Evinger v. Thompson

• Decision Date: 08 March 1954
• Docket Number: No. 43634,43634
• Parties: EVINGER v. THOMPSON.
• Court: Missouri Supreme Court

Page 726

265 S.W.2d 726

364 Mo. 658

EVINGER v. THOMPSON.

No. 43634.

Supreme Court of Missouri, En Banc.

March 8, 1954.

Harold L. Harvey and Donald B. Sommers, St. Louis, for appellant.

John H. Haley, Jr., St. Louis, Guy W. Green, Jr., and S. L. Trusty, Kansas City, for respondent.

HYDE, Presiding Judge.

Action under Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51, for damages for dermatitis, claimed to have been caused by contact with sodium bichromate, used by defendant as a rust inhibitor in the cooling system of its diesel engines. Plaintiff had a verdict for $35,000 and defendant has appealed from the judgment entered.

Defendant contends it was entitled to a directed verdict; and the principal question, therefore, is whether defendant was negligent in using the compound (containing chrome) without determining that it could cause harm to some of its employees, warning them or using protective measures. Plaintiff was a machinist doing inspection and repair work at defendant's roundhouse in Osawatomie, Kansas. He had worked on steam engines for many years and in May 1948 went to work exclusively on diesels. He had never had any skin trouble before that time. Defendant began using the rust inhibitor in its diesels early in 1945, made from a product blended by the Dearborn Chemical Company of Chicago called Dearborn Compound No. 517, containing 60 to 70 per cent sodium bichromate. It was a yellow powder; three pounds of it was mixed with 100 gallons of water and the solution put in the radiators of the diesels by laborers. When there were radiator leaks a dried yellow deposit would be left on the machinery, floors and walls of the diesel and when the radiators were drained such deposits would be left on the floor of the shop and on the trucks of the diesels. When a cylinder head leaked there would be a yellow residue in the grease around the exhaust stacks and it would also get into the lubricating oil. Plaintiff changed water pumps, removed cylinders, replaced gaskets and other parts and made general repairs and adjustments. In this work, he would frequently come in contact with the yellow fluid or its dried residue. No one ever told plaintiff what the substance contained or gave him any warning about contact with it. Plaintiff also said the radiators were never flushed with clear water and that the diesels were not cleaned before he worked on them.

In November 1948, plaintiff noticed a breaking out and itching on the backs of his fingers. He gave it home treatment but it got worse so he went to Dr. Johnson of the Missouri Pacific Hospital Association in January 1949. His condition did not respond to treatment but got worse and Dr. Johnson advised him to lay off work, which he did from February 5th to March 5th. He returned to work, wearing rubber gloves on the advice of Dr. Johnson, but his hands became broken out and swollen as far as the gloves went on his wrists so he quit work on March 8th and went to another doctor. The breaking out ran up his arms and finally affected his arms, legs, face and body; and on March 19th, he was sent to the Association Hospital in St. Louis, where he stayed until April 1st. He tried to work again on May 23rd and on June 27th, after taking weekly treatments at the hospital, but broke out again on his hands and arms both times.

Plaintiff's medical evidence was that he had chrome dermatitis and that it was caused by coming in contact with the sodium bichromate solution used in the diesels, and its deposits on and around them, during his work. Patch tests made on plaintiff's skin with these deposits showed that they would cause him to have this type of dermatitis. Plaintiff's evidence also was that chrome dermatitis was considered an occupational disease; that it had been known to the medical profession for more than fifty years and that about 20% of the persons exposed to it are affected by it. (One doctor said 27%; defendant's evidence was about2%.) The form in which the chrome substance is found was said to be immaterial, since the sensitivity is to the chrome itself rather than to the bichromate. Chrome dermatitis has been found in connection with tanneries, woolen mills, furriers, airconditioning plants, automobile factories, aircraft plants, blue printing, shoe factories, lithographing, printing, glue making, and many other industries. Plaintiff offered to prove that other employees, working with him on the diesels, also got the same kind of dermatitis but this offer was denied. It was also stated that chromium compounds have a toxic effect and are skin irritants; but that a considerable period of exposure is required to result in dermatitis from contact with chrome. Therefore, it was conceded that a pre-employment test could not determine sensitivity to it. One doctor testified, concerning the nature of plaintiff's ailment, as follows:

'Q. Would you classify this dermatitis as an allergy, so far as Mr. Evinger was concerned? A. Well, that is a very difficult question to answer. It is not the usual type of rash that we consider allergy. What we usually consider 'contact dermatitis'. There is a very fine point of distinction between the two.

'Q. Can you make that distinction? A. I will try. Allergy, we usually consider that when a person reacts violently to certain materials which the ordinary person does not react to. Contact dermatitis, we usually consider that the material is irritating to the skin in all people and that it is a question of the degree of exposure which determines the degree of dermatitis.'

Defendant's evidence showed that plaintiff had the first case of dermatitis after they began to use the sodium bichromate compound. Its use was recommended by the manufacturer of the diesels. It was purchased as a packaged article by trade name, Prior to 1949 the Dearborn Chemical Company never issued any warning as to the use of the compound, but began in January 1949 to stencil a warning on all containers. Defendant did not begin regular use of diesels at Osawatomie until November 1947 and first put on three shifts to service them in May 1948 when plaintiff started on that work. Defendant's engineer of tests knew approximately the chemical quantities of the compound and knew that sodium bichromate was toxic or poisonous but considered it to have that effect only if taken internally. Defendant's witness Dr. Edmund N. Walsh (author of an article in the Journal of the American Medical Association of November 17, 1951 on dermatitis resulting from contact with chromate in cooling water of diesels) testified that sodium bichromate is not a primary irritant (irritant to every one) and that chrome dermatitis is the result of an allergy; that is a different reaction to the material than that of the usual or average individual. He said that sodium bichromate was a powerful skin irritant in certain concentrations but that the amount in the Dearborn compound would not be an irritant to all persons. He also said that chromates were a definite industrial hazard and that their effects were known in the 19th Century. He gave his opinion that plaintiff probably had chrome dermatitis. Defendant's witness Dr. Gerald v. Stryker gave his opinion that plaintiff's rash was the result of absorption by his system of a fungus infection, of which he found evidence, and not chrome dermatitis. It was also shown that plaintiff's original petition alleged contact with oil and grease as the cause of his dermatitis and that sodium bichromate was not mentioned until after the publication of the article by Dr. Walsh, when an amended petition was filed. However, the hospital record of 1949 stated plaintiff's diagnosis as 'contact dermatitis' with a notation that plaintiff 'works in diesels and contacts numerous oils and greases and other chemicals'; and stated in October that plaintiff could return to work 'providing he is transferred to some job which does not require his contact with oils, greases and chemicals.'

Plaintiff takes the position that 'a master can never escape being charged as a matter of law with a knowledge of the nature of the constituents and general characteristics of substances used in his business unless no scientific information is available even to those having special acquaintance with the subject involved.' Defendant says this rule could only apply to the use of inherently dangerous substances but does not apply to those from which there are only possible dangers; and is wholly inapplicable when the possible dangers are not to all persons but only to those peculiarly susceptible to the particular substance.

Defendant contends that plaintiff's condition was not the result of its negligence but of his own peculiar sensitivity or allergy. Defendant further contends that even if his condition did not result from allergy, nevertheless the evidence does not show it was negligent in failing to discover the harmful characteristics of the compound. Defendant says there must be some proof of notice to it, either actual or constructive of danger of harmful effects of the compound, which it says was not inherently dangerous; and that in constructive notice an employer is not charged with the knowledge of medical science but only with the knowledge of scientific facts possessed by men of general education; citing M. T. Stevens & Sons Co. v. Daigneault, 1 Cir., 4 F.2d 53; Grammer v. Mid-Continent Petroleum Corp., 10 Cir., 71 F.2d 38; Allen v. Shell Petroleum Corp., 146 Kan. 67, 68 P.2d 651; Russo v. Swift & Co., 136 Neb. 406, 286 N.W. 291; Koetsier v. Cargill Co., 241 Mich. 370, 217 N.W. 51; Waddell v. A. Guthrie & Co., 10 Cir., 45 F.2d 977; McHugh v. National Lead Co., D.C., 60 F.Supp. 17, 19, 20; Marsanick v. Luechtefeld, Mo.App., 157 S.W.2d 537; and Lowden v. Hanson, 8 Cir., 134 F.2d 348.

While we think plaintiff's position is too extreme, we must hold that defendant's knowledge, actual or constructive, of the harmful characteristics of the sodium...