Piukkula v. Pillsbury Astoria Flouring Mills Co.

• Decision Date: 02 April 1935
• Citation: 150 Or. 304,42 P.2d 921
• Parties: PIUKKULA et al. v. PILLSBURY ASTORIA FLOURING MILLS CO. [*]
• Court: Oregon Supreme Court

42 P.2d 921

150 Or. 304

PIUKKULA et al. v. PILLSBURY ASTORIA FLOURING MILLS CO. ^[*]

Supreme Court of Oregon

April 2, 1935

In Banc.

Appeal from Circuit Court, Clatsop County; H. K. Zimmerman, Judge.

Action by Mary Piukkula and another against the Pillsbury Astoria Flouring Mills Company. From an adverse judgment, plaintiffs appeal.

Affirmed.

This is an appeal by the plaintiffs from a judgment of the circuit court entered after a demurrer had been sustained to their amended complaint and they had declined to plead further. The plaintiffs are the widow and minor son of one John Piukkula who, prior to January, 1931, had been in the defendant's employ, and who on December 14, 1933, died as the result, so the amended complaint alleges, of a purported occupational disease contracted by him while in the defendant's employ.

Frank C. Hesse, of Astoria (Hesse & Franciscovich of Astoria, on the brief), for appellants.

Lawrence Lister, of Portland (E. L. McDougal, of Portland, on the brief), for respondent.

ROSSMAN, Justice.

Omitting mention of formal matters, the complaint (amended) alleges that the defendant conducts a flour manufacturing business in a building equipped with power-driven machinery. The sacked flour moves down a chute from the manufacturing room to the storage room, where it is trucked by workmen to other places. These operations create flour dust "and the air in and about defendant's said enclosed workrooms is heavily charged and impregnated therewith which, if permitted to enter the respiratory organs of its employees working therein, and inhaled by them into their lungs is, if continued for any substantial or great length of time dangerous and very detrimental to their health and calculated to produce or engender pneumonia, asthma, and other similar pulmonary sicknesses and disorders and diseases of injurious character." Defendant's operations subjected its employees to risk and danger because (1) the operations were conducted in the presence of machinery; and (2) the air in the room at the lower end of the chute was dust laden. The defendant failed to install in its storage rooms "dust elimination or catching devices, machinery, apparatus contrivances or contraptions of sufficient power or capacity so as to prevent the air and atmosphere in and about said workrooms of its plant, where said deceased was required to perform the duties of his employment, as hereinafter mentioned, to so become charged or impregnated with such dust, dirt, flour dust or other refuse and impurities, and *** failed to provide its said employees *** with dust masks wet sponges or other similar dust elimination and catching devices *** and negligently and carelessly and recklessly failed to use every care and precaution which it was practicable to use for the protection and safety of the life and limb of its employees." August 28, 1929, when the defendant acquired the aforementioned plant from the Astoria Flouring Mills Company, Piukkula became one of its employees and worked for it as a trucker in the storage room. His duties required him to receive sacks of flour from the end of the aforementioned chute, pile them on his truck, and convey them to the places selected by defendant. Piukkula was constantly engaged in this work until January, 1931. "On account and as a direct proximate result of defendant's said aforementioned acts of negligence, and the resulting inhalation by said deceased during his said period of employment with defendant of such flour dust and other impurities, the system of said deceased, unbeknown to him became poisoned, sensitized and otherwise affected, weakened and impaired thereby to the extent that said deceased, about September 17, 1930, began noticing difficulties in breathing, but his said condition at that time did not appear to be serious so as to cause alarm or lead said deceased to believe that his condition was serious, and that in order to recuperate from his said condition, said deceased, upon the advice of his said physician, did temporarily quit his employment with defendant during said month of January, 1931, and resorted to salmon fishing and other out-of-door work, as a result of which his health at first began to improve, but during the winter months of 1931-1932 his condition gradually began and thereafter in slowly progressive stages continued to get worse." By January 22, 1933, the illness had made sufficient progress so that Piukkula entered a hospital "which was the first time that plaintiff (Piukkula) realized the extent and seriousness of his said ailment." June 8, 1933, Piukkula instituted an action in the circuit court against defendant for damages to his health, occasioned by the circumstances aforementioned, to which defendant interposed a demurrer on the "ground that the said complaint did not state facts sufficient to constitute a cause of action, but at the hearing of said demurrer argued that said deceased's cause of action was barred by the statute of limitations." October 24, 1933, the demurrer was overruled "on the ground that by not assigning the statute of limitations as a ground of its said demurrer, under the statute *** had waived said defense." October 27, 1933, defendant filed an amended demurrer "assigning therein as the sole and exclusive ground the running of the statute of limitations against said cause of action." Piukkula moved to strike the amended demurrer from the files on the ground that the defendant had waived the bar of limitations period by not mentioning it in its first demurrer, and also on the ground that the procedure makes no provision for amended demurrers. November 14, 1933, the motion was sustained. The defendant then filed an answer in which "as a third, further and separate answer and defense" it pleaded the statute of limitations. Piukkula moved to strike this portion of the answer "for the reason and on the ground that if the two-year statute of limitations is applicable to deceased's said cause of action, that the running of the statute of limitations appeared upon the face of said plaintiff's complaint, and the defendant, by not having demurred to said complaint on said ground, waived the defense." The motion was sustained. Before any further action was taken, Piukkula died (December 14, 1933) "from the effects of said poisoning, sensitization, ailment, illness and occupational disease." January 22, 1934, the court dismissed the action. By reason of defendant's "said continued and persistent re-assertion in said deceased's action of said defense of the statute of limitations, after it had waived the same by not assigning it as a ground of its original demurrer, a great deal of time was lost, and decedent's said action was thereby prevented from being at issue and from being tried, and said deceased was prevented from recovering in his lifetime a judgment." Defendant thereby became estopped to avail itself of the defense of the statute of limitations in the present action. The remaining allegations aver the age, condition of health, wages, and contributions made by Piukkula to these plaintiffs during his lifetime. They also allege that the plaintiff Mary is the widow of Piukkula, and John is his thirteen year old son. Twenty-five thousand dollars in damages is sought.

After portions of the complaint had been stricken out by an order which held them to be mere averments of conclusions, the defendant's demurrer, based upon a contention that the complaint itself showed that the action had not been commenced within the period of limitations, was sustained.

The plaintiffs' assignments of error challenge the order which struck parts of the complaint and also the order which sustained the demurrer. We shall now consider whether the complaint indicates that plaintiffs' cause of action has been barred by the statute of limitations, and as we do so we shall assume that no part of the complaint has been stricken.

The plaintiffs claim that their complaint shows that the defendant was engaged in operations which subjected its employees to risk and danger within the contemplation of section 49-1701, Oregon Code 1930, which was section 1 of 1911 Session Laws, c. 3, commonly known as the Employers' Liability Act; and that it was the duty of the defendant to take the precautionary measures suggested in the complaint for the protection of its employees. They claim that the defendant's alleged neglect to adopt those measures was the cause of Piukkula's occupational disease and subsequent death.

According to the complaint, the defendant acquired its Astoria plant August 28, 1929, and on that day Piukkula entered its employ The following dates are therefore important: August 28, 1929, Piukkula entered defendant's employ. September 17, 1930, he "began noticing difficulties in breathing." January, 1931, he left defendant's employ. January 22, 1931, he entered a hospital, and for the first time realized the extent of his ailment. June 8, 1933, he began an action against the defendant. December 14, 1933, he died.

Section 49-1704, Oregon Code 1930, being section 4 of 1911 Session Laws, c. 3, provides: "If there shall be any loss of life by reason of the neglect or failures or violations of the provisions of this act by any owner *** the surviving widow or husband and children and adopted children of the person so killed and, if none, then his or her lineal heirs and, if none, then the mother or father, as the case may be, shall have a right of action without limit as to the amount of damages which may be awarded. ***"

Section 1-201, Oregon Code 1930, provides: "Actions at law shall only be commenced within the periods prescribed in this title, after the cause of action shall have accrued; except where, in special cases, a different limitation is...