White v. General Chemical Co.

• Decision Date: 06 February 1940
• Docket Number: No. 25218.,25218.
• Citation: 136 S.W.2d 345
• Parties: WHITE v. GENERAL CHEMICAL CO.
• Court: Missouri Court of Appeals

136 S.W.2d 345

WHITE v. GENERAL CHEMICAL CO.

No. 25218.

St. Louis Court of Appeals. Missouri.

February 6, 1940.

Rehearing Denied February 20, 1940.

Appeal from St. Louis Circuit Court; Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Action by William White against the General Chemical Company for injuries caused by acid burns. From an order sustaining defendant's motion for new trial after verdict for plaintiff, plaintiff appeals.

Reversed and remanded with directions.

Henry C. Stoll and Hinkel & Carey, all of St. Louis, for appellant.

Martin F. Oehmke, of East St. Louis, Ill., and Moser, Marsalek & Dearing, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action in which plaintiff, an employee of the purchaser of a drum of acid, seeks to recover from defendant, the manufacturer and seller of the acid, on account of personal injuries sustained by plaintiff when the plug blew out of the bunghole in the head of the drum, permitting the acid to spurt out and strike plaintiff whereby he was quite severely burned about his face, neck, and other parts of his body.

Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $1,500. Thereafter the court sustained defendant's motion for a new trial upon the ground of error in the giving of plaintiff's principal instruction No. 1; and from the order so entered, plaintiff's appeal to this court has followed in the usual course.

The issue of negligence upon which the case was tried and submitted to the jury was whether defendant, with actual or constructive knowledge, had sold and furnished plaintiff's employer a drum which was defective, unfit, and unsafe for the purpose and use intended, in that the plug, which was to be removed in order to draw off the acid from the drum, was, at the time the drum was furnished by defendant, so corroded or worn that there were insufficient threads thereon to hold the plug reasonably secure in the bunghole, thus rendering the drum dangerous in that it was likely that acid would be caused and permitted thereby to spurt out of the bunghole and strike a person attempting to remove the plug in the usual manner.

The accident occurred in the City of St. Louis, on the premises of the St. Louis Glass & Queensware Company, by which plaintiff had been employed since 1932 as a glass polisher. His particular work was in connection with cut glassware, which, after being cut on a carborundum stone, is then dipped in an acid solution made up in part of oleum, which is a form of sulphuric acid. Plaintiff and his helper were in sole charge of this work, which was done on the fifth floor of the employer's building in what was known as the "acid room", a partitioned-off space, containing, along with lead vats for the acid itself, three tanks in which water was kept at a temperature of 120 degrees, with the heat supplied through pipes leading from a gas heater located immediately outside of the acid room.

For several months prior to the accident plaintiff's employer had been procuring its oleum from the East St. Louis plant of defendant, General Chemical Company. It appears that the oleum is kept at the plant in steel storage tanks, and that when an order is received, the oleum is transferred for shipment and delivery into metal drums or barrels, each about 3½ feet in height, and 26 inches across the top. Each drum has two bungholes, one in the side which is used for filling the drum at the plant, and a smaller one in the top through which the acid is removed by the purchaser by means of a spigot or valve which he subsequently attaches. Each bunghole is fitted with a metal plug, which screws in upon a gasket, and seals the acid inside the drum. While defendant's evidence was that the plugs were deliberately made to fit loosely so as not only to allow any developed pressure to escape when the seal was broken, but also to prevent them from "freezing" into place should they become sulphated, yet the testimony showed that when the plug is in place in the drum, the threads hold it in position; that it is necessary for a wrench to be employed to break the seal and remove the plug; and that assuming that the threads on both the plug and the drum are in good condition, six or eight complete turns will be required to remove the plug from the drum.

The evidence disclosed that change in temperature affects internal pressure within the drum, and that because of this, when a drum is filled at defendant's plant, a space of 3½ inches is left from the level of the acid to the top of the drum so as to relieve against expansion of the contents if subjected to an increased temperature after the drum is sealed. In view of this situation, it was shown that the proper way to open a drum is to break the seal; loosen the plug about a half-turn so as to permit the gas, if any, to escape; and then, when no further sound of the escaping gas is heard, remove the plug gradually but completely. Otherwise, if there is pressure within the drum, and the plug is removed without an opportunity being afforded for the gas to escape, the result will be that acid will spurt up and likely strike and burn the one removing the plug, as happened to plaintiff in the case at bar. Aware of this likelihood, defendant, before shipment, places labels on its drums, bearing the admonition that the contents of the same are dangerous, and advising that the plugs be removed and replaced every six or seven days in order to relieve internal pressure, if such should be found to exist.

In view of the tendency of the drums to develop pressure when allowed to stand for any length of time in a temperature in excess of that of the outdoors at which they are filled, plaintiff's employer made no attempt to keep a large supply of oleum on hand, but instead followed the practice of purchasing only one drum at a time as it might have need for a new supply of acid.

Plaintiff was admittedly aware of the tendency of the drums to develop internal pressure, and of the necessity, when opening a drum, of permitting the gas to escape before entirely removing the plug, and, prior to the time of his injury on the occasion involved in this proceeding, had opened approximately 50 of such drums without mishap of any kind.

The drum in question was filled and delivered by defendant on December 3, 1936, having been brought over from East St. Louis in a truck, from which it was unloaded upon the rear platform of the St. Louis Glass & Queensware Company, and from there taken upstairs in an elevator to the fifth floor, where it was left to stand just outside the acid room until such time as it might be needed. Defendant's evidence was that the drum was filled and sealed according to the usual practice, and that the plugs which were employed were in good condition; and indeed plaintiff's own evidence disclosed that during the time the drum remained standing on the employer's premises, there was nothing indicative of any leak from either of the bungholes.

Early in the morning of December 9, 1936, after the drum had been standing on the premises for six days, plaintiff rolled it into the acid room and prepared to remove the plug from the top bunghole in the usual manner. Using the same wrench which he had used on similar drums, he had given the plug less than half a turn, when the plug flew out from the force of the pressure within the drum, permitting the acid to spurt out and strike him, and inflict the burns upon his face, neck, and body for which he seeks to be compensated in this proceeding.

Immediately following the accident, two other employees, one of whom was plaintiff's helper, examined the plug, and, according to the helper's version of the facts, found that "some of the threads were gone all the way around" from top to bottom, with the greater defect in the plug towards the bottom. According to the other employee, the plug "looked like it was corroded, eaten away partly", and "had a worn look".

Plaintiff was away from his work for a...