Texas Drug Co. v. Cadwell

• Decision Date: 28 January 1922
• Docket Number: (No. 8602.)
• Citation: 237 S.W. 968
• Parties: TEXAS DRUG CO. v. CADWELL.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

237 S.W. 968

TEXAS DRUG CO. v. CADWELL.^*

(No. 8602.)

Court of Civil Appeals of Texas. Dallas.

January 28, 1922.

Rehearing Denied February 25, 1922.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by Wm. J. Cadwell against the Texas Drug Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Crane & Crane, of Dallas, for appellant.

Marshall Thomas and Thompson, Knight, Baker & Harris, all of Dallas, for appellee.

VAUGHAN, J.

Appellee instituted his suit in the trial court to recover damages alleged to have been sustained by him on account of certain personal injuries claimed to have been suffered through certain acts of negligence committed by appellant on July 16, 1919.

Appellee alleged in substance that on July 16, 1919, he was in the employ of Collins' Drug Store. That the defendant at such time was engaged in the wholesale drug business, including the sale of drugs, chemicals, and sundries to the retail drug stores of the southwest. That at that time the defendant company handled, compounded, and sold the retail trade a chemical designated and known as concentrated ammonia. That concentrated ammonia is an inherently dangerous, highly volatile, explosive chemical which, if permitted to come in contact with the human body, and particularly the eyes, will cause and produce serious, painful, and permanent injury, burn, and wound, all of which facts were well known to the defendant at the time of the wrongs complained of. That it was the duty of the appellant to employ and use care, skill, and diligence to limit the danger incident to the use of concentrated ammonia and to protect the public, including the appellee, from such danger. That in selling concentrated ammonia to a retail drug store, the appellant was advised and knew that it was necessary for the purchaser's employees to handle the bottle containing such chemical and that there was serious danger incident to such handling unless the purchaser and his employees were protected therefrom by the care, skill, and diligence of the seller. That on July 16, 1919, appellee's employer purchased from the Texas Drug Company a bottle of concentrated ammonia, and that upon the delivery of said ammonia it became and was his duty to receive and place same in position in said drug store. That acting in line with the duty incumbent upon him, he undertook to place same in its proper position in said drug store. That while engaged in such attempt the ammonia and gases formed therefrom exploded, forcing the cork stopper therefrom and causing the concentrated ammonia to come in contact with the appellee's face and eyes, thereby inflicting upon him painful and permanent injuries. That it was the duty of the appellant in the preparation, sale, and delivery of such a dangerous, volatile, and explosive chemical to exercise a high degree of care, skill, and diligence to protect persons who handle the same or come in contact therewith from the danger incident thereto.

Appellee then defined in his pleading appellant's duty in the premises and alleged that appellant in the preparation, sale, and delivery of said bottle of concentrated ammonia was guilty of negligence in the following respects and particulars, to wit: (a) In selling and delivering a bottle of concentrated ammonia, which was completely filled and in which there was no adequate space for expansion of gases, thereby increasing the hazard and danger of an explosion when the defendant, its servants, and employees, knew, or in the exercise of the care incumbent upon them should have known, the danger incident to such condition. (b) In placing a cork stopper in said bottle of concentrated ammonia, when the appellant, its agents, servants, and employees, knew or in the exercise of the care incumbent upon them should have known, that such cork stopper, unprotected, was inadequate and insufficient to prevent an explosion and the consequent damage and injury. (c) In failing to properly secure and fasten the cork stopper placed in the neck of said bottle of concentrated ammonia, by sufficient and adequate strip or band placed over the same and securely fastened to the neck of the bottle in such manner as to protect and hold in place such cork stopper, when the appellant, its agents, servants, and employees, knew, or by the exercise of the care incumbent upon them should have known, the necessity for such protection and support. (d) In failing to place a glass stopper in said glass bottle as a security and protection against explosion. (e) In failing to place a glass stopper in said bottle and in failing to protect and secure said glass stopper against explosion by placing over the same a strip or band securely fastened to the neck of the bottle. (f) In failing to employ and use reasonable and necessary safeguards and protection against an explosion. (g) In failing to give appropriate, timely, reasonable, and necessary notice and warning of the danger of an explosion, by writing or printing on said bottle, when the appellant, its agents, servants, and employees, knew, or in the exercise of the care incumbent upon them should have known, of the existence of such danger and the necessity of notice thereof to plaintiff and others handling same. (h) In preparing, selling, and delivering a bottle completely filled with concentrated ammonia, without securely and safely impounding same and protecting same against explosion. (i) In failing to so bottle, impound, and secure said concentrated ammonia so that same would not explode and injure persons handling same. (j) In so impounding and bottling concentrated ammonia, an inherently dangerous chemical, so as to cause the same to explode.

Appellee alleged that concentrated ammonia is more volatile and subject to explosion during weather such as exists in June, a fact well known to the appellant, its agents and employees. That the appellant, its agents, servants, and employees, had notice, information, and knowledge, of each and all of the foregoing defects and acts of negligence, or in the exercise of the care incumbent upon them could have and should have acquired such notice, information, and knowledge, and had notice, information, and knowledge of the dangers incident to and relating thereto, or in the exercise of the care incumbent upon them could and should have learned of such dangers. That the explosion and consequent injuries and damages were the natural, reasonable, and probable consequences of each and all of the foreging acts of negligence, and that such explosion and consequent injuries and damage were proximately caused by each and all of the foregoing negligent acts and omissions.

Appellant, in addition to a general demurrer, certain special exceptions, which it is not necessary to enumerate, and a general denial, pleaded specially that, if it was guilty of the acts of negligence alleged, which were not admitted but expressly denied, at the several times alleged in appellee's petition, and at the time of his alleged injury appellee was engaged as an employee in the drug business, that at said times he was thoroughly familiar with, or by the exercise of ordinary care for his own safety could have become thoroughly familiar with, all the dangers, if any, connected with or incident to the handling of ammonia water, or concentrated ammonia, especially in its bottled form; that at the time it was alleged he received said bottle of ammonia water and undertook to place same in its place in the drug store, he knew, or by the exercise of ordinary care would have known, that said bottle contained ammonia water and the extent to which said bottle was filled with ammonia water, and that said bottle was corked with a cork stopper, and that said cork stopper was not protected, or held in place by a strip or band; that in receiving and placing same in its position in the store, under the circumstances surrounding its delivery and receipt and the handling of same, he knew, or by the exercise of ordinary care would have known, that ammonia gas would have generated or formed therein, and would have probably produced a pressure sufficient to force out the stopper and cause the gas and ammonia to rush therefrom; that in total disregard of all these facts which were well known to him, or should have been known by him, appellee in utter disregard for his own safety, carelessly and negligently received said bottle and its contents and attempted to place same in the store with the part thereof containing the cork pointed toward and in close proximity to his face, although he knew, or by the exercise of ordinary care could have known, that the safe and customary way to handle bottled ammonia is to hold it away from the body with the portion thereof containing the cork pointing away from the person handling the same; and that if any injury was sustained by appellee, such injury was the direct and proximate result of and due to his own negligence and his own acts as above alleged.

The following material facts were established on the trial of the case: Concentrated ammonia is an exceedingly volatile liquid gas. It is gas concentrated into a liquid form and is subject to evaporation. As it evaporates the acid fumes from it are very poisonous. They not only produce death, but they produce burns and blisters resulting in scar tissue and destruction of tissue. It has a tendency to go back to gas from evaporation. When it strikes the air it will evaporate very much like gasoline. It is explosive —within its own nature—within its own products. For that reason we have been taught to take extra precaution against its coming in contact with the air. There should be well-secured stoppers. An ordinary cork stopper should not be used. Ammonia water is ammonia gas dissolved in water. Water will dissolve ammonia in proportion to the temperature and pressure. Under normal atmospheric pressure, water, at practically 32 degrees Fahrenheit, will dissolve 1,150 times its...