Grant v. Fisher Flouring Mills Co.

• Citation: 44 P.2d 193,181 Wash. 576
• Decision Date: 25 April 1935
• Docket Number: 25438.
• Parties: GRANT v. FISHER FLOURING MILLS CO.
• Court: Washington Supreme Court

44 P.2d 193

181 Wash. 576

GRANT v. FISHER FLOURING MILLS CO.

No. 25438.

Supreme Court of Washington

April 25, 1935

Department 2.

Appeal from Superior Court, King County; Roscoe R. Smith, Judge.

Action by Tom Grant against the Fisher Flouring Mills Company. On plaintiff's death during the pendency of the action Dorothy Grant, administratrix, was substituted as party plaintiff. Judgment for defendant, and substituted plaintiff appeals.

Reversed and cause remanded.

Wm Phelps Totten, Eimon L. Wienir, and Sam L. Levinson, all of Seattle, for appellant.

Ralph S. Pierce, Edwin J. Cummins, Gordon H. Sweany, and Venables Graham & Howe, all of Seattle, for respondent.

BLAKE Justice.

Plaintiff is the widow of Tom Grant, and administratrix of his estate. In June, 1926, Tom Grant entered the employ of defendant as a miller and utility man in one of its flour mills. He continued in that service until July 26, 1930, when he was forced to quit work because of ill health. On August 19, 1932, he commenced an action in the superior court of King county against the defendant, alleging that his ill health resulted from exposure to nitric acid and chlorine gas fumes while employed by defendant. He alleged that he had been required to work in an improperly ventilated room, where these gases were used for the purpose of bleaching flour. On August 17, 1933, while the action was pending, Grant died. Plaintiff was appointed administratrix of his estate, and was substituted as party plaintiff in the action. She filed an amended complaint, setting up two causes of action: (1) Survival action under section 194, Rem. Rev. Stat.; (2) an action for wrongful death under section 183, Rem. Rev. Stat. The defendant demurred to each cause of action. The demurrer to the second cause of action was sustained.

Plaintiff thereafter filed an amended complaint, setting up only the survival action. Defendant answered, setting up, by way of affirmative defense, the statute of limitations. At the close of plaintiff's case, defendant interposed a motion for nonsuit, on the ground that plaintiff had not made out a case of negligence and that the statute of limitations had run against the action. The court sustained the motion solely on the latter ground, and dismissed the action. Plaintiff appeals, assigning as error: (1) The sustaining of the demurrer to the action for wrongful death; (2) granting of the motion for nonsuit.

The appeal presents only the question as to whether the statute of limitations had run against each of the causes of action. We shall, therefore, discuss the evidence only to the extent necessary to dispose of that question. We shall discuss it, first, with respect to the survival action and the order of nonsuit, and, second, with respect to the wrongful death action and the order sustaining the demurrer.

I. As we have said, Grant started to work for respondent in June, 1926. In October, 1928, he laid off for a few days on account of what was diagnosed to be asthma. For two years thereafter he was under treatment for that ailment by the physician who made the diagnosis. In the meantime, he laid off work on two or three different occasions. In December, 1929, his condition was so bad that he laid off three weeks. He went back to work in January, and worked until July 26, 1930, when his condition became such that he could not work at all. He died August 17, 1933.

It is conceded the three-year statute of limitations (Rem. Rev. Stat. §§ 155, 159) applies. The question is: When did Grant's cause of action accrue? In a similar action for damages, this court held that the statute of limitations commenced to run at the time the workman finally ceased the work in pursuance of which he was exposed to the gas causing the injury. Calhoun v. Washington Veneer Co., 170 Wash. 152, 15 P.2d 943. It is appellant's contention that, under the rule there stated, the statute of limitations commenced to run against Grant's cause of action on July 26, 1930, the last day he worked. It is respondent's contention that Grant's cause of action accrued when symptoms of injury first manifested themselves, namely, in the latter part of 1928; that respondent was chargeable with negligence, if at all, as of that time.

We cannot accept completely the theory of either side. The cases cited by each give little aid, because of the variant states of fact upon which they were decided. None is sufficiently apposite to call for analysis. We are compelled, therefore, to revert to fundamental principles for an answer to the question

The wrong upon which Grant predicated his claim for damages was a violation of the Factory Act (Rem. Rev. Stat. § 7659), in the failure of respondent to provide proper ventilation of the room wherein the gases were used and inadequate appliances to carry off the fumes. Assuming, for the purposes of our discussion, that respondent was negligent in this respect, it was negligence which continued from day to day throughout the time of Grant's employment. Such a violation of the Factory Act constitutes a continuing wrong so long as it remains uncorrected. It gives rise to a cause of action from day to day to any one who can show that he has sustained injury because of it. Of course, if it can be shown that the injury culminated at any particular time, the statute of limitations would doubtless begin to run as of that time. This is the substance of the holding in Calhoun v. Washington Veneer Co., supra.

But, under the evidence in the instant case, it cannot be said that Grant's injury culminated at any particular time. The evidence tends to show that the injurious effects of exposure to nitric acid and chlorine gases are cumulative; that one may be exposed to them until symptoms of injury appear; that such symptoms will not only disappear upon change of occupation, but complete recovery may be effected. But the evidence also tends to show that, under continued exposure to the fumes, a time comes when the cellular tissues of the lungs are injured beyond repair. The evidence further shows that a post mortem autopsy was made. It was found that the cellular tissue of Grant's lungs had been injured and destroyed to an extent sufficient to bring about his death. There was also evidence tending to show that the condition of his lungs was, in all reasonable probability, attributable to the inhalation of nitric acid and chlorine gas fumes over a considerable period; that such condition, if not brought about during the last six months Grant worked for respondent, was aggravated during that period to such a degree as to ultimately cause his death.

Under this evidence, it cannot be said that Grant's injury culminated in 1928. Doubtless at that time a condition had developed, for which he might have maintained an action could he have shown it to be the proximate result of negligence on the part of respondent. But the injury at that time had not culminated in a condition which would preclude his recovery of damages for an aggravation of it by subsequent exposure to the gases occasioned by continued negligence...