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Lindroth v. Walgreen Co.

OPINION FILED SEPTEMBER 21, 1950

BRUCE LINDROTH, APPELLEE,

v.

WALGREEN COMPANY ET AL., APPELLANTS.



APPEAL from the Second Division of the Appellate Court for the First District; — heard in that court on appeal from the Superior Court of Cook County; the Hon. JOHN J. LUPE, Judge, presiding.

MR. JUSTICE THOMPSON DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 17, 1950.

Suit was brought in the superior court of Cook County in behalf of Bruce Lindroth, a minor, against Knapp-Monarch Company, manufacturer, and Walgreen Company, seller of an electric vaporizer, for personal injuries to said minor as a result of burns received in a fire which appellee claims was caused by such vaporizer. The cause was tried by a jury and a verdict was returned against both defendants for $65,000. Motions for a new trial, in arrest of judgment and for judgment notwithstanding the verdict were overruled, after which judgment was entered on the verdict. Leave to appeal being granted, appellants, Knapp-Monarch Company and Walgreen Company are here seeking to reverse this judgment which was affirmed by the Appellate Court.

The complaint alleged that Knapp-Monarch Company carelessly and negligently manufactured and sold, with knowledge that it would ultimately be offered for sale to the general public, a vaporizer that was defective and dangerous, in that when used in accordance with the printed directions accompanying it and in the manner and for the purpose intended, it was likely to melt and set fire to nearby objects and cause persons using it to be severely burned, and was therefore an inherently dangerous instrument; that it negligently failed to provide a cutout device which would automatically cut off the current before the vaporizer reached the temperature at which it was likely to set fire to surrounding objects and cause persons using it to be burned; that it failed to properly inspect and test said vaporizer and negligently represented to the public generally that said vaporizer was safe for the use for which it was intended, and that no danger from flame or fire could be incurred in so using it.

The complaint further alleged that the Walgreen Company acquired said vaporizer and offered it to the public for sale; that the mother of plaintiff purchased the vaporizer from Walgreen Company and made known to it the particular purpose for which it was required, and relied upon the seller's judgment and upon the representations of both appellants that the vaporizer was reasonably fit for the purpose intended and that no danger from flame or fire would be incurred in using it; that Walgreen Company negligently sold the plaintiff's mother a vaporizer that was dangerous and defective in that when used in the manner and for the purpose for which it was intended the metal thereof was likely to melt and set fire to the surrounding objects and cause persons using it to be severely burned; that it negligently sold plaintiff's mother a vaporizer which was not reasonably fit for the purpose for which it was intended to be used, because when used in the manner and for the purpose intended it was likely to set fire to surrounding objects and cause persons using it to be severely burned, and thereby negligently breached its warranty given by virtue of the provisions of section 15 of the Uniform Sales Act, (Ill. Rev. Stat. 1939, chap. 121 1/2, par. 15,) that the said vaporizer was reasonably fit for such purpose; that it expressly warranted the said vaporizer to be safe for use without attention for at least two hours; that such warranties were believed and relied upon.

The answer of Knapp-Monarch Company admitted it manufactured a device known as a Kwikway Electric Vaporizer, but denied all other allegations.

The answer of Walgreen Company admitted it sold to the public at retail vaporizers manufactured by Knapp-Monarch Company and denied all other allegations.

The record discloses that on May 8, 1940, appellee, fourteen months of age, was seriously burned while lying in a crib in an upstairs room of his home as a result of fire reaching his crib and igniting that part of his snuggle-bunny (a loose sack-like blanket) adjacent to the left side of his head and face. The crib in which he was resting was about four and one-half feet long and two and one-half feet wide, and stood with head to the north in the northeast corner of a room about eleven by twelve feet with a ceiling height of eight feet. The room faced the west, having two windows to the front and one window on the north side. A double-deck bunk with head to the west stood along the north wall just west of the window. Lace curtains at the north window hung down to a point just below the sill or just to the top of the baseboard. There was an electric outlet or wall socket below and to the west of the north window for the connection of electrical appliances.

Appellee's mother had used a vaporizer in his room prior to the date in question but it was broken and she purchased a new one from the Walgreen Company, manufactured by the Knapp-Monarch Company. The old vaporizer had an automatic cutout which stopped the flow of electricity into the heating element after a certain temperature had been reached, usually after the water had all evaporated. The mother inquired of the saleslady at Walgreen's if the Qwikway vaporizer she was considering had an automatic cutout and was advised that it did not have such device. The patent application provided for an automatic cutout which was found by the manufacturer, working with the inventor, to be not dependable and was not used in the manufacture of the article.

Some makes of vaporizers had cutouts which operated successfully, while other makes did not have such devices. The saleslady stated in substance that the vaporizer would not boil dry for about two hours if filled with water according to the directions. The mother testified that by "about two hours" she had in mind that it would run at least for an hour or from one hour to an hour and a half anyway without being watched and without boiling dry. The saleslady told her that a doctor in the neighborhood was using one of these vaporizers for his patients and that he recommended it. It was explained to the mother that there were directions in the container which she should follow and, which, according to the mother's testimony, she did follow. She purchased the vaporizer and took it home. She did not purchase a new electric cord with which to attach it to the wall outlet but used an old one that had been in use for about a year.

The directions with the vaporizer read to fill the container about three quarters full of water which brought the water to within an inch or an inch and a half of the top. Above the container was a place for medicated cotton through which the vapor would pass. Below the container was the heating element, and immediately below that was an asbestos disk about one-eighth inch thick and four inches in diameter held in position by a spring in the bottom plate.

Soon after returning home, the mother went into the kitchen and filled the container with tap water to within about an inch and a half from the top and found no leak. She then took it up to the bathroom and plugged it into an electric outlet, and in about four minutes the water began to vaporize. She testified: "There were no leaks in this container that I could observe." She then disconnected it, sponged off appellee, rubbed medicine on his chest, placed a snuggle-bunny around him, zipped it up under his chin and placed him in the crib for a nap. The maid had just brought up a nursing bottle containing orange juice which was given to him. The mother then placed a doll's high chair about one foot west of the baby's crib and near the middle of it or about two and one-fourth feet from the north window. She then set the vaporizer on the chair and plugged it into the wall socket near the north window.

The doll's chair was wooden, had four posts or legs, a seat about five inches square and a small foot rest in front. The back was not solid but consisted of a cross-piece supported by three little rungs. There was an armrest on each side, also supported by a rung in each corner. It resembled very much a baby's high chair cut down to doll's size. The seat was about even in height to that part of the crib upon which the baby lay. The spout of the vaporizer was placed so that the vapors would go up over the baby's nose. Vapor was soon noticed coming from the spout, whereupon the mother left the room. In a few minutes she returned, peeped into the room and saw that the orange juice had been consumed and that the baby was just turning onto his stomach. At that time the vaporizer was operating properly and emitting vapor more satisfactorily than did the old one. At no time did the mother notice anything wrong with the vaporizer. She noticed no leakage of water and according to her testimony it was operating properly when she last saw it before the fire.

After peeping into the room, the mother went downstairs and within a period of between thirty and forty-five minutes a neighbor lady rushed over and excitedly announced that smoke was coming from an upstairs window. The mother rushed to the child, lifted him from the crib and carried him from the smoke-filled room. The snuggle-bunny was burning near the left side of his head and face. She tore it from him, rushed him downstairs and ...


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