Dixon v. Gaso Pump & Burner Mfg. Co.

• Decision Date: 16 November 1937
• Docket Number: Case Number: 27427
• Citation: 1937 OK 656,183 Okla. 249,80 P.2d 678
• Parties: DIXON v. GASO PUMP & BURNER MFG. CO.
• Court: Oklahoma Supreme Court

1937 OK 656

80 P.2d 678

183 Okla. 249

DIXON v. GASO PUMP & BURNER MFG. CO.

Case Number: 27427

Supreme Court of Oklahoma

Decided: November 16, 1937

Syllabus

¶0 1. MASTER AND SERVANT - Right of Employee to Maintain Action for Damages on Account of Occupational Disease Contracted Through Negligence of Employer.

Action to recover damages on account of "occupational disease" alleged to have been contracted by plaintiff by reason of poisonous fumes and gases negligently permitted to escape from Diesel engine and open gas stoves in machine plant in which he was employed, is maintainable under the common law and also under the provisions of section 10890, O. S. 1931.

2. SAME - Employee not Estopped From Maintaining Action Because His Complaint Filed in State Industrial Commission for "Accidental Injury" Was Dismissed for Lack of Jurisdiction and Ruling Sustained on Appeal.

Where complaint is filed in the State Industrial Commission for "accidental injury" under the provisions of the Workmen's Compensation Law and the cause is dismissed upon the ground of lack of jurisdiction, and such ruling is sustained by the court on appeal, injured party is not estopped from maintaining a common-law action or an action under an applicable statute, for damages for alleged injury, based upon negligence.

3. NEGLIGENCE - Proof by Circumstantial Evidence.

Negligence may be established by circumstantial evidence, and where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts, at least a prima facie case is made. Burghardt v. Detroit United Railway (Mich.) 173 N.W. 360, 5 A. L. R. 1334.

Appeal from District Court, Tulsa County; Bradford J. Williams, Judge.

Action by Floyd H. Dixon against the Gaso Pump & Burner Manufacturing Company, a Corporation. From the judgment sustaining defendant's demurrer to the evidence, plaintiff appeals. Reversed and remanded.

L.L. Roberts, for plaintiff in error.

T. Austin Gavin, for defendant in error.

PHELPS, J.

¶1 This action was filed in the district court of Tulsa county by Floyd H. Dixon, plaintiff in error, against Gaso Pump & Burner Manufacturing Company, a corporation, defendant in error, to recover damages for injuries alleged to have been sustained by reason of defects of the machinery or appliances connected with or used by the defendant in error. In the trial court the position of the parties was the same as that in which they now appear.

¶2 Plaintiff alleges that he was employed by the defendant as a mechanic in machine shops operated by the defendant in which was installed and in operation a Diesel engine; also, that in said shop defendant maintained and operated open gas stoves. That in the operation of the Diesel engine and the burning of the open stoves, poisonous fumes and gases were emitted which, because of improper ventilation and insufficient exhaust equipment, were released within the building in which plaintiff worked:

"That by reason of the inhalation of said poisonous fumes and gases as above set out over said period of time, * * * the plaintiff became afflicted with an occupational disease, to-wit: carbon monoxide poisoning; that said disease was a direct result of said poisoning and a direct result of the negligence and carelessness of the defendant, its agents and servants, in failing and neglecting to connect the exhaust pipe of said Diesel engine and in failing to connect said stove to flues or exhaust pipes and so ejecting said poisonous fumes and gases and thereby failing and neglecting to furnish said plaintiff a safe and healthful place in which to work.

"That by reason of the inhalation * * * plaintiff has not been able to perform any manual labor since the said 10th day of November, 1931; that plaintiff has suffered other and numerous grave and permanent injuries and afflictions, by reason whereof said plaintiff has been totally disabled and has suffered bodily and mental agony.

"* * * That since said injury plaintiff has been under the constant care of physicians and neurologists; that at the time of said injury plaintiff had a life expectancy of - years and his earning capacity had been and he could anticipate an average of $100 per month in his work as an expert mechanic and skilled laborer; that by reason of plaintiff being totally disabled he has lost and suffered damages in the sum of $15,000.

"That by reason of the above injury said plaintiff has suffered great pain and anguish, to his damage in the sum of $10,000."

¶3 The defendant answered by general denial; also that plaintiff had filed his motion for hearing against the defendant before the State Industrial Commission on the same cause of action as set forth in the petition herein; that after a hearing the Industrial Commission had entered its order finding that the evidence was insufficient to show the plaintiff sustained an accidental injury arising out of and in the course of his employment; that on appeal to this court, the findings of the State Industrial Commission were affirmed; that by virtue of the order of the State Industrial Commission, plaintiff is barred from prosecuting or maintaining the present action. The defendant also pleads contributory negligence and assumption of risk.

¶4 At the close of plaintiff's testimony, the court sustained a demurrer to the evidence and dismissed the action. From the judgment, plaintiff appeals assigning three grounds for reversal: Errors of law occurring at the trial and excepted to by the Plaintiff; error of court in sustaining a demurrer to the evidence, and error in excluding competent evidence offered by the plaintiff.

¶5 Plaintiff bases his action under the common law and also under section 10890, O. S. 1931, which provides:

"An employer shall be responsible in damages for personal injury caused to an employee, who was himself in the exercise of due care and diligence at the time he was injured, by reason of any defect in the condition of the machinery or appliances connected with or used in the business of the employer which arose, or had not been discovered or remedied owing to the negligence of the employer, or of any person entrusted by him with the duty of inspection, repair, or of seeing that the machinery or appliances were in proper condition."

¶6 The Workmen's Compensation Law enters into the discussion of the questions involved by reason of the fact that soon after the injury complained of, plaintiff filed his complaint in the State Industrial Commission for an award under the provisions of the Workmen's Compensation Law. After a hearing upon the merits, the commission found:

"That the evidence was insufficient to show that claimant suffered an accidental injury arising out of and in the course of his employment."

¶7 On appeal to this court the decision of the commission was affirmed. Dixon v. Gaso Pump & Burner Mfg. Co., 167 Okla. 401, 29 P.2d 764.

¶8 The defendant contends that plaintiff is estopped in the present case because of the proceeding before the State Industrial Commission. In other words, that the plaintiff having failed to establish a cause of action before the Industrial Commission, he is left without a remedy and without a forum in which to litigate his alleged cause of action. We are unable to subscribe to this contention.

¶9 In denying an award the Industrial Commission held that the proof submitted was insufficient to show an accidental injury "arising out of and in the course of employment," as the term is used in subdivision 7 of section 13350, O. S. 1931.

¶10 In other words, the Industrial Commission held that it was without jurisdiction. Counsel for defendant concedes that the Industrial Commission was without jurisdiction in the proceeding instituted by plaintiff before that tribunal. At page 11 of its brief, defendant says:

"Does counsel for plaintiff in error not realize that the Industrial Commission has no jurisdiction over cases which are the result of occupational diseases? If it be true, and we take it we need not support our position by any citation of authority, why could the Supreme Court of this state have concluded that a holding or award of the Industrial Commission would have been affirmed when, if counsel for plaintiff in error is correct, the Industrial Commission would have been exercising a power and authority and jurisdiction not reposed in it by the laws of this state?"

¶11 This court...