Hart v. Sealtest, Inc.

• Decision Date: 15 March 1946
• Docket Number: 95.
• Parties: HART v. SEALTEST, Inc.
• Court: Maryland Court of Appeals

46 A.2d 293

186 Md. 183

HART v. SEALTEST, Inc.

No. 95.

Court of Appeals of Maryland

March 15, 1946

Appeal from Baltimore City Court; W. Conwell Smith, Chief Judge.

Action by Grace L. Hart against Sealtest, Inc., to recover damages for toxic poisoning. Judgment for defendant, notwithstanding a verdict for plaintiff, and plaintiff appeals.

Affirmed.

Maurice J. Pressman, of Baltimore (Louis M. Silberstein and William Saxon, both on the brief), of Baltimore, for appellant.

Jesse Slingluff, Jr., of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

The appellant was employed in August 1937 as a research librarian for the appellee at the latter's research laboratory at 1403 Eutaw Place, at the corner of Lafayette Avenue in the City of Baltimore. This laboratory was maintained for the purpose of dairy research, improvement of milk products, and for the development of by-products of milk. Appellant, who is 33 years old and who is a college graduate, was paid $1,500 a year (later increased to $2,300) to take charge of the library on the first floor. The building, which was a converted residence, consisted of a basement and two floors. In the basement was the furnace room and the dairy technological laboratory. On the first floor, in addition to the library, were the main office in the front room and a small office next to it. All of the rooms on the first floor opened into a hall with a stairway leading to the second floor. On the second floor was located the analytical chemical laboratory in the front room; the by-products laboratory in the middle room and the cereal or bakery laboratory in the rear. The room in which appellant was employed was 15' X 22 1/2', with a high ceiling about 12'-14', with five windows, two on Lafayette Avenue and three in the rear. Appellant stated that her duties in general were to 'try to throw together a library and at the same time, to try to hunt up the literature on various projects.' She prepared bibliographies, tried to find out everything on a particular subject from publications, tried to pick up cross-references and sometimes obtained books from other libraries for the men in the various laboratories, which occasionally she took to the laboratories. The whole building was an experimental laboratory of the appellee and included chemical bacteriological and dairy technological divisions. Odors and smells from the various chemical experiments permeated it all the time.

In the fall of 1942, experiments were begun in the by-products laboratory with a chemical known as methyl-acrylate, made out of milk and sugar. This chemical is a solvent type--that is, it is an organic liquid that has a solvent property for other materials. The object of the experiments with it was to combine it with other chemicals to see if synthetic rubber could not be made out of it. This chemical had a very bad odor and as soon as it began to be used, this odor went all over the building, even down to the basement. The fumes were heavy, pungent, acrid and appellant said they were nauseating. They were heavier than air, and very slow to disburse, and appellant said they centered around her desk in the library.

There were six or seven people working on this particular experiment. The fumes affected the appellant, first by giving her a skin rash on her face and ears, which she said would calm down on week ends when she was away from the library, and then would start again when she returned. She complained about it and apparently the other people in the building were complaining too, although none of them was affected as she was. Upstairs, the other laboratories were boarded off and the doors were ordered closed. The chemists employed in the by-products laboratory used hoods and some of them occasionally had to go out and walk in the fresh air to get rid of the effects of the fumes. Appellant began to feel ill in December 1942 or January 1943. Her eyes became irritated, she had sinus trouble and developed some sort of spells of coma which occurred at more and more frequent intervals. She lost control of her extremities, had a tired feeling and some fainting spells. She went to see her physician. He ordered her to take a week off. When she told her employers about this, and took the time off, she was advised that they were going to do something about the situation. They did put some ventilators in, but the fumes were not cleared up, and finally, in July, 1943, appellant resigned. She was then suffering from toxic poisoning, caused by the fumes, and is probably permanently affected by it. She has attacks of melancholy and spells of interrupted consciousness, and has to take large doses of benzedrine sulphate daily, as a stimulant, in order to carry on any work.

When appellant lost ten days from work in March, 1943 on account of this condition, the Travelers Insurance Company, which carries the appellee's compensation insurance, paid her one week's compensation of $10, securing a receipt from her, and got her to file a claim for compensation with the State Industrial Accident Commission. The appellee filed an employer's report. No award was made by the Commission, and, before further proceedings were held, appellant withdrew her claim and brought a common-law action in the Baltimore City Court. Appellee filed special pleas, alleging that dangerous and toxic chemicals were used and that irritating and toxic fumes and odors permeated the premises at Eutaw Place. The basis of these pleas was that appellant was engaged in an extra-hazardous occupation and that her exclusive remedy was under the Workmen's Compensation Law. Code 1939, art. 101, § 1 et seq. Demurrers to these pleas were sustained, however, and the case was tried on general issue pleas and appellant got a verdict for $5,000. A judgment for the appellee n. o. v. was subsequently entered, and, from this judgment, the appeal comes here.

The primary question in the case is whether appellant was engaged in an extra-hazardous occupation. Appellee claims that she was. It also contends that, if she was not, she is bound by the common-law rules, and, as the acts of negligence claimed, that is the flooding of the premises with the fumes which caused her injuries, were the acts of her fellow servants, she cannot recover against the appellee. A further question is whether she had an election of remedies and if so, whether she did not elect to proceed under the Workmen's Compensation Law and, therefore, was barred from bringing the subsequent suit.

The first of these questions, namely, whether or not appellant was engaged in extra-hazardous employment, was decided in the negative in the ruling on the original pleas by Judge Frank, and his decision was followed by Chief Judge Dennis of the Supreme Bench, when similar amended pleas were filed. Chief Judge Smith stated in his oral charge to the jury that if appellant was employed as a librarian, she was not engaged in extra-hazardous employment. In his opinion on the motion n. o. v., he treated this question as settled, and decided against the appellant on the ground that she had not shown any negligence on the part of the appellee. He held that the offensive chemical was not shown to be a substance dangerous to human life or liable to cause serious bodily harm, and he found that appellant was peculiarly sensitive to the chemical, a fact which was unknown to her and unknown to her employer, as well. He concluded that there was no basis for a finding that the appellee should have taken greater precautions than it did, in the present state of scientific knowledge with respect to methyl-acrylate.

Extra-hazardous employment is defined in Section 33, Article 101 of the Annotated Code. Forty-five special activities are listed and then, by Subsection (46), it is stated 'In addition to the employments set out in the preceding paragraphs, this Article is intended to apply to all extra-hazardous employments not specifically enumerated herein, and to all work of an extra-hazardous nature.' Employment as a research librarian is not specially listed and it becomes necessary, therefore, to determine whether this is extra-hazardous employment and whether the work of such a librarian is of an extra-hazardous nature. It may be noted in the consideration of this question, that under Subsection (25), the manufacture of explosive and dangerous chemicals, corrosive acids or salts, etc., is listed as an extra-hazardous employment and by Subsection (28), the manufacture of drugs, not specified in Subsection (25) and non-corrosive acids or chemical preparations is also listed.

Subsection (46) of Section 33 was considered by this Court in the case of Mayor and City Council of Baltimore v. Smith, 168 Md. 458, 177 A. 903. In that case, a nurse at the Baltimore City Hospitals was putting clean linen on the bed of a patient and scratched her left hand on the spring of the mattress, whereby her finger became infected and she claimed compensation. From an examination of the Workmen's Compensation Act, the Court determined that unless otherwise specifically provided, the Act applied to employment in an industrial enterprise and that as a hospital was not an industrial enterprise, a nurse is a professional not a manual or industrial worker. The manual labor required of her was said...