Meridian Grain & Elevator Co. v. Jones

• Decision Date: 28 September 1936
• Docket Number: 32253
• Parties: MERIDIAN GRAIN & ELEVATOR CO. v. JONES
• Court: Mississippi Supreme Court

169 So. 771

176 Miss. 764

MERIDIAN GRAIN & ELEVATOR CO. v. JONES

No. 32253

Supreme Court of Mississippi

September 28, 1936

Division B

Suggestion Of Error Overruled October 26, 1936.

APPEAL from the circuit court of Lauderdale county HON. ARTHUR G BUSBY, Judge.

Action by Edward D. Jones against the Meridian Grain & Elevator Company. From an adverse judgment, the defendant appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

Gilbert & Cameron, of Meridian, for appellant.

Peremptory instruction should have been granted defendant as it was pure speculation as to the source of plaintiff's afflictions.

Kress & Co. v. Sharp, 156 Miss. 693, 126 So. 650; 1 Sutherland, Damages, page 207; 8 R. C. L. 438; 39 C. J. 1115, sec. 1310, footnote 56; Miss. Central R. R. Co. v. Lott, 118 Miss. 844.

There is no common law remedy for industrial or occupational disease.

Adams v. Acme White Lead & Color Works, 182 Mich. 157, 148 N.W. 485; L. R. A. 1916A 283; Sylvester v. The Buda Co., 281 Ill.App. 139; Miller v. American Steel & Wire Co., 90 Conn. 349, 97 A. 345; Gordon v. Travelers' Ins. Co., 287 S.W. 911; Berry v. Atlantic White Lead & Linseed Oil Co., 51 N.Y.S. 602; Industrial Commission v. Brown, 92 Ohio St. 309, 110 N.E. 744; Peru Plow Co. v. Industrial Commission, 311 Ill. 216, 142 N.E. 546; Ewers v. Buckeye Clay Pot Co., 163 N.E. 577.

The common law prevails in this state except as modified by statute.

R. R. v. Scott, 108 Miss. 871, 67 So. 491, Ann. Cas. 1917E 880; Richardson v. Sims, 118 Miss. 728, 80 So. 4; Ins. Co. v. Pannell, 169 Miss. 50, 152 So. 635.

No negligence was shown against the appellant.

The undisputed proof is that it is impossible to operate a mixed feed plant without the presence of dust. This is so obviously true as to need no proof. It is the common knowledge of men who know anything about handling grain from the corn crib, grist mill to the great granaries of the world. The only way to eliminate dust would be to eliminate the plant or abandon the grain.

In common law states, without exception there is no liability to an employee for disease unless it is the direct and proximate result of the negligence of the employer and that negligence must be proven as in any other case.

A. L. I., Restatement of Agency, sec. 499C; Koetsier v. Cargill Co., 217 N.W. 51; Webb's Pollock on Torts, 45; 4 Thompson on Negligence (2 Ed.), sec. 3774; Kitteringham v. Sioux City & Pacific Ry. Co., 63 Iowa 285, 17 N.W. 585; Gould v. Slater Woolen Co., 147 Mass. 315, 17 N.E. 531; Fox v. Peninsular, etc., Works, 84 Mich. 676, 48 N.W. 203; Allen Gravel Co. v. Curtis, 173 Miss. 416, 161 So. 670; American Sand & Gravel Co. v. Reeves, 168 Miss. 608, 151 So. 477; Benjamin v. Davidson-Gulf-port Fertilizer Co., 169 Miss. 162, 152 So. 839; Newell Construction Co. v. Flynt, 172 Miss. 719; 6 A. L. R. 355.

It is undisputed that respirators were furnished the employees and that some of the employees sometimes used these respirators. It is further undisputed that the dustiest part of the business was at times when the machines were being tested. It was at such time and place that Bullock claims to have spit up blood, whereas there was on hand to his knowledge respirators to be used.

These respirators were not used because the grain dust was considered to be harmful, but were furnished because there are certain men who cannot stand dust-- and Jones was not one of that type--and the respirators were provided for the comfort of the employees.

The master can only be called upon to furnish the appliances. If they are furnished and the servant refused or neglects to use them, then the employer has violated no duty to him and cannot be held liable.

Anderson v. McGrew, 122 So. 492, 154 Miss. 291.

The verdict is contrary to the overwhelming weight of the evidence.

Walker Broach, Jr., of Meridian, for appellee.

Despite differences of opinion, all of the doctors in this case, both for the defense as well as the plaintiff, admit and testified that irritation will ensue from matter that is not or cannot be dissolved. If it be mechanical irritation, the plaintiff has proved his case from the medical aspect by showing the terrific dust concentrates inhaled over a period of time, thus hopelessly breaking down the plaintiff's body defenses. If it be chemical irritation, the plaintiff has proved his case under the uncontradicted rebuttal testimony of Dr. Stingily showing actual injurious oils extracted from grain dust and his testimony that such oils are even more irritating than the chemicals contained in silica.

As we understand the law, by the overwhelming weight of authority medical books can never be injected into testimony, introduced in evidence, or read to a witness, even on cross examination, unless and except the witness has given an opinion based upon that particular book, when it is then allowed for the sole purpose of contradicting what the witness says the book upon which he relies says.

10 R. C. L. 1163, sec. 364; 3 Wigmore on Evidence, sections 1690 to 1700; Tucker v. Donald, 60 Miss. 460, 45 Am. Rep. 416; 3 Wharton & Stille's Medical Jurisprudence, sec. 562; Hall v. Murdock, 72 N.W. 150, 114 Mich. 233; City of Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 679.

If the testimony revealed in this record does not substantiate plaintiff's contentions of injury proximately caused by the negligence of the defendant, then we do not know under any set of circumstances how such matters can ever be proved.

Miss. Central Ry. v. Lott, 118 Miss. 816, 80 So. 277, 249 U.S. 616, 63 L.Ed. 803, 39 S.Ct. 391; Crane Elevator Co. v. Lippert, 11 C. C. A. 521, 63 F. 942; Balzer & Saginaw Beef Co., 165 N.W. 785; Keegan v. Minneapolis & St. L. R. Co., 76 Minn. 90, 78 N.W. 965; Beauchamp v. Saginaw Mining Co., 50 Mich. 163, 15 N.W. 55, 45 Am. St. Rep. 30.

Mississippi has held that if the disease or affliction is caused by negligence the servant may recover under the common law.

Allen Gravel Co. v. Curtis, 161 So. 670.

There is a duty at common law to warn and instruct employees and furnish them with means to avoid inhaling elements that are poisonous or injurious to their health.

Jacque v. Locke Insulator Corp., 70 F.2d 680; Zajkowski v. Amer. Steel & Wire Co., 258 F. 9, 6 A. L. R. 348; Thompson v. United Laboratories Co., 221 Mass. 276, 108 N.E. 1042.

The appellant here says that the undisputed proof is that it is impossible to operate a mixed feed plant without the presence of some dust. This statement we concede, but it simply bears out the plaintiff's contentions in this case, that is, that the ordinary dust concentration from the ingredients used in making mixed feeds is not dangerous, but it is the unusual and highly concentrated dust accumulations that generally existed at the plant of the defendant that caused the injuries herein complained of. And in this very fact lies the reason why workers exposed to grain dust have not suffered more greatly from injuries such as herein complained of, which statement is further evidenced to be true by the repeated declarations of the defense witnesses, to the effect that the dust condition found by the jury to obtain at the plant of the defendant was inexcusable and utterly unnecessary.

There is no question here, as suggested by the appellant, of the master being held to be the insurer of the health of his employees. The plaintiff below, appellee here, does not ask that, has never asked that, and does not expect that. His complaint and verdict is based upon alleged negligence of the master, not ordinary, but gross, and, as testified to by the president of the defendant company itself, to paraphrase, inexcusable. The jury has found this condition to exist and on competent and reliable testimony which preponderated clearly in favor of the plaintiff.

Koetsier v. Cargaill Co., 207 N.W. 51.

Not only medical science itself was unanimous in refusing to support the contention of the defendant that no harmful effects would follow the conditions under which the plaintiff worked, but the knowledge of ordinary human experience itself teaches contrary to the contentions of the defendant.

We find it to be elemental that it is not some certain specific injury that the master must anticipate to render him liable to the servant, or any particular consequence of his negligence, but only that some injury or harm is likely to result from his negligence.

39 C J., Master & Servant, page 290, sec. 415; Fletcher v. Ludington Lbr. Co., 142 La. 151, 76 So. 592; Dulligan v. Barber Asphalt Co., 201 Mass. 227, 87 N.E. 567; Hamilton v. Standard Oil Co. of Ind., 19 S.W.2d 679; Jacque v. Locke Insulator Corp., 70 F.2d 680; Veney v. Samuels, 107 So. 517, 142 Miss. 476; McCahill v. New York Transportation Co., 201 N.Y. 221, 94 N.E. 616, 48 L. R. A. (N. S.) 131, Ann. Cas. 1912A 961; Tice v. Munn, 94 N.Y. 621; Long v. Stadium Purchasing Corp., 216 A.D. 558, 215 N.Y. 502; Clover-Clayton & Co., Ltd., v. Hughes (1910), A. C. 242; First National Bank of Ottawa v. Wedron Silica Co., 351 Ill. 560, 184 N.E. 897; Madison v. Wedron Silica Co., 352 Ill. 60, 184 N.E. 901; St. Joseph Lead Co. v. Jones, 70 Fed (2d) 475; Ford Motor Co. v. Brody, 73 F.2d 248; Green v. Standard Wholesale Phosphate & Acid Works, 29 F.2d 746; Peaslee-Gaulbert Co. v. McNath, 148 Ky. 265, 146 S.W. 770, 39 L. R. A. (N. S.) 465, Ann. Cas. 1913E 392; Thonhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N.E. 474; Adams v. Grand Rapids Refrigerator Co., 160 Mich. 590, 125 N.W. 724, 27 L. R. A. (N. S.) 953, 136 Am. St. Rep. 454, 19 Ann. Cas. 1152; Wagner Elec. Corp. v. Snowden, 38 F.2d 599; Clark v. Banner Grain Co., 261 N.W. 597; Fritz v. Elk Tanning Co., 101 A. 958, 258 Pa. 180; Gatliff Coal Co. v. Ramseur's Admx., 228 S.W....