BERGAMO v. ENGELHARDT

HOUSER, Commissioner.

This is an action for damages brought by Emmy Rose Bergamo against her brothers, Rudolph and Otto Engelhardt, arising out of the death of plaintiff's husband, John Bergamo, caused by the drinking of poison on the premises operated by defendants in the City of Kirkwood and known as Engelhardt Brothers Nursery. From a judgment for plaintiff for $7,500 defendants have appealed to this court.

The petition alleged that John Bergamo, an invitee on the premises of defendants, was invited to partake of wine and died from the effects of drinking from a bottle containing poison which was located at a place where refreshments were kept. Various assignments of negligence were made, including that of permitting the poison to remain in a place where it was likely that persons invited to partake of food would mistake the poison for wine, and failing to warn plaintiff's husband of the danger therefrom. The answer was a general denial coupled with a plea that deceased's negligence caused or contributed to cause his death.

On December 2, 1950 a hailstorm broke the glass out of some 16,000 square feet of defendants green houses, thus exposing the plants growing therein to the danger of immediate freezing. In response to a call for help issued by telephone and radio at the behest of defendants a large number of relatives, neighbors and friends, including 30 Boy Scouts, appeared within a short time to assist defendants in salvaging the plants, moving them to other greenhouses and cleaning up the damaged property. They were all unpaid volunteers, none of whom was employed by defendants to render this service. During the evening coffee and sandwiches were provided for the refreshment of the volunteer workers. A cafe sent over a coffee urn. Defendants bought 150 to 200 sandwiches at a time. This was served to the people in a workroom adjacent to the greenhouses. The coffee and sandwiches were put on a bench in the shed. Defendants customarily kept bottles of poisonous insecticide in that same workroom. The insecticide was used by them for pest control in the operation of the nursery business. These bottles remained in their permanent place and were not moved from the time the hailstorm struck until the tragedy occurred. Late in the evening of December 2 a neighbor brought a gallon of wine, which was set on a desk next to the telephone, 10 or 15 feet from the table where the poisons were kept. The wine remained there all night and was at no time opened or touched. On the morning of December 3 there were used paper cups and whatever food was left over from the night before on the two benches in the workroom. John Bergamo, brother-in-law of defendants, was invited to come and help. Unable to respond on December 2 because of the conditions of his employment, he arrived on the premises on December 3 and assisted in the work until the time he drank the poison. When Bergamo arrived there were about 200 people on the premises. After John Bergamo arrived on the premises on December 3 a friend brought a quart of wine to Rudolph Engelhardt. It was cold, wet and muddy where the people were working. With the quart of wine in his hand Rudolph Engelhardt walked out into the greenhouse and called to them to have a drink of wine. According to Engelhardt he said "Let's go in the kitchen and have this drink of wine." He particularly called Bergamo and "several other fellows" that were close to him. Bergamo was 50 or 60 feet from Engelhardt at the time. In this connection plaintiff's witness Esther M. Schmidt testified "I don't remember him telling any particular individual that there was wine to drink, but Mr. Engelhardt said when anyone got cold there was wine in the workroom on the stand." (Emphasis ours.) At the time the invitation was extended John Bergamo was in one of the greenhouses which opens into the workroom and Engelhardt was 50 or 60 feet from the bench in the work shed. Engelhardt turned around and started to walk to the kitchen. Four or five people started to follow him. Apparently in the short interval which elapsed from the time the invitation was extended to the time Engelhardt arrived at the door of the workroom on his way to the kitchen John Bergamo took a drink from the bottle of insecticide in the workroom, for he was heard to say: "Oh, Rudy, what kind of wine have you got? I drank out of the gallon jug, took the wrong stuff, I am dying, I am dying." (Composite statement of various witnesses.) Bergamo was in the workroom at the time he made these statements. He tried to get some water at the nearby sink, but collapsed almost immediately, within one or two minutes. Immediate efforts were made to wash out his mouth and administer an emetic, but his jaws became rigid and could not be opened, and within a very short time he died. The cause of death was the swallowing of a lethal dose of tetraethyl-pyrophosphate, an extremely poisonous insecticide.

The poisonous liquid was kept in a glass jug. The insecticide was brown, the color of nicotine. It had a label on it, a 3-inch band which extended halfway around the "Poison bottle, and which bore the words Danger! Hazardous liquid. Can be absorbed through the skin," together with two skulls and crossbones. In order to use the concentrate the directions required that it be diluted with water at the rate of 1 pound (1 pint) to 100 gallons of water, or 1 teaspoonful to 1 gallon of water. It was a one gallon glass jug, of the same kind as the gallon wine jug, and except for the label the two bottles looked alike. They were "similar, almost identical." The color of the wine was about the same color as the insecticide. For years the insecticide had been kept on the bench in the work shed. Three bottles of insecticide customarily stood on the corner of the workbench. They were covered with "paper and stuff" at the time John Bergamo arrived on the premises. It was not known whether they were covered up at the time Bergamo entered the workroom, although defendant Rudolph Engelhardt admitted that "Maybe the cover got removed off of it * * * there was so much confusion there." It was not known whether the label was facing the wall or facing Bergamo at the time Bergamo took the drink of poison. It was a dark day and there was no testimony as to whether the electric lights were on in the workroom. Bergamo had previously worked for defendants for a space of about two years. During that time the poisons were kept in the same place on the premises, although Bergamo did not handle the poisons and insecticides around the greenhouses. The poison, according to Rudolph Engelhardt, has a "pretty powerful" odor. Bergamo and plaintiff came to this country in 1938. There was no evidence that Bergamo could or that he could not read the English language, although it was in evidence that he was store manager for a liquor company, and that in 1944 he became a naturalized citizen of the United States. No statement or warning was given by defendants to any one about poison.

Appellants raise three points: Error in refusing to direct a verdict for appellants (1) for failure to make a submissible case, (2) because deceased was guilty of negligence as a matter of law, and (3) error in the giving of Instruction No. 1.

An invitor owes an invitee a common-law duty to warn of the presence and danger of a poisonous substance customarily kept and exposed on his premises, which is known to the invitor but unknown to the invitee, where such poisonous substance is permitted to remain in a place or exposed under such circumstances that it would in any way be probable that the invitee might mistake it for a wholesome substance and, partaking thereof, be injured. Keiley v. Bristol, 30 Ga. App. 725, 119 S.E. 334; 72 C.J.S., Poisons, § 5, p. 168. On the other hand, even though the invitor might have failed to perform his duty to warn, there is no liability if the invitee failed to exercise that ordinary care for his own security and safety which reasonably may be expected of any person of common sense and prudence in his situation.

Plaintiff made a submissible case of primary negligence by showing knowledge on the part of defendants of the fact that the poisons were kept in the workroom on the work bench, invitation to the deceased to come on to the premises and partake of wine "in the workroom on the stand," use of foods and beverages in the workroom during the emergency giving the workroom the general appearance of a place set aside temporarily for the purpose of eating and drinking, the presence in the room of two identical glass jugs, placed within 10 to 15 feet of each other, containing liquids of the same color and appearance, both of which were on tables or benches, one of which was wholesome and the other poison, and failure to warn the deceased of the presence and danger of the poison. The first point, therefore, must be ruled adversely to appellants' contentions.

Nor do we find this to be a case of contributory negligence as a matter of law, as appellants claim. This is not the case of an intermeddler or trespasser who without occasion or excuse goes out of his way to explore the contents of containers in an out-of-the-way portion of the premises, under circumstances where it is extremely improbable that any person not acquainted with the use of the containers would find them, as in Callahan v. Warne, 40 Mo. 131, cited by appellants. The case at bar is that of a general invitee on the premises who is specifically invited to go to the particular room and indeed to the very stand where the poison is located and there to have wine, under circumstances where, considering the great similarity between the two bottles in size and appearance, the bottle of virulent poison reasonably might be mistaken for the bottle of wholesome wine. Appellants stress various factors which, in retrospection, might have been regarded as sufficient notification to Bergamo of the danger, such as the odor of the liquid, the warning of danger printed on the label, and the fact that Bergamo had worked at the greenhouse for nearly two years. There were, however, other considerations which entitled the jury to find as it did. The deceased received the assurance from defendant Rudolph Engelhardt that there was "wine in the workroom on the stand." When he arrived at the place where he was invited to go he found used cups setting about on the benches and other evidence indicating that people had been eating and drinking there, which constituted an assurance of safety to Bergamo. The size and shape of the container and the color of the liquid conveyed the image of a jug of wine. The jug was placed on the work stand where, according to witness Schmidt, Engelhardt had announced that the wine was located. Furthermore, the evidence relating to the ability of Bergamo to see the warning on the label was extremely uncertain. It was a dark day. There was no evidence that the lights in the workroom were burning. There was nothing to show that the label on the bottle of poison faced Bergamo at the time he poured from the bottle. It may very well have been facing toward the wall. Although he had worked at the greenhouse for an extended period, the evidence explicity showed that during that employment he did not handle the poisons, and there was no positive proof that Bergamo knew that the bottles kept on the workbench contained poisons. It was therefore a case for the jury, and not for the court, and we cannot convict the trial court of error in refusing to direct a verdict for appellants on the ground that Bergamo was guilty of contributory negligence as a matter of law.

Appellants claim that Instruction No. 1 erroneously failed to negative the defense of contributory negligence. Plaintiff's theory of the case, however, was correctly submitted by Instruction No. 1, and Instruction No. 2 was a proper instruction on the question of contributory negligence. Instructions must be read and construed together, and where taken together they contain a complete exposition of the law and cover every phase of the case, a verdict obtained thereon will be sustained even though the instructions, taken separately, may be incomplete and open to objection and criticism. Rhinelander v. St. Louis-San Francisco Ry. Co., Mo.Sup., 257 S.W.2d 655, loc.cit. 659. If the instructions, taken as a whole, properly submit the question of contributory negligence, the failure of the plaintiff in his verdict-directing instruction to negative contributory negligence is not reversible error. Heigold v. United Rys. Co. of St. Louis, 308 Mo. 142, 271 S.W. 773; Williams v. Springfield Gas Electric Co., 274 Mo. 1, 202 S.W. 1; Wallnitz v. Werner, Mo.App., 241 S.W. 668; Straub v. Laclede Gaslight Co., Mo.App., 287 S.W. 1061; Wheeler v. Breeding, Mo.App., 109 S.W.2d 1237; Finley v. Austin, Mo.App., 132 S.W.2d 1109.

Appellants further contend that Instruction No. 1 when read with other instructions was confusing and misleading to the jury. The jury returned to the courtroom after deliberating for a time and the foreman asked for an interpretation of the instructions, saying that the jury was at a loss to know just how to proceed. He stated that

"Instruction No. 1 gives certain circumstances under which we find for plaintiff and Instruction No. 2 gives certain circumstances under which we find for the defendant and Instruction No. 3 defines what `ordinary care' is, and Instruction No. 4 says that we must first find the defendant negligent, but says nothing about contributory negligence on the part of the plaintiff, whether they must find that separately or not."

Instruction No. 4 prohibited the jury from considering the amount of damages to be awarded plaintiff until after the jury had determined the preliminary question of the negligence of defendants as submitted and defined by the other instructions. It is obvious that Instruction No. 1, offered by respondent, did not inject any confusion, but that any difficulty experienced by the jury arose out of Instruction No. 4, which was offered by appellants. Apparently the jury understood that it must first resolve the question of whether defendants were negligent, but questioned whether, before considering the amount of damages, they were required to make a separate finding on the question of contributory negligence. Although that question remained unanswered at the end of the conference with the court, the jury again retired and later rendered a verdict for plaintiff. From the fact of the rendition of that verdict in the regular form we must assume that the jury finally understood that no separate finding on the question of contributory negligence was necessary, resolved the question of contributory negligence adversely to appellants, and understood that in a general verdict for plaintiff there inheres a finding adverse to defendants on the issue of contributory negligence. The point is without merit.

No error appearing, the Commissioner recommends that the judgment of the circuit court be affirmed.