Dalton v. Dow Chemical Co.

• Decision Date: 19 April 1968
• Docket Number: No. 40599,40599
• Citation: 158 N.W.2d 580,280 Minn. 147
• Parties: Jack DALTON, Appellant, v. DOW CHEMICAL CO. and Hawkins Chemical, Inc., Respondents. HAWKINS CHEMICAL INC., third party plaintiff, Respondent, v. TECT, INC., and Herald-Review Inc., third party defendants, Respondents, Standard Accident Insurance Co., intervenor, Appellant.
• Court: Minnesota Supreme Court

Page 580

158 N.W.2d 580

280 Minn. 147

Jack DALTON, Appellant, v. DOW CHEMICAL CO. and Hawkins Chemical, Inc., Respondents.

HAWKINS CHEMICAL INC., third party plaintiff, Respondent, v. TECT, INC., and Herald-Review Inc., third party defendants,

Respondents,

Standard Accident Insurance Co., intervenor, Appellant.

No. 40599.

Supreme Court of Minnesota.

April 19, 1968.

Syllabus by the Court

1. Where plaintiff has full knowledge of an illness brought about by defendant's course of conduct, the injury has been done and the statute of limitations begins to run at that time.

2. It has been determined under our statutes that ignorance of a cause of action not involving continuing negligence or trespass, or fraud on the part of the defendant, does not toll the accrual of a cause of action. The period within which the action must be brought commences when the right of action accrues.

3. Where a coincidence of the negligent act and the fact of some damage occur the cause of action comes into being and the applicable statute of limitations begins to run, even though the ultimate damage is unknown or unpredictable.

4. The record indicates that plaintiff learned about the causal relationship between his illness and his exposure to toxic chemicals not later than November 5, 1957.

Carroll, Cronan, Roth & Austin, Minneapolis, for Dalton & Standard Accident Ins. Co.

Harry H. Peterson, Minneapolis, for Dalton.

Tyrrell, Jardine, Logan & O'Brien and Graham Heikes, St. Paul, for Dow Chemical.

Hammer, Weyl, Halverson & Watters, Duluth, for Hawkins.

Reavill, Neimeyer, Johnson & Killen, Duluth, for Tect.

Wright W. Brooks, Paul J. McGough and G. Alan Cunningham, Minneapolis, for Herald Review.

OPINION

NELSON, Justice.

Plaintiff, Jack Dalton, and intervenor, Standard Accident Insurance Company, appeal from a judgment entered in favor of defendants, Dow Chemical Company and Hawkins Chemical, Inc., July 26, 1966, in the District Court of Pine County pursuant to an order granting their motion for summary judgment and dismissing the case on its merits.

Plaintiff was employed by Herald-Review, Inc., a newspaper publisher, at Grand Rapids, Minnesota, as a journeyman-pressman prior to August 26, 1957, and was exposed in his employment to various inks and chemicals, including the product manufactured by Dow Chemical Company known as 'vythene.' Plaintiff used vythene as a cleaning solvent. Early in 1957 plaintiff was experiencing blurred vision and nausea. Later in the spring of 1957, he became troubled with indigestion, urinary disorders, and heart palpitations. For perhaps a month before he became paralyzed on August 27, 1957, he suspected that the symptoms might be related to his exposure to vythene. Plaintiff had consulted various doctors in Grand Rapids who were unable to remedy his condition, and on August 28, 1957, he entered the University of Minnesota Hospitals. By that time he had developed a complete paralysis of his lower extremities.

During the fall of 1957 plaintiff discussed with various doctors treating him at University Hospitals his history of exposure to chemicals and the possibility of a relationship between his disability and the exposure. A tentative diagnosis was compression of a portion of the spinal cord with cause unknown. A neurological examination on September 2, 1957, suggested a hemorrhage of a cord tumor as a result of a bleeding tendency caused by toxic exposure.

On September 19, 1957, the clinical impression, based on reports and examinations, was that the spinal cord damage and the resulting paraplegia were caused by exposure to the organic toxins of methyl chloroform and trichlorethylene. This diagnosis was given in a letter dated April 22, 1958, from Dr. Glenn Gullickson, Jr., of the University of Minnesota Medical School, to Arnold M. Bellis, the attorney representing plaintiff in a workmen's compensation proceeding instituted February 11, 1958. The letter stated in part:

'Examination of urine specimens submitted to the State Board of Health were reported on September 19, 1957 as having no lead, mercury or arsenic present. On the basis of exclusion of other disease processes, the clinical impression at that time as to the cause of the spinal cord damage and the resulting paraplegia, was exposure to the organic toxins of methyl chloroform and trichlorethylene.

'Mr. Dalton's physical impairment is permanent and the prognosis is that there will be no return of function in the lower trunk and extremities or of bowel and bladder control. On a percentage basis his physical impairment is 100%. In my opinion the cause of the necrotizing lesion of the spinal cord which resulted in Mr. Dalton's paraplegia is the toxic effect of the organic solvents to which he was exposed prior to the onset of his illness. This assumption is based on the exclusion of other possible causes. A hemorrhage or a tumor of the cord was not noted when the cord was examined at the operation. A bacterial infection was ruled out by the negative culture of the cord specimen. The other toxic poisons such as lead and arsenic were not found on laboratory examinations. According to the evidence available, Mr. Dalton was certainly exposed to toxic concentration of the organic solvents he used in his work. There are no clinical tests to prove conclusively that these solvents were the toxins which caused the necrotizing lesion of the cord. However, on the basis of Mr. Dalton's symptoms prior to the acute onset of his illness and the known effect of these solvents on nervous tissue, in my opinion the only feasible diagnosis is that of transverse myelopathy due to poisoning from methyl chloroform and/or trichlorethylene.'

On November 5, 1957, Dr. Lyle A. French of the University of Minnesota Medical School, Division of Neurosurgery, also wrote a letter concerning plaintiff's condition. Dr. French stated that the etiology of plaintiff's spinal cord damage could not be stated with absolute definiteness but that he felt it could be due to a toxic process. Although plaintiff averred in an affidavit opposing defendants' motion for summary judgment that he did not learn that vythene had caused his disabilities until April 22, 1958, the petition seeking workmen's compensation, which he signed February 11, 1958, alleged his injury to be due to trichlorethylene and methyl chloroform poisoning. Not until January 27, 1964, almost 6 1/2 years after plaintiff was admitted to University Hospitals, did he bring this action claiming damages as a result of negligence and breach of warranty on the part of defendants in selling these chemicals for public use.

The trial court in granting defendants' motion for summary judgment held that plaintiff's action was barred by Minn.St 541.05, which provides that actions for 'injury to the person or rights of another, not arising on contract' shall be commenced within 6 years. ¹ Section 541.01 provides that '(a)ctions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues * * *.'

1. Minn.St. 541.05 does not provide when the period of limitation begins to run, and that is the main question presented on this appeal. As a general rule, the cause of action accrues when the accident occurs. American Mutual Lia. Ins. Co. v. Reed Cleaners, 265 Minn. 503, 122 N.W.2d 178. It is obvious that injustices could result from an application of the occurrence-of-the-accident test to the situation where the injured party does not discover that he has suffered any injury until after the period of limitation has run.

'* * * Quite recently there have been a wave of decisions meeting the issue head-on, and holding that the statute will no longer be construed as intended to run until the plaintiff has in fact discovered that he has suffered injury, or by the exercise of reasonable diligence should have discovered it.' Prosser, Torts (3 ed.) § 30.

This rule was adopted by the United States Supreme Court in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282. The Urie case involved an F.E.L.A. claim arising out of an occupational disease, silicosis, caused by the continuous inhaling of silica dust. The court adopted the view of a california court that in this type of occupational disease case (337 U.S. 170, 69 S.Ct. 1025, 93 L.Ed. 1293)--

'* * * no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurous consequences of the exposure are the product of a period of time rather than a point of time; consequently the afflicted employee can be held to be 'injured' only when the accumulated effects of the deleterious substance manifest themselves * * *.' Associated Indemnity Corp. v. Industrial Accident Commission, 124 Cal.App. 378, 381 (12 P.2d 1075, 1076).'

In Daniels v. Beryllium Corp. (E.D.Pa.) 211 F.Supp. 452, 455, the court stated:

'We believe that where a plaintiff has full knowledge of the illness brought about by defendant's course of conduct the injury has been done and the statute of limitations begins to run at that time.'

Similar holdings can be found in R. J. Reynolds Tobacco Co. v. Hudson (5 Cir.) 314 F.2d 776; Ricciuti v. Voltarc Tubes, Inc. (2 Cir.) 277 F.2d 809; Brush Beryllium Co. v. Meckley (6 Cir.) 284 F.2d 797. Thus, the rule in the Federal courts is that where injury is based on exposure to infectious or deleterious chemicals, the date upon which the statute of limitations begins to run is the date on which the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, his illness.

Similar holdings can be found in Minnesota workmen's compensation cases involving occupational diseases. In Fink v. Cold Spring Granite Co., 262 Minn. 393, 404, 115 N.W.2d 22, 30, the court discussed when the statute of limitations in the Workmen's Compensation Act begins to run against an employee who has contracted silicosis:

'We have said that the contracting of silicosis is not a...