Twombley v. Fuller Brush Co.

• Court: Maryland Supreme Court
• Writing for the Court: Before BRUNE; BRUNE
• Citation: Twombley v. Fuller Brush Co., 221 Md. 476, 158 A.2d 110 (Md. 1960)
• Decision Date: 18 February 1960
• Docket Number: No. 112,112
• Parties: Richard L. TWOMBLEY v. FULLER BRUSH COMPANY.

Page 476

221 Md. 476

158 A.2d 110

Richard L. TWOMBLEY v. FULLER BRUSH COMPANY.

No. 112.

Court of Appeals of Maryland.

Feb. 18, 1960.

Edward C. Donahue, Takoma Park, (William A. Ehrmantraut and Donahue & Ehrmantraut, Takoma Park, on the brief), for appellant.

Joseph B. Simpson, Jr., Rockville, (Simpson & Simpson, Vivian V. Simpson and H. Algire McFaul, Rockville, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

The appellant, Twombley, brought suit for damages arising from illness (hepatitis) alleged to have been caused by his use of a spot remover manufactured and sold by the defendant, Fuller Brush Company. One count of the declaration was based upon breach of an implied warranty, the other upon negligence. The trial judge directed a verdict in favor of the defendant at the conclusion of the plaintiff's case, and the plaintiff appeals from the judgment entered thereon.

The principal questions in the case concern causation, breach of warranty and negligence. Proof of causation is, of course, necessary as a foundation for liability on either theory. This question turns on whether the defendant's spot remover was identified with sufficient definiteness as the cause of the plaintiff's contracting hepatitis, or whether it was impossible to choose, otherwise than as a matter of speculation, between the cause for which the defendant was (or might be) responsible and other possible causes, for none of which the defendant was responsible. The trial judge was of the opinion that such a choice would be a matter of mere speculation and granted the motion for a directed verdict on that basis. The other questions, though presented, were not passed upon.

Whether or not the evidence was sufficiently definite to show that the defendant's product caused the plaintiff's illness depends largely upon the testimony of the expert witnesses called by the plaintiff and upon medical or hospital records. Some rather detailed examination of the evidence seems necessary.

In May, 1957, a door to door salesman for the defendant callled at the plaintiff's home, showed the plaintiff's wife some merchandise, including a can of spot remover, told her that it did a good job and sold her a can of it. This spot remover was sold in a pressurized can. It was not used until the 4th of July, 1957. At or shortly after noon on that day the plaintiff used it first to clean some spots off a pair of pants, and then he was so pleased with the result that he used the spot remover to clean the entire garment. He used an ironing board for the cleaning job and then used it to press the pants with an electric steam iron. He did the cleaning and ironing on a porch which had a wall of the house on one side and was screened on the other three. In doing the cleaning Twombley sprayed the cleaner over the trousers in short spurts at about the height of his chest, and he said that as a result of spraying the pants some mist bounced off them and that it had an odor and felt cool. There was also a considerable odor later while he was using the steam iron, which he said made the place smell like a cleaning establishment. The entire operation took about an hour or an hour and a half.

Twombley says that he read the instructions on the can and followed them in his cleaning operation. The pertinent parts of the instructions were as follows:

'Remove metal cap. Press down plastic button, with hole away from you. Avoid wetting fingers with spray, as contact with propellant can cause frostbite. * * * Holding can upright, six to eight inches away from the fabric spray the area to be cleaned, using a circular motion. Gently sponge the area sprayed with clean white cloth. * * *

Caution: Never puncture container or throw into fire when empty. Do not store above one hundred and twenty degrees fahrenheit, near stove, radiator or other source of heat. Use in well ventilated place. Avoid excessive inhalation.'

During the afternoon following the cleaning and ironing job, Twombley felt some nausea, but he and his wife went to a buffet supper to which they had previously been invited. While at the party he drank from three to five gin and tonics and ate a hearty meal. On returning home he felt pains in his chest, which he thought were due to indigestion, and he took remedies for that. The following day he made some business calls (he operates a tree surgeon service), but he could not eat and the pains continued. He noticed that his urine was very dark and getting darker. He described it as the color of dark coffee. On July 7, the pains were so severe that he went to see his doctor. His regular family physician, Dr. Savarese was away, but Twombley saw Dr. Savarese's associate, Dr. Ehrmantraut, who sent Twombley to the Suburban Hospital at once.

At the hospital the examining physician, Dr. Canivel, took a statement from Twombley in which Twombley said that his condition had begun about a week prior to his admission, 'when the patient noticed that his urine was highly colored,' and that there was no history of exposure (presumably to hepatitis). Twombley had given blood to the Red Cross blood bank in April, 1957. Dr. Canivel's impressions were first, homologous serum hepatitis, and second, infectious hepatitis. The next day Dr. Canivel's impression recorded evidence of janudice and of liver parenchymal damage, which 'could result from a hepatitis or active phase of a cirrhosis.'

On July 7, 1957, Dr. Ehrmantraut made notes in the hospital records more or less similar to Dr. Canivel's, including a statement that the patient 'in retrospect noted d[ar]k colored urine at intervals since Tuesday, (7/2/57).' The past history included the giving of a transfusion on April 11, 1957 and that the patient had been given an injection of penicillin for a cold on July 1, 1957. It also stated: 'Used cleaning fluid 1 wk. p.t.a. [prior to admission] No contact c toxic suspected or known inf. hepat.' Dr. Ehrmantraut's impression was (1) homologous serum hepatitis and (2) infectious hepatitis, and he ruled out other etiologic or hepatoxic drugs. On July 8, 1957, Dr. Ehrmantraut reported to the Health Department that Twombley had infectious hepatitis. This was not revised later.

On July 10, Dr. Savarese was Twombley. He had not examined the admission record, but on July 11 he noted in the records that the patient 'tells history of cleaning pants with special Fuller Brush Co. Cleaner.' He added 'Will have wife bring this in.' The can was produced. Dr. Savarese at first thought that the cleaner contained carbon tetrachloride and so noted on the hospital records on July 14. The next day he learned from the defendant that the cleaner contained three compounds, none of which was carbon tetrachloride. Of these three, one was perchloroethylene, which is another name (a trade name) for tetrachloroethylene. Both carbon tetrachloride and tetrachloroethylene are chlorine hydrocarbons, and both are stated to be toxic, but the former is highly toxic and the latter is 'down the list towards the bottom' as to toxicity.

Upon learning of Twombley's use of the spot remover, Dr. Savarese thought that the plaintiff's illness might be toxic hepatitis. On July 15, the day on which he learned of the ingredients in the defendant's spot remover, he made a note of his impression that the 'pattern is compatible with hepatitis, either toxic or infectious, or the active phase of cirrhosis.' On July 21, Dr. Ehrmantraut noted that 'Persistence belies usual inf. [infectious] hepatitis course of this mild a nature. Could this be actually due to hepatoxic drugs as suggested by Dr. S. or aggravated by same.' The next day he made a further note referring to 'the new clinical history of possible carbon tetrachloride or cl. [chlorine] hydrocarbons poisoning * * *.' On July 24, he noted: 'This is hepatocellular damage of unknown etiology [cause]. History of case of spot remover incriminates this as well as other causes. Have not checked on its toxic effects as yet.' On July 28, 1957, the date of Twombley's discharge from the hospital, Dr. Ehrmantraut wrote: 'Final diagnosis must be hepatitis of unknown etiology could be toxic, viral or both.'

The plaintiff's observed symptoms at and following his admission to the hospital might have been due to any of several causes, as the various and rather tentative 'impressions' of the physicians show. Without going into details, or further details, of the medical testimony with regard to two of them--cirrhosis of the liver and infectious hepatitis--we think that this testimony was sufficient to eliminate these as probable causes of the plaintiff's illness and we do not understand the defendant to press strongly any contrary contention. A closer and more difficult question remains with regard to homologous serum hepatitis which was the other alternative diagnosis to toxic hepatitis.

Dr. Savarese testified that the 'pattern' of homologous serum hepatitis and of toxic hepatitis, and of infectious hepatitis, too, would be the same. He was then apparently speaking of symptoms. He also said that if a person has a homologous serum jaundice the course would be different, but that there was no way of specifically ruling it out entirely, short of taking a biopsy of the liver. A number of hepatograms were made at the hospital, but no biopsy was taken. Both serum hepatitis and infectious hepatitis are viral, though they are caused by different viruses.

A frequent cause of serum hepatitis is a puncture of the skin. The development of the plaintiff's illness was within the 'perfect period' for the incubation of homologous serum hepatitis after the plaintiff's giving of blood on April 11, 1957. That, of course, involved the puncture of the skin.

In May, 1958, Dr. Savarese gave to the plaintiff's counsel a '[f]inal diagnosis of hepatitis; etiology undetermined; probably toxic.' At the trial he gave his opinion as follows: 'On...