Bieser v. Goran

• Decision Date: 05 January 1937
• Docket Number: 33888
• Parties: Florence Bieser, Administratrix of the Estate of William Becraft, v. Warren Goran, Appellant
• Court: Missouri Supreme Court

100 S.W.2d 897

340 Mo. 354

Florence Bieser, Administratrix of the Estate of William Becraft, v. Warren Goran, Appellant

No. 33888

Supreme Court of Missouri

January 5, 1937

Rehearing Denied December 14, 1936.

Motion to Transfer to Court in Banc Denied January 5, 1937.

Appeal from Circuit Court of City of St. Louis; Hon. Julius R Nolte, Judge.

Reversed.

James Booth for appellant.

(1) The instruction in the nature of the demurrer to the evidence requested by defendant at the close of plaintiff's case and again at the close of the whole case, ought to have been given. The mere fact that the evidence may have tended to prove that defendant violated the statutes in question was not sufficient, but the burden was on plaintiff to prove that such violation caused the injury for which he seeks to recover. Stepps v. Ry. Co., 85 Mo. 229; Larsen v. Webb, 58 S.W.2d 967; Warner v. Ry. Co., 178 Mo. 133; DeMoss v. K. C. Rys. Co., 246 S.W. 567; Moberly v. Ry. Co., 17 Mo.App. 535; Reed v. Ry. Co., 50 Mo.App. 506; Harlan v. Railroad Co., 65 Mo. 22; Koble v. Ry. Co., 38 S.W.2d 1036; Maupin v. Am. Cigar Co., 84 S.W.2d 218. (2) Where plaintiff received an injury which may be attributed to one of two causes, for one of which the master is liable, and for the other which he is not, the burden is on plaintiff to prove that the injury was caused by that particular negligent act for which the master is liable. Goransson v. Mfg. Co., 186 Mo. 300; Trigg v. Land & Lumber Co., 187 Mo. 227; Grindstaff v. Goldberg & Sons Steel Co., 40 S.W.2d 702, 328 Mo. 72; McWhorter v. Dahl Chevrolet Co., 88 S.W.2d 245; Kimmie v. Terminal Railroad, 66 S.W.2d 561.

Robert L. Aronson for respondent.

The demurrers to the evidence were rightly overruled. Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 51 S.W.2d 114; Boll v. Condie-Bray Glass & Paint Co., 321 Mo. 92, 11 S.W.2d 48; Langeneckert v. St. L. Sulphur & Chem. Co., 65 S.W.2d 648; Plank v. Brown Petroleum Co., 61 S.W.2d 328; Wagner Elec. Corp. v. Snowden, 38 F.2d 599; Cropper v. Titanium Pigment Co., 47 F.2d 1038, 78 A. L. R. 737; Ford Motor Co. v. Brady, 73 F.2d 248; St. Joseph Lead Co. v. Jones, 70 F.2d 475; Pevesdorf v. Union E. L. & P. Co., 333 Mo. 1155, 64 S.W.2d 939. Violation of the statutes was negligence per se. Larsen v. Webb, 58 S.W.2d 967. Proximate causation need not always be established by direct evidence, and may be shown by the circumstances of the case. Plaintiff need not exclude all other causes but defendant's negligence, and it is sufficient if there is substantial evidence of a cause for which defendant is liable, as here. State ex rel. St. Charles v. Haid, 28 S.W.2d 97; Am. Veterinary Laboratories v. Glidden Co., 59 S.W.2d 60; Beaber v. Kurn, 91 S.W.2d 78. The principles relied on by defendant do not apply to the facts of this case.

OPINION

Collet, J.

Action to recover damages for injury to plaintiff's health while in the employ of defendant. A trial resulted in a verdict for $ 27,000. Upon remittitur of $ 7000 in the trial court, judgment was entered for $ 20,000. From that judgment defendant appeals. Since the trial plaintiff has died and the cause was revived in the name of his administratrix. The parties will be referred to as they existed at the time of the trial.

Defendant was engaged in the production of silicon and its preparation for use in the manufacture of glass. The process followed consisted in the mining of the stone and its delivery to a crusher at defendant's plant or "mill" where a crushing process took place resulting in a fine sand. The sand was then dried after which it was delivered to a screen through which the particles sufficiently fine for sale passed and were then conveyed to a bin preparatory to transportation for sale. This process produced a large amount of dust. Plaintiff was employed in defendant's mill and exposed to the dust created by the above-described operations. The petition alleged several grounds of negligence, viz.: failure to provide a covering for the chutes and hoppers; failure to equip the plant with blowers which would remove the dust; failure to provide respirators for plaintiff's use; failure to have plaintiff examined by a physician, and failure to post notices of the dangers incident to plaintiff's employment. All of these grounds of negligence charged are violations of statutes. [Secs. 13262, 13234, 13254, 13255 and 13264.] The evidence amply sustains the charge that defendant failed to perform some, and possibly all of these statutory obligations. Such failure constitutes negligence per se. [Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 51 S.W.2d 114; Lore v. American Mfg. Co., 160 Mo. 608, 61 S.W. 678; Boll v. Condie-Bray Glass & Paint Co., 321 Mo. 92, 11 S.W.2d 48.] We may therefore treat the negligence charged as being sufficiently proved without further discussion.

The important question arises from the defendant's insistence that the evidence failed to establish defendant's negligence as the cause of plaintiff's injury. Demurrers to the evidence were offered and overruled. For the purposes of this case, we may assume without discussion of the evidence on that question, that plaintiff's injuries consisted of an impairment of his lungs resulting from the inhalation of dust. The question presented by the demurrer is whether the injury resulted from dust inhaled by plaintiff while he was in the employ of defendant. Plaintiff's evidence disclosed that he entered the employ of a company referred to as the "Tavern Rock" in 1918. This company's plant was located near Pacific, Missouri. It was engaged in a business similar to that of defendant. Plaintiff's duties during this employment consisted in papering cars. In this work he was not exposed to dust to any important extent. He quit this work after about four months, but a year or two later again secured employment with the same company, working for it on this occasion for a period of three or four months. During the latter period he "fed the crusher" and was exposed to and breathed dust of the same character encountered later in defendant's plant. In the spring of 1921 or 1922 (plaintiff was not sure which) he went to work at defendant's plant near Pacific, Missouri. He papered cars for about two weeks and then began work in defendant's mill where he was employed steadily six days a week, ten hours per day, until February, 1925, when he voluntarily quit. Plaintiff gave the following testimony as to the condition of his health at the time he left defendant's employ in 1925:

"Q. Now, you left there in February, 1925? A. Yes, sir.

"Q. At that time was your health all right? A. Yes, sir.

"Q. Sir? A. Yes, sir.

"Q. Your health was perfectly all right then? A. Yes, sir.

"Q. You didn't have any trouble then at all? A. No, sir.

"Q. You weren't short-winded then? A. Not that I could notice; no, sir.

"Q. And you hadn't lost any weight then? A. I don't think so.

"Q. You don't think you had lost any weight? A. I don't think I had.

"Q. And you didn't have these spells of weakness you speak of at that time? A. No, sir; I don't think so.

"Q. In other words, your health was perfectly all right, as far as you knew, when you left there in 1925? A. As far as I knew; yes, sir.

"Q. Well, you have no symptoms; nothing that troubled you, in other words? A. No, sir."

In the spring of 1926 plaintiff went to work with the Advance Industrial Supply Company. This company was also located near Pacific, Missouri, and was engaged in the business of crushing gravel for use in the manufacture of tar paper roofing. He was employed by this company for approximately seven months and afterwards periodically for a few days at a time until the spring of 1929. He described the conditions at the roofing company plant as follows:

"Q. And that company crushes gravel and makes roofing material, does it not? A. Yes, sir.

"Q. That place is dusty, too? A. Yes, sir.

"Q. Very dusty, is it not? A. Pretty dusty.

"Q. When you went to work for the Advance in 1926 what was the condition of your health then? A. My health was all right, then I think."

No precautions were taken at that plant to protect plaintiff from the dust, or to warn him of its danger, nor was medical attention furnished.

In April, 1929, plaintiff returned to defendant's employ for a period of three months. During these three months the plant conditions were the same as in the years 1921 to 1925. Plaintiff testified that he first discovered an impairment of his health while he was working for defendant in 1929 and that he quit "because he felt that the sand was affecting him." After he left defendant's employ in June, 1929, he worked for about three weeks for a man engaged in sinking some oil wells near Pacific, but this man "skipped out" without paying him, ending that employment. Although plaintiff was not certain whether it was before or after his second employment by defendant, he thought it was afterwards that he again worked for the Tavern Rock Company in dismanteling their plant. On this work he encountered some dust. Later in 1931 he again worked for the roofing company for a short time apparently under the same conditions as formerly.

The medical testimony offered by plaintiff is sufficient upon which to base the conclusion that plaintiff was suffering with silicosis at the time of his first examination in October, 1932. The X-ray taken October 5 1932, disclosed that the disease was in its "third stage." X-rays taken in March, 1934, disclosed the development of tuberculosis. Dr. Morrish stated at the trial that planitiff could develop the condition he was then in by working for a period of from two to four years under the conditions described as existing at defendant's plant. Dr. Luton testified that plai...