McDaniel v. Kerr, 43094

• Decision Date: 08 June 1953
• Docket Number: No. 43094,43094
• Citation: 364 Mo. 1,258 S.W.2d 629
• Parties: McDANIEL v. KERR et al.
• Court: Missouri Supreme Court

Page 629

258 S.W.2d 629

364 Mo. 1

McDANIEL v. KERR et al.

No. 43094.

Supreme Court of Missouri, En Banc.

June 8, 1953.

Clay C. Rogers, Lyman Field, Rogers, Field & Gentry, Kansas City (Cross & Cross, Lathrop, Forrest M. Hemker, St. Louis, of counsel), for appellant.

John H. Lashly, Lashly, Lashly & Miller, St. Louis, for (defendants) respondents.

Shughart & Thomson, Kansas City, amicus curiae for Zurich Gen. Acc. & Liability Ins Co., Ltd., Continental Cas. Co., Indemnity Ins. Co. of North America, and United National Indemnity Co.

Popham, Thompson, Popham, Mandell & Trusty, Kansas City, amicus curiae for Standard Acc. Ins. Co., Commercial Standard Ins. Co., Employers Reinsurance Corp., and Truck Ins. Exchange.

DALTON, Judge.

Action for $100,000 damages for personal injuries and disease alleged to have been sustained on account of defendants' negligence. Verdict and judgment were for plaintiff for $20,000, but the court, on motion, set aside the verdict and judgment and entered judgment for defendants in accordance with defendants' motion for a directed verdict. Plaintiff has appealed.

In his petition, plaintiff alleged that he was employed by defendant, Boss Hotel Company, under the direction of defendant William Kerr, to knock off and remove old plaster composed of noxious, poisonous and harmful substances, to wit, sand, lime and silica; and that the removal of said plaster created great quantities of harmful and irritating dust composed of said substances, which plaintiff was required to and did breathe and inhale in large quantities, and which caused illnesses and diseases of his respiratory system, to wit, a lung abscess requiring the removal of his right lung. Plaintiff made numerous assignments of negligence based upon violation of common law and statutory duties.

The defenses pleaded by defendants included contributory negligence, assumption of risk and the court's lack of jurisdiction over the subject matter of said action for the reason that the defendants' liability, if any, for plaintiff's injuries was limited to compensation provided by the Workmen's Compensation Law of the State of Missouri. The affirmative defenses were denied by the reply. In view of the issues presented on appeal, we shall review the evidence favorable to plaintiff and to the verdict of the jury and disregard defendants' evidence unless it aids the plaintiff's case.

On or about April 1, 1946, the Boss Hotel Company acquired the Royal Hotel in Excelsior Springs, Missouri. The hotel was classified as a 150 room health resort hotel of brick construction. There were five floors on one side and four on the other. The old part of the hotel, which consisted of some sixty rooms, was badly run-down, the roof leaked and there had been much damage to plaster. A new roof was put on, new plumbing fixtures were in stalled, the rooms were replastered and redecorated where necessary and new furniture and new carpets were provided. After the roof was on, repair work was first started on the fourth floor and later continued on the third floor. Defendant Kerr, the hotel manager, supervised the work. Most of the plaster on the third floor and part on the fourth floor was loose and damaged and had to be removed. The plaster was removed by taking a hammer and pounding the walls and ceilings so as to break up the plaster and cause it to fall to the floor.

Plaintiff began working for the defendant hotel company about December 15, 1946. He was then in good health, 38 years of age, a common laborer, hard of hearing and a mouth breather on account of nasal obstructions. He was hired and put to work by one, Harry Kirk, the foreman in charge of the plastering. The tools furnished were a wrecking bar and a hatchet and he was directed to knock off old plaster. The foreman showed him where and how to proceed with the work and directed him not to hit too hard and not to break the laths to which the plaster was attached, if that could be avoided. When part of the plaster fell, plaintiff had to keep on beating the laths with the hammer to jar the plaster out of the spaces between the laths. There was much black dirt and dust on top of the ceiling plaster and, when the laths were hammered to jar the plaster out, the dust came down in plaintiff's face. As the plaster broke up and fell, it created a heavy fog of dust that kept the room foggy. There was a fog of dust in the rooms all the time as the work progressed. Plaintiff had to breathe the dust, there was no way to get out of it and do the work. The air was ladened with dust and the dust continued circling in the rooms. The work itself created such a dust that, when one went into the room, he could hardly see out of the windows. It was plaster dust and there was lime and sand in the plaster. The dust came from the plaster that was being removed and falling to the floor. Hammering off the old plaster created the dust and lots of it. The dust got on plaintiff's hands, hair, cap and clothing and in his ears. The plaster dust made his clothes as white as could be. Part of the time there was no ventilation in the rooms where the work was being done and the doors and windows were shut. As the plaster fell and the dust came up, plaintiff kept on working knocking off more plaster. Even when the windows were raised, it wouldn't take the dust out, as there was too much dust. When the broken plaster was down on the floor, plaintiff had to shovel it into plaster buckets and dump it down a chute to be hauled away.

Plaintiff had had no prior experience with this kind of work. He had no knowledge edge as to whether the dust would injure his health. He was not provided with a respirator or mask or anything to prevent him from inhaling the dust. He complained to his foreman, Harry Kirk, about the dust and the conditions under which he was required to work. He went to him two or three different times and told him he would like to have a respirator or 'some way to keep the dust down.' Kirk said that he would see what could be done, but afterwards, Kirk said that Kerr couldn't get any respirators, there weren't any in town. Kirk said that plaintiff didn't need a respirator anyway and to get along without it. Plaintiff 'took him at his word' and had no respirator to use.

Certain admissions of defendant Kerr were offered and received in evidence, which tended to show that Kerr saw and knew where plaintiff was required to work, knew how plaintiff was required to remove the old plaster and knew plaintiff was required to breathe the plaster dust in the air. Other evidence tended to show that, after some of the rooms were finished, furnished and occupied by guests, Kerr closed the door to the particular room in which plaintiff was working and told plaintiff to keep the doors shut and keep the dust out of the halls. Plaintiff's foreman, Kirk, testified that plaintiff complained to him two or three times about the dust in the rooms, and said he would like to have something to keep him from inhaling the dust all the time. Another witness testified to hearing plaintiff ask for a mask. Still another testified to hearing plaintiff complain of the dust and ask Kirk to get him a respirator. Kirk reported the matter to Kerr, who said, 'Never mind, he will get along without it anyhow,' and that there were no respirators in town. The same witness testified that after the hotel was renting rooms across the hall, Kerr ordered the doors closed to the rooms where plaintiff was knocking off plaster, so as to keep dust out of the halls and out of the rooms that were being rented to guests. When Kerr was advised by plaintiff that it was 'pretty hard for a man to have that door closed,' he replied, 'Oh, that is all right. It has to be closed. People can't stand that dust.' Kirk's testimony tended to show that he knew that plaintiff 'ought to have a mask' and knew that plaintiff was 'entitled to one' in 'all that dust,' but the witness did not see plaintiff wearing one and didn't know whether he got one.

There was evidence that the conditions under which plaintiff worked were similar to other repair jobs. It compared with 'about the average of that type of work.' Defendants' witness Griffing, a housing contractor, who worked as a carpenter on the job, knew there was heavy dust caused by the plaster being torn down. He said: 'You ran into the same conditions in all types of repair work as far as dirt and dust is concerned.' The witness further testified: 'Q. So it is equally true that it's recognized by you and others in construction work that where there is dust coming from sand and plaster and dirt of all kinds that that dust may be injurious to the workmen and particularly inexperienced workmen, and for that reason they provide a standard respirator; isn't that the truth of the matter? A. Yes, sir. Q. That's what I thought it was. And that condition, that danger, that hazard, was recognized in the construction industry long before you ever went to work for the Royal Hotel, wasn't it? A. Yes, sir. That mask has been on the market for a long time.'

Defendant Kerr testified that Mr. Griffing, who was not removing plaster, came to him and said he wanted a respirator and Kerr told him to get one and then reimbursed him for the expense. The respirator was paid for on the theory that, perhaps, it was necessary equipment for man working in the dust. Defendant Kerr directed Kirk and Kirk directed plaintiff in removing the plaster.

Plaintiff had no lung damage before he started working on the job in the dust. He had about six months work in knocking off plaster, 'in the heaviest,' for about six and one-half to seven hours per day. Within two or three months after starting to work in the dust he developed a cough, and started coughing. As time went along the cough got worse. When plaintiff would go home, after working in the plaster dust, he would find a cloudy deposit in his mouth and his nose would be stopped up. He continued...