Cropper v. Titanium Pigment Co.

Decision Date17 April 1931
Docket NumberNo. 8936.,8936.
Citation78 ALR 737,47 F.2d 1038
PartiesCROPPER v. TITANIUM PIGMENT CO., Inc.
CourtU.S. Court of Appeals — Eighth Circuit

Stewart D. Flanagan and Charles M. Hay, both of St. Louis, Mo., for appellant.

William H. Allen, W. Edwin Moser, and John S. Marsalek, all of St. Louis, Mo., for appellee.

Before KENYON and GARDNER, Circuit Judges, and MUNGER, District Judge.

GARDNER, Circuit Judge.

This is an action for personal injuries, in which the appellant was plaintiff below. The parties will be referred to as they appeared in the lower court. In his amended petition, plaintiff alleged that on the 3d day of July, 1925, and for several months prior thereto, he was employed by the defendant in its chemical manufacturing plant in St. Louis, Mo., as a laborer; that under the orders and directions of the defendant he was engaged in operating a reduction tank, in which there was used strong, pungent, and poisonous acids; that, in the performance of his duties in and about said reduction tank, he was compelled to inhale poisonous fumes arising from the acid in the tank, causing serious injury to his nose, throat, larynx, bronchial tubes, and lungs, and that the linings and membranes thereof were burned, seared, eaten away, and destroyed, and became inflamed, irritated, congested, infected, sore, and swollen, causing him to suffer from bronchitis, from a cough with occasional blood in the sputum, and causing him to suffer from pleuro pneumonia; that his stomach became burned and irritated and the linings and membranes thereof inflamed, causing him to suffer pains in the stomach; that his teeth were eaten by said acid and caused to decay, and his gums were caused to become sore and inflamed; that he was caused to suffer from difficulty in getting his breath, from severe pains in the chest while breathing, from severe shock to his nervous system, from weakness, headaches, restlessness, and insomnia, all as a direct and proximate result of the negligence of the defendant set out in the petition; that his said injuries were serious and permanent, causing him to suffer great pain of body and anguish of mind; that the defendant knew, or by the exercise of ordinary care could have known, that the fumes arising from the reduction tank were poisonous and dangerous to plaintiff's health, and that plaintiff, while working about said reduction tank, would be compelled to inhale the poisonous fumes arising therefrom, and that by reason thereof his health was apt to be seriously impaired.

Specific acts of negligence were alleged as the direct cause of plaintiff's injuries, which may be summarized as follows: (1) That defendant failed to exercise ordinary care to employ any reasonably effective means, methods, or appliances to prevent plaintiff's health from being impaired by said fumes, although by the exercise of ordinary care, it could have so done; (2) that the defendant, although it knew, or could in the exercise of ordinary care have known, that plaintiff was ignorant of the dangers to his health arising from exposure to the fumes, negligently failed to exercise ordinary care to warn plaintiff that his health might be impaired thereby; (3) that the defendant assured plaintiff that he could work with reasonable safety in the place furnished him by the defendant, and that the fumes arising therefrom would not harm him, plaintiff being ignorant of the danger, and that, by reason of such negligent assurance, the plaintiff continued work about the reduction tank and to inhale the fumes arising therefrom; (4) that although defendant knew, or in the exercise of ordinary care could have known, that plaintiff was ignorant of the danger arising from the exposure to the fumes, it negligently directed and caused him to work about the reduction tank without employing any means or methods to prevent him from inhaling the fumes, although this could, in the exercise of ordinary care, have been done; (5) that the defendant, in violation of section 6819, Revised Statutes of Missouri 1919, failed to provide for and place at the disposal of plaintiff and maintain in good condition, without cost to the plaintiff, working clothes to be kept and used exclusively by him; (6) that the defendant negligently and unlawfully, and in violation of section 6820, Revised Statutes of Missouri 1919, failed as often as once every calendar month to cause the plaintiff to be examined by a competent, licensed, and reputable physician, for the purpose of ascertaining if there existed in the plaintiff any industrial or occupational diseases or illness due or incident to the character of work in which plaintiff was engaged; (7) that the defendant negligently and unlawfully, and in violation of section 6829, Revised Statutes of Missouri 1919, failed to post in a conspicuous place in the room in which plaintiff was required to work an appropriate notice of the known dangers to the health of its employees, particularly the plaintiff, arising from the poisonous fumes and acid, and simple instructions as to any known means of avoiding, so far as possible, the injurious consequences thereof, although it was possible for defendant to have done so, and thereby have avoided plaintiff's injuries.

On motion of defendant, the court struck from the petition the allegations summarized in the above subdivision 6, charging the defendant with negligence in having failed to have plaintiff examined by a competent, licensed, and reputable physician once in every calendar month, as required by section 6820, Revised Statutes of Missouri 1919, and also struck the allegations summarized in the above subdivision 7, charging the defendant with negligence in having failed to post in a conspicuous place in the room in which the plaintiff was required to work, an appropriate notice of the known dangers to his health, arising from the poisonous fumes, and simple instructions as to any known means of avoiding the injurious consequences thereof, as required by section 6829, Revised Statutes of Missouri 1919. The plaintiff reserved an exception to this action of the court.

By its amended answer, defendant admitted plaintiff's employment, together with certain other formal matters; pleaded that whatever injuries plaintiff had sustained were caused by the usual and ordinary risks and dangers incident to the work and employment in which he was engaged, and that he had, by accepting and continuing in said work and employment, assumed all of the risks and dangers thereof.

The cause was submitted to a jury on instructions which are not challenged and which do not appear in the record, and the jury returned a verdict in favor of the defendant. From the judgment entered thereon, the plaintiff has appealed, assigning as errors the action of the court in striking out the above-noted paragraphs of his petition and in various rulings on the admissibility of evidence.

Plaintiff's amended petition was filed by leave of court, and hence the matters contained in the stricken paragraphs were not sought to be injected into the case by amendment during the trial. The motion to strike was therefore in the nature of a demurrer to these paragraphs.

A reference to article 6, chapter 54, Revised Statutes of Missouri 1919 (sections 6785-6833), discloses the fact that it contains many provisions for the health and safety of employees. The following sections seem pertinent to a consideration of the questions here presented:

"Sec. 6817. Employer to provide protection to employees from diseases. — That every employer of labor in this state engaged in carrying on any work, trade or process which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employee to the danger of illness or disease incident to such work, trade or process, to which employees are exposed, shall for the protection of all employees engaged in such work, trade or process, adopt and provide approved and effective devices, means or methods for the prevention of such industrial or occupational diseases as are incident to such work, trade or process. (Laws 1913, p. 402)."

"Sec. 6818. Articles considered dangerous to health. — The carrying on of any process, or manufacture, or labor in this state in which antimony, arsenic, brass, copper, lead, mercury, phosphorus, zinc, their alloys or salts or any poisonous chemicals, minerals, acids, fumes, vapors, gases, or other substances, are generated or used, employed or handled by the employees in harmful quantities, or under harmful conditions, or come in contact with in a harmful way, are hereby declared to be especially dangerous to the health of the employees. (Laws 1913, p. 402)."

"Sec. 6820. Employees to be examined monthly by physicians. — Every employer engaged in carrying on any process or manufacture referred to in section 6818 shall, as often as once every calendar month, cause all employees who come into direct contact with the poisonous agencies or injurious processes referred to in section 6818, to be examined by a competent licensed and reputable physician for the purpose of ascertaining if there exists in any employee any industrial or occupational disease or illness or any disease or illness due or incident to the character of the work in which the employee is engaged. (Laws 1913, p. 402)."

"Sec. 6829. Notices to be posted in rooms — to contain, what. — For the purpose of disseminating a general knowledge of the provisions of this article and of the dangers to the health of employees in any work or process covered by the provisions of this article, the employer shall post in a conspicuous place in every room or apartment in which any such work or process is carried on, appropriate notices of the known dangers to the health of any such employees arising from such work or process, and simple instructions as to any known means of avoiding, so far as possible, the injurious consequences thereof,...

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