Bethlehem Steel Co. v. Payne

• Decision Date: 07 March 1966
• Docket Number: No. 43830,43830
• Citation: 183 So.2d 912
• Parties: BETHLEHEM STEEL COMPANY, a corporation, v. Thomas J. PAYNE.
• Court: Mississippi Supreme Court

Page 912

183 So.2d 912

BETHLEHEM STEEL COMPANY, a corporation, v. Thomas J. PAYNE.

No. 43830.

Supreme Court of Mississippi March 7, 1966.

Eaton, Cottrell, Galloway & Lang, Gulfport, for appellant.

Martin & Taylor, Eates & Alexander, Gulfport, for appellee.

BRADY, Justice:

This is an appeal from a decree of the Chancery Court of Harrison County, Mississippi, against Bethlehem Steel Company, which has qualified to do business in this State. The court accorded the complainant, Thomas J. Payne, who resides at Long Beach, Mississippi, the sum of $2,500 for medical expenses, $945 for compensation at the rate of $35 per week for twenty-seven weeks, and attorneys' fees in the sum of $1,000, totalling $4,445 in compensation benefits based upon the Workmen's Compensation Law of the State of Louisiana.

Stated as laconically as possible, the pertinent facts are there. Appellee was an electric welder, and for eight years he followed this occupation, working in many States. From June 17, 1962 to May 25, 1963, a period of eleven months and eight days, appellee was employed by appellant an an electrical welder in the State of North Dakota. In that State, his work required him to do welding in enclosed silos, in close proximity with four or more other welders, in the construction of Minute Man Missile projects.

The record discloses that on June 4, 1963, appellee was again employed by appellant to work at the Michoud Plant, adjacent to New Orleans, Louisiana. He worked uninterruptedly for two months and twenty-four days, from June 4, 1963 through August 28, 1963, four days subsequent to the date he was injured. On this job he was employed, not as a welder, but as a 'hook-on' man. His duties consisted of hooking iron materials and scaffolding boards on to a hoist to be carried to other employees working on the scaffold.

On August 24, 1963, while working as a 'hook-on' man, he was struck on the back above the right shoulder blade by a piece of 2X4 timber, approximately two feet long and weighing approximately two pounds, which fell from a considerable height. The appellee testified that he sporadically welded, possibly four or five times, while employed at Michoud Plant by the appellant; that he spent not more than five or ten minutes on any occasion, and not more than a total of thirty minutes' time was spent in all of appellee's outdoor welding in the State of Louisiana.

As a result of the contusion received from the falling 2X4 timber, appellee was examined, x-rayed, and given a tetanus booster shot at Michoud Plant. On August 26 he resumed his work, but on the same day he was subsequently referred by appellant to a firm of doctors in New Orleans, Louisiana, specializing in industrial medicine. In the course of their examination x-rays were taken and an infiltration of the upper lobes of his lungs was discovered, which was otherwise undiagnosed but led the appellant to suspect that appellee had tuberculosis.

The record is not positive, but appellant advised the appellee to seek the counsel and aid of his family physician. The appellee quit his job, or his employment was terminated, and then he sought the assistance of the Veterans' Administration Hospital in Biloxi, Mississippi. This hospital, being unable to confirm an infection of tuberculosis, transferred appellee to the Veterans' Administration in Jackson, Mississippi, where against tuberculosis could not be diagnosed or ruled out. An exploratory operation was recommended and performed on December 20, 1963. A small portion of appellee's lung tissue was removed and it was definitely ascertained that he did not have tuberculosis, but had what is known as 'welder's siderosis,' which is a collection of iron oxide on the lining of the lungs. The record shows that appellee was advised of his condition on or about January 2, 1964, but the appellant had no knowledge that a claim was being made against it until August 20, 1964, when the bill of complaint was filed.

Because of the examinations, hospitalization and operation, appellee claimed to have been totally disabled for twenty-seven weeks, and that he suffers a limitation of capacity and a shortness of breath, which is partially debilitating.

The record shows that he returned to work at the Michoud Plant on August 26 and worked until August 28. Subsequent to all examinations and tests, appellee returned to work on September 16 and continued to work until October 1, 1963, when it was suggested that he have his lung condition examined, and his employment was then terminated.

The record fails to disclose that the blow occasioned by the falling piece of 2X4 in any way brought about or affected his lung condition. The chancellor astutely held:

The court further finds that although the injury received in the State of Louisiana nor the lung condition emanating from his employment in the State of North Dakota are of themselves non-compensable, nevertheless, action of the defendant following the examination necessary because of the accident in the State of Louisiana resulting in the discharge of complainant was a primary and proximate cause of the loss of time and of the medical and hospital bills incurred by complainant and that under the statutes involved and the general and common law the defendant is liable unto the complainant for compensation during the period of his unemployment together with such medical and hospital bills as were incurred and allowable under the statutes and law in force. (Emphasis added.)

In his bill of complaint, the appellee seeks to recover under:

(1) The Louisiana Workmen's Compensation Law for (a) an accidental injury within the meaning of such law, or (b) an industrial disease compensable under the law, specifically 'welder's siderosis,' which is contended to be a disease resulting from contact with 'metals other than lead and their compounds' made compensable by Louisiana Revised Statutes, Title 23, section 1031.1, subd. B(1)(g), (1964), or by Pneumoconiosis, which is made compensable by subd. B(6) of the Act;

(2) The provisions of the Workmen's Compensation Law of any other state under which he might be entitled; and

(3) The common law or the civil law of the State of Louisiana due to the negligence of appellant in failing to provide the employee with a reasonably safe place in which to work, and with sufficient safety appliances to prevent the incurring of the injury and/or disease.

The fundamental question presented in this appeal is simply: Could this action be maintained in the Chancery Court of Harrison County, either under the laws of North Dakota or the laws of Louisiana?

We note the following statement in ...