomb.' Mrs. Stertz was told the house would be aired after the second spraying and would be safe to enter the evening of the next day.

On instructions from Miss Hobbs, Eldon Esslinger, an employee of the defendants, sprayed the house, including the bathroom, with a parathion bomb on Monday, August 29. This was the second and final spraying. The next day he went back to air out the house and opened all the doors and windows, except the window in the bathroom which was stuck. The Stertzes, with their children, entered the house on Tuesday to do some work and returned each day of the week until Friday, September 2, when the family, consisting of the father, mother, two girls and one boy, moved into the house.

After the usual morning activities on Saturday, September 3, two of the plaintiffs' children, Wanda, age nine, and Donna Rae, age seven, asked their mother if they could 'swim' in the bathtub. Prior to this time none of the family had used the tub. At about 1 p. m. the older girl took her bath. Sometime between 1:30 to 2 p. m. Donna Rae got into the bathtub to take her 'swim,' in the same water. Several hours later both girls became nauseous and ill, Wanda being the first to exhibit symptoms of illness. The boy, who was much younger, was not bathed in the bathtub and did not become ill. Donna was taken to the hospital in Lincoln and was then removed to a Salina hospital, where she died shortly after 11 p. m. Wanda died in the Lincoln hospital on the same evening.

In their petition plaintiffs alleged that Donna's death was caused by absorption of a quantity of a chemical known commercially as Lethalaire G-54, which contained 10 per cent parathion; that this substance is designed for use as an insecticide for greenhouse ornamentals only; and that it is used as a spray which leaves a residue which is invisible, odorless, highly dangerous and poisonous to human beings. They also alleged that defendants were negligent in placing the highly dangerous substance in their rented house without notice to them, in failing to properly ventilate such house after placing the chemical therein, and that these acts of negligence were the proximate cause of Donna's death.

In their answer defendants denied generally the allegations of the petition and specifically denied any causal relationship between the fumigation of the house and the death of Donna. They affirmatively alleged that the fumigation of the property was done at the express request, with the full knowledge of the plaintiffs, and that such fumigation was a patent defect in the real estate.

With issues joined as just related the case proceeded to trial. The evidence, so far as here pertinent, may be summarized as follows: Lethalaire G-54 had been used for some nine or ten years as an insecticide in greenhouses owned by Briscoe. The bottle of Lethalaire G-54, which had been used in the house, was admitted in evidence. The label contained the warning 'For Use on Greenhouse Ornamentals Only'; and had the word 'Poison' printed in large letters in three places. The label also contained the warning to keep all skin surfaces covered and to use a gas mask when spraying the product. Other warning precautions and antidotes covered the entire label. A pamphlet furnished with the bomb was also introduced. It contained instructions for measuring the cubic feet of the greenhouse and calculating the dosage and treating time, as well as other instructions for use and extensive safety precautions, including instructions for ventilation.

Eldon Esslinger testified that he sprayed the surface of the Briscoe house with enough of the parathion spray to leave a film on everything. He admitted that he did not follow the instructions on the bottle and that he did not measure the house before spraying or weight the bomb before or after such spraying.

Eldon Means, a consulting chemist and chemical engineer, testified that Lethalaire G-54 contains 10 per cent parathion and 90 per cent inert ingredients and that, after application, the volatile portion of the material evaporates leaving parathion on the surface. He stated that parathion, when applied to ornamental plants in a greenhouse, goes down through the oil glands in the leaf and disappears from the surface of the plants. He testified further that a film of parathion would remain on a bathtub like the one in the Briscoe house, for a period of at least three weeks and that there would be no odor.

Dr. Harold R. Smith, physician practicing in Lincoln, who attended Donna during her fatal illness, testified that the child died of neurotoxic poisoning and that parathion is a neurotoxic poison which inhibits the production of cholesterol in the body and causes an accumulation of betacholine at the nerve endings.

Dr. Richard L. Dreher, of Salina, who attended Donna upon her removal to the hospital in that city, testified that the child's symptoms at the time of the admission were those of neurotoxic poisoning from an unknown cause. He testified further that parathion is a neurotoxic poison which can get into a person's body by inhalation, by swallowing or by absorption through the skin.

It may be stated in a general way there was ample evidence to establish that Donna was an active, healthy and vigorous child, who was well-behaved, dutiful and close to her parents.

During the course of the trial defendants moved for judgment on the opening statement, upon the ground that in such statement plaintiffs at no time made any allegation of any kind indicating that their acts were the proximate cause of Donna's death. Ruling was reserved on such motion. Subsequently they demurred to plaintiffs' evidence. Thereupon both the demurrer and motion for judgment on the opening statement were overruled. Thereafter defendants moved for a directed verdict on the ground the evidence adduced did not tend to establish a cause of action in favor of plaintiffs. This motion was overruled and the cause submitted to the jury, which found for the plaintiffs and assessed damages in the amount of $4,000. Later defendants' motion for judgment notwithstanding the verdict and for a new trial were overruled. This appeal followed.

Although they present twelve specifications of error appellants recognize some of them are overlapping and rely on but five points in their brief and on oral argument.

The first, and we may add the primary, contention advanced is that appellees have made no showing of proximate cause. In this connection, it should be noted, appellants admit that the record shows fumigation of the Briscoe house on August 29 and the death of Donna of Saturday, September 3. Indeed, on oral argument they concede the only conflict in all the evidence is whether, at the time of the renting of the residence, Miss Hobbs...