Langeneckert v. St. Louis Sulphur & Chemical Co.

• Citation: 65 S.W.2d 648
• Decision Date: 05 December 1933
• Docket Number: No. 22414.,22414.
• Court: Court of Appeal of Missouri (US)
• Parties: LANGENECKERT v. ST. LOUIS SULPHUR & CHEMICAL CO.

65 S.W.2d 648

LANGENECKERT v. ST. LOUIS SULPHUR & CHEMICAL CO.

No. 22414.

St. Louis Court of Appeals. Missouri.

December 5, 1933.

As Modified on Denial of Rehearing December 19, 1933.

Not to be reported in State Reports.

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

Action by Lawrence Langeneckert against the St. Louis Sulphur & Chemical Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wayne Ely and Tom Ely, Jr., both of St. Louis, for appellant.

Hay & Flanagan, of St. Louis, for respondent.

KANE, Judge.

Plaintiff recovered judgment in the court below for $7,500 damages for personal injuries alleged to have been caused by the carelessness and negligence of the defendant, from which judgment defendant appeals.

Plaintiff alleged several acts of negligence under the common law, namely, the failure of defendant to furnish a reasonably safe place in which to work; failure to warn plaintiff of the dangers incident to working in the room where powdered sulphur was being handled and the exposure to sulphur dust; failure to warn plaintiff that his health might be impaired thereby, and that plaintiff, being ignorant of the danger and relying upon the superior knowledge of the defendant that the dust would not harm him, continued to work in said dust; failure to provide suction fans; failure to furnish plaintiff with a respirator to prevent inhalation of said dust and sulphur; and further alleging violation of sections 6817, 6818, 6819, 6825, 6829 and 6830 of the Revised Statutes of 1919, said sections now being 13252, 13253, 13254, 13260, 13264, and 13265 of the Revised Statutes of 1929 (Mo. St. Ann. §§ 13252, 13253, 13254, 13260, 13264, 13265, pp. 4803, 4804, 4806, 4808, 4809).

Defendant filed a general denial, but during the trial, by leave of court, filed an amended answer denying the allegations in plaintiff's petition and further charging that plaintiff's injuries were due to his own carelessness and negligence in continuing to work in and about said dust, powdered sulphur, and gases, when he knew or by the exercise of ordinary care would have known that same was injurious to his health, and further answering that the trial court was without jurisdiction for the reason that the case was one for determination by the Missouri Workmen's Compensation Commission. Plaintiff's reply was a general denial.

Defendant assigns as error (1) the court was without jurisdiction of the person of this defendant; (2) the court erred in refusing and overruling defendant's instruction in the nature of a demurrer at the close of plaintiff's case and at the close of the whole case; (3) the court erred in permitting plaintiff's medical witnesses to testify to unwarranted conclusions and to invade the province of the jury and in permitting said medical witnesses to decide the decisive issues of the case; (4) the court erred in refusing to declare a mistrial and to discharge the jury because of the improper conduct of plaintiff's counsel in his closing argument to the jury; and (5) the verdict is excessive.

The plaintiff was engaged in the business of pulverizing crude sulphur. The room in which plaintiff worked was 50×35 or 40 feet, and approximately 23 feet high. This room was generally kept open except when trains were passing, when it was then closed to avoid explosions from sparks. The mill in which the sulphur was ground or pulverized was a roller affair provided with pipes from which some of the dust escaped. After the sulphur was rolled and pulverized, the mill would discharge it into a hopper and down a chute into sacks and barrels and then loaded onto cars.

Plaintiff commenced working for defendant the latter part of October, 1927; he was then 20 years old. He helped in cleaning up before the mill started and after it was in operation he caught the dust in sacks or barrels. Sometimes he would weigh it and bounce it up and down and put it into the car; occasionally his job was to take some of the dust, which was yellow in color, out of the sacks; sometimes there was no air in the room; frequently there was so much sulphur stacked up in the room that the doors and windows would be blocked; the air was full of sulphur dust, and at times you could not see ten feet in front of you, and this condition existed practically all during the operation of the mill. Plaintiff testified he was not furnished a respirator from October, 1927, until March or April, 1928; he was then provided with one made of black rubber, in the end of which there was a sponge; it was worn over the nose and held on with a strap; that dust would collect in the sponge and clog it up, which would require washing every fifteen minutes; in hot weather it was so uncomfortable it could not be worn; he was affected the same when he wore the respirator as he was without it, only, "if you keep it on, you would smother to death"; his eyes burned and he would get dust into his nose and mouth; that he coughed and had pimples on his body; he left the employment on the 23d day of July, 1928. He further stated: "When I left there my health was bad; I felt bad all over. I really didn't know it was this sulphur dust that was doing it, I just thought it was a run-down condition. I was coughing, had a headache, mostly over my right eye. My nose had little sores in it and was irritated." Plaintiff obtained other employment; he was sick in bed with his lungs and chest hurting; he was coughing and spitting and was discharged from this other employment because of his condition; he called a doctor, who treated him; he was spitting, was weak, and had pains in his side and chest and a dull feeling in his head; he and other employees complained to the foreman and to the men in charge under him. Plaintiff made the statement that he did not think the sulphur was doing him any good, to which the foreman replied: "Don't be foolish; people use it for medicine. You will get used to it." Plaintiff testified that he relied on this statement, having had no training in medicine or chemistry and never having worked around sulphur dust before.

The first question for determination is whether plaintiff's petition states a cause of action at common law and a violation of the statute pleaded or whether he has pleaded facts which makes his case cognizable only by the Workmen's Compensation Commission.

Section 3305, R. S. 1929, subsection (b), Mo. St. Ann. § 3305, subsec. b, p. 8238, excludes from the operation of the Workmen's Compensation Law "occupational disease in any form."

Section 13252, R. S. 1929 (Mo. St. Ann. § 13252, p. 4803), provides: "Every employer of labor in this state engaged in carrying on any work, trade or process which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employee to the danger of illness or disease incident to such work, trade or process, to which employees are exposed, shall for the protection of all employees engaged in such work, trade or process, adopt and provide approved and effective devices, means or methods for the prevention of such industrial or occupational diseases as are incident to such work, trade or process."

Section 13253, R. S. 1929 (Mo. St. Ann. § 13253, p. 4804), provides: "The carrying on of any process, or manufacture, or labor in this state in which antimony, arsenic, brass, copper, lead, mercury, phosphorus, zinc, their alloys or salts or any poisonous chemicals, minerals, acids, fumes, vapors, gases, or other substances, are generated or used, employed or handled by the employees in harmful quantities, or under harmful conditions, or come in contact with in a harmful way, are hereby declared to be especially dangerous to the health of the employees."

These sections are designed to protect the employees against exposure to diseases which are incident to the work called "occupational diseases," and any manufacture or labor in which certain poisonous substances are used or with which the employee comes in contact is declared dangerous to the health of employees. Kolbow v. Haynes-Landenberg Mfg. Co., 318 Mo. 1243, 3 S.W.(2d) 226, loc. cit. 227.

Sulphur dust, sulphur fumes, or sulphur vapors are not specifically mentioned in sections 13252, 13253, R. S. 1929 (Mo. St. Ann. §§ 13252, 13253, pp. 4803, 4804), and, in order to be within the terms of either section, they would have to come under the designation of "poisonous chemicals, minerals, acids, fumes, vapors, gases, or other substances." In disposing of this question, it is sufficient to say that there was medical testimony tending to show that sulphur dust and sulphur were poisonous chemicals and did cause plaintiff's condition. This brought the case within the provisions of sections 13252 and 13253, R. S. 1929. In the argument of counsel for the defendant the following admission appears: "Now it is true that it is the opinion of one or two of the medical experts that plaintiff's condition could have been caused by the inhalation of sulphur dust." Counsel for defendant also makes the following admissions: "The weight of the evidence is insufficient to show that the inhalation of sulphur dust and consequences is an occupational disease." The weight of the evidence was for the jury. We therefore overrule this point.

It is well-settled law in this state that a servant does not assume risk arising from the master's negligence. As was said in the case of Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 51 S.W.(2d) 114, loc. cit. 117: "Violation of a statute * * * enacted for protection of the lives and health of employees engaged in occupations in which, without the safeguards required by statute, they are liable to injury, is negligence, and, if defendant violated the statute, the plaintiff did not assume the risk incident to such negligence." The jury found that the defendant violated the statute. The plaintiff did not assume the risk of such negligence.

The court properly refused defendan...