Anderson v. Southern Pac. Co.

• Citation: 231 Cal.App.2d 233,41 Cal.Rptr. 743
• Court: California Court of Appeals
• Decision Date: 15 December 1964
• Parties: Lena K. ANDERSON, administratrix of the Estate of Wayne Lester Anderson, deceased, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant and Respondent. Civ. 10662.

Page 743

41 Cal.Rptr. 743

231 Cal.App.2d 233

Lena K. ANDERSON, administratrix of the Estate of Wayne Lester Anderson, deceased, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant and Respondent.

Civ. 10662.

District Court of Appeal, Third District, California.

Dec. 15, 1964.

Rehearing Denied Jan. 7, 1965.

Hearing Denied Feb. 10, 1965.

Perkins, Carr & Anderson, by Frances, N. Carr, Sacramento, for appellant.

Devlin, Diepenbrock & Wulff, by Forrest A. Plant, Sacramento, for respondent.

VAN DYKE, Justice pro tem.

This is an appeal by plaintiff from an adverse judgment entered upon a jury verdict for defendant in a personal injury action under the Federal Employers' Liability Acts. (45 U.S.C.A. § 51 et seq.) By his complaint plaintiff sought damages for a progressive disabling disease of the lungs and bronchi, known as pulmonary emphysema, claimed by plaintiff to be industrial in origin and the result of exposure to various deleterious dusts, fumes and vapors inhaled by him during his work as a painter in defendant's railroad shops in Sacramento over a period of approximately 20 years. The complaint filed June 16, 1961, charges that defendant negligently exposed plaintiff to such deleterious substances, commencing in 1941; that the effects of such exposure were accumulative and resulted in plaintiff's being work-disabled from the middle of June 1959 to November 2, 1959, and from time to time thereafter until January 27, 1961, when he became permanently disabled. By answer defendant entered a general denial (the complaint was unverified) and set up affirmative defenses of contributory negligence and limitation of action. During his tenure of service with defendant, plaintiff, in the renovation of passenger and freight railroad cars, engaged in various activities of sandblasting, spray painting, stenciling by means of spray painting, and removing paint and varnish from passenger-car furniture and equipment. Negligence was predicated primarily on the failure of defendant to provide safe and proper respiratory equipment to protect the workmen from inhalation of contaminants produced from such work and failure to provide adequate ventilation to clear the working areas of atmospheric pollution. The case was triedl to a jury which returned a general verdict for defendant. Motion for a new trial was denied and plaintiff appealed. Plaintiff died after the appeal was taken and his wife, Lena K. Anderson, as administratrix of his estate, was substituted as appellant.

Herein appellant claims error in instructions given by the court concerning the defense based on the statute of limitations, in the giving of various other instructions, which we will discuss later, and in the exclusion of evidence.

On the subject of limitation of action, the court modified, and gave as so modified, an instruction requested by plaintiff. It read as follows: 'In an action where the plaintiff claims, as a proximate result of defendant's negligence, to be suffering from an occupational disease which had a gradual onset over a long period of time as a proximate result of continued exposure to deleterious materials in his employment, a different rule applies in determining the time when the plaintiff sustained injury, if any, so as to commence the running of the statute of limitations, than applies in the usual civil action for injury to one's person.

'In such usual action for injury to one's person there is generally a single act or episode of alleged negligent conduct proximately resulting in immediate injury to the plaintiff's person, and the statute of limitations commences to run at the particular date or point of time of such alleged negligent act or episode.

But in an action such as we are now trying, where the plaintiff claims injury as a proximate result of continued exposure over a period of time rather than at a particular point of time, the cause of action does not accrue and the statute of limitations thereon does not commence to run until such time as the accumulated effects of the deleterious materials have manifested themselves, that is to say, until such time as plaintiff knows, or in the exercise of ordinary care should have known that he has suffered an appreciable occupational injury.' As requested by plaintiff the latter part of this instruction read: 'The Statute of Limitations thereon does not commence to run until such time as the accumulated effects of the deleterious materials have disabled plaintiff from doing his work or until such time as plaintiff knows, or in the exercise of ordinary should have known, that he has contracted a disease proximately caused by exposure by such deleterious materials which is reasonably certain to disable him from doing his work in the future.' (Emphasis supplied.) As modified by the court the instruction eliminated disablement as a specific point of time which the jury could find marked the running of the statute and substituted the more general term 'manifested themselves,' then defined manifestation as being a condition known to plaintiff or as to which plaintiff was chargeable with knowledge. Both as proposed and as modified the instruction told the jury that plaintiff could be charged with knowledge of occupational injury even though he had no knowledge in fact, if they found that in the exercise of ordinary care he should have known.

At defendant's request the court further instructed the jury as follows: 'It is not necessary for a cause of action to accrue under the Federal Employers' Liability Act that the plaintiff be aware of the exact cause of his symptoms.'

'In a case such as this it is not necessary in order for a cause of action to accrue that the effects of the substances in question have progressed to the point that plaintiff is disabled from carrying out the duties of a painter.'

'Inasmuch as the cause of action accrues in a case such as this when the claimed accumulated physical effects of the substances in question manifest themselves to plaintiff, if you find that prior to June 16, 1958, the claimed accumulated effects of the substances in question were manifest to plaintiff, then you must find for the defendant as to any claimed negligence of defendant occurring before that date, inasmuch as the complaint was filed herein on June 16, 1961.'

We think all the foregoing instructions were erroneous as being instructions given upon a factual issue that did not exist. Stated another way, we think that as a matter of law the defendant had not made out the affirmative defense of limitation of action.

The applicable statute of limitations in an action under the Federal Employers' Liability Act (45 U.S.C.A. § 56) reads as follows: 'No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.'

In this case where there was no traumatic injury which could serve to fix the time when the cause of action accrued, where the alleged injury was the result of the slowly accumulative effect of the inhalation of deleterious substances, the record before us, factually considered, would not sustain a finding by the jury that plaintiff's cause of action had accrued at any point of time anterior to three years before June 16, 1961, on which day he commenced his action. (Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282, 11 A.L.R.2d 252; Coots v. Southern Pacific Co., 49 Cal.2d 805, 322 P.2d 460; Young v. Clinchfield Railroad Co., 4 Cir., 288 F.2d 499; Bradt v. United States, 2 Cir., 221 F.2d 325.)

Although the evidence as to whether or not plaintiff's condition was job-connected was the subject of sharp conflict, it could not be disputed that when plaintiff began this action he was suffering from pulmonary emphysema to a point where he was totally disabled.

The record is such that aside from the issue of limitation plaintiff was entitled to go to the jury upon the issue of repondent's liability under the federal act.

Concerning the nature, cause and progress of pulmonary emphysema, each party offered expert testimony by physicians trained and skilled in the field of pulmonary diseases. Doctor Furlong, called for defendant stated that pulmonary emphysema is a disease of unknown cause, although there are numerous theories among the medical profession as to its cause; that autopsies of persons who have died from emphysema show a degeneration of the elastic tissues supporting the finer structures (alveoli) of the lungs, the end result of which is emphysema. It was Doctor Furlong's opinion that this degeneration was the cause of emphysema, whatever the cause of the degeneration might be. He stated that one theory acceptable to many physicians is that this degeneration of the elastic tissues is related to bronchial infection; that many patients with emphysema have a long history of bronchial irritation; but the witness discounted this theory, saying that respiratory infections primarily involve the larger bronchial tubes and do not extend to the tinest branches of the ultimate air sacs. The witness opined that any particulate matter inhaled would be precluded from reaching the deeper recesses of the lungs by the cilia found in the nose, the trachea, and the bronchial tubes. Other theories expounded and discounted by Doctor Furlong were that a general degeneration of all supportive tissues throughout the body occurs; that the condition is hereditary; that a disturbance in the vascular system is responsible; that irritants in the atmosphere cause it; that infectious bronchitis is a cause.

Doctor Webster testified as an expert witness produced by plaintiff. It was his opinion that inhalation of irritants, with resulting infection in the bronchi, is an effective cause of emphysema; that the disease occurs because the irritants cause swelling and thickening of the mucous membrane lining the bronchi, with a resulting increase in the secretions therein; that the secretions present...