Allen v. Shell Petroleum Corp.

• Decision Date: 12 June 1937
• Docket Number: 33236.
• Citation: 68 P.2d 651,146 Kan. 67
• Parties: ALLEN v. SHELL PETROLEUM CORPORATION.
• Court: Kansas Supreme Court

68 P.2d 651

146 Kan. 67

ALLEN v. SHELL PETROLEUM CORPORATION.

No. 33236.

Supreme Court of Kansas

June 12, 1937

Syllabus by the Court.

Employer is not insurer but has nondelegable duty to use reasonable care to furnish safe working conditions.

The question of liability of operator of oil refinery for negligent operation of refinery resulting in employee's contracting occupational disease known as "pneumoconiosis" was insufficient for jury.

"Pneumoconiosis" is a disease of the lungs due to habitual inhaling of minute or metallic particles as of coal dust in "anthracosis" which is chronic lung disease due to inhalation of coal dust.

1. An employer is not an insurer against occupational disease; his duty to furnish safe working conditions is not an absolute one, although it is nondelegable; his duty is to use reasonable care to that end.

2. The record in an action for damages brought by an employee against his employer, the operator of an oil refinery, on the ground defendant's negligent operation of its refinery resulted in plaintiff's contracting an occupational disease known as pneumoconiosis, examined and held, the evidence failed to establish the negligence charged.

Appeal from District Court, Cowley County; O. P. Fuller, Judge.

Action by Unas Allen against the Shell Petroleum Corporation and another. From an adverse judgment, named defendant appeals.

The question of liability of operator of oil refinery for negligent operation of refinery resulting in employee's contracting occupational disease known as "pneumoconiosis" was insufficient for jury.

Albert Faulooner, Kirke W. Dale, and C. L. Swarts, all of Arkansas City, and Joe T. Dickerson, Geo. W. Cunningham, and W. D Simms, all of Tulsa, Okl., for appellant.

E. M Knight, of Arkansas City, for appellee.

WEDELL Justice.

This action was brought as an ordinary action for damages by an employee against his employer, the Shell Petroleum Corporation, and two of its foremen. The action was based on the alleged negligence of defendants. Plaintiff prevailed and the defendant, Shell Petroleum Corporation, appeals. Demurrers of the foremen to plaintiff's petition were sustained. We are therefore concerned only with the judgment against the principal defendant.

The petition in substance alleged: Defendant operated an oil refinery at Arkansas City; plaintiff commenced work for it in October, 1928, as a laborer digging ditches, and so worked for about four months; he was then employed as a pipe fitter's helper until July, 1933; except for a six months' period in 1930 and 1931, when he was laid off by reason of a reduction of employees; he worked under instructions of a foreman and assistant foreman, in, on, and about various stills, tanks, chambers, pipes, and pipe lines cleaning out and filling the aforesaid receptacles with oil gas, and petroleum products, laying and coupling pipe lines, installing valves, tightening joints, and all other work necessary and incidental thereto as directed; in the manufacture of oil, gasoline, and other lubricants, a large quantity of highly poisonous and injurious gases, fumes, and odors were expelled therefrom, which were permitted and allowed to escape into the air where plaintiff was required to work; on numerous occasions equipment at the refinery was under high pressure and heated while plaintiff was required to work thereon, and was constantly giving off vapors, fumes, odors, and gases; these were inhaled gradually over a long period of time; they also enveloped and saturated his clothing, penetrated his skin; and entered his system; plaintiff was ignorant of their poisonous and harmful character; defendant failed to furnish proper masks or other protection; plaintiff inhaled and absorbed such poisons; defendant knew plaintiff was inexperienced in these matters and failed to warn him concerning them; when inquiry was made concerning their effects, defendant's foreman assured him the effect of these vapors was not harmful; defendant knew or by the exercise of due diligence should have known, plaintiff would likely suffer injury therefrom; in July, 1933, he was compelled to refrain from work by reason of slow and gradual breathing and absorbing of poisons which had accummulated in his system.

The petition did not designate any particular injury by name, but described his general condition as follows:

"*** he has had long and continued headaches, has spells of nervousness; has been unable to sleep or get proper rest; that his digestive organs do not function properly; that he has lost his appetite; his hearing is impaired; his throat and lungs are injured and impaired and infected so that the plaintiff has difficulty in getting his breath; that his heart, arteries, blood vessels, and other organs have become impaired and infected, and his whole system, both nervous and physical, have become so filled with poison that his condition is gradually growing worse instead of better. ***"

The answer contained a general denial, except as to matters expressly admitted and then alleged in substance: Plaintiff was experienced in the work in which he was engaged; the risk, if any, of being injured as complained of, was a risk incident to the employment; plaintiff knew the conditions existing around the refinery or by the exercise of reasonable care, could have known of the dangers, if any, to which he was exposed by reason of the inhalation of gas and fumes which existed about a refinery, but notwithstanding those facts plaintiff continued to work in and around the refinery and thereby assumed the risk, if any, incident to the employment; plaintiff was furnished with gas masks to be used where necessary; he was instructed by the company to wear gas masks when engaged in work in any place where he would encounter gas; if plaintiff was injured by the inhalation of gases or fumes, which fact defendant specifically denied, then such injury occurred by reason of his own negligence and want of ordinary care.

Plaintiff's reply consisted of a general denial of all material allegations contained in the answer, except as admitted or qualified in its petition.

The jury returned a verdict for $1,500. Defendant insists the vapors, fumes, and gases around its refinery were not poisonous or inherently dangerous or harmful to its employees, and the evidence did not show them to be. Next it is urged it was in nowise guilty of negligence in the operation of its refinery. It must be borne in mind this was not an action under our Workmen's Compensation Act. Nor does that act create liability for occupational or industrial diseases. Chop v. Swift & Co., 118 Kan. 35, 233 P. 800; Smith v. Cudahy Packing Co., 145 Kan. 36, 64 P.2d 582.

This was a straight action for damages due to alleged negligence of defendant. The injury was alleged to have been the result of industrial poisoning, and to have been occasioned by the inhalation of vapors, fumes, and gases, and the absorption of oily substances which it is claimed existed around the refinery. Plaintiff appeared to be suffering mainly from a lung ailment. His heart was seriously affected, but according to his doctor's evidence, the heart condition was the result of a lung disturbance. His doctor testified:

"There seems to be quite an accummulation of solid material in the bronchial tubes and lungs that show up through X-rays, the bronchoscope, and by examination with a stethoscope." (Italics inserted.)

In the course of the trial this lung condition was discussed as pneumoconiosis--a disease of the lungs due to habitual inhaling of minute or metallic particles as of coal dust in anthracosis; miner's asthma or lung. Anthracosis is a chronic lung disease, is common among coal miners, and is due to inhalation of coal dust. Plaintiff's doctor was certain plaintiff had an injury, but he did not think the ordinary gas which might be found around a refinery could cause pneumoconiosis. He said:

"I rather think this man's coming in contact with a harder, flinty material is what caused his trouble." We shall pass over that difficulty for the moment.

This action was not based upon the violation of any statute. Defendant does not claim he sustained injury while being required to work on the inside of any particular still, tank, or other inclosure which was permeated with poisonous vapors, fumes, or gases. He does not contend he was injured at any particular work, time, or place, but rather that over the period of his employment of about seven years, he inhaled gases, fumes, and vapors and became impregnated with these and oily substances which existed about the refinery. The jury eliminated injury due to absorption through the skin of oily substances, vapors, fumes, or gases, by a special finding that plaintiff's injury was caused by breathing gases and fumes.

When this refinery was opened, defendant employed chemists to make tests for the purpose of determining whether it was harmful for men to breath the air about its refinery. These tests were made where gases might be expected around the refinery grounds, buildings, and equipment. The chemists advised defendant the conditions at its refinery would not be harmful to its employees. Defendant also employed a physician to investigate various medical authorities on the subject. It was advised that breathing the air about this refinery would not cause occupational diseases, and that no harmful results would come from inhaling the fumes and gases at this refinery over a long period of time.

The evidence disclosed there are two types of crude oil--sweet oil and sour oil; sour oil contains hydrogen sulphide "Hydrogen sulphide, in quantities of three or four hundred parts per million, is harmful if you stay in it for two or three hours. 3000 parts per...