Maupin v. American Cigar Co.
| Decision Date | 03 June 1935 |
| Docket Number | No. 18343.,18343. |
| Parties | HAZEL MAUPIN, RESPONDENT, v. AMERICAN CIGAR Co., APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County. — Hon. Thos. J. Seehorn, Judge.
REVERSED.
Grover & Brown for respondent.
Lathrop, Crane, Reynolds, Sawyer & Mersereau, Winston H. Woodson and John N. Monteith for appellant.
The respondent herein, who was plaintiff below, brought this action for damages against the American Cigar Company, appellant herein but defendant below.
For uniformity, we hereinafter refer to the parties as plaintiff and defendant as they appeared in the trial in the circuit court.
The basis of the plaintiff's claim is that she contracted an occupational disease while in the employ of defendant and due to the negligence of defendant.
The occupational disease is alleged as tobacco poisoning, or tobacesis, resulting from breathing in and absorption of tobacco dust and tobacco fumes and the irritation and poisoning therefrom resulting in bronchiectasis, chronic bronchial irritation, nervousness, loss of weight, weakness and tuberculosis.
The allegations of plaintiff's petition presented numerous allegations of negligence. However, at the trial the plaintiff abandoned as to all other allegations than the following, to-wit: Failure to provide and maintain adequate devices for carrying off poisonous or injurious fumes and dusts; and sweeping during working hours without dampening the floors to prevent the raising of dust; and failure to provide an approved and effective respirator.
Trial was by jury resulting in a verdict for the plaintiff in the sum of $3,000. Judgment was entered in accordance with the verdict and the defendant duly appealed.
STATEMENT OF FACTS.
In the consideration of a case on appeal, when dealing with controverted facts, the evidence most favorable to the plaintiff must, of course, be considered and accepted as true.
It is well here to summarize as to some facts that appear not to be controverted. It was shown by the evidence that the defendant's plant was a large four-story structure, on each of the second and third floors of which were installed 117 cigar making machines. These rooms were 250 by 90 feet with 12-foot ceilings. The first floor was used for the preparation of the tobacco, whence it was conveyed to the second and third floors for manufacture into cigars. On the fourth floor, the cigars were banded and prepared for shipment. At the time plaintiff first worked for defendant, the building was equipped with a spraying apparatus which sent a fine spray of moisture over the operators and into the air. When she returned, a modern air-conditioning system had been installed by means of which the air was drawn out of the room and returned every two and one-half to three minutes. Double windows were installed and kept closed; the humidity being kept at substantially seventy-two per cent and the temperature of the room at seventy-five degrees at all times when the plant was in operation. The freshly conditioned air was forced in through many air ducts and drawn out through a ten by six foot opening. There were also suction ducts at each of the 117 cigar machines.
Four girls were employed on each machine. The first was called the filler, who placed the filler tobacco in position to be molded into the shape of a cigar; the second girl placed a coarser tobacco in position to bind the filler when shaped; the third was the wrapper, who placed a half leaf of fine quality tobacco upon a die which cut the tobacco into strips ten or twelve inches long and two inches wide, this wrapper then going through the cigar machine and wrapping the filler; the fourth girl was the finisher, who, as her name implies, gave the cigar the finishing touches.
The State factory inspectors were placed upon the stand by the defendant. Due to their official position, we state the substance of their testimony. These inspectors, who made semi-annual inspections, testified in substance to the effect that they never inspected a factory in better shape or condition than that factory was; that they never required respirators because they did not think they were necessary.
It appears from the evidence that the defendant began operation of its factory January 1, 1930, and continued to operate same for over three years. The plaintiff first went to work in the factory in May, 1930, and worked until August of that year. She returned for work in the factory in June, 1931, and worked until March, 1932, when she quit. From June, 1931, until March, 1932, plaintiff worked in the capacity of wrapper layer and her work was on the third floor. The plaintiff appears to have had a physical examination at the beginning of each period of her employment and was pronounced as in good health.
There is evidence in support of the fact that there was fine tobacco dust in the air of the room in which the plaintiff worked. The evidence is to the effect that no respirators were furnished or used.
The plaintiff, as a witness in her own behalf, testified in substance that in September, 1932, some five or six months after she quit work, she had an X-ray taken of her chest, and again in December, 1933; both by Dr. Donaldson, an X-ray specialist of Kansas City. She testified that in March, 1932, Dr. McHale took samples of her blood; also that Dr. Frazier took a sample of her blood in October, 1932. She said Dr. Frazier told her that her blood was poisoned by fumes of tobacco; that she had poisoned blood.
Dr. Frazier, testifying on behalf of plaintiff, refutes her above statement. The following questions and answers are shown:
Dr. Clyde Donaldson, an eminent X-ray specialist, was called by the plaintiff as a witness and, based upon X-ray pictures taken by him approximately six months after the plaintiff left employment with defendant, he testified on matters pertinent to the issues herein substantially as follows: That he took X-rays of plaintiff on September 13, 1932, and on January 20, 1933. Both were in evidence. The doctor testified that the first shows thickening of hilus or root of lung on both sides; also thickened bronchial tubes and thickened pleura, indicates bronchitis. There is some irritation at base of lungs, causing congestion of pleural lining. The second film, taken in 1933, shows further exaggeration of bronchial markings, especially in upper portion of right lung where there is early evidence of tuberculosis. The plaintiff is getting worse.
In answer to a hypothetical question containing the conditions under which plaintiff's evidence showed she worked, the doctor stated that the natural and necessary consequences incident to such employment is an irritation of the lungs and bronchial tubes, producing bronchitis, which is often the forerunner of tuberculosis. If the vitality is lowered the vitality of the lungs and bronchial tubes is lowered; we are all breathing the germs of tuberculosis all the time, but if we are in good health, it does not take hold of us. In his opinion, tuberculosis would be incident to any kind of employment. The irritation prepares the culture for the germ. A wet sponge filter would prevent such irritation.
The doctor further testified that tuberculosis may be incident to any dusty working place, as harrowing corn, a man working in a wheat bin, or on a threshing machine, or stacking straw, or even a pedestrian on the street on a windy day. He admitted that he had never been in a tobacco or cigar factory; had never made a study of the effects of tobacco dust on the lungs. He found no evidence of tuberculosis in the first X-ray film. The second, taken shortly before the trial, shows a fan-like arrangement, evidence of recently formed tuberculosis. There is no evidence of cavities which means a long standing condition. There is no such condition in the first X-ray. He testified he did not know when she got it or what caused such condition. She might have gotten it out in the street, or other places. The X-ray shows old scars of tuberculosis which existed in childhood.
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