Tampa Drug Co. v. Wait

Decision Date07 May 1958
Citation103 So.2d 603,75 A.L.R.2d 765
PartiesTAMPA DRUG COMPANY, a Corporation, Appellant, v. Mary Wallace WAIT, Appellee.
CourtFlorida Supreme Court

Chester H. Ferguson, M. Craig Massey, Doyle E. Carlton, Macfarlane, Ferguson, Allison & Kelly and Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellant.

Cody Fowler and Margaret Deaton of Fowler, White, Gillen, Yancey & Humkey, Tampa, for appellee.

THORNAL, Justice.

Appellant Tampa Drug Company which was defendant below seeks reversal of a final judgment based on a jury verdict in favor of appellee Mary Wallace Wait who as plaintiff below claimed damages for the wrongful death of her husband.

Numerous points cited to justify reversal are discussed hereafter. In the ultimate the major propositions are the sufficiency of the complaint to state a cause of action and the sufficiency of the evidence to support the verdict and judgment.

The deceased Thomas Bryan Wait was at the time of his death the 38-year old sales manager of Krauss Brothers Lumber Corporation. He and his 29-year old widow, the appellee, were the parents of three minor children. On March 19, 1954, having need for a substance to clean the floors of his home, Mr. Wait requested one Willie Richardson, the janitor for Wait's lumber company employer, to purchase for him a gallon of carbon tetrachloride which had been recommended by Richardson as an effective floor cleaning fluid. The purchase was made from appellant Tampa Drug Company which advertised itself as a 'manufacturing chemist.' The jug of carbon tetrachloride was delivered to Mr. Wait by Richardson. On the morning of March 20, 1954, the deceased with the assistance of one Nathaniel Morgan undertook to clean the floors of his home using the carbon tetrachloride. In doing so he poured about two inches of the liquid in an open pan. The two men then, on their hands and knees and using a piece of cloth, dipped the rag into the pan of the fluid and spread it over the floor. Both of the men noticed a strong odor emanating from the liquid. Mr. Wait worked at his project for about an hour when he complained of a headache and dizziness. He discontinued the activity but Morgan continued to work and even worked some the following day to complete the job. Morgan suffered no injury. However, by the middle of the afternoon of March 20 Mr. Wait was definitely ill. His illness became progressively worse until he died on April 2, 1954.

Several doctors testified that he died as a result of carbon tetrachloride poisoning. The record suggests that the janitor Richardson had informed Mr. Wait that a person had to be careful when using carbon tetrachloride. It was also shown that during the time that he was working with the liquid three windows and a door to the room where he was working were all open. Following the death of her husband Mrs. Wait instituted this action against Tampa Drug Company. Her complaint was framed in two counts. In one she grounded her cause on the alleged negligence of the drug company in placing on the jug of carbon tetrachloride a label which was inadequate to warn the deceased of the dangerous characteristics of the product and the fatal effects which might follow the use thereof. The other count was grounded on the alleged inadequacy of the label to warn the public of the characteristics and fatal potentialities involved in the use of the liquid. A copy of the label was attached to the complaint as an exhibit. It read as follows:

'Carbon Tetrachloride-Technical--

'Useful as fire extinguisher. For cleaning clothing: solvent for fats, oils, varnishes, waxes, resins: exterminating weevils and insects in grain.

'Volatile Solvent-Vapor Harmful--

'Use with adequate ventilation--

'Avoid prolonged or repeated breath-of vapor.

'Avoid prolonged or repeated contact with skin.

'Do Not Take Internally.

'Tampa Drug Company

'Manufacturing Chemists

'Tampa, Florida'

Mr. Wait had read the label before using the chemical.

The testimony reveals that 'carbon tetrachloride technical' means almost one hundred percent pure carbon tetrachloride. In other words, it means that the chemical has not been diluted by mixture with any other substance. It is clear from the record that this chemical can produce harmful results, even death, when taken internally, when the vapor therefrom is breathed excessively or when the skin is subjected to prolonged contact with it. The effect of excessive exposure in any one of the three forms is that the circulatory system becomes saturated with the toxic vapors with the result that the kidneys and liver completely deteriorate. When this happens, of course, death results as it did in the instant case.

After motions to dismiss the complaint were denied, the appellant drug company answered by denying the negligence and by asserting that Mr. Wait by his own negligence proximately contributed to his own injury and death. In addition the drug company undertook to defend by answering that the label used was substantially that required by the so-called Federal Insecticide, Fungicide and Rodenticide Act (Sections 135-135K, Title 7, United States Code Annotated). They tendered an additional defense that the label used was substantially similar to that prescribed by the Commissioner of Agriculture of the State of Florida pursuant to Chapter 487, Florida Statutes, F.S.A., and promulgated in accord with the state statute supplemented by the federal act above cited.

The trial judge struck the defenses grounded on the state and federal statutes. The cause ultimately went to trial on the issues of negligence and contributory negligence. After a prolonged and hotly contested trial, the jury rendered a verdict in favor of Mrs. Wait in the amount of $160,000. The trial judge had previously denied appellant's motion for a directed verdict. A motion for new trial was denied. The trial judge then entered a judgment pursuant to the verdict. Reversal of this judgment is now sought.

It is contended by the appellant drug company that its motion to dismiss the complaint should have been sustained for the reason that the label therein described was sufficient as a matter of law. It is further contended that appellant's motion for a directed verdict at the close of all of the evidence should have been granted for the reason that the evidence showed no liability on the part of the drug company and on the contrary established contributory negligence as a matter of law. Appellant further contends that the trial judge committed error in striking its defenses grounded on the state and federal statutes and in addition committed numerous errors in admitting certain testimony and in giving various instructions to the jury. Finally, it is asserted that the verdict of the jury was excessive.

The appellee here contends that the trial judge ruled correctly on the pleadings, that his jury instructions as a whole correctly stated the law applicable to the case and that in the ultimate the matter was properly submitted to the jury which had abundant evidence to support its verdict.

In proceeding to our ultimate judgment we announce herewith certain controlling propositions of law. We will then apply these rules to the situation presented by the instant record. Various points and contentions urged by the parties which have not been detailed above will be covered in our consideration of the appeal in the light of the rules of law applicable.

It will be remembered that Mrs. Wait sued the drug company for its failure to warn of the dangers inherent in the use of carbon tetrachloride by virtue of the inadequacy of the label attached to the jug of the chemical which was sold to Richardson and purchased by him at Mr. Wait's request. After proceeding through the preliminary pleading stages the trial of the case revolved around the primary issue as to whether the warning printed on the label was adequate to fulfill the duty imposed by law on the appellant. Aside from the interesting testimony of various expert chemists and physicians, the trial developed into a contest of labels. The appellee-plaintiff produced in evidence numerous labels used by nationally known manufacturing chemists, all of which she contended were more complete and more thoroughly effective to warn of the dangers inherent in carbon tetrachloride as well as the potential harm that might ensue upon use of the liquid. She introduced also a label promulgated by the Manufacturing Chemists Association, a nationwide organization of leading manufacturing chemists. It developed that the label was practically the same as the one used by the nationally known manufacturing chemists which she placed in evidence separately. These chemists were members of the Association.

The appellant in turn placed in evidence various labels which were used by other suppliers. These were intended to show by comparison that appellant's label was adequate. In addition appellant undertook to place in evidence a label approved by the Secretary of Agriculture of the United States under the Federal Insecticide, Fungicide and Rodenticide Act which label in the view of appellant established a standard of care. Proceeding on this notion appellant undertook to show that it had met the standard of care prescribed by the Federal Insecticide Act and regulations promulgated pursuant thereto. Although the trial judge had stricken the defenses based on the federal statute which were intended as a complete bar to the action he permitted the federally endorsed label as evidence of an adequate label consistent with appellant's contention.

In this regard it should be recalled that the liquid used by Mr. Wait was 'technical' or practically one hundred percent carbon tetrachloride. The Federal Insecticide Act is a statute regulating the manufacture and distribution of insecticides, fungicides and rodenticides. The record before us appears to establish clearly that carbon tetrachloride in pure...

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