Downey v. Kansas City Gas Co.

• Citation: 92 S.W.2d 580,338 Mo. 803
• Decision Date: 21 March 1936
• Docket Number: 34126
• Parties: Robert H. Downey v. Kansas City Gas Company, Appellant
• Court: United States State Supreme Court of Missouri

92 S.W.2d 580

338 Mo. 803

Robert H. Downey v. Kansas City Gas Company, Appellant

No. 34126

Supreme Court of Missouri

March 21, 1936

Rehearing Denied March 21, 1936.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Reversed.

Charles H. Mayer and Charles M. Miller for appellant.

(1) The trial court erred in not sustaining and giving defendant's demurrer and peremptory instructions and permitting plaintiff to recover under this action, when the injury complained of by plaintiff was covered by the Missouri Workmen's Compensation Act, which had exclusive jurisdiction of the injury complained of to the exclusion of the trial court. Secs. 3299-3376, R. S. 1929; Call v Moll, 89 Mo.App. 386; Burnham v. Ellmore, 66 Mo.App. 617; Davis v. Bond, 75 Mo.App. 32; Knoot v. Kelsey, 102 Mo. 291; M. & H. Zinc Co. v. Ind. Board of Ill., 284 Ill. 378, 120 N.E. 249; Industrial Comm. of Ohio v. Roth, 98 Ohio St. 34, 120 N.E. 172; Fidelity & Co. v. Ind. Accident Comm., 177 Cal. 614, 171 P. 429; Johnson v. Union Stock Yards, 99 Neb. 328, 156 N.W. 511; Guillod v. K. C. P. & L. Co., 18 S.W.2d 97; Brewer v. Ash Grove Lime & Portland Cement Co., 25 S.W.2d 1086. (2) The trial court erred in not sustaining and giving defendant's peremptory instructions, for the reason that plaintiff made out no case of actionable negligence against defendant.

Harold E. Neibling, Lon J. Levvis and Neibling & Levvis for respondent.

(1) The trial court committed no error against the appellant in submitting to the jury the Compensation Act question. (a) Application of the Compensation Act was pleaded by the appellant as an affirmative defense to this action for damages; the case was tried on that theory; and there was no proof of many of the essential elements of that defense. There was much evidence, however, that tended to disprove that respondent's injury was the result of an "event that happened suddenly and violently" and at a particular time and place, as required by the act to make it applicable. R. S. 1929, sec. 3305 (b); Miller v. Transfer Co., 224 Mo.App. 1114, 32 S.W.2d 449; Peru Plow Co. v. Commission, 142 N.E. 547. (b) The Compensation Act, at the time of the accrual of respondent's cause of action, expressly excluded from its application an "occupational disease in any form." Respondent's trouble was an occupational disease. R. S. 1929, sec. 3305 (b); Peru Plow Co. v. Commission, 142 N.E. 547; Mauchline v. Ins. Fund, 279 Pa. 524. (2) The evidence made a case for the jury on the issue of appellant's tort liability, and the trial court properly overruled appellant's instruction in the nature of a demurrer to the evidence. Cunningham v. Ry. Co., 156 Mo.App. 617, 137 S.W. 600; Zimmerman v. Pryor, 190 S.W. 26; Mooney v. Oil Co., 317 Mo. 1255, 298 S.W. 69; Patrum v. Railroad Co., 259 Mo. 124, 168 S.W. 622. (3) Instruction Q, offered by appellant, was properly refused for several reasons. The same matter was covered by an instruction (G) more general in its scope, which was requested by defendant, and was given, though, strictly, appellant was not entitled to it, because of its broad indefiniteness; it would have submitted what simply was the converse of plaintiff's Instruction 1, and, therefore, was unnecessary; there was no substantial evidence to warrant the giving of it, and it, therefore, was erroneous; it was purely a comment on evidence; it singled out and called attention to particular evidence to the exclusion of the remainder; and it ignored plaintiff's theory and would have tended to confuse and mislead the jury. Bell v. Kaiser, 50 Mo. 150; Schafstette v. Ry. Co., 175 Mo. 142; Foster v. Davis, 252 S.W. 433; Fitzsimmons v. Railroad Co., 242 S.W. 915; Vaughn v. Meier, 246 S.W. 279; Gilchrist v. Rys. Co., 254 S.W. 161; Burtch v. Ry. Co., 236 S.W. 338.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Plaintiff sued to recover damages claimed to have been sustained by him while in the employment of defendant due to the latter's negligence. He recovered judgment for $ 1,500 from which defendant appealed to the Kansas City Court of Appeals. That court first rendered a decision reversing the judgment but, on rehearing, by a decision in which only two of the three judges concurred, affirmed it. Upon request of the dissenting judge, who deemed the decision in conflict with certain prior decisions of the other two Courts of Appeals, the court, pursuant to the constitutional mandate, certified the cause to this court. Both the majority and the dissenting opinions on rehearing are reported in Downey v. Kansas City Gas Company, 79 S.W.2d 1063. Defendant contends that plaintiff's claim, if the trouble of which he complains grew out of his employment, is governed by the Workmen's Compensation Act and within the exclusive original jurisdiction of the Workmen's Compensation Commission. Plaintiff contends that his ailment was an occupational disease which, at the time in question, 1929, was excepted from the operation of the Compensation Act, and further that the question of whether the parties had accepted and were operating under that act was one of fact for the jury and was decided adversely to defendant.

Defendant, a large corporation, was engaged in selling and distributing gas and in selling and installing gas burning appliances, incinerators and water heaters in Kansas City. Plaintiff began working for defendant about the middle of August, 1929, as a pipe fitter's helper, installing water heaters, gas burning appliances, incinerators and sometimes parts of radiators, in stores and houses, and was so employed when the events occurred out of which this action arose. His evidence tends to show the following:

His work was frequently, perhaps usually, in the basements of houses, both old and new. He was helper to one Thornburg, and worked under the latter's supervision and direction. In the work of installation he was required to and did cut holes in flues or chimneys, using for this purpose a chisel and hammer, frequently a wall bar and sledge. Generally the hole to be cut was back of and near the furnace. There was not much space in which to work and "it was hot and sweaty." Pieces of brick, or tile from the lining of the flue, would fall down inside the flue and in order to leave the flue in good condition so as to provide proper draft it was necessary to remove the debris that had so fallen into it. To do that plaintiff would have to reach through the hole which he had made and down into the flue and in so doing would get soot and the accumulations that had adhered to the flue on his hand and sleeve. Many of the flues were very dirty. They had soot, containing, as shown by subsequent chemical analysis, ten to twelve per cent of caustic substances such as creosote and carbolic acid, and fine ashes and a brownish oil stain around the flue openings, which stain, a "gummy, oily stain" could sometimes be seen where it came out of the flue hole and ran down the flue, sometimes as much as six or eight inches or more. In so cleaning out the flues plaintiff would unavoidably get soot and "stuff" on his hands and arms and often, because he was perspiring freely, would thoughtlessly wipe the sweat off his face with his hand or sleeve and thus get the substance with which hand or sleeve was so covered into his eyes. He said "it is only natural for a person to kind of wipe himself that way (indicating) . . . a fellow would try to wipe the sweat off with his hands and have it on his hands and arms." All of plaintiff's evidence tends to prove that it was in that way and only in that way that he got soot or other deleterious substance in his eyes.

Plaintiff testified that he had had no previous experience in the kind of work he was then doing and did not know that there was anything deleterious in the substances with which he thus came in contact. However, he admitted on cross-examination that he knew it would not be good for his eyes to get soot into them. He said that after he had been working for three or four weeks his eyes began to "smart." At first he attributed it to smoke but soon thereafter noticed that when his arms were damp and some of the substance from the flues got on them they would smart and burn and he concluded that the trouble with his eyes was caused by the soot getting into them, as above described, and not by smoke. It was thus that he discovered the cause of the smarting and pain he had felt in his eyes. He testified that there was no particular date he could remember when he got the "stuff" in his eyes, it was "just right along," -- at another time he said it was a "daily occurrence." He spoke to his boss, Thornburg, about it, asking him if he thought there was "any danger in this stuff." Thornburg replied, "No, nothing serious," -- that he did not think there was anything to it. The smarting in plaintiff's eyes continued. After he had worked about two months, which would be four or five weeks from the time he first noticed the smarting and pain in his eyes, they got quite sore. He then again spoke about it to Thornburg, who still thought "there was nothing to it" but said he would speak to Holmgren, the supervisor, and did so, and reported to plaintiff that Holmgren thought there was "nothing to that," -- and further that Holmgren did not think that wearing goggles would be of any benefit.

About that time plaintiff "tried putting argyrol," which he said he knew to be a good eye wash, in his eyes "at home of an evening," which treatment afforded but slight and temporary relief. It is apparent from his testimony that the condition of his eye, -- it is practically only the left eye of which complaint is made, -- became progressively worse, the eye becoming red and inflamed and very sensitive to bright light, until in ...