Busen v. Chevrolet Motor Co. of St. Louis
| Decision Date | 14 December 1936 |
| Citation | 100 S.W.2d 277,339 Mo. 1098 |
| Parties | Frank R. Busen v. Chevrolet Motor Company of St. Louis, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.
Affirmed.
McCarthy Morris & Zachritz for appellant; Warren E Talcott of counsel.
(1) Plaintiff's evidence failed to bring the case within the occupational disease statutes, because he did not produce testimony showing a disease incidental or peculiar to the work or process carried on in which he was employed. Sec. 13252, R. S. 1929; Wolf v. Mallinckrodt Chem. Co., 81 S.W.2d 323; Maupin v. Am. Cigar Co., 84 S.W.2d 218. (2) The court erred in trying the case on the theory that only Section 13234, Revised Statutes 1929, was involved. This section must be read in connection with Sections 13232, 13235, 13284 and 13285, Revised Statutes 1929. (3) There was no proof that appellant either knew or ought to have known that any work or process at its plant might cause industrial disease. Defendant was therefore under no obligation to provide the safety devices described in the act. Wolf v. Mallinckrodt Chemical Co., 81 S.W.2d 323; Maupin v. Am. Cigar Co., 84 S.W.2d 218; Sec. 13252, R. S. 1929; Boll v. Condie Bray, 11 S.W.2d 52; Kolbow v. Haynes-Langenberg, 3 S.W.2d 228. (4) There was no evidence that defendant could reasonably have anticipated that plaintiff would suffer any illness as a consequence of the work at which he was put and therefore defendant was under no duty to guard against it. Wolf v. Mallinckrodt Chemical Co., 81 S.W.2d 323; Maupin v. Am. Cigar Co., 84 S.W.2d 218; Hysell v. Swift & Co., 78 Mo.App. 39; Sharp v. Stuebner, 300 S.W. 559; Zasemowich v. Am. Mfg. Co., 213 S.W. 804; Lowe v. Railroad Co., 265 Mo. 592; Anderson v. Box Co., 103 Mo.App. 387. (5) Plaintiff's instructions 1, 2, 3 and 4 were erroneous as not being based on any substantial evidence; in fact, no evidence at all. Assumed unproved facts; assumed certain facts to constitute negligence without requiring a finding that such facts did constitute negligence. Secs. 13232, 13234, 13235, 13284, 13285, R. S. 1929.
S. F. Pinter and Mason & Flynn for respondent.
(1) Appellant's abstract of the record shows upon its face that portions of the evidence offered at the trial and read to the jury have not been preserved in the record or set out in the abstract. Therefore, the question as to whether or not the evidence was sufficient to support the verdict, that is, as to whether or not a demurrer to the evidence should have been sustained is not before this court. Bertke v. Hoffman, 50 S.W.2d 107; Thomas v. Land, 30 S.W.2d 1038; Davis v. Vories, 141 Mo. 234; O'Malley v. Heman Const. Co., 255 Mo. 386; Tobacco Co. v. Walker, 123 Mo. 662; Reed v. Peck, 163 Mo. 333. (2) Plaintiff's case was not submitted to the jury on alleged violations of the occupational disease statute, contained in the petition, or any of them. It was submitted solely upon the petition and evidence showing violation of Section 13234, Revised Statutes 1929, which statute requires that "every person, firm or corporation using any polishing wheel or machine of any kind or character which generates dust in its operation shall provide each and every such wheel or machine with a hood which shall be connected with a blower or suction fan of sufficient power to carry off said dust and prevent its inhalation by those employed about said wheel or machine," and provides a penalty for violation thereof. What is now Section 13234, on which plaintiff submitted his case, first appeared in its present form as a new section to be known as Section 6444 in place of Section 6444 as it first appeared in the Revision of 1899. The act was passed in 1909, some years before the enactment of the statutes relating to occupational diseases as such. Sess. Acts 1909, p. 333. Those sections of our present statute making provision for the protection of employees from occupational or industrial diseases, that is, Sections 13252 to 13266, inclusive, of the Revision of 1929, were enacted in their present form in 1913. Sess. Acts 1913, pp. 402-406. (3) Section 13234 absolutely requires every person operating any polishing wheel or machine which generates dust in its operation to provide such wheel or machine with a hood connected with a blower or suction fan of sufficient power to carry away the dust. The violation of that statute is negligence per se. It was not necessary that there should be proof that the appellant either knew or ought to have known that the work or process in question might cause industrial disease or that it should have been able to anticipate the particular result of its violation of the statute. The plaintiff made his case by evidence showing violation of the statute and by evidence showing that this violation directly caused his injuries. Prapuolenis v. Construction Co., 279 Mo. 366; Huckleberry v. Mo. Pac. Ry. Co., 26 S.W.2d 987; Keim v. Ry. Co., 90 Mo. 314; Karle v. Ry. Co., 55 Mo. 483; Cropper v. Titanium Pigment Co., 47 F.2d 1038. (4) For a disease to be peculiar and incidental to a certain occupation, it is, of course, not meant that the disease can be contracted in no other way. Tuberculosis, for instance, and other very common diseases have been held to be occupational diseases in suits based upon our statutes enacted for the protection of the employee against industrial and occupational diseases. Wagner Electric Co. v. Snowden, 38 F.2d 599; Cropper v. Titanium Pigment Co., 47 F.2d 1038; Dodd v. Independence Stove & Furnace Co., 51 S.W.2d 114.
This is an action brought to recover damages on account of personal injuries alleged to have been caused by the failure of the Chevrolet Motor Company of St. Louis and Oscar Mitchell, its foreman, to equip grinding and buffing machines with sufficient hoods and blowers to adequately carry away dust created by these machines. Plaintiff was an employee of that company and operated the machines. His injury consisted of disease and impairment of his eyes, diseased sinus and lungs. A number of assignments of negligence were made in the petition, but only one was submitted to the jury. The assignment submitted was stated in the petition as follows:
". . . defendants . . . operated . . . buffing, grinding and polishing machines . . . where plaintiff was at work, . . . and negligently failed to provide each and every one of said machines with a hood, blower or suction fan of sufficient power to carry off said dust and to prevent its inhalation by plaintiff and its other employees there at work, in violation of a duly enacted Statute of Missouri, . . . Section 13234, R. S. Mo. 1929 . . ."
The separate answers were general denials. At the conclusion of plaintiff's evidence, instructions in the nature of demurrers were offered by both defendants. The court gave the instruction offered by defendant Mitchell and plaintiff took an involuntary nonsuit with leave as to him. The demurrers offered by the Chevrolet Company at the close of plaintiff's case and again at the conclusion of all the evidence were overruled. The jury awarded plaintiff damages in the sum of $ 15,000. Judgment was entered accordingly. From that judgment defendant appeals.
Summarized, and combining kindred assignments, appellant's grounds for reversal may be stated as follows:
(1) Respondent's evidence failed to bring the case within the occupational disease statutes, because there was no testimony showing that his disease was incidental or peculiar to the work at which he was employed.
(2) There was no proof that appellant either knew or ought to have known that any work or process at its plant might cause industrial disease. Appellant was therefore under no obligation to provide the safety devices described in Section 13234, Revised Statutes 1929.
(3) There was no proof that respondent's disease was caused by the conditions existing at appellant's plant.
(4) Respondent's instructions were erroneous, and appellant's refused instructions correct.
(5) That the trial court permitted respondent to testify that an insurance company paid respondent for total disability.
(6) That the verdict was excessive.
Respondent's evidence tended to establish the following facts: Respondent was thirty-seven years old at the time of the trial of the case on October 3, 1933. He received an injury to his right eye during childhood, as a result of being struck by a stone. In 1920 he had an inflammation of the left eye, which he had treated for approximately two months. The inflammation disappeared with no apparent bad effects. Prior to his employment by the Chevrolet Company in 1922, he was in good physical condition. In that year he secured employment in the body department of that company's plant in St Louis. He worked there until in 1924 when he quit to take employment with the United Drug Company. In 1925 he returned to the employment of the Chevrolet Company and again was in the body department. He worked in that department only two weeks when he was transferred to what was known as the repair department, where he remained four years. In the latter department respondent's work consisted in grinding, buffing and polishing radiator shells for use on automobiles manufactured by appellant. These shells came to that department in a somewhat rough condition and were frequently discolored in appearance. The rough surface was ground off by means of a grinding wheel made of emory. The scratches left from this grinding process were eliminated by means of a buffer which consisted of a wheel made or covered with cloth, and a rack for holding the radiator shells in place. A composition somewhat similar to soap or tallow was placed on the radiator shell which was then brought in contact...
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