Urie v. Thompson

• Decision Date: 06 December 1943
• Docket Number: 38629
• Parties: William T. Urie, Appellant, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company
• Court: Missouri Supreme Court

176 S.W.2d 471

352 Mo. 211

William T. Urie, Appellant, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company

No. 38629

Supreme Court of Missouri

December 6, 1943

Rehearing Denied January 3, 1944.

Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge.

Reversed and remanded.

Trusty & Pugh and W. M. Anderson for appellant Louis N. Wolf on brief.

(1) A valid cause of action is stated under the law of Missouri and the Federal Employers' Liability Act. Maty v. Grasselli Chemical Co., 58 S.Ct. 507; Davidson v. St. Louis-S.F. Ry. Co., 229 S.W. 786; Cushulas v. Schroeder & Tremayne, 22 S.W.2d 872, certiorari quashed, 41 S.W.2d 789; Zichler v. St. Louis Public Serv. Co., 59 S.W.2d 654; Rueter v. Terminal R. Assn., 261 S.W. 713; Martin v. Wabash R. Co., 30 S.W.2d 735; Tiller v. Atlantic Coast Line Co., 63 S.Ct. 444; Wolf v. Mallinckrodt Chem. Works, 81 S.W.2d 323; Langeneckert v. St. Louis Sulphur & Chem. Co., 65 S.W.2d 648; Sweany v. Wabash Ry. Co., 80 S.W.2d 216; Whiteley v. Eagle-Picher Lead Co., 115 S.W.2d 536; St. Joseph Lead Co. v. Jones, 70 F.2d 475; Wagner Electric Corp. v. Snowden, 38 F.2d 599; Allen Gravel Co. v. Curtis, 161 So. 670; Billo v. Allegheny Steel Co., 195 A. 110; Price v. New Castle Refractories Co., 3 A.2d 418; Davis v. New Jersey Zinc Co., 182 A. 850; Boal v. Electric Storage Battery Co., 98 F.2d 815; Maty v. Grasselli Chemical Co., 98 F.2d 877; Jacque v. Locke Insulator Corp., 70 F.2d 680; Zajkowski v. Amer. Steel & Wire Co., 258 F. 9; Wurst v. American Car & Foundry Co., 103 S.W.2d 6; Soukop v. Emp. Liab. Assn. Corp., 341 Mo. 614, 108 S.W.2d 86, 112 A.L.R. 149; Cropper v. Titanium Pigment Co., 47 F.2d 1038, 78 A.L.R. 737; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Federal Employers' Liability Act, Title 45, Sec. 51; Sec. 10211, R.S. 1939. (2) Neither cause of action alleged in the petition is barred by any Statute of Limitations. Title 45, Sec. 56, U.S.C.A.; Evans v. Chevrolet Motor Co., 105 S.W.2d 1081; Associated Indemnity Corp. v. State Industrial Acc. Comm., 12 P.2d 1075; Maty v. Grasselli Chem. Co., 58 S.Ct. 507, 89 F.2d 456; Madison v. Wedron Silica Co., 184 N.E. 901; Plazak v. Allegheny Steel Co., 188 A. 130; Michalek v. U.S. Gypsum Co., 76 F.2d 115; Schmidt v. Merchants Despatch Transp. Co., 200 N.E. 824; Leonard v. Fisher Body Co., 137 S.W.2d 604; Smith v. Federated Metals Corp., 133 S.W.2d 1112; Marsh v. Industrial Acc. Comm., 18 P.2d 933.

Thomas J. Cole, L. J. Bishop, D. C. Chastain and Patterson, Chastain & Smith for respondent.

(1) The petition alleges plaintiff was engaged in Interstate Commerce. The Federal Employers' Liability Act exclusively governs the cause of action as pleaded. 45 U.S.C.A., Sec. 51; C. & O. Ry. Co. v. Stapleton, 279 U.S. 587, 49 S.Ct. 442; Seaboard A.L.R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635; N.Y. Central R. Co. v. Porter, 249 U.S. 168, 39 S.Ct. 188; C. & O. Ry. Co. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45. (2) At common law negligence was essential to a recovery for occupational disease. Wolf v. Mallinckrodt Chemical Works, 336 Mo. 746, 81 S.W.2d 323. (3) Negligence is essential to a recovery under the Federal Employers' Liability Act. New Orleans & N.E.R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535; Mo. Pac. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177; Seaboard A.L.R. Co. v. Horton, supra. (4) The unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business. B. & O.S.W.R. Co. v. Carroll, 280 U.S. 491, 50 S.Ct. 182; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Schaum v. Southwestern Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Pevesdorf v. Union Electric L. & P. Co., 333 Mo. 1155, 64 S.W.2d 939. (5) The court will take judicial notice of the fact that sand is used to increase the braking power of engines; that the sand is applied directly to the rails and the fireman's position is some distance above the rails in an open cab; that all sand contains silica; and that railroads do not furnish respirators to firemen. March v. Pitcairn, 125 S.W.2d 972; Dunn v. Alton R. Co., 88 S.W.2d 224; Mackay v. Commonwealth Casualty Co., 224 Mo.App. 1100, 34 S.W.2d 564. (6) The proposition that dust from sand applied to the rails is harmful to the fireman in the open cab of a moving engine is a novel one and the petition discloses no special circumstances or other cases which would give defendant notice of such alleged harmful effects. Sweany v. Wabash Ry. Co., 229 Mo.App. 393, 80 S.W.2d 216; Wolf v. Mallinckrodt Chemical Works, supra; Sadowski v. Long Island R. Co., 41 N.Y.S. (2d) 611, reversing 37 N.Y.S. (2d) 457; Mobile & O.P. Co. v. Clay, 156 Miss. 463, 125 So. 819. (7) The Safety Appliance Acts are directed to the prevention of accidental injury. No cause of action for occupational disease can be based thereon. United States v. B. & O.R. Co., 293 U.S. 454, 55 S.Ct. 268; Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207; St. L.-S.F.R. Co. v. Conarty, 238 U.S. 243, 35 S.Ct. 785; Mansfield v. Wagner Electric Mfg. Co., 294 U.S. 235, 242 S.W. 400. (8) No cause of action is stated under Missouri law. The petition alleges interstate commerce so that the cause is brought under the Federal Employers' Liability Act. Congress has occupied the field even though the federal act does not give redress. Cases under Point 1, supra. (9) The Missouri Occupational Disease Act can have no application for Congress has occupied the field with the Boiler Inspection Act even as to intrastate commerce. Only the remedy is left to the State if intrastate commerce. Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207; Chi. & N.W. Ry. Co. v. Mich. P.U. Comm., 273 U.S. 779, 47 S.Ct. 448, reversing 208 N.W. 62; Tipton v. A., T. & S.F. Ry. Co., 298 U.S. 141, 56 S.Ct. 715; Moore v. C. & O. Ry. Co., 291 U.S. 205, 54 S.Ct. 402. (10) The Occupational Disease Act of Missouri applies only to illness or disease "peculiar" or "incident" to any work, trade or process. Silicosis is not peculiar or incident to the work of a railroad fireman. Secs. 10211-10225, R.S. 1939; Laws, 1913, p. 402; State ex rel. Fisher Body v. Shain, 345 Mo. 962, 137 S.W.2d 546. (11) The action was not commenced in time and is barred. Section 6 of the Federal Employers' Liability Act fixing time limit for suits is a condition to the right of action given by the Act. It bars the right as well as the remedy; and may be first invoked on appeal. It is exclusive of all state statutes. Cox v. M., K. & T.R. Co., 335 Mo. 1226, 76 S.W.2d 411; Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, 36 S.Ct. 75; Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410; Lewis v. Mo. Pac. R. Co., 324 Mo. 266, 23 S.W.2d 100; Bell v. Wabash Ry. Co., 58 F.2d 569; Wabash Ry. Co. v. Bridal, 94 F.2d 117. (12) The amendment of August 11, 1939, changing the period from two to three years concerns the right as well as the remedy and hence is not retroactive. Morrison v. B. & O.R. Co., 40 App. D.C. 391, Ann. Cas. 1914C, 1026; Callahan v. Chesapeake & O. Ry. Co., 40 F.Supp. 353. (13) The right to recover for injuries caused by each breath of dust accrued as that breath of dust was inhaled whether plaintiff then knew of his injury or not. Plaintiff's right of action, if any, is limited to injury caused by dust inhaled from August 11, 1939, to May, 1940. Reading Co. v. Koons, 271 U.S. 58, 46 S.Ct. 405; Michaleck v. U.S. Gypsum Co., 298 U.S. 639, 56 S.Ct. 679; Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E. 824; Moore v. Atchison, T. & S.F.R. Co., 187 Okla. 534, 104 P.2d 236. (14) Being a limitation on the right as well as the remedy, the petition must affirmatively allege facts showing the action for which recovery is sought was commenced in time. Plaintiff seeks recovery for a continuing breach of duty over a thirty year period from May, 1910, to May, 1940. The action for all injuries received prior to August 11, 1939, is barred and since recovery is sought for the whole injury the action as stated is barred. John F. Jelke v. Smietanka, 86 F.2d 470; Callahan v. Chesapeake & O. Ry. Co., supra; Bennett v. Met. Pub. Co., 148 S.W.2d 109; Flynn v. N.Y., N.H. & H.R. Co., 283 U.S. 53, 51 S.Ct. 357; B. & O.R. Co. v. Carroll, 280 U.S. 491, 50 S.Ct. 182. (15) Even under the State statutes the cause of action for an occupational disease accrues when the injury became reasonably apparent and discoverable; and not when it was actually discovered. Secs. 1012, 3727, R.S. 1939; Allison v. Mo. Power & Light Co., 59 S.W.2d 771; Cleveland v. Laclede Christy Clay Products Co., 129 S.W.2d 12; Gleason v. Titanium Pigment Co., 93 S.W.2d 1039.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to recover $ 30,000 damages alleged to have been caused by the disease of silicosis. The trial court sustained a demurrer to the petition and plaintiff appealed.

The petition alleges: That at all times mentioned the plaintiff, the trustee, and the railroad company were engaged in interstate commerce in the operation of interstate trains; that prior to March 31, 1933, the railroad was operated by the Missouri Pacific Railroad Company and that plaintiff worked for said company as a locomotive fireman; that since said date the railroad has been operated by a trustee or trustees; that plaintiff has worked for the railroad company and the trustee for 30 years, during which time his run was between Joplin and Kansas City on interstate trains; that plaintiff first discovered his "injury and physical condition in May, 1940."

The petition further alleges that through the negligence of defendant, plaintiff became afflicted with bilateral silicosis, and that as a direct result thereof he has been totally incapacitated from carrying on his duties for the railroad...