Leonard v. Fisher Body Co. St. Louis Division, Etc.

• Decision Date: 05 March 1940
• Docket Number: No. 25280.,25280.
• Citation: 137 S.W.2d 604
• Parties: LEONARD v. FISHER BODY CO. ST. LOUIS DIVISION OF GENERAL MOTORS CORPORATION.
• Court: Missouri Court of Appeals

137 S.W.2d 604

LEONARD v. FISHER BODY CO. ST. LOUIS DIVISION OF GENERAL MOTORS CORPORATION.

No. 25280.

St. Louis Court of Appeals. Missouri.

March 5, 1940.

Rehearing Denied March 19, 1940.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by John Leonard, claimant, opposed by Fisher Body Company St. Louis Division of General Motors Corporation, employer. From a judgment of the Circuit Court affirming an award of the Workmen's Compensation Commission, the employer appeals.

Affirmed.

Boyle & Priest, Robert E. Moloney, and G. T. Priest, all of St. Louis, for appellant.

Thomas L. Sullivan and Luke & Cunliff, all of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for compensation under the Workmen's Compensation Law. Mo.St. Ann. § 3299 et seq., p. 8229 et seq. The claim was filed with the Workmen's Compensation Commission on June 2, 1937. Plaintiff was in the employ of defendant as a metal finisher for about ten years. He quit defendant's employ on April 19, 1937. His claim is for compensation for total and permanent disability resulting from an occupational disease arising out of and in the course of his employment.

The Commission made a finding of the facts as follows: "We find from the evidence that as a result of his employment with the Fisher Body Company employee aggravated a dormant case of silicosis, and said aggravation resulted in silico-tuberculosis; that said aggravation was peculiar and incident to his employment. It is our opinion that employee's employment prior to 1927, when he began work for the Fisher Body Company, has caused him to have silicosis. However, the evidence conclusively shows that said condition was not disabling and the employee was not aware of its existence. The dust hazard to which he was exposed as a result of his employment with the Fisher Body Company aggravated this condition and directly caused his present disability. As stated heretofore, the exposure which caused the aggravation and resulted in the silico-tuberculosis was peculiar and incident to his employment. We find, therefore, that said disease is an occupational disease resulting from his employment with said employer for which employer is liable to employee under the Missouri Workmen's Compensation Law. We further find that as a result of this disease employee is permanently and totally disabled."

The Commission accordingly awarded plaintiff compensation for permanent total disability.

From the judgment of the circuit court, affirming the award of the Commission, on appeal, defendant has appealed to this court.

Defendant contends here that the award of the Commission for permanent disability caused by tuberculosis rests upon speculation and conjecture, because there is no showing in the record that the aggravation of plaintiff's silicotic condition was such as to cause tuberculosis; or, in other words, that, so far as the record shows, plaintiff's previous silicotic condition could have produced the tuberculosis.

Plaintiff was fifty-two years of age at the time of the hearing before the Commission. He started work at the age of fourteen, and his first work was as an office boy for one of the lead companies at Flat River, Missouri. After eighteen months of that work he began working underground in the mines as a helper and continued in that work until 1910.

In 1910, plaintiff went to Denver, Colorado, for a period of five months and while there worked as a house mover. He returned to his father's home in Missouri and remained there a few months. Then for about one year he worked as a driller at Flat River on prospecting work. In about 1912 he went to Webb City, Missouri, and remained in the vicinity until about the end of 1918, or approximately six years. There is some evidence that this territory known as the Tri-State District was reputed to have a silicosis hazard. However, there is evidence also that plaintiff went there after the introduction into use of water drills and other dust preventing devices in the mining industry. While there he worked for various companies and in various capacities. He did some sinking of shafts on an independent contractor basis. His work for the various lead and zinc companies was underground work and more than half of the time his work was on water-equipped drills, and in such work he stood in water and mud. The evidence is that his exposure to silica-bearing dust, in those mines in the Tri-State District, was not very great, nor for a great length of time.

Early in 1918 plaintiff came to St. Louis and worked for two or three months as a pipefitter and for four and one-half years as a layout man for an electric manufacturing company. He was in excellent health and worked full time on those jobs. On account of the illness of his wife he then went to Pueblo, Colorado. While there he worked as a yard man, operating a crane in the yard of a steel company. This work was in the open and consisted of arranging steel and scrap iron on a crane so it could be placed in a blast furnace. He then returned to St. Louis and worked as a punch press operator in full time employment for twenty-two months for the Century Electric Company. He was not exposed to any dust in that employment. Following that he was out of work for a few months.

Plaintiff then went to work for the Fisher Body Company, defendant in this case. He started his employment with this company on about January 17, 1927. From that date until April 19, 1937, or a period of ten years and three months, he was steadily in the employment of defendant company and never worked for any other company.

Within two or three months after plaintiff was first employed, he was examined by the company physician and passed for employment. The work which he did was known as metal finishing, and that is the same job and the same work he continued to do throughout the ten years of his employment. He was required to work in and was subjected to a dusty atmosphere up through the last day of his work, which was on April 19, 1937.

The work of a metal finisher was to remove dents, wrinkles, notches, and rough places with abrasives to prepare the metal of the automobile bodies for a smooth paint finish. These automobile bodies were placed on tracks or assembly lines, and, as they proceeded to travel through the department, plaintiff and the other workmen with him and around him were required to do their work. The tools used by these men were buff wheels and disc wheels, files, sandpaper, fiddle bows, hammers and spoons. The files were coarse and fine metal files. Sandpaper was furnished in unlimited quantities and used as needed. The buff wheels were made up of a fiber and rag composition which was dipped in an adhesive or bond and then dipped or rolled in a sand abrasive. After the wheels were allowed to dry and harden, the workmen beat them into a soft condition with a hammer in order to allow the wheels, which revolved at a high speed, to fit into the corners and wrinkles of the automobile bodies. The softening process broke the abrasive into many pieces, some large, some small and some minute. These buff wheels were then attached to electric or air-driven high-speed motors and the wheels applied to the metal bodies. The force and heat of the application of the wheels to the metal bodies further broke down the buff wheels and the abrasive itself. On chemical analysis, these abrasive buff wheels were shown to contain aluminum oxide, silica, iron oxide, titania, zirconia, manganese oxide, lime and magnesium. The binder or the adhesive substance which held the abrasive to the wheel was 100 per cent clay, which is aluminum silicate and contains 7 to 9 per cent free silica or quartz.

The disc wheels were flat fiber discs covered with the same abrasive material, that is the silica and silicates, as were the buff wheels; and these disc wheels were also driven at high speed by electric motors or by air. They were used also to sand off or smooth the metal automobile bodies. There were fifteen to twenty of these wheels used.

The fiddle bow was a device also used in sanding or smoothing the parts of the metal bodies. This instrument was made up of two pieces of wood about three inches wide and thirty inches long, hinged together at one end. Sandpaper was placed around the length of the piece of wood and the instrument grasped at each end by the workmen. It was then applied in a swinging motion from side to side. The work was close work, usually done at about face level and while doing it the workman's head and mouth were quite close to the point of operation.

For the first several years of plaintiff's employment there were four assembly lines or tracks down which the automobile bodies passed and on which the metal finishers worked on the cars. Twenty-five cars passed along each track per hour, or a total of one hundred bodies per hour passed through the department. Later the assembly lines were reduced to two in number, but because of a speed up in the operations, fifty cars per hour would pass along each line and the total number of cars passing through the department, therefore, was still one hundred per hour. Likewise, at about the time the change was made in the number of lines, the disc wheels referred to above were used more and the dust which was created by those disc wheels and buff wheels became greater and more concentrated in the department because the area over which the work was done was smaller in extent.

There is evidence that the use of the high-speed abrasive wheels on the metal bodies, that is, the buff and disc wheels as well as the use of the fiddle bows and the sandpaper, caused the atmosphere in the department where plaintiff worked to become heavily charged with dust. There is evidence that the dust contained silica and silicates. This dust settled on the lights and fixtures in the department; it...