Calhoun v. Washington Veneer Co.

• Decision Date: 15 November 1932
• Docket Number: 23770.
• Citation: 170 Wash. 152,15 P.2d 943
• Parties: CALHOUN v. WASHINGTON VENEER CO.
• Court: Washington Supreme Court

15 P.2d 943

170 Wash. 152

CALHOUN v. WASHINGTON VENEER CO.

No. 23770.

Supreme Court of Washington

November 15, 1932

Department 1.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by Claude Calhoun, for whom Cora B. Calhoun, as administratrix of the Estate of Claude Calhoun, deceased, was substituted, against the Washington Veneer Company. From judgment dismissing plaintiff's amended complaint on demurrer, plaintiff appeals.

Affirmed.

Smith &amp Davies, of Centralia, for appellant.

Thos L. O'Leary, of Olympia, for respondent.

HOLCOMB J.

This action was originally begun in September, 1931, by Claude Calhoun. In his complaint he alleged that at all times mentioned therein respondent owned, managed, and operated a large veneer manufacturing plant of Olympia, Wash., in which plant it manufactured veneer lumber, in the manufacturing of which it used large quantities of glue; that in its mill it maintained a workshop where machinery was used and manual labor employed by way of trade for purposes of gain, within an inclosed room in which room it operated and conducted a glue mixing department where machines or mixers were used in mixing the ingredients entering into the composition of glue that in the mixing of the glue large quantities of carbon bisulphide were used; that it was necessary to heat the same and that large quantities of gases and vapors exuded from the mixture, particularly, carbon bisulphide gases, which permeated the air in the entire inclosed room, and in the entire room in close proximity to the room; that he, at the instance and request of respondent as its employee from on or about April 20, 1926, to November 17, 1928, at the order and direction of respondent during all that period worked in its veneer plant in and about and in close proximity to the room where the glue was manufactured and during all that time inhaled through his skin and respiratory organs large quantities of carbon bisulphide gases and vapors; that as a result of inhaling such poisonous gases he received, on November 17, 1928, a severe and permanent case of carbon bisulphide poisoning; that his poisoning was due to the carelessness and negligence of respondent in that it carelessly and negligently failed to provide proper ventilation in the room and in the veneer mill in close proximity to the room where he had been working; that during all of the time he was working respondent knew of the dangerous and poisonous character of the gases which caused his poisoning, or would have known of it by the exercise of ordinary care and caution on its part, and carelessly and negligently failed and neglected to notify him of the dangerous character of the gases and carelessly and negligently failed to instruct him how and in what manner he could protect himself against the same; that he did not know of the dangerous character of the gases until long after November 17, 1928.

Claude Calhoun died on October 17, 1931. Thereafter, this appellant was appointed administratrix of his estate upon which it was necessary to have her substituted as plaintiff in the case and necessitated amending the complaint so as to allege it and prove her appointment as administratrix and to allege and prove that Claude Calhoun left surviving him some person as his beneficiary at the time of his death.

An amended complaint was filed by her as executrix of the estate. In the amended complaint the same charges of negligence on the part of respondent are set out as were set out in the original complaint except that it is somewhat more specific and it is further alleged that Claude Calhoun died on October 17, 1931, and that his death was due to the carbon bisulphide poisoning which he received on November 17, 1928. She also alleged and claimed damages by reason of funeral expenses and loss of support from the time of his death during his expectancy.

Respondent demurred to the original complaint and also to the amended complaint.

In both demurrers respondent urged five statutory grounds, among which were that several causes of action have been improperly united; that the complaint does not state facts sufficient to constitute a cause of action; and that the action was not commenced within the time limited by law.

The trial court never had an opportunity to pass upon the demurrer to the original complaint, but sustained the demurrer to the amended complaint without specifying any ground therefor, upon which respondent refusing to plead further, the action was dismissed. This appeal is taken from the judgment of dismissal.

Appellant asserts that there is only one question involved in this appeal which is, Has the statute of limitations run against the cause of action set out in the complaint?

Paragraphs III, IV, and V of the amended complaint, on which chief reliance is based by appellant, read:

'III. That the said defendant at all times herein mentioned owned, managed and operated a veneer manufacturing plant at Olympia. Thurston County, Washington, in which said plant the defendant manufactured veneer lumber and in manufacturing said veneer lumber the defendant used large quantities of glue; that in said veneer mill the defendant maintained a large enclosed room or work shop where machinery and manual labor were employed and used in mixing the several ingredients entering into the composition of glue; that in the mixing of said glue large quantities of carbon bisulphide were used; that the other ingredients entering into said glue are unknown to the plaintiff; that in the mixing and manufacture of said glue it was necessary to heat the same and large and dangerous quantities of gases and vapors and dust issued from the heating mixture, particularly carbon bisulphide gases, and permeated the air of the entire enclosed room and the entire veneer mill in close proximity to said room; that the said defendant also maintained a dryer in close proximity to said room and in said dryer dried large quantities of lumber upon which glue had been used in the manufacture of said lumber and large and dangerous quantities of carbon bisulphide gases issued from the lumber being dried in said dryer as aforesaid and permeated the air in, about and surrounding said dryer, making and causing said room and said dryer to be dangerous and unsafe for men working in or about the same.

'IV. That the said Claude Calhoun at the instance and request of the defendant was an employee of the defendant and worked for the defendant in and about said glue room from on or about April 20, 1926, until on or about the middle of May, 1928, and from about the middle of May, 1928, said Claude Calhoun at the instance and request of the defendant worked in said veneer plant in and about said dryer and in close proximity to said glue room until the 17th day of November, 1928, and during all of said time the said Claude Calhoun was working for the defendant as aforesaid, in, about and in close proximity to said room and dryer, inhaling through his skin and respiratory organs large quantities of said gases, vapors, dust and impurities and particularly carbon bisulphide gases and vapors; that as a result of inhaling said poisonous gases by said Claude Calhoun, he received, on or about November 17, 1928, a severe and permanent case of carbon bisulphide poisoning; from which he died on or about the 17th day of October, 1931, as aforesaid.

'V. That the said poisoning of the said Claude Calhoun by said gases, vapors and dust as aforesaid was

...