Tripp v. Choate

• Decision Date: 12 June 1967
• Docket Number: No. 52310,No. 2,52310,2
• Citation: 415 S.W.2d 808
• Court: Missouri Supreme Court
• Parties: Cornell TRIPP and Beatrice K. Tripp, Respondents, v. Wendell CHOATE and Bruce Larkins, a Partnership, d/b/a Larkins and Choate, Appellants

Page 808

415 S.W.2d 808

Cornell TRIPP and Beatrice K. Tripp, Respondents, v. Wendell CHOATE and Bruce Larkins, a Partnership, d/b/a Larkins and Choate, Appellants.

No. 52310.

Supreme Court of Missouri, Division No. 2.

June 12, 1967.

Joslyn & Josyln, Charleston, for respondents.

Dwight Crader, Sikeston, for appellants.

BARRETT, Commissioner.

In this action for the wrongful death of their son Ronnie Tripp, age 16, while employed by the appellants, Choate and Larkins, a jury awarded the parents, Cornell and Beatrice Tripp, $25,000.00 damages. The charge and submission of negligence and liability was that his employers knowingly used Parathion DDT, poisonous chemical, as a corn spray and directed Ronnie's mixing of the chemical with water but 'failed to provide reasonably safe protective devices' resuling in Ronnie's death.

Since 1958 Wendell Choate and Bruce Larkins have successfully specialized in the production and marketing of sweet corn. The particular part of their large commercial enterprise involved in this action is a partnership in 250 acres of land near Dorena in Mississippi County. This phase of the operation was immediately directed by Larkins with three employees, Willmor Caldwell, a supervisor with eight years' experience in growing sweet corn, Pete Smith, a laborer, and for ten days in June 1964 Ronnie Tripp, also a laborer.

From the beginning of their sweet corn operation Choate and Larkins employed Parathion DDT as an insecticide. The dictionary definition of parathion is an 'insecticide * * * of extreme toxicity to mammals as well as insects.' Webster's Third New International Dictionary. To apply the chemical on this 250-acre tract they employed two 'Hi-boys,' three-wheeled machines for 'high clearance spraying' of eight rows of corn at a time. Mounted on each hi-boy was a 200-gallon tank with necessary motors to propel the machine and spray its contents. The corn was sprayed more than once a season but during a spraying operation Caldwell said they sprayed 10 to 70 to 100 acres a day. A 200-gallon tank emptied every 30 to 35 minutes and so had to be refilled twice an hour or for the two machines four times in an hour. The Parathion DDT came in 55-gallon drums and it was Ronnie's job to draw the chemical from the drums and mix it with water in the 200-gallon tanks, three and one-half gallons of chemical to 200 gallons of water. At the end of the field there was a one-thousand-gallon water tank with a twelve-foot hose, the machines stopped near the water tank and Ronnie would insert the hose in the top of the spray tank, start the water running, draw from the 'spring-load bung' of the drum 3 1/2 gallons of Parathion DDT in a fiber glass container with a spout, reach up 'shirt-pocket high' and pour the chemical into the tank and close its lid. He withdrew the hose from the spray tank and replaced it on the water tank. Mr. Larkins was of the opinion that 55 gallons of Parathion DDT were used each day and that the spray tanks were filled approximately 15 times each day. He said that from reading the labels on the drums he had learned that Parathion DDT was 'poison, that's one thing, for sure, I can remember. It does say they are poison.' And during his spraying operations over the years he had had employees who became ill from the chemical and he had taken them to doctors and hospitals for treatment. The supervisor, Caldwell, said that the chemical had a distinct odor and he knew that it was dangerous and 'believed it would' kill human beings.

Larkins said that he was not present when Ronnie started to work and he left it to Caldwell to instruct Ronnie as to his duties and to warn him of the dangers incident to the tasks. But he had personally instructed Caldwell and others 'to be careful with the DDT and Parathion. To be careful of the machines because they would turn over. Be careful and cautious and if he did spill any of the chemical on him to wash it off if it was on his skin. If it was on his clothes, to go home immediately and change clothes and take a bath. Not to smell any of the vapor, always park the machines and stay on the upwind side of them.' Caldwell said that he instructed Ronnie 'whenever he was handling it, to wash his hands and never to go down through a field that has been sprayed, and if he was running the machines and one of his nozzles happened to stop up, not to attempt to unstop it to reach the end, and if he got any on him, to go home and change clothes and wash it immediately, and I always told him to smoking a cigarette, to catch it with two fingers and take the bottom side up to smoke it.' And he 'was always told to stay on the upwind side.' This was the extent of the warning to Ronnie and the extent of Choate's and Larkins' instructions to employees.

The conspicuous label in black and red type on yellow paper, together with skull and crossbones, had this warning in capital letters: 'WARNING. POISONOUS IF SWALLOWED, INHALED OR ABSORBED THROUGH SKIN.' Beneath the warning in capital letters were these further warnings and specific instructions (emphasis supplied): 'Rapidly absorbed through skin. Wear natural rubber gloves, protective clothing and goggles. Do not get on skin or in eyes or clothing. In case of contact remove clothing, wash thoroughly with soap and water * * *. Do not breathe spray mist or vapors. Wear a mask or respirator of a type passed by U.S. Department of Agriculture for Parathion protection. Keep all unprotected persons and animals out of operating area or vicinity where there may be danger of drift. * * * Wear clean clothing daily. Wash all contaminated clothing with soap and hot water before re-use. Wash hands, arms and face thoroughly with soap and water before eating or smoking.'

Choate, Larkins and Caldwell had all read that label and despite its specific instructions no gloves, goggles, respirators or protective clothing were furnished. Candwell said that he followed the instructions of Choate and Larkins but he never knew that these protective devices were required and as to the label he said, 'I had read it but slipped my remembrance.' Choate and Larkins had two respirators but they were never used or offered to employees. Choate remembered some of the instructions on the label but he said that there was 'Not that I know of' any specific direction to wear rubber gloves. As to protective clothing or goggles he said, 'If there is, I don't remember.' Larkins knew that Parathion was 'poison, that's one thing for sure' but he could only remember the directions as to washing 'if you spill any on you,' he did not remember about gloves, goggles and protective clothing.

On the tenth day of his employment, Sunday, about 2:45, 'when we wound up with the spraying,' Ronnie complained of feeling bad and Caldwell asked if he wanted to go to a doctor but Ronnie said "No,' he think he drank some water on an empty stomach' and so Caldwell took him home. His mother said that he got out of Caldwell's car about 4 o'clock and after he bathed and changed clothes was too sick to eat supper. His father first saw Ronnie at 4 o'clock in a few minutes he went to the back door vomiting, he came back in laid on the floor a few minutes went outside vomiting again and had an involuntary bowel movement. His father and mother bathed him again but 'his head was hurting and he was sick to his stomach.' His 'eyes looked funny' and they drove him seventeen miles to East Prairie and he was ill again in the automobile and Dr. Weaver made arrangements for Ronnie to be admitted to the hospital in Sikeston. About 6:30 Ronnie was taken by ambulance to Sikeston and by then 'white foamy stuff was rolling out of his nose and mouth' and he did not respond to his parents' talk. At 10:20 on June 21, 1964, Ronnie died, the death certificate reciting that death was caused by 'chemical poisoning toxic corn spray.'

In this background the appellants Choate and Larkins' liability to Ronnie, now to his parents, rests upon the most elemental of tort obligations, illustrated by Reickert v. Hammond Packing Co. (1909), 136 Mo.App. 565, 118 S.W. 525, an employee injured by caustic soda while cleaning his employer's iron meat trees, and Marsanick v. Luechtefeld, Mo.App., 157 S.W.2d 537. In the latter case the plaintiff suffered burns from muriatic acid while clearning his employer's brick walls. Against his employer plaintiff pleaded failure to warn and that he 'was directed to wash said walls with a brush dipped into muriatic acid, without being furnished gloves or a mask, or other covering to protect his hands, arms, and face from being burned, when defendant knew, or by the exercise of ordinary care could have known, that in doing said work without such protection plaintiff was likely to be burned by said acid'. Briefly as to the fundamental rules applicable here the court said, 'an employer is bound to exercise reasonable precaution against injury to his servant while employed in his service. Not only must the master provide suitable and safe instruments and means with which the servant may carry on his work, but the master must warn the servant of all dangers to which he will be exposed in the course of the employment * * *.' Peculiarly applicable here is the herbicide case of Holladay v. Chicago, B. & Q.R. Co., D.C., 255 F.Supp. 879, in which a switchman suffered peripheral neuritis from contact with sprayed weeds. The court pointed out that the railroad was not an insurer of the safety of its employees but was liable only for negligence which included foreseeable harm. See also for the general rules 53 A.L.R. 392 'Master's liability for injury to servant by disinfectant or similar substance,' and 12 A.L.R.2d 436, injury upon spraying crop, and 74 A.L.R.2d 1029 'Master's liability for servant's condition or injury resulting in dermatitis,' and Evinger v. Thompson, 364 Mo. 658, 265 S.W.2d 726.

The appellants do not directly challenge the applicability of these fundamentals; th...