Pershing Quicksilver Co. v. Thiers

• Decision Date: 13 October 1944
• Docket Number: 3397.
• Citation: 152 P.2d 432,62 Nev. 382
• Parties: PERSHING QUICKSILVER CO. v. THIERS.
• Court: Nevada Supreme Court

152 P.2d 432

62 Nev. 382

PERSHING QUICKSILVER CO. v. THIERS.

No. 3397.

Supreme Court of Nevada

October 13, 1944

Appeal from District Court, Second District, Washoe County; William McKnight, Judge.

Action by Henry I. Thiers against Pershing Quicksilver Company to recover for an injury from mercurial poisoning as the result of defendant's alleged negligence in failing to furnish plaintiff a safe place to work. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thatcher & Woodburn, of Reno, for appellant.

Oliver C. Custer and Royal A. Stewart, both of Reno, for respondent.

ORR Chief Justice.

Respondent was awarded a judgment in the trial court for an injury from mercurial poisoning, alleged to have been contracted while employed by appellant, as the result of the negligence of the appellant in failing to furnish respondent a safe place to work.

After inactivity in their mine and mill for a period of some eleven years, the Pershing Quicksilver Company resumed operations and during the course of those operations, to-wit: on or about the 14th of January, 1942, the said Pershing Quicksilver Company employed Henry I. Thiers, the respondent to work in its mill. Previous to this employment said Thiers was without experience in working in mines or mills of any kind; he had been, just previous to the time appellant employed him, working on farms and ranches in and about Lovelock, Nevada. After his employment Thiers was put to work as a mechanic's helper, and followed that sort of work for a period of five days. He then was requested by the superintendent to work on the retort and condenser system in the mill.

The mill building is of corrugated iron construction and is 98 feet long by 48 feet wide. There are four doors on each side of the mill building. These doors consist of two sections five feet wide and nine feet in height. There are twelve windows on each side of the building, which are three feet by six feet, and which rotate in the center. The windows are manipulated by chains which hang from the windows and which can be pulled by a person standing on the floor of the building. There is a conflict in the testimony as to the length of time during a day these windows and doors were kept open. Appellant's testimony is to the effect that the doors and windows were open practically all the time. Respondent's testimony is to the effect that because of the inclement weather which prevailed during the time Thiers was employed, the doors and windows were closed much of the time.

The operation of the mill in the recovery of quicksilver is substantially as follows:

The ore passes through the crusher to the fine ore bin. From the fine ore bin it passes along a conveyor belt, up an elevator, to the top of the Nichols-Herreschoff furnace. The ore is heated to a temperature of about 1400 degrees Fahrenheit, at which point the cinnabar ore breaks down and mercury is disassociated from it. The mercury gases pass into a system of condensers, which in this particular mill were, at the time Mr. Thiers was employed, connected by redwood pipes. The gases condense in the form of free mercury and soot inside the condenser pipes. The condensers were cleaned daily by removing the cap at the top and inserting a rod with a circular disc on the end; this was moved upon and down the pipe, and the particles of mercury which had formed and the soot fell into the oven at the base of the condenser. The liquid mercury which is produced runs out the oven door to a drain in the floor and into a condenser beneath. Water is then passed into the condenser system by hose, and soot remaining in the condenser system is washed down to the oven and thence drained into a trough at the base of the condenser. The soot, after being washed and dried, is placed in steel pans inside the oven or retort and heated for a period of eight hours. The fumes from this soot while being heated again pass through the condenser system. After eight hours the pans are removed from the retort and the refuse dumped outside, as waste. Two fans are used to draw gases into the condenser system, while another fan blows on the opposite side into the condenser. This latter fan is fifteen inches, the other two nine inches and eleven inches respectively, and they discharge into a stack going up through the roof of the building. The pipe into which the suction was drawn was thirty-six to forty-eight inches in diameter. The distance between the suction fan and the floor fan was 380 feet.

Respondent's duties while working in the mill consisted of cleaning down the condenser system, cleaning out the ovens at the bottom of the condensers, hoeing the soot on the hoeing table, loading dry soot in the pans and placing the pans in the retort and unloading the retort, lowering the soot pans into the ovens, and removing them therefrom and dumping the contents.

Respondent worked a shift of eight hours, and had thirty minutes off for lunch. He worked in the mill at this job until about the first week in March, 1942. He then began experiencing stiff joints, abdominal cramps, diarrhea, insomnia and dizzy spells. The stiff joints and dizzy spells continued to the 21st of March, 1942, and he then began spitting up blood and had a metallic taste in his mouth. Along about the 12th of April, 1942, respondent consulted a dentist in Lovelock, and said dentist treated his gums for mercury poisoning. Two or three days later he consulted a physician in Lovelock, who treated him by giving him injections of sodium thiosulphate. Respondent worked about five days thereafter, three days underground and two days in the mill. After the two days work in the mill the cramps became severe and incapacitated the respondent; he was away from work for three days and was treated by a doctor for mercury poisoning. Mr. Thiers again returned to work at the request of the superintendent of the appellant company, and was put to work sorting ore; but this work severely irritated his gums and he was then reassigned to work underground, and continued in the employ of the company until April 5, 1942. Later respondent consulted a physician in Reno, who diagnosed his illness as chronic mercury poisoning. Mr. Thiers continued to receive treatment from a dentist and from a physician, and lost weight and continued to be troubled with insomnia, nightmares, lame joints and abdominal cramps, and was unable to work steadily or hold steady employment.

Several important questions are involved in this appeal. First: does Section 2683, N.C.L., abrogate all common-law remedies between employer and employees who have accepted the terms of the Nevada Industrial Insurance Act? If so, then, says appellant, the lower court was without jurisdiction. Respondent denies our right to consider this question because appellant failed to raise it in the lower court and now seeks to have it considered here, for the first time. Appellant rests his right to raise the question in this court for the first time upon the principle of law that a jurisdictional question may be raised for the first time on appeal. 14 Am.Juris. sec. 191, p. 385. It is well settled that as a general rule a jurisdictional question may be raised at any time. We agree with respondent that this is a tort action and generally district courts have jurisdiction of such actions. However, appellant contends that the particular class of tort actions to which this case belongs is exclusively within the jurisdiction of the Nevada Industrial Commission, hence the jurisdictional question is squarely presented and no action of appellant in the trial court could have waived its right to have it determined.

Appellant, Pershing Quicksilver Company, carried Nevada Industrial Insurance. There is no evidence that the respondent, Thiers, ever filed notice of rejection of the provisions of the Nevada Industrial Insurance Act. Thiers is, therefore, conclusively presumed to have elected to take compensation in accordance with the provisions of the Nevada Industrial Insurance Act. We have several sections of said act which require consideration. Section 2680, N.C.L., 1931-1941 Supplement to Section 1, reads as follows:

"When, as in this act provided, an employer shall accept the terms of this act and be governed by its provisions, every such employer shall be conclusively presumed to have elected to provide, secure and pay compensation according to the terms, conditions, and provisions of this act for any and all personal injuries by accident sustained by an employee arising out of and in the course of the employment; and in such cases the employer shall be relieved from other liability for recovery of damages or other compensation for such personal injury, unless by the terms of this act otherwise provided."

It will be noted that the above quoted portion of Section 2680 covers personal injuries by accident and provides that the employer shall be relieved from other liability for recovery of damages for such personal injuries.

Section 2683, N.C.L., par. 3(a), provides:

"The rights and remedies provided in this act for an employee on account of an injury shall be exclusive of all other rights and remedies of such employee, or legal representative, dependents or next of kin, at common law or otherwise, on account of such injury ***."

Appellant considers Section 2683 sufficient in itself, and argues that it means precisely what it says, that is, that in the State of Nevada an employe has no remedy at common law or otherwise against his employer because of an injury suffered in the course of his employment, regardless of the fact that the particular injury may not be compensable under the provisions of the act. Much stronger evidence than is at hand would be necessary to convince us that the...