Holliston Mills of Tennessee v. McGuffin
| Decision Date | 23 November 1940 |
| Parties | HOLLISTON MILLS OF TENNESSEE v. McGUFFIN. |
| Court | Tennessee Supreme Court |
Rehearing Denied Jan. 13, 1941.
Appeal in Error to Law Court at Kingsport, Sullivan County Shelbourne Ferguson, Judge.
Action by John McGuffin against the Holliston Mills of Tennessee for injuries resulting from alleged failure of defendant to install and maintain ventilation machinery to protect employees from injurious effects of poisonous fumes and gases generated in the course of the operation of defendant's plant. From a judgment for the plaintiff, defendant appeals in error.
Affirmed.
Simmonds & Bowman, of Johnson City, for plaintiff in error.
Harry L. Garrett, of Kingsport, for defendant in error.
This is an appeal in error from a judgment in the Kingsport Law Court for $1,000 in favor of John McGuffin based on the second ground of a declaration charging violation of Code, Sections 5338, 5339 and 5340, which were originally Sections 8, 9 and 10 of Chapter 110, Public Acts of 1919, known as the workshop and factory statutes. The specific violation charged was the failure of the defendant Holliston Mills to install and maintain such ventilation machinery, such as fans, blowers etc., as would protect its employees, and particularly John McGuffin, plaintiff below, from the injurious effects of poisonous fumes and gases generated in the course of the operation of the plant.
It was alleged in the declaration that a former action had been instituted which had been removed by the defendant to the Federal Court, where a non-suit was taken, and that the present action had been instituted within twelve months thereafter.
The defendant Holliston Mills filed pleas of not guilty and of the statute of limitations and issue was joined.
In the progress of the trial the defendant Mills raised by special pleas the additional defense that the Act of 1919 hereinbefore mentioned, is unconstitutional, specifically because (1) it is too indefinite, furnishing no sufficiently certain standard to enable persons affected thereby to determine as to its observance, or violation; and (2) because violative of Section 2, Article 2, and Section 8, Article 1 of the State Constitution and the 14th amendment to the Federal Constitution.
The case was first carried to the Court of Appeals and by that Court transferred to this Court, upon the assumption that substantial constitutional questions were presented.
Holliston Mills has assigned errors challenging the judgment of the trial Court, first, in overruling defendant's motion for a directed verdict on the general ground that there was no evidence to support a verdict for plaintiff; second, in refusing to hold the statutes relied on unconstitutional; and, third, in limiting the defendant to five witnesses as to material and determinative facts.
1. It is not necessary to go further than the statement of the case in the brief filed on behalf of Holliston Mills to ascertain that there was before the jury some material evidence that adequate provision had not been effectively made to prevent or carry off injurious fumes and gases, particularly chlorine, generated in connection with the manufacture of the cloth which the Mills produced; and of the further fact that this employee suffered injuries to his throat and lungs from breathing these gases or fumes. It will be borne in mind that this Court is not concerned with the weight or preponderance of the evidence, but examines the record only to ascertain whether or not there is any substantial or material evidence upon which the finding of the jury, concurred in by the trial Judge, could be sustained. A number of witnesses are introduced who show that while these fumes and gases did not originate in the room in which this plaintiff below worked, his desk, where he was engaged in clerical work, was stationed within twenty feet of a sliding door which opened into an adjoining room in which machines were operated which generated these injurious fumes and that they were commonly drawn through this opening and blown upon the plaintiff. There can be no question that there is material evidence to sustain these facts, and we think the trial Judge was correct in holding that it was for the jury to determine whether or not all reasonable steps and precautions had been taken, and all practicable safe guards maintained by the defendant Mills in compliance with the requirements of the statutes. This was distinctly a question of fact.
The trial Judge, upon motion at the close of plaintiff's proof, took from the jury the consideration of the first count, which was a common law count, charging want of due care in the particulars hereinbefore mentioned, and submitted the case to the jury on the second count, which, as before stated, charged violation of the statutory requirements touching these matters. Now counsel insist that the provisions of the statutes requiring the maintenance of reasonable safe guards, etc., amount to no more than the common law requirements as to affording a safe place of work; and counsel argue that, since the trial Judge ruled out the common law count, he should have gone further and ruled out the statutory count. Counsel apparently assume that the Court took a distinction because the second count charged the violation of a statute, as to which the defense of assumption of risk would not apply. Counsel argue that this is not the character of penal statute to which this distinction has application.
We find nothing on the face of the record, in connection with the action taken by the trial Judge, to indicate just why he took a distinction between the two counts, but assuming that it was upon the ground stated by counsel, we are inclined to the view that the distinction indicated might properly be taken. It appears to be a recognized general rule that the defense of assumption of risk is not permissible where a statute such as this has been violated. Our leading case on this point is American Zinc Co. v. Graham, 132 Tenn. 586, 589, 179 S.W. 138, wherein Neil, C.J., reviews numerous cases and so holds. In that case the statute involved required precautionary equipment to be employed in mines. The principle applies here. Also, see the case of Tennessee Eastman Corp. v. Newman, 22 Tenn.App. 270, 121 S.W.2d 130, 136, certiorari denied by this Court. It will be borne in mind that this statute was passed in exercise of the police power of the State and it was the same statute that was under consideration in the Newman case, supra, wherein it was directly held that the plaintiff's acquaintance with the conditions of work could not be relied on to support the defense of assumption of risk. The general rule was therein reaffirmed, that, "when the statute is violated by the master the servant does not assume the risk regardless of his knowledge." Moreover, we think that the defendant does not make out a case on the facts which would defeat recovery on this ground. There is abundant evidence that the plaintiff did not appreciate the danger, although he soon became aware of great inconvenience.
Also, under this first assignment counsel argue the plea of the statute of limitations of one year. Code, § 8572. As before stated, the declaration alleged the bringing of a former suit and its dismissal by non-suit and the bringing of the present suit within twelve months thereafter. The plea filed by the defendant raising this issue set up simply that "plaintiff's alleged cause of action, if any, accrued more than one year before the institution of this suit, and more than one year before the institution of his original suit, and defendant here pleads and relies upon the one year statute of limitations as a complete bar," etc. We agree with counsel for plaintiff below that this question is directly ruled by the holding of this Court in Railroad v. Harris, 101 Tenn. 527, 47 S.W. 1096, in which a similar plea was held to be insufficient; that the filing of this simple plea did not put upon the plaintiff the burden of making proof to sustain the averments of the declaration in this regard. This assignment must be overruled.
2. As we understand the argument, the substance of the contention that the statute is unconstitutional is (1) that it is so vague and indefinite in its terms that it does not give notice of just what would constitute a violation thereof; and (2) that it delegates authority which belongs alone to the Legislature, the officials named being empowered to determine what is and what is not required by, or a violation of, the law. The pertinent provisions, being those set out in the declaration, are as follows:
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Holliston Mills of Tennessee v. McGuffin
...to Law Court at Kingsport, Sullivan County; Shelburne Ferguson, Judge. On petition to rehear. Petition dismissed. For former opinion, see 145 S.W.2d 1. Simmonds & Bowman, of Johnson City, for plaintiff in Harry L. Garrett, of Kingsport, for defendant in error. CHAMBLISS, Justice. By petitio......