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Baylie v. Swift & Co.

APRIL 11, 1975.

IZZIE BAYLIE ET AL., PLAINTIFFS-APPELLANTS,

v.

SWIFT & COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE J. SCHALLER, Judge, presiding.

MR. PRESIDING JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:

Plaintiff Izzie Baylie sought damages for personal injuries, and Amanda Bailey sought damages for injuries resulting in the wrongful death of her husband, Forest. They alleged that the injuries suffered resulted from a dust explosion at the plant of their employer and were proximately caused by the negligence of defendant. The case was tried before a jury, but the trial court directed a verdict for defendant at the close of plaintiffs' case. Plaintiffs appeal, contending that the evidence was sufficient to raise jury questions.

In the complaint plaintiffs alleged that defendant was negligent in misrepresenting to plaintiffs' employer, A. Cramer Corporation (hereinafter "Cramer"), that calcium stearate, the dust of which allegedly exploded, was nonflammable; in failing to warn plaintiffs' employer of the explosive characteristics of calcium stearate dust; and in failing to test calcium stearate to determine the explosive characteristics of its dust. Defendant answered that plaintiffs were guilty of contributory negligence, and that any injuries that may have been suffered by plaintiffs were not the proximate result of any misrepresentation or breach of duty that would give rise to legal liability on its part.

We now consider the evidence adduced at trial, to determine whether, when viewed in its aspect most favorable to plaintiffs, it so overwhelmingly favors defendant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504; Weiss v. Rockwell Manufacturing Co., 9 Ill. App.3d 906, 293 N.E.2d 375.

EVIDENCE

The parties stipulated that on July 6, 1963, Izzie Baylie and Forest Bailey were employees of Cramer, working in its mill, grinding calcium stearate that had been forwarded to Cramer by defendant and that the order when finished was to have been sent directly to Monsanto Chemical, defendant's customer.

An answer to an interrogatory was read into the record, indicating that defendant gave no warning or notice to Cramer or its employees concerning the probability of instantaneous combustion, explosion, or flash fire resulting from the dust suspended in the atmosphere during pulverization of calcium stearate.

The following evidence was adduced by plaintiffs.

Robert H. Causland, a chemist, testified that he has a background in chemical education and marketing and market development. He started working for defendant in 1947 and was involved with testing the performance of soap products developed by defendant and the uses to which these products could be applied. He did not perform any testing for fire or explosive hazards of products, nor did defendant have a department that made such tests. In 1958 he was trying to develop uses to which calcium stearate could be put.

In general chemical terms, calcium stearate is characterized as a soap, although it is not water soluble. It has been known since about 1900. Defendant began making it in about 1958 and manufactured it in solid form.

Defendant has a milling operation in which it grinds calcium stearate. For certain development, it was necessary to grind the product finer than it was able to do. Thus in the spring of 1958, he arranged for someone else to do the grinding. Defendant learned of Cramer as a custom miller from an advertisement in Chemical Week. A custom milling house is an organization that offers its services to anyone who comes to it and asks for a given material to be reduced in size. He went to Cramer and spoke with Matt Hannon and Jerry Lewis. He told them that he was interested in getting calcium stearate milled into a fine particle. He was advised that for other companies, including General Mills, Cramer had ground things to a fineness of 325 mesh; i.e., most of the grindings could pass through a screen having 325 openings in 1 square inch.

One week later, he talked to Lewis, who inquired about the nature of the product, including its melting point, and the particle size Swift was interested in. They discussed the product's solubility. He told Lewis that Calcium stearate was nonflammable, although he had never made any tests to determine whether the product was flammable.

He believes "flammable" means the characteristic or ability of a material to ignite immediately and burn vigorously. He has taken an open flame, put it to calcium stearate and observed that there is a period during which the material becomes caramel colored and tends to become molten, and darkens. Then for a brief period there is a light flame which is self-extinguishing. The calcium stearate did not burst into flame when he touched it with a match. On the basis of his own test and observations, he has concluded that calcium stearate is not flammable by his definition.

After the witness' second visit to Cramer, Lewis expressed interest in grinding for defendant and requested approximately 100 pounds of the product. Defendant supplied the material in solid form for Cramer to examine and test on their machines and to see how fine they could grind it. Cramer was able to get it very close to 325 mesh.

Thereafter, Cramer commenced grinding calcium stearate for defendant. The witness visited the Cramer plant possibly half a dozen times a year between 1958 and 1963. He lived close to the Cramer plant and thus was the man defendant sent to pick up the samples. When he was away, Robert Wilson, a member of defendant's general superintendent staff, would deal with Cramer. The other people from defendant's operation who visited Cramer from 1959 to July, 1963, included: George Mel, its foreman of the soap factory; Frank Madden, a clerk in the soap factory; Stan Tierney, a chemist and researcher who worked in the laboratory and the person in charge of the research laboratory that dealt with calcium stearate.

His initial visits were limited to the office area. He was first present in the grinding area when calcium stearate was being ground in 1960 and noticed Cramer's grinding equipment, two micro-atomizers. At times when calcium stearate was being ground he saw gray-white dust coming from the grinding area. He saw dust collecting equipment, but he never called the atmospheric condition of the plant to the attention of Hannon or Lewis.

He does not know if Hannon was a chemist or engineer. He understands Hannon's knowledge to be based on what Hannon picked up at Cramer and does not consider Hannon an expert in the field.

In the latter part of June or the first part of July, 1963, defendant received an order for calcium stearate from Monsanto Chemical. He does not know the size of the order. He did not see anyone at Cramer with respect to that order, nor did he talk to plaintiff, Izzie Baylie, on the telephone in late June or early July. He left on vacation on June 29 or June 30 and returned on July 13.

Defendant owned the calcium stearate it shipped to Cramer and title was never transferred to Cramer. It never directed Cramer or any of their employees on how to carry out their duties nor did it have any kind of interest in Cramer.

Stanley H. Tierney, called as a witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 60), testified that he has a bachelor's degree and a master's degree in chemistry. He was in defendant's research and development center betwen 1959 and 1963, and from 1960 through 1965 in charge of the research and development group for the chemicals and industry division.

Calcium stearate did not fall into the category of flammable solids as defined by the Interstate Commerce Commission for purposes of shipment, so defendant did not test it for flammability. Melting point tests were run and showed that the material had such a high melting point that, in essence, it would not be considered flammable. Melting point has nothing to do with flammability. The specific meaning of "flammability" in chemical usage is a product that is easily ignited, propagates the flame, and burns readily.

Calcium stearate will burn if it is heated sufficiently, as will practically all organic material. If you put a match to calcium stearate, the material may start to char and burn, but, under normal conditions, the flame is not self-sustaining and will go out when the match is removed. In the powdered form it will burn more readily. It is not a product which will ignite readily and burn persistently.

George Mel, a chemical engineer, testified that from 1959 to 1963 he was superintendent of defendant's soap division. He visited the Cramer plant to sample random lots of calcium stearate and to inspect packaging. Hannon told him on his first visit to the plant that he considered their operation to be of a rather classified nature and that he didn't want people observing it too closely. Respecting Hannon's views, on the four or five occasions he passed through the milling area on the way to the storage areas, he did so very quickly and made no observations.

Izzie Baylie, plaintiff, testified that he was hired by Cramer in 1958. He had never been in a grinding plant before he went to work at Cramer. The only previous work he did was in the army and as a car hiker for a restaurant. He reached the fourth grade in school.

He started at Cramer by grinding "versamint." At that time Cramer was also grinding paprika, neofat, and a kind of moss. In 1963, they were grinding paprika, versamint, and wax in addition to calcium stearate. Before 1963, they ground cocoa.

He described the building where the grinding was done and the two fans used for ventilation. One fan had an electric motor in it.

Calcium stearate was ground in a micro mill. In July, 1963, Cramer had two such mills, called the no. 5 and no. 6. For grinding, he would fill the hopper with calcium stearate. There was a magnet at the mouth of the mill. An auger fed the material into the grinding chamber. When the product was finished, the mill would blow it through the chute into a steel box called a dust collector. Inside the dust collecter was a felt bag. Some of the dust escaped from the bag. Most of it was trapped in the dust collector, but some would escape through a rotary airlock, which was supposed to bring the dust into the bag and keep the dust from coming out of the dust collector.

A canvas separated the "annodizing" machine, which was used to grind paprika, from the two micro mills. The canvas was hung to prevent dust from the micro mills from getting in the paprika mill. All three machines were powered by 22-horsepower motors.

There was also a small mill used for testing, a blender machine, a great big hammer mill used for hard grinding, a crusher, and a gasoline powered forklift truck. Cramer's warehouse was a separate building connected to the east wall of the grinding room and divided from that room by a canvas that could be rolled up and down. In the warehouse ...


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