Johnson v. Concrete Materials Co.

• Decision Date: 16 June 1944
• Docket Number: 8708.
• Citation: 15 N.W.2d 4,70 S.D. 95
• Parties: JOHNSON v. CONCRETE MATERIALS CO.
• Court: South Dakota Supreme Court

15 N.W.2d 4

70 S.D. 95

JOHNSON v. CONCRETE MATERIALS CO.

No. 8708.

Supreme Court of South Dakota

June 16, 1944

Eugene C. Mahoney and Tom Kirby, both of Sioux Falls, for defendant and appellant.

T R. Johnson, of Sioux Falls, for plaintiff and respondent.

SMITH, Judge.

The complaint of the plaintiff-employee seeks damages from the defendant-employer for negligence in failing to provide plaintiff with a safe place in which to work. It is alleged that as a result of such negligence plaintiff contracted the occupational disease known as pneumoconiccis or silicosis. The defendant moved to dismiss the complaint on the theory that it describes an injury by accident for which the Workmen's Compensation Law, SDC 64, supplies the exclusive remedy. We granted an appeal from the trial court's order overruling the motion.

The question presented is whether the complaint describes an 'injury by accident' within the definition of the Workmen's Compensation Act, SDC 64. The Act defines 'injury' or 'personal injury' as 'only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form except as it shall result from the injury;' SDC 64.0102(4).

According to the complaint the winter months of plaintiff's thirteen years of employment by defendant were spent in a rock or stone crushing plant. It alleges:

'That during the time the plaintiff was employed by the defendant as aforesaid, the defendant failed to provide or maintain an adequate system of ventilation in its plant or stone crusher. That as a result thereof fumes, dust and particles of silica were created and caused to be diffused through the air where they remained suspended in places where the plaintiff was employed by said defendant. That these deleterious substances were inhaled by the plaintiff into his lungs, and continuously gathered into and lodged in his respiratory system until there were deposited in said lungs large quantities of said dust and silica particles, and other substances equally harmful. That as a result thereof the plaintiff contracted a pulmonary dust disease or the occupational disease theretofore described and a serious lung ailment with other complications.

'That the defendant did not provide proper and sufficient means of ventilation in such plant or stone crusher; that the defendant was negligent in failing to properly equip or install exhaust fans and dust chambers or other suitable contrivances for the removal of dust and other impurities that accumulated in the operation of the stone crusher or place where the plaintiff worked, as herein set forth and contrary to S.D.C. 42.0404. That the defendant permitted an unhealthy condition to exist therein to such an extent as to so injure the plaintiff's health to the extent set forth herein. That said stone crusher or scene of employment was not a reasonable safe place for the plaintiff to work, and that the said plaintiff's health thereby became impaired and he contracted such disease as herein described because of the condition that existed therein.'

In support of its contention that the complaint describes an accidental injury covered by the Workmen's Compensation Act defendant cites: Brown v. St. Joseph Lead Co., 60 Idaho 49 87 P.2d 1000; Foble et al. v. Knefely, 176 Md. 474, 6 A.2d 48, 122 A.L.R. 831; Gay v. Hocking Coal Co., 184 Iowa 949 169 N.W. 360; Johnson v. Hughes et al., 207 N.C. 544, 177 S.E. 632; McNeely v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509; Pero v. Collier-Latimer, Inc., 49 Wyo. 131, 52 P.2d 690; Thomas v. Parker Rust Proof Co., 284 Mich. 260, 279 N.W. 504; Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 128 A. 635, 44 A.L.R. 363. We are of the opinion that the contention is foreclosed in this jurisdiction.

The complaint describes an injury resulting from repeated inhalations of silica over an extended period of time. In Frank v. Chicago, M. & St. P. R. Co., 49 S.D. 312, 207 N.W. 89, 91, where thrombus or clot of blood in the femoral vein was under consideration, in construing the language we have quoted from SDC 64.0102(4), supra, it was said 'Before he can recover it must appear that some mishap, some untoward and unexpected event, occurred without design; that some accidental injury was suffered, traceable to a definite time, place, and cause.' In Mellquist v. Dakota Printing Co., 51 S.D. 359, 213 N.W. 947, 949, where an acute heart attack was under consideration, it was said: 'The requirements of Frank v. Chicago, M. & St. P. R. Co., 49 S.D. [312], 207 N.W. [89], 91, have been met, in that the uncontradicted statements of two physicians show that the injury...