OGGESEN v. General Cable Corporation, 58C79(3).
| Decision Date | 19 June 1959 |
| Docket Number | No. 58C79(3).,58C79(3). |
| Parties | Anna OGGESEN, Plaintiff, v. GENERAL CABLE CORPORATION, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Charles T. Herrmann, Hough, Maloney, Fox & Hermann, Clayton, Mo., for plaintiff.
F. W. Schwarz, Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, Mo., for defendant.
Plaintiff filed her action at law in the Circuit Court of the City of St. Louis seeking to recover $35,000 for personal injuries alleged to have been sustained while performing her regular duties on the premises and in the employ of the defendant. Defendant, a New Jersey corporation, removed the action to this Court, and in due time filed its Motion for Summary Judgment pursuant to Rule 56, F.R.Civ.P. 28 U.S.C.A.
The Motion is supported by an Affidavit setting forth that defendant is a major, self-insured employer and under the Workmen's Compensation Act of Missouri, V.A.M.S. § 287.010 et seq.; that in 1943 it elected to come under the "Occupational Disease" provisions of that Act, as amended;1 that neither the plaintiff nor defendant has elected to reject said law and; that it posted proper notices as required.
If plaintiff's Petition brings her within the "occupational disease category", then the injuries for which plaintiff seeks to recover come within the provisions of the Workmen's Compensation Act of Missouri, which is substitutionary, and plaintiff cannot maintain an action at law. Marie v. Standard Steel Works, Mo., 319 S.W.2d 871, loc. cit. 875 3.
The question thus presented to this Court by the Motion for Summary Judgment is whether the allegations contained in plaintiff's Petition,2 when viewed in connection with the Affidavit supplied by the defendant, shows on its face and as a matter of law that plaintiff is seeking to recover for an "occupational disease."
The Missouri Workmen's Compensation Act does not define occupational diseases. The State does have, however, an Occupational Diseases Act, §§ 292.300-292.440 RSMo 1949, V.A.M.S. In the case of Marie v. Standard Steel Works, (supra), decided January 12, 1959, the Missouri Supreme Court, en banc, loc. cit. 876, said:
"However, in determining the intent and meaning of the term `occupational disease' as used in the Workmen's Compensation Act, the words must be considered in their context and sections of the statute in pari materia, as well as cognate sections, must be considered in order to arrive at the true meaning and scope of the words."
Judge Storckman, writing the unanimous Opinion therein, for the entire court, pointed out that § 292.300 required employers to provide protection to employees from diseases and § 292.310 listed articles considered dangerous to health as "any poisonous chemicals, minerals, acids, fumes, vapors, gases, or other substances."
That decision, in this Court's opinion, definitely establishes as the latest Missouri law the precedent that the term "occupational disease", as used in the Workmen's Compensation Act, must be read in pari materia with the last two cited sections of the statute.
Also, the term "occupational disease" has acquired a well-established meaning in this state by judicial construction. See Marie v. Standard Steel Works, (supra); Sanford v. Valier-Spies Milling Co., Mo.App., 235 S.W.2d 92, 95 1, and the cases therein cited. See also Urie v. Thompson, 352 Mo. 211, 176 S.W.2d 471, 476 13; State ex rel. Fisher Body St. Louis Co. v. Shain, 345 Mo. 962, 137 S.W. 2d 546 and 99 C.J.S. Workmen's Compensation § 169, p. 559.
In Evans v. Chevrolet Motor Co., 232 Mo.App. 927, 105 S.W.2d 1081, 1084, the court said:
"Now an occupational disease, in its ordinary and accustomed sense, is a disease which is the natural incident or result of a particular employment, usually developing gradually from the effects of long-continued work at the employment, and serving, because of its known relation to the employment, to attach to the same a risk or hazard which distinguishes it from the ordinary run of occupations and is in excess of that attending employments in general."
In Marie v. Standard Steel Works (supra), 319 S.W.2d loc. cit. 873, the court more succinctly defined it as follows:
"Occupational disease is not defined by statute in this state, but occupational diseases have been defined as those that occur incident to employment and are due to some factor peculiar to the occupation."
Plaintiff has cited the case of McDaniel v. Kerr, 1953, 364 Mo. 1, 258 S.W.2d 629, as authority for recovery of damages in an action at law by an employee who suffered a lung abscess by reason of inhaling large quantities of dust. A judgment in favor of the plaintiff in the Circuit Court, had been set aside by the trial judge on the ground that the occurrence was under the Workmen's Compensation Act as an "accident". The Supreme Court of Missouri held that as the occurrence was not an accident the matter did not fall within the Workmen's Compensation Act and allowed the original judgment in favor of plaintiff to stand.
As it did not involve "occupational diseases" and turned entirely upon the question of whether the matter was, or was not, an "accident", it must be distinguished from other cases upon the subject.3
In analyzing plaintiff's Petition it can be determined that she seeks to recover for injuries which occurred over a period of time; that she alleges that these injuries were caused by her working in close proximity to certain baking ovens which sent forth large quantities of noxious and harmful paint and enamel fumes; that she breathed and inhaled these fumes many times each day and absorbed them constantly each day; that defendant knew or should have known that serious damage and...
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