Lee v. American Enka Corp.
| Citation | 193 S.E. 809,212 N.C. 455 |
| Decision Date | 24 November 1937 |
| Docket Number | 27. |
| Parties | LEE v. AMERICAN ENKA CORPORATION et al. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Swain County; F. D. Phillips, Judge.
Action by Wesley Lee against the American Enka Corporation and another. From a judgment of dismissal, the plaintiff appeals.
Affirmed.
This is an action to recover damages for personal injuries suffered by the plaintiff which resulted from a disease, to wit tuberculosis, which plaintiff contracted while at work as an employee of the defendant, American Enka Corporation, in Swain county, N. C., under the supervision of the defendant Fred Baker, superintendant of the defendant corporation.
The action was begun in the superior court of Swain county.
In his complaint the plaintiff for his cause of action against the defendants, alleged:
1. That the plaintiff is a citizen of North Carolina and a resident of Swain county in said state.
2. That the defendant, American Enka Corporation, is a corporation duly created, organized, and existing, and, at the time of the grievances hereinafter complained of, was and still is engaged in the manufacture of rayon from paper and wood pulp and other ingredients, and has and maintains its principal office and place of business at Enka, Buncombe county, N. C where it owns, has, maintains, and operates a large factory and plant for the purposes aforesaid.
3. That at the time of the grievances hereinafter complained of, the defendant Fred Baker was in the employ of the defendant corporation as a foreman and as superintendant of the said rayon plant, and was in charge of what is known as the spinning room and acid room, and at the time aforesaid, the defendant corporation had invested the said Fred Baker with power to supervise, control, and direct the operations in said plant, and to supervise, order, and direct the employees employed and working in said department, and in like manner had invested the said Fred Baker with power and authority to employ and discharge hands and laborers and to report them for disobedience of orders and thereby procure their discharge, and at the time aforesaid the said Fred Baker was a citizen of North Carolina, and a resident of the city of Asheville, in Buncombe county, N. C.
4. That the plaintiff was employed by the defendant corporation in June, 1933, and remained continuously in the employment of the defendant corporation until the ------ day of ------, 1934, at which time the plaintiff, because of the diseases and grievances hereinafter complained of, which were caused and sustained by reason of the wrongful, careless, and negligent acts and omissions of the defendants, was forced to give up and abandon his said employment with the defendant corporation.
5. That when the plaintiff entered the employment of the defendant corporation, he was ordered and directed by the defendants and each of them to work in the spinning department of said acid room, and in the course of his employment was required by the defendants and each of them to assist in cleaning out large tanks, holding thousands of gallons of sulphuric acid and other chemicals; that the plaintiff was required to work in and around said large tanks or vats, containing chemicals and sulphuric acid and other acids, which were used in said manufacturing plant, and plaintiff was ordered and directed and required to work in the spinning room in said plant and to handle pulp frisco, which was then and there manufactured in said plant from wood fibre, and other materials which were soaked and treated with the aforesaid chemicals, sulphuric acid and other acids, which were stored in said large tanks or vats.
6. That in cleaning the said tanks and vats, plaintiff was ordered and required to get inside same, and it was impossible to clean out said tanks and vats in any other manner; and in working in said spinning room it was necessary for plaintiff to move and handle the aforesaid frisco pulp which had been treated with said sulphuric acid and other chemicals. That said sulphuric acid and chemicals used by defendants in defendant corporation's said plant, as aforesaid, gave off and emitted poisonous and deleterious fumes and gases, which were irritating and injurious to human flesh and tissues, and in coming in contact with human flesh or the human body, naturally and in the course of events, caused serious and permanent injuries, and said fumes and poisonous gases are particularly injurious and irritating to the throat and lungs, and if inhaled and breathed over a long period of time will cause tuberculosis of the lungs and throat, all of which was well known to the defendant.
7. That in the manufacture of rayon in said plant of the defendant corporation, it became and was necessary for the defendant to use said sulphuric acid and other chemicals in the treatment of wood pulp and other fibre which they thereby converted into rayon or artificial silk, and that no other process or means could be used by the defendants in said plant in the manufacture of rayon or artificial silk; that on account of the composition and inherent nature of said sulphuric acid and other chemicals, hereinafter referred to, irritating and dangerous fumes and gases were constantly thrown off and emitted by same, and on account of the peculiar composition and nature of said sulphuric acid and other chemicals, when same were used in the manufacture of rayon, it was impossible to prevent said poisonous fumes and gases from being thrown off and emitted therefrom.
8. That the defendants and each of them well knew of the essential nature and composition of said sulphuric acid and other chemicals used by the said plant in the manufacture of rayon, or artificial silk, and it was well known to the defendants and each of them that said sulphuric acid and other chemicals, constantly and in the usual course of events, throw off and emitted poisonous gases and fumes which were injurious to human flesh and tissues, and were especially dangerous, irritating, and injurious to the throat and lungs of any person inhaling and breathing the said fumes and gases.
That the plaintiff was inexperienced in work of the aforesaid kind and character in and around rayon plants, and was ignorant of the nature and composition of said sulphuric acid and other chemicals, and defendants and each of them negligently, carelessly, and recklessly failed to warn and notify the plaintiff that said poisonous and irritating fumes and gases were constantly thrown off and emitted by the said sulphuric acid and other chemicals as aforesaid, and of the danger to the plaintiff from breathing and inhaling same.
9. That from the time of his employment in June, 1933, plaintiff worked as aforesaid in said rayon plant for a period of about one year and six months, and during all of said time was constantly subjected to the aforesaid poisonous and irritating gases, and constantly breathed and inhaled same, without any warning from defendants, until plaintiff's lungs were injured and weakened and plaintiff was caused thereby to contract tuberculosis of the lungs, which was directly and proximately caused by plaintiff's breathing and inhaling said poisonous fumes and gases, and during the period of his aforesaid employment plaintiff alleges that if he had known of the danger of breathing and inhaling said poisonous fumes and gases, or had had any knowledge of the effect of breathing and inhaling said fumes and gases in his lungs, he would have immediately left said employment and not encountered or subjected himself to the peril and hazard of working in and around said sulphuric acid and other chemicals.
10. That the disease of tuberculosis of the lungs which plaintiff contracted as aforesaid, was caused and brought about in the usual and ordinary course of events, and was incidental and essential to the particular employment in which the plaintiff was engaged. That the plaintiff was not accidentally injured, but contracted and acquired tuberculosis which was proximately caused and produced by the constant breathing and inhalation of said poisonous fumes and gases for a long period of time, and plaintiff's lungs were thereby weakened and impaired gradually without his knowledge, and tuberculosis of the lungs was thereby caused and developed as aforesaid.
11. That the defendants and each of them, carelessly negligently, and wrongfully failed to warn and notify the plaintiff that the said sulphuric acid and other chemicals emitted said poisonous fumes and gases, although this was well known to the defendants and each of them, and each of the defendants carelessly, negligently, and wantonly assured plaintiff that and fumes and gases emitted by said sulphuric acid and other chemicals were harmless and would not injure him in any manner, and defendants thereby negligently, carelessly, and recklessly misled, permitted, allowed, and induced the plaintiff to continue in his said employment and to breathe said poisonous fumes and gases without any warning of the danger thereof, and plaintiff avers that the said...
To continue reading
Request your trial