Morris v. Dines Min. Co.

• Decision Date: 11 April 1953
• Docket Number: 38760,Nos. 38759,38761,s. 38759
• Citation: 174 Kan. 216,256 P.2d 129
• Parties: MORRIS v. DINES MINING CO. SHOOK v. DINES MINING CO. COTTER v. DINES MINING CO.
• Court: Kansas Supreme Court

Page 129

256 P.2d 129

174 Kan. 216

MORRIS v. DINES MINING CO.

SHOOK v. DINES MINING CO.

COTTER v. DINES MINING CO.

Nos. 38759, 38760, 38761.

Supreme Court of Kansas.

April 11, 1953.

Syllabus by the Court

1. Following decisions cited and discussed in the opinion it is held, (1) that a motion to make a petition more definite and certain lies only when the pleading attacked is so indefinite and uncertain that the nature of the charge is not apparent and (2) that a petition which fairly apprises the defendant of what the plaintiff's claim is to be is not subject to a motion to make more definite and certain and that where such a motion is properly resisted and overruled the rule of strict construction does not apply.

2. The record in an action by an employee against his former employer to recover damages for personal injuries, in which the petition alleged that while plaintiff was employed by the defendant and as a result of its negligent operation of its underground lead and zinc mines he sustained injuries causing him to contract the occupational disease of silicosis, examined, and it is held, the trial court did not err in overruling a demurrer to the petition, based on grounds that pleading failed to state facts sufficient to constitute a cause of action and that if, under its allegations, any cause of action was stated the same arose and accrued more than two years prior to the date of the filing of the action and was barred by the statute of limitations.

R. L. Letton, of Pittsburg, P. E. Nulton, of Pittsburg, on the briefs, for appellant.

Daniel J. Leary, of Joplin, Mo., Joe L. Henbest, of Columbus, and Sylvan Bruner and Morris Matuska, both of Pittsburg, on the briefs, for appellee.

PARKER, Justice.

These are three separate actions against the Dines Mining Company, a corporation, to recover damages for personal injuries in which the respective plaintiffs allege that while employed by defendant and as a result of its negligence they sustained injuries which caused them to contract the occupational disease of silicosis. The appeals, consolidated for purposes of appellate review by agreement of the parties, are from orders of the trial court overruling demurrers to the three petitions.

In their briefs and on oral argument counsel for the divers parties concede the allegations of the involved petitions are identical in substance, if not in form, that the actions may be regarded as commenced on the same date, and that the question whether the trial court erred in overruling the demurrers to the petitions may be treated and disposed of as if only one appeal and a single petition were involved. Therefore, we shall proceed on that basis, pointing out in advance that in doing so subsequent use of the terms 'plaintiff' or 'appellant', as the case may be, is intended to apply and has reference to each and every person appealing from the decisions rendered by the court below.

This action was commenced on November 28, 1950, by the filing of a petition which, omitting formal averments, allegations relating to the amount of damages claimed, and its prayer, reads:

'Plaintiff states that from July, 1946, to February 20, 1950, he was employed with the defendant as a miner in its underground mines located in Cherokee County, Kansas; that during the period of his employment with the defendant plaintiff was required to work in said underground mines of the defendant, which were continuously laden with large and harmful quantities of silica dusts; that during the period plaintiff was required to work in said mines, the work that was being done there continually caused, created and generated such quantities of silica dusts as to be dangerous and deleterious to employees of the defendant, and particularly the plaintiff, all of which the plaintiff alleges the defendant knew, or by the exercise of reasonable care should have known.

'Plaintiff further states that by reason of his work in said conditions as aforesaid, he was exposed to and did inhale and breathe said dusts in harmful quantities over the period of time he was employed by defendant, and that by reason of such inhalations and absorptions, the same varying from day to day, and by reason of the latent, gradual, cumulative and progressive effect thereof, plaintiff was caused to be injured and he did contract fibrosis, silicosis and silica-tuberculosis. His ability to resist disease has been impaired. The functions of his lungs and entire system have been impaired. He suffers from general weakness, coughing spells, chills, loss of strength, nervousness and shortness of breath. His ability to perform work and labor have been impaired. The functions of his heart have been impaired. He suffers from great physical pain and mental anguish. He has lost his wages in the sum of $45.00 per week. He suffers and will in the future continue to suffer from pains in his chest, back, and lungs. That all of said conditions are lasting and permanent and are likely to become progressively worse in the future.

'Plaintiff states that his said injuries as aforesaid, were directly caused by defendant's negligence and carelessness in that the defendant: (1) failed to provide adequate ventilation in said mines; (2) failed to provide and maintain adequate blower systems or suction fan systems to remove said harmful and deleterious dusts; (3) failed to provide the plaintiff with a safe place in which to work; (4) failed to warn the plaintiff of the dangers of said employment; (5) failed to provide the plaintiff with an adequate breathing device or respirator to prevent the inhalation of said dusts; (6) failed to wet down the dirt and minerals so as to prevent silica dusts from arising therefrom and thus avoid injuring plaintiff; (7) failed to allow sufficient time to elapse after shots had been fired in said underground mines for the purpose of loosening rock and ore, before ordering plaintiff to work in said mines; (8) failed to install blowers in the headings where plaintiff worked to provide him with sufficient air and ventilation; (9) failed to provide proper, adequate, and sufficient water lines, hoses, connections, and water for wetting down the dirt and mineral so as to prevent silica dusts from arising therefrom and thus avoid injuring plaintiff; (10) and defendant, through its superintendent, H. W. Weidman, and through its ground boss, Melvin Maynard Thomas, did order plaintiff and other men in its employ to 'pop boulders' and shoot charges on shifts, and such was actually done pursuant to such directions.'

Following the filing of the petition defendant moved that its allegations be made more definite and certain in certain particulars. Thereupon it demurred to that pleading on grounds (1) it failed to state facts sufficient to constitute a cause of action and (2) that if under its allegations any cause of action was stated the same arose and accrued more than two years prior to the date of the filing of the action and was barred by the statute of limitations. When the demurrer was overruled defendant perfected this appeal in which, under proper specifications of error, it contends both grounds of its demurrer were meritorious and should have been sustained.

At the outset it may be stated that appellant relies upon certain basic fundamental principles of substantive law to sustain its position the trial court erred in overruling each ground of the demurrer and then, anticipating but not conceding the possibility its contentions with respect thereto might not be upheld, relies upon certain rules of pleading and practice, established by our decisions, as sustaining its position notwithstanding. Therefore, for reasons so obvious as to preclude the necessity for stating them, we shall first dispose of contentions advanced respecting the basic fundamental principles of law on which appellant depends.

Broadly stated the gist of the first contention advanced on the subjects now to be considered is that the petition fails to state a cause of action because Kansas is a common law state, G.S.1949, 77-109, and neither the common law of England nor our decisions have ever recognized the right of an employee to maintain an action for injuries due to occupational diseases. We are not impressed with the thought that in order to maintain a common law action in this day and age it is necessary to find its counterpart in the English common law. Be that as it may, we are unable to agree with appellant's conclusion respecting lack of authority to sustain the maintaining of an action such as is here involved. Without attempting to exhaust the subject it may be said, although it may be conceded loose statements may be found to the contrary, we are convinced that at common law, see e. g., 35 Am.Jur., Master & Servant, 534, § 106; 56 C.J.S., Master and Servant, § 187b, p. 885; Jones v. Rinehart, 113 W.Va. 414, 168 S.E. 482; Steiner et al., v. Spencer, 24 Tenn.App. 389, 145 S.W.2d 547; Wolf v. Mallinckrodt Chemical Works, 336 Mo. 746, 81 S.W.2d 323; Annotation 105 A.L.R., 80, as well as under our own decisions, see Echord v. Rush, 124 Kan. 521, 261 P. 820; Fritchman v. Chitwood Battery Co., 134 Kan. 727, 8 P.2d 368; Allen v. Shell Petroleum Corp., 146 Kan. 67, 68 P.2d 651; Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 139 P.2d 157, an employee has a right of action on account of diseases, occupational or otherwise, contracted by him in the course of his employment and attributable to negligence of his employer. That, it may be added, is the theory on which the instant case is based. Therefore, appellant's contentions the petition failed to state a cause of action on the premise above stated cannot be upheld. This, we may also add, is so even though it be assumed, as appellant suggests, that in the Kansas cases just cited the instrumentality or substance involved was inherently poisonous. We understand the test for determining liability does not depend on the nature of the substance...