Connell v. Fisher Body Corp.

• Decision Date: 16 July 1937
• Docket Number: 26133.
• Citation: 192 S.E. 484,56 Ga.App. 203
• Parties: CONNELL v. FISHER BODY CORPORATION.
• Court: Georgia Court of Appeals

192 S.E. 484

56 Ga.App. 203

CONNELL v. FISHER BODY CORPORATION.

No. 26133.

Court of Appeals of Georgia, First Division

July 16, 1937

Syllabus by the Court.

While a common-law action will lie in this state for a disease contracted by an employee, where the disease is the direct result of the negligence of the master in failing to furnish the employee with a safe place to work, yet, where the risk was obvious to the servant, or could have been discovered by him in the exercise of ordinary care and diligence, no liability therefor results against the employer. The present action was subject to general demurrer, and the court did not err in so holding.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Action by Jesse C. Connell against the Fisher Body Corporation. To review an adverse judgment, the plaintiff brings error.

Judgment affirmed.

Poole & Fraser, of Atlanta, for plaintiff in error.

James A. Branch and Thomas B. Branch, both of Atlanta, for defendant in error.

Bryan Middlebrooks & Carter, John A. Dunaway, and Arnold, Gambrell & Arnold, all of Atlanta, for parties at interest, not parties to record.

MACINTYRE Judge.

Jesse C. Connell brought the present action against the Fisher Body Corporation. The court sustained a general demurrer and the plaintiff excepted. The petition alleged in substance that the defendant is engaged in the manufacture of bodies for automobiles and maintains a manufacturing plant for that purpose; that the petitioner went to work in the woodshop of the defendant on September 1, 1928, and continued to work for the defendant until about October 29, 1935; that the petitioner, until September 1, 1934, was a strong and able-bodied man and was in excellent health; that "in said wood shop and adjacent to the work bench where your petitioner was required to work, there was a circular saw operated by electricity which was continuously used in sawing wood and * * * the operation of said circular saw caused a terrific amount of dust to fill the air in and about your petitioner and caused your petitioner to breathe the air which was filled with particles of dust"; that "said particles which your petitioner was forced to breathe irritated the lining of your petitioner's lungs and caused your petitioner to contract the disease of tuberculosis"; that defendant did not furnish petitioner with any guard for his nose or mouth and did not furnish him with any mask; that said room in which the petitioner was required to work was improperly ventilated; that the defendant failed to provide for the proper circulation of air and did nothing to prevent the congestion of dust in said room; that the defendant did not furnish or provide any suction pipe or other device for the removal of said dust that the defendant did not warn the petitioner about the danger of continuously inhaling dust in his lungs and petitioner did not know of the danger thereof; that the defendant well knew of said danger and failed to take the precautionary measures to prevent the petitioner from contracting tuberculosis; that the petitioner did not know of the danger of his employment or of the possibility of contracting tuberculosis. The petitioner charges that the defendant was negligent (1) in failing to furnish petitioner a safe place to work; (2) in failing to adopt and promulgate proper rules for the protection of petitioner from the dust (3) in failing to warn and instruct petitioner of the dangers incident to his employment; (4) in failing to furnish proper tools and equipment for the operation of said work of petitioner; (5) in failing to provide proper ventilation and circulation of air so as to take away such dust; (6) in failing to provide petitioner with glasses, mask, or other protection to prevent his inhaling such dust; (7) in knowing the danger of petitioner's employment, and the probability of his contraction of tuberculosis, in continuing to fail to furnish proper safeguards to prevent the contraction of tuberculosis by the petitioner.

The present case is both interesting and important. In an amicus curiae brief we are warned of the wide door which would be opened to claims for injury to health of employees if we should hold the defendant liable in this case. We have carefully considered the authorities touching on the questions presented and confess that it has been difficult for us to arrive at our decision. The injury sustained by plaintiff is a disease commonly known as tuberculosis, which he alleges he contracted because of certain conditions of his employment. A disease so arising is commonly referred to as an "occupational disease." In not a few authorities we find the statement that an action for an occupational disease would not lie at common law. In McCreery v. Libby-Owens-Ford Glass Co., 363 Ill. 321, 2 N.E.(2d) 290, 292, 105 A.L.R. 75, in denying a recovery to an employee for a disease known as pneumoconiosis, which was alleged to have been brought about by inhaling dust in the plant of the defendant in the production of glass, and the master was alleged to have been negligent in failing to warn the employee of the danger of inhaling the dust, and was negligent in failing to provide him with a safe place to work in that there were no proper suction fans or other reasonable apparatus installed, or masks or respirators to be worn, the court said: "It is a long established rule of common law origin that an employer must furnish his employee a reasonably safe place in which to work. An examination of the cases in Illinois and at common law which support this rule discloses that it is based upon decisions involving accidental injuries rather than occupational diseases. Reflection makes it apparent that this must be so because occupational diseases were unknown to the common law. The weakness of the argument lies in its failure to distinguish between a 'safe' place to work and a 'healthful' or 'sanitary' place in which to work. One searches in vain for any precedent at common law establishing any duties as to healthfulness or sanitation."

In this same connection see Parks v. Libby-Owens-Ford Glass Co., 360 Ill. 150, 195 N.E. 616; Vogel v. Johns-Manville Products Corp., 363 Ill. 473, 2 N.E.(2d) 716; Adams v. Acme White Lead & Color Works, 182 Mich. 157, 148 N.W. 485, L.R.A.1916A, 283, Ann.Cas.1916D, 689; Twork v. Munising Paper Co., 275 Mich. 174, 266 N.W. 311; Ewers v. Buckeye Clay Pot Co., 29 Ohio App. 396, 163 N.E. 577; Industrial Commission v. Brown, 92 Ohio St. 309, 110 N.E. 744, L.R.A.1916B, 1277; Industrial Commission v. Monroe, 111 Ohio St. 812, 146 N.E. 213; Gordon v. Travelers' Ins. Co. (Tex.Civ.App.) 287 S.W. 911; Miller v. American Steel & Wire Co., 90 Conn. 349, 97 A. 345, L.R.A.1916E, 510. In so far as these cases refer to an occupational disease as one which arises from causes incident to the profession or labor of the employee's occupation or calling, having its origin in the inherent nature or mode of work of the profession or industry, and being the usual result or concomitant thereof in spite of due care on the part of the employer, we agree with the principle thus announced. However, in so far as it may refer to a disease which arises purely from the negligence of the employer, we have no difficulty in giving our dissent thereto.

Blackstone in book 3, p. 120, says: "As to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their bodies their health, or their reputation." In the same book on page 122 he says: "Injuries affecting a man's health are where, by any unwholesome practice of another, a man sustains any apparent damage in his vigor or constitution." That a disease, brought about by the negligence of another, was a compensable injury at common law, seems to be well supported by the authorities. In Jones v. Rinehart & Dennis Co. Inc., 113 W.Va. 414, 168 S.E. 482, 484, the deceased employee was a laborer in the employ of defendant, in charge of the construction of an underground tunnel, and it was alleged in the petition that, because of the presence of great quantities of silica dust in the tunnels, which deceased was required to breathe, he contracted the disease of silicosis and died. The petition charged the employer with negligence in failing to furnish a safe place to work; failure to employ experienced foremen; failure to adopt and promulgate proper rules; failure to instruct and warn the decedent of dangers incident to his employment; failure to provide proper tools and equipment; and failure to provide circulation of air. The court said: "That, at common law, employees have...