Atchison, Topeka & Santa Fe Railway Co. v. Preston

• Decision Date: 04 August 1958
• Docket Number: No. 5780.,5780.
• Citation: 257 F.2d 933
• Parties: ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a corporation, Appellant, v. Arzola Virginia PRESTON, as Administratrix of the Estate of Eugene H. Preston, deceased, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

257 F.2d 933 (1958)

ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a corporation, Appellant, v. Arzola Virginia PRESTON, as Administratrix of the Estate of Eugene H. Preston, deceased, Appellee.

No. 5780.

United States Court of Appeals Tenth Circuit.

August 4, 1958.

W. E. Treadway and Edwin M. Wheeler, Topeka, Kan. (C. J. Putt and J. B. Reeves, Topeka, Kan., on the brief), for appellant.

David Prager and Jacob A. Dickinson, Topeka, Kan. (Sam A. Crow, William W. Dimmitt, Jr., Stanley Roose, and Milford M. Magee, Topeka, Kan., on the brief), for appellee.

Before BRATTON, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit Judges.

BRATTON, Chief Judge.

This was an action under the Federal Employers' Liability Act, as amended, 45 U.S.C.A. § 51 et seq. Eugene H. Preston instituted the action against Atchison, Topeka and Santa Fe Railway Company to recover damages for personal injury. Plaintiff died during the pendency of the action; his wife was appointed administratrix of his estate; and she was substituted as party plaintiff. In an amended complaint, filed after the substitution of the administratrix as party plaintiff, it was alleged that from 1944 to 1953, the deceased was employed by the defendant in the classification of blacksmith as a spring maker; that he was required in the course of his work to remove steel springs from an extremely hot furnace and quench them in a large tank filled with quenching oil or cooling oil; that great quantities of smoke and fumes were emitted from the tank into the air; that the smoke and fumes contained droplets or vaporized particles of oil; that the smoke, fumes, and droplets of oil contaminated the air surrounding the tank; that as the result of breathing such contaminated air, the deceased developed chronic pneumonitis and fibrosis of his lungs; and that he became totally disabled and later died therefrom. The elements of negligence pleaded were failure to provide the deceased a reasonably safe place in which to work; failure to furnish him a respirator or other like device; failure to provide adequate safe ventilation; failure to provide a canopy or suction fans; and failure to warn of the danger. By answer, the defendant denied that the plaintiff was the duly appointed administratrix of the estate of the deceased; denied that the court had jurisdiction of the matter as a civil action arising under the Act, supra; denied that the deceased developed chronic pneumonitis and fibrosis of the lungs; and denied negligence. A verdict was returned for plaintiff; judgment was entered upon the verdict; and defendant appealed.

The first contention advanced for reversal of the judgment is that jurisdiction over the parties was lacking. The argument in support of the contention is that the pretended letters of administration issued to the surviving wife of the deceased were granted on the petition of an attorney, as a creditor of the estate of the deceased by reason of sums alleged to have been advanced by the attorney in the prosecution of this litigation; and that the pretended oath of the administratrix purports to have been subscribed and sworn to before a notary public in and for Shawnee County, Kansas, on February 20, 1957, whereas the administratrix was in Tucson, Arizona, during that month and did not remember signing any such document. In its order appointing the administratrix, the Probate Court of Shawnee County found that the deceased was a resident of such county at the time of his death; that he left property in that county; that the individual presenting the petition was a creditor of the estate; that the appointment of an administrator was necessary to continue the prosecution of this litigation; and that the surviving wife was a resident of Shawnee County and was a suitable person to be appointed administratrix. The probate court was clothed with jurisdiction to appoint an administrator of the estate of the deceased. And the order of appointment was not open to collateral attack in this action. Kininmonth v. Carson, 156 Kan. 808, 137 P.2d 173; Christianson v. King County, 239 U.S. 356, 36 S.Ct. 114, 60 L.Ed. 327; Harrison v. Love, 6 Cir., 81 F.2d 115; Hurt v. Cotton States Fertilizer Co., 5 Cir., 159 F.2d 52, certiorari denied 331 U.S. 828, 67 S.Ct. 1351, 91 L.Ed. 1843; Latta v. Western Investment Co., 9 Cir., 173 F.2d 99, certiorari denied 337 U.S. 940, 69 S.Ct. 1516, 93 L.Ed. 1744; Morris v. Ratliff, Tex.Civ.App., 291 S.W.2d 418. Neither was the right of the administratrix to maintain this action open to challenge upon the collateral ground that she failed to take and subscribe to the oath as such administratrix or that the taking of the oath was attended with irregularities. Gallagher v. Holland, 20 Nev. 164, 18 P. 834; Beresford v. American Coal Co., 124 Iowa 34, 98 N.W. 902; Reed v. Harlan, Tex.Civ.App., 103 S.W. 2d 236; Smallwood v. Boyd, 314 Ky. 763, 237 S.W.2d 66.

The next ground of attack upon the judgment is that the court lacked jurisdiction of the subject matter of the litigation. The substance of the argument in support of the contention is that the Federal Employers' Liability Act concerns itself only with liability for injuries of traumatic origin, that is, harm done by violent, external, accidental force with suddenness generally unexpected by the recipient; and that it does not undertake to bring within its coverage liability for lipoid pneumonia and fibrosis of the lungs proximately resulting from the prolonged inhaling of contaminated air. An indistinguishably similar contention was advanced and rejected in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282. There the plaintiff had been employed as a fireman on steam engines of the railway company. Damages were sought under the Act for an alleged permanently disabling disease disagnosed as silicosis caused by the continuous inhalation of silica dust blown or sucked into the cabs of the locomotives on which plaintiff had worked. The railway company urged the contention that the Act did not bring within its coverage an occupational disease of that kind. It was held that the coverage of the Act was not restricted to harm inflicted by external, violent, and accidental means. It was said that silicosis was as much an injury within the intent and meaning of the Act leading in time as certainly to permanent disability as scalding from the explosion of a boiler. Viewed in the light of that controlling case, there is no room for doubt that where standards of reasonable care are not exercised by the employer, the Act brings within its reach liability for disabling and fatal lipoid pneumonia and fibrosis of the lungs proximately resulting from the prolonged inhaling of contaminated air.

The further contention is that even though the Act, supra, brings within its ambit liability for injury arising out of occupational diseases, negligence on the part of the employer is an essential element of the right of recovery under the Act; that the defendant in the exercise of reasonable care did not have the requisite knowledge in advance that the inhaling of air arising from the tank containing the quenching oil could reasonably bring about the disability and death of the deceased; and that therefore the evidence failed to establish...