Appeal from judgment of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1960, No. 1367, in case of William H. Thomas v. Arvon Products Co., Inc., M. Levin & Company, and McCloskey Varnish Company.
Joseph D. Shein, for appellant.
Sidney L. Wickenhaver, with him Montgomery, McCracken, Walker & Rhoads, for appellee.
John J. Dautrich, with him White and Williams, for appellee.
Bell, C.j., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno dissents.
The appellant brought this action of trespass against Arvon Products Co., Inc. (Arvon), alleging that he had lost the sight of his eye in February, 1960, as the result of contact with fumes from a varnish product known as "Cerami-Glaze", which he was applying to the walls of a banana storage room for his employer, M. Levin & Company (Levin), banana wholesalers.
Cerami-Glaze was a trade name applied to the product by Arvon, the product being manufactured by McCloskey Varnish Company (McCloskey) for Arvon. Arvon made no change in the material supplied by McCloskey.
The formula was under the control of McCloskey. It consisted of solid ingredients, principally epoxy resins, and volatile ingredients which were aromatic hydrocarbons, consisting of xylene and "Solvesso 150."*fn1
Arvon joined both McCloskey and Levin as additional defendants. The matter came to trial, and the jury returned a verdict in favor of appellant against the additional defendant, Levin, only, in the sum of $55,000. Appellant filed a motion for new trial and a motion for new trial as to liability only. The court below dismissed both motions and entered judgment on the verdict. This appeal followed.
Appellant was employed by Levin as a banana sorter. Levin had moved into new quarters and had intended to apply Cerami-Glaze to the cinder block walls of its new banana rooms. The appellant was directed by his employer, Levin, to apply the Cerami-Glaze. After appellant had been working several days, he found that he had lost the sight of his left eye, and was subsequently seen by Dr. Michaile, who examined him and had him admitted to Wills Eye Hospital. The testimony of Dr. Michaile reveals that it was his medical opinion that appellant had sustained a hemorrhage of the Macula lutea, part of the retina, of the left eye, and a lesser hemorrhage to the right eye. Dr. Michaile concluded that the inhalation of toxic fumes caused the hemorrhage and the ensuing loss of vision. This opinion was disputed by Arvon's expert, Dr. Ellis.
Cerami-Glaze contained, among other chemicals, xylene. The testimony at the trial showed that xylene is a petroleum product widely used as a volatile constituent in paint and varnish products. Expert ...