*1 imposed benefits was reversed maxi- and the court disqualification permitted by mum 1953, 82-4-9 C.R.S. (1), unemployment compensation as amended. Thus the payable twenty-six to claimant was reduced from weeks to sixteen weeks. presented by
The issues of law the record in this case are identical with those 18,930, determined cause No. only being decided this date, the difference that in the voluntarily get quit instant case the claimant work to married and be with her husband who was not resi- Denver, dent of 18,930 whereas cause No. claimant discharged employment Downare was for miscon- - duct connected therewith. arguments employer made counsel for presented
this case are identical with those in cause No. opinion 18,930. Our in that case decisive of the issues in this cause. judgment is affirmed. 18,324.
No. Supply Zelinger. Co., Inc. Max A. Scientific (341 897) [2d] P. July 6, Rehearing August Decided 1959. denied 1959. *2 for plain- Messrs. Wolvington, O’Dell & Wormwood, tiff in error. Appel for defendant in Messrs. Powers, & Rothgerber, error.
En Banc. the opinion delivered Mr. Chief Justice Knauss Court. in in trial error, court, is Plaintiff as manufacturer and distributor of an insecticide known Defendant error, plaintiff below, “Control 56.” in a can- of the Ellis food manager Canning Company, in We located Denver. ning processing corporation refer as in the trial parties they appeared will had judgment against court where plaintiff damages allegedly resulting inhaling fumes for is here on writ defendant’s insecticide. Defendant seeking error reversal. resulting year prior
For than a more event Canning Company action, de- had the Ellis used product in insects fendant’s in its the control of flies and other plant. spraying used device in connection with the insecticide was also distributed the defend- Saturday September, becoming prob- ant. On a flies spraying lem, the device undertook to use the corporation. He to eradicate flies from the offices of the through plant, had the foreman of the operation, prepare device had become its familiar with the machine him and advise him as to its use. spraying evidence discloses operation produces machine when fog permeates cracks killing crevices, flies and other insects on contact. When purpose a room treated, offices here, the *3 fog density to create of sufficient to reach all insects may they wherever be hidden. The testified placed plugged that he the machine in one of the offices, permitted it into-an electric outlet and left the room. He operate it to in that office for about fifteen minutes when repeated operation. he removed it to another and the He treated a total four offices, of and it was that shown upon entering fog an office to shut off the machine the was so dense that he was unable see had to and to fumble plug by around to find and remove the electric which it period operated was required and of time as was plug exposed to and locate remove the he was to and in- Having completed spraying haled fumes. the the offices day, plant; played golf about of that noon he left the pursued the and afternoon his normal activities evening, feeling operations ill no effects from his of night morning. During the he was awakened with pains difficulty severe in his left arm and chest and had breathing. Early Sunday gave a doctor was called who injection pain, pain relieving him an to relieve the some pills him ar- carry through night and and day an at ranged appointment Monday the doctor’s office for On an Monday was taken morning. electrocardiogram and plaintiff hospital removed to a where x-rays other tests were had. It was diagnostic found plain- tiff was inflammation suffering pleuritic of lung, probable inflammation of the heart lining pericarditis. These afflictions attributed doctor the inhalation of fumes of the on the insecticide Satur- day preceding, source, other being no view health, the plaintiff’s prior to which good they could evidence, however, attributed. There was ingredients used, insecticide Control were poisonous or harmful to human beings when inhaled. No medical testified that expert the formula involved to humans or that to it exposure would result in afflictions such as suffered In plaintiff. fact who had only expert appears have sufficient background experience any with testify degree of certainty on the of the effect of subject such com- pounds, was Dr. Bell, Robert Franklin head of acting industrial medicine at the of Colorado Medi- University School, cal expressed the inhalation opinion of the fumes of Control 56 had no relation to the plain- tiff’s pericarditis illness; or that he had any never seen involved, toxic reaction to the had he ingredients nor heard any such.
In this state of the evidence the trial court found for the plaintiff and fixed at $3,500.00, the court damages of the character accepting proof of Control 56, the illness the plaintiff, his conclu- subsequent sions resting *4 upon Kauvar, Dr. largely testimony the of the attending who could the- physician, attribute illness cause, no other he was although to concede obliged that afflictions such as those experienced plaintiff, by is pleurisy and be due to a pericarditis, may variety. causes, of other to causes unknown. frequently think that
We the of a liability 572 case, must have in this
circumstances such as we assumption upon something more an based than following plaintiff use of the because the became ill negligent product, defendant was defendant’s selling the dangerous product ade- without a or substance reaching warning quate In lethal character. of its assumptions pyramided one conclusion the trial court upon fol- became ill First, other. that the the dangerous lowing a 56, hence 56 is use of Control Control dangerous being a that Control 56 Second, substance. plaintiff’s proximate illness. substance was cause of the following resulting use of that the illness Control Third, negligence of defendant. As we 56 establishes sup- pointed nothing in this record to have there is out, port assumptions. these No witness testified dangerous; only product inherently Certainly touching upon point being that it was not. presumption negligence the fact ill- arises from of of products following an insecticide. ness the use of Such they composed variety common of are in are judicial formulas, the cannot notice of an of court take prod- inherently character to such ascribed negligence applied types in other cases ucts. The rule happening of an accident does not raise that the mere negligence presumption as stated in v. Woolworth Perry (2d) Lumber v. 665; 248 P. Co. Peet, 11, 132 Colo. (2d) Ruybal, 297 P. and National Con- 502, 531, 133 Colo. Company (2d) Holt, 208, 137 322 P. v. Colo. struction applicable equally to the circumstances disclosed the record before us. case of Maize Atlantic Refining (2d) by plain- 850, A. cited Co., 352 Pa. distinguished upon by court tiff and relied trial at from the case bar in that the evidence was more poisonous adequate than to establish of the chemical resulted in the death character plaintiff’s liability intestate, as to as well establish negligently marketing with- warning dangerous properties. proper of its out *5 the fumes of tetrachloride, chemical involved was carbon are to be when inhaled without which known dangerous announced, with ventilation. The rule there adequate fault, we find is as which follows: for the existence of “Anyone responsible or substance with dangerous instrumentality per- which reason- are come in contact must sons to take likely ex- able for their are precautions suggested by safety and known perience dangers.” in the
This standard care is and recognized applied Mutual Company case of Fire Insurance Grange 950, Company, Golden Gas 133 Colo. 298 P. (2d) where it is said:
“The evidence shows sell- clearly inflammable ing dispensing liquid highly with We think it is to be gassified upon contact air. classified as a substance and with the dangerous handled care caution with its char- commensurate acter.”
As have seen devoid totally we the record here of evidence to tending show that Control 56 is to insects, but flies and anything or that if inhaled by human would be beings dis likely cause serious turbances of the vital organs.
Finding no basis upon con- clusions of the trial court can be sustained, judg- ment is reversed and the cause remanded with directions dismiss the action.
Mr. Justice Moore Justice dissent. Mr. Frantz Doyle Mr. Justice not participating.
Mr. Justice Frantz dissenting:
Zelinger sued Co., Inc., Scientific Supply damages for personal injuries to have from the alleged resulted of an produced insecticide and marketed the de- name, fendant under the “Control 56.” acts of negli- of the the failure gence charged (1) were: product; (2) to the inherent dangers exposure warn warm-blooded jurious as non-in labeling plain- and did injure in fact it could animals when *6 in viola- mislabeled was tiff; and (3) 6-12-1, et ’53, tion of C.R.S. seq. questions both developed, presenting
Two problems a lack of proof It is claimed proof. that was man in the insecticide harmful ingredients the ingredients used, connecting and a lack of resulting injury. with the defendant’s evidence to and de- support findings There was the trial court. The fact that the evidence termination of the defense seems much us stronger favorable should not induce us to reverse. fact the evi- plaintiff’s dence favorable to the cause appears inconclusive, although rather than a quantity greater evidence, satisfies the rule that scintilla of court is present not reverse where there sufficient will evi- court’s the trial support disposition dence to the case. I must dissent. For these reasons that Mr. Justice I am authorized to state Moore joins dissenting opinion. in this