Koetsier v. Cargill Co.

• Decision Date: 03 January 1928
• Docket Number: No. 121.,121.
• Citation: 217 N.W. 51,241 Mich. 370
• Parties: KOETSIER v. CARGILL CO.
• Court: Michigan Supreme Court

241 Mich. 370

217 N.W. 51

KOETSIER

v.CARGILL CO.

No. 121.

Supreme Court of Michigan.

Jan. 3, 1928.

Error to Superior Court of Grand Rapids; Leonard D. Verdier, Judge.

Action by Willard Koetsier against the Cargill Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with instructions.

Argued before the Entire Bench. Travis, Merrick, Warner & Johnson, of Grand Rapids, for appellant.

Fred P. Geib and William J. Landman, both of Grand Rapids, for appellee.

FELLOWS, J.

Defendant is engaged in the printing, engraving, and binding business in the city of Grand Rapids. In a separate room it has two monotype casters and two monotype keyboards. These monotype casters cast the type from molten metal, 75 per cent. of which is lead, heated to between 700 and 725 degrees. Some dross accumulates on the top, which is skimmed off by the operator. The used type, dross, and accumulations of metal with the sweepings are remelted in the furnace room and cast into pigs which go to the operating room. Plaintiff, before he attained his majority, entered the employ of defendant as a helper in the composing room. Later he desired to learn to operate the monotype casters, and was given instructions. He operated the monotype caster, and did the work of remelting the metal for nearly a year and a half, when he was taken seriously ill, and was obliged to give up his work.

That he is seriously afflicted with nephritis, commonly called Bright's disease, is established conclusively, and is not controverted. Plaintiff's medical testimony tends to establish that its cause is lead poisoning. This is denied by defendant's medical witnesses. It is the plaintiff's theory that, inasmuch as an occupational disease does not come within the purview of the Workmen's Compensation Act, being Pub. Acts 1st Ex. Sess. 1912, No. 10, as amended (Adams v. Acme White Lead & Color Co., 182 Mich. 157, 148 N. W. 485, L. R. A. 1916A, 283, Ann. Cas. 1916D, 689), he may maintain an action at common law for negligence of the master which results in the contracting of such occupational disease, and that he has established such negligence in the instant case. Defendant here reviews a judgment entered upon a verdict in a substantial amount, which, however, is not claimed to be excessive, if plaintiff should recover, nad insists: (1) That a common-law action for an occupational disease may not be maintained; (2) that no negligence of defendant is shown; and (3) that plaintiff is guilty of contributory negligence.

We are so thoroughly convinced that no negligence of the defendant is shown that we shall rest decision on that ground alone. The machines used by defendant are of standard construction in common use in printing establishments the country over. This is in no way denied. The remelting is done in accordance with the common practice in like concerns. While plaintiff's counsel strenuously controverts the proposition, a careful reading of this voluminous record is convincing that defendant's monotype plant is operated as are other monotype plants in the country, and particularly in Grand Rapids, and that this fact is established by the undisputed evidence. Plaintiff's theory is that small particles of lead arise from the heated metal, and that a hood with ventilating pipe should be placed over the melting pot to carry them off, and it appeared that another plant in Grand Rapids had a hood over the melting pot, but the manager of that plant was called as a witness, and testified that such hood was installed to carry off the fumes of the gas from the burner under the pot and from oil or grease which might get into the pot, and not to carry off particles of lead; that it had not been used or needed for the purpose designed; that the workmen would not make use of it, and that it had been discarded, and had not been put to any use for two years.

The testimony is without dispute that the gas used in that city is of superior quality, and that little or no odor arises from its use. Plaintiff further claims that lead particles otherwise get in the air, and may be inhaled with other dust, and that the room did not have sufficient ventilation to carry off the lead ladened atmosphere. But the undisputed testimony established that there were several windows in the room so arranged that they could be opened at all times for much or little fresh air, and plaintiff's own testimony shows that he had charge of the room. He could ventilate it or not as and when he saw fit. The means of ventilation had been provided by the master.

Testimony of behalf of defendant, and it is the only testimony in the case on the subject, establishes that no case of the contracting of lead poisoning by a monotype operator was ever known. One witness testifies that he knew of a printer contracting lead poisoning, but this was in the olden days, when the type was in cases, and typesetting was done by hand, and this particular printer had a habit of frequently putting his fingers to his nose. There is also some hearsay testimony that witnesses had heard that printers had lead poisoning. But the case is barren of any testimony showing, or tending to show, that any monotype operator had been so afflicted. Of course, the burden was not on the defendant to establish its freedom from negligence. It rested on plaintiff to establish such negligence.

We are not here dealing with the failure to discharge a statutory duty. Before the master at common law can be called upon to account to the servant in this class of cases, it must be established that he has a duty to perform, and that he has failed to discharge that duty. He is not an insurer, and the right to recover must be predicated on his negligence. To say that he his negligent is to say that he has done that which a reasonably careful man should not have done, or that he has failed to do that which a reasonably careful man should have done. In Pollock on Torts (Webb's Pollock on Torts, 45), it is said:

‘Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behaviour we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant's place should have foreseen as likely to happen, there is no wrong and no liability.'

And in 4 Thompson on Negligence (2d Ed.) § 3774, it is said:

‘In applying this doctrine of reasonable care it is well held that a master is not liable for injuries to his servant resulting from an accident of such a character that reasonable men, proceeding with reasonable caution, would not ordinarily have foreseen and anticipated it-such as an injury happening under very exceptional circumstances, although the proper...