228 F.2d 842 (1st Cir. 1955), 4992, Sylvania Elec. Products v. Barker

Docket Nº:4992-4994.
Citation:228 F.2d 842
Party Name:SYLVANIA ELECTRIC PRODUCTS, Inc., Defendant, Appellant, v. Irene BARKER, Executrix, Plaintiff, Appellee. Irene BARKER, Executrix, Plaintiff, Appellant, v. SYLVANIA ELECTRIC PRODUCTS, Inc., Defendant, Appellee.
Case Date:December 20, 1955
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 842

228 F.2d 842 (1st Cir. 1955)

SYLVANIA ELECTRIC PRODUCTS, Inc., Defendant, Appellant,

v.

Irene BARKER, Executrix, Plaintiff, Appellee.

Irene BARKER, Executrix, Plaintiff, Appellant,

v.

SYLVANIA ELECTRIC PRODUCTS, Inc., Defendant, Appellee.

Nos. 4992-4994.

United States Court of Appeals, First Circuit.

December 20, 1955

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Thomas H. Mahony, Boston, Mass., for Sylvania Electric Products, Inc.

Peter E. Marchetti and Harry B. Otis, Omaha, Neb., with whom Thomas L. Mackin, Boston, Mass., and A. Sheppard Taylor, Omaha, Neb., were on brief for Irene Barker, Executrix.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

These three appeals from two judgments entered on verdicts returned by a jury for the plaintiff present several questions of law both substantive and procedural. They arise out of the facts stated below in the light most favorable to the plaintiff.

Irene Barker, the plaintiff and the appellee in Nos. 4992 and 4993, is a citizen of Nebraska and the widow and executrix by appointment of the appropriate courts of both Nebraska and Massachusetts of Rexford L. Barker who, during his lifetime, was also a citizen of Nebraska. The latter, who will be referred to hereinafter as the decedent, was a bender of glass tubing used in making neon signs, and from the mid-1930's on he was employed in that capacity by Neon Products Company, Inc., of Omaha, Nebraska. His work consisted in plugging one end of a glass tube and blowing into the other end with his mouth to create pressure in the tube so that it would not kink or collapse while it was being heated in a gas flame to a malleable state and bent into the shape desired. It appears that when a tube cooled and the blower's lips were removed the heated air in the tube being under pressure blew back against the blower's lips, and it would seem to some extent into the blower's mouth.

During the early years of the decedent's employment only plain glass tubing was used. But starting about 1941 glass tubing coated on the inside with a compound containing beryllium came into use. At first this coating gave the appearance of having been painted on, and it did not slough off during the bending process, although it did have some tendency to flake off after a sign made with such tubing had burned for a time. During 1944, perhaps to remedy this defect, a new type of coated tubing came into use. This tubing was also coated on the inside with a beryllium compound but the coating was powdery and as a result it had a tendency to slough off during the heating and bending process. Thus when there was a blow-back the blower got some of the powder on his lips and in his mouth.

The decedent did no tube blowing in 1945 but worked outside during that entire year erecting and repairing signs. He resumed blowing tubes in 1946, and early in that year his employer, while temporarily unable to obtain tubes from its usual source, General Electric Company-- from which it had bought some forty to fifty thousand feet of coated tubing from 1944 to 1948-- purchased about forty-five hundred feet of beryllium coated tubing manufactured by the defendant, Sylvania Electric Products, Inc., a Massachusetts corporation. All but two or three hundred feet of this Sylvania tubing was fabricated into signs in 1946 and the decedent blew most if not all of it.

Late in 1947 the decedent began to notice shortness of breath and coughing, and early in 1948 he sought medical assistance.

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The first two doctors he consulted gave him no help but later in the year, about November, a third doctor, after a thorough study of the decedent's symptoms and medical history and exhaustive laboratory and x-ray tests, diagnosed the trouble as berylliosis, a chronic disease of the lungs caused by inhaling particles of beryllium. 1 In the meantime, however, in September, the decedent had had to quit work because of his failing health.

Late in 1948 or early in 1949 the decedent brought an action against his employer and its insurance carrier in the appropriate local court in Nebraska to recover under the Nebraska Workmen's Compensation Act for his total disability. In July 1949 he was awarded compensation and the defendants appealed. In November both he and the defendants applied to the court jointly for permission to settle for a lump sum payment of $3, 750, and about two weeks later their petition was approved. The court in its decree approving the settlement found that the decedent was 'fully informed in the premises' and was 'acting solely upon his own information and upon the advice of his own counsel after extended and exhaustive consideration of the entire matter and (was) not acting upon representations of the defendants or any of their representatives.' And in paragraph III of both the application for leave to settle and the decree approving the application it is stated:

'That plaintiff avers that shortly prior to September, 1948, he contracted an occupational disease known as berylliosis and consisting of a fibrosis of lung tissue, resulting from exposure to florescent powders containing beryllium, and that said beryllium poisoning culminated on or about September 13, 1948 in permanent total disability. That plaintiff stipulates that his exposure to said occupational disease was at least 40% contracted and incurred during a period prior to the time when the Occupational Disease Statute of Nebraska became effective, 2 and that at least 40% of his disability and medical expenses are not covered by said Statute, and that defendants are therefore not liable for at least 40% of the full benefits scheduled in said Statute.'

The following year the decedent made a claim against the General Electric Company to recover damages for the same total and permanent disability. This claim was settled in May, 1950, for $17, 500 and the parties entered into an agreement and release which in some respects resembles a covenant not to sue. At any rate it purports to settle only the decedent's claim against General Electric Company and expressly reserves 'all rights, claims and demands that he may have against other suppliers of material to Neon Products Company.' At the same time the plaintiff herself, both individually and as guardian of her minor son, executed similar agreements and releases with General Electric in consideration of $2, 000 and $500 respectively.

Three months later, in August 1950, the decedent brought suit in the court below under its diversity jurisdiction against Sylvania Electric Products, Inc., to recover for the same total and permanent disability. He died on September 12, 1952, before the case was reached for trial and the action was prosecuted thereafter by his widow in her capacity of executrix. This case on appeal is No. 4992 on our docket. On February 12, 1954, the executrix also brought suit against the defendant in the same court under the Nebraska death statute and this case on appeal bears our docket number 4993. The actions were consolidated below for trial by jury, the jury returned verdicts for the plaintiff, and the defendant thereupon took the present appeals from the judgments entered on the verdicts. After

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the judgments were entered the plaintiff moved that interest be added to the amount of each judgment calculated at six per cent from the dates of the respective writs. These motions were denied and the plaintiff appealed but later abandoned her appeal in the death case. Her appeal in the personal injury case is No. 4994.

Sylvania Electric Products, Inc., as appellant, contends that the application under oath for permission to settle the Nebraska workmen's compensation...

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