McDonald v. Triest

119 A.D. 75, 103 N.Y.S. 1041, 1907 N.Y. App. Div. LEXIS 3866

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1907
• Status: Published

Opinion

Jenks, J.:

The action is for negligence by servant against master. The ser-. vant, a woman aged nineteen years, worked at sorting broken parts óf vanilla beans, called “ cuts,” in the warehouse of the- defendants who imported the beans from Mexico. The-plaintiff, who had.no previous experience, testifies.that after two weeks her skin itched and then a red swelling or an eruption of small blisters appeared on her. arms, head, neck and breast. .She quit work for six weeks and called in a physician who cured her. She returned to work and the eruption ■ reappeared. • The theory of the plaintiff is that this disease was caused' by a poisonous substance'with which she came in contact, when at this work. Her case, is that she was wholly ignorant of this substance, but that her master well knew that the work was thus dangerous, but failed to notify her. In Mather v. Rillston (156 U. S. 391,399) the court, per Field, J„ say: “ If persons engaged in dangerous occupations. are not informed of the accompanying dangers by the promoters thereof,, or by .the employers of laborers .thereon, and . such laborers remain in ignorance of. the dangers and suffer in consequence, the employers will also be chargeable for the injuries, sustained.” . Thompson "on ¡Negligence (2d ed. § 4059) thus states the principle: “It"is the duty of an employer to warn his servant ‘ with respect to latent dangers known to the employér or discoverable by him in the exercise of reasonable • care.” There is no evidence, but the contrary is fairly established, that this danger attended the work of .sorting these cuts. Hence this case does not-fall within the principle of those cases where the danger necessarily accompanied the mere doing of the work, like the .manufacture" of Paris green (Fox v. Peninsular White Lead & Color Works,. 84 Mich.676) or "of a poisonous liquid (Texas & N. O. R. Co. v. Gardner, 29 Tex. Civ. App.. 90), or' making dinitro-benzole ( Wagner v. Jayne Chemical Co., 147 Penn. St. 475). Therefore, it was for the plaintiff to show that the master knew or in. the exercise of due care" should know of the alleged latent danger before she can assert .that.the master was negligent in. not warning her thereof. The plaintiff made proof of the rash whicli her physician said was very similar to the poison of poison ivy; but the proof of -the cause is very-unsatisfactory, and the proof of the defendants’ knowledge, actual or constructive, is weak and cannot prevail' against the" evidence of the defendants." The proof of the cause rests upon the testimony of her attending physician, who testifies that he- found his patient suffering from active dermatitis; in other words, infiarnination of the skin. He said that he knew the cause, which was an irritative oil which had come in contact with the skin, and.that he had never seen any similar case. He testifies that he naturally looked into the case with special care. He was asked: “ Q, What species of oil does cause this disease, doctor ? A. An oil secreted by-an insect, known as the a/naca/rdium occidentále. Q. What .is that found around ? A. Some time found mixed with the vanilla bean.” He then testified that he believed this species of skin irritation was not recognized medically. “ Q. What was the statement ? • A. An oil secreted by this little animal, this little insect, this anacardium, occidentále. It is some times found mixed with vanilla beans. That oil is a direct irritant to the skin. Q. Is the disease that' comes from that oil known and treated medically? A. Yes.. Q,. So the only thing that is not classified is the" connection between the animal and the vanilla bean ? A. That is known and recognized.” On cross-examination he testified: “Is this the first case of dermatitis from anacardium occidentále that you have handled ? A. From the oil secreted by the animal. Q. Never met the animal before in practice ? A. Really never met "him. Q. What is he like ? A. I Could not say. Q. Never saw it"? A. No. Q. Never saw a picture of it? A. Never. Q. Now you say this particular form of skin disease was caused by oil? A. Yes. Q. And that you swear to to the best of your opinion, is that right.? A. Hpon reputable authorities, yes. Q. Could such disease be caused by acid ? A. Yes. * * "* Q. Do you go on record, here that the trouble of skin disease was not-caused by the oil from the vanilla bean? A. This particular case? Q. Yes? A. Yes, * * * Q. Now tell me how it was caúsed ? Give me the process? A. Lc was caused by the presence on the skin of the oil secreted by this little insect I speak of. Q. What sort of an insect is it ? A. I have given you its name, sir. Q. Is that all you know about the matter, except the name? A. I know that it is found in connection with vanilla beans and is sometimes known as the elephant louse. Q. Do yon know anything about poison from vanilla bean or from the oil from vanilla bean or this animal except what you have read? 4l. No, sir, I don’t know; this is the only case I have ever seen.” After some further discussion the physician said: “ I know that the irritant is'the oil secreted by this little insect.” ' And again: “ This-..oil, as I understand it, is secreted by the animal at first, just as you and I, perhaps, secret (sic) several or various things. I don’t understand it as being in any way an essential oil of vanilla at all. Q. So you say it is not poison: •from the oil of vanilla. bean, but is poison from oil exuded by the insect? A. Yes. Q. Mow, what is that oil? A- It is the oil execrefed (sic) by the insect known as anacardium occidenicde, * * * Q.. In studying up about the vanilla bean, what théory have you in your mind as to how and where the insect comes from ? A. I have not any — theory, you say ? I assume the insect is an-habitat of the country where the bean is grown™the place where the bean comes from — and is packed with it. Q. So you think a bean, whether a sound bean or an unsound bean, can still be possessed of this insect? A. Yes. Q. But you don’t know? A. I don’t know. * * ' * Q. So that when this, young lady talked- aboiit these little things that flew around you cannot identify him in connection with til & anacardium occidental? A. No.” The witness did not cite and was not asked to cite any authorities,. and I am not enlightened by the research vof either counsel. • I am, ■ therefore, somewhat troubled by this record . On the one hand, there . • ' is this testimony of a physician, who has given this Case careful • study and who repeats and reiterates that the cause of 'this disease ' is an' insect which is known as an anacardium occidentals. I turn to, the American Illustrated Medical Dictionary by Dprland (1903) • ' and I find this, definition.: “Anacardium (an-ali-kar de-um) (L.; G'r. ana up — kardia heart);- • A genus of tropical trees, with á poisr onohs juice. A. occidentals, the cashew tree, affords: the cashew-nut and a useful gum,, as wBll aS cardol (q. v.). It is used for leprosy, for destroying corns and warts, and as a vermicide, Dose of tincture, 2A0 -min. (0.133-0. 666 c. c.). -An ointment is used as a blistering-application.” I find substantially the same definition in Gould’s Illustrated Dictionary of, Medicine. Deferring to the word “.cardol” used tin the .definition supra, as defined in the Century. - Dictionary, I find cardol, -“ an oily- liquid" contained in. the pericarp of = the cashew-nut.- Anacardium occidentals. It. is a powerful blistering agent,” -I turn - in. the sanie book to cashew-nut, and I find:-“The kidney-shaped nut of the. Anacardium-occidentals,” and I find an illustration of a. plant or part’of a tree with the words under it “ Anacardium occidentale.” I then turn to anacardium, ■“ a genus of shrubs and trees ” and under it “ In the cashew-tree. ■ A. occidentale, the principal species,” etc., and there is another illustration described as fruit of Anacardi/wm occidentale. Speak- . ing with all seriousness, here áre books, technical and general, of high standard, which describe that which the physician says repeat- • edly is an insect, as a tree or a shrub. The doctor and the dictionaries disagree. It may be that in the march of scientific knowledge he is ahead. It may be that in the confusion of the witness stand he was not correct; It may be that he was repeatedly, again and again, misunderstood. It may be a case of repeated misnomer. It may be that there is an. insect of this' name which was not named when these books were published. It may be that the physician was in serious error. But I find this - additional feature. The American Cyclopedia states under the heading Vanilla: “ It has .. been said in all the cases where poisoning has taken place from ice cream vanilla has been the flavor employed. It is supposed by Schroff that in these cases the extract has been prepared from parcels of the drug which have been besmeared with cashew-nut oil.” Taylor on Poisons says (3d. ed. p. 79): ■ “ There is nothing in vanilla to cause poisoning. It contains a crystallizable principle, vanillin or vanillic acid, which is not poisonous (Husemann ‘ Pflan&enstoffeJ 1871, p. 1038). In order to account for the irritant effects, Dr. Rosenthal believes that there was a production of cardol, an irritant oily principle (found in Anacardium occidentale) somewhat resembling cantharadine.” I am quite clear that the case upon the evi- ■ dence adduced as to the insect is so unsatisfactory that it cannot stand. If the plaintiff retry the case, it may be that the witness can clear away the mist.

If we view the case as resting on the evidence of this witness that the poisoning was due to an oil, yet it is hot sufficient to establish that the master knew or ought to know that there was this latent danger. For inasmuch as the scientific part of the case rested upon the insect theory, the case is naturally defective as to the vegetable oil theory; while on the other hand there is, as I have said, evidence that this danger is not attendant upon the work itself. We are left in the dark as-to the frequency of such contamination, and as to the effect upon the beans,, if any, so as to afford notice.. There is one other feature, that, of the elephant louse, -which I shall recur to.

The plaintiff' .called. Mr. Smeltzer, who had been, in the. defendants’ service.. He testified that some time before the plaintiff had come 'into employment a rash -had appeared ón his arm,- and that Retold the defendant that he thought he had been' poisoned, but lie did not .tell- in. what way save specifying that .it was at work in the warehouse. - But the witness admits that he had blood, poisoning in his foot before this, rash appeared. The- defendant' testifies that Smeltzer did tell him that he thought the rash or poison .came from the beans, but .that lie gave it no significance as he knew of the blood trouble. There is some father vague testimony that a small boy once suffered from a rash. This testimony, taken with that of the plaintiff, who asserts that her sister suffered likewise (although . the sister did not testify), constitutes practically all of -the evidence in relation to any injuries from the work or similar work done by: the plaintiff. The defendant testifies that he had been in this" business for twenty years and had never known, or heard of any case save those-.which I have- enumerated. He testifies that there is a small -parasite,- a louse like those found on plants, found on diseased, beans, but that 'it is harmless. His witness Hamilton, a man of 35 years’ experience, testifies that he never saw or heard of such a, case save one 15 or 16 years ago, where a workman had a skin-eruption which he attributed to the beans* but the man’s physician did npt believe that they were the cause. The superintendent of. the defendant, with 25 years’ experience* corroborated his employer and Mr. Hamilton. It seems to me that, as the case does not- present the features- of danger necessarily incident to the work of handling these vanilla beans or cuts,'upon the unsatisfactory proof and. the absence of proof, that the master knew, of ought. to know, the ' danger, the judgment was wrong, and that a new trial must be ordered., Interesting and learned discussions of liability may be. found- in Hysell v. Swift & Co., (78 Mo. App. 39). (See, too,.Lawless v. Laclede Gas Light Co., 72 id. 679).

Hirschberg-, P. J., Woodward, Rich and Miller, JJ., concurred. .

Judgment of the Municipal Court reversed and new tiiai ordered, costs to abide the event.