Plazak v. Allegheny Steel Co.
| Decision Date | 23 November 1936 |
| Docket Number | 209,230 |
| Citation | 324 Pa. 422,188 A. 130 |
| Parties | Plazak, Appellant, v. Allegheny Steel Company; Plazak v. Allegheny Steel Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 2, 1936
Appeals, Nos. 209 and 230, March T., 1936, from judgment of C.P. Allegheny Co., April T., 1932, No. 3889, in case of Steve Plazak v. Allegheny Steel Company. Judgment affirmed.
Trespass. Before RICHARDSON, J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff in sum of $15,000. Motion by defendant for new trial granted; motion by defendant for judgment n.o.v. refused.
Plaintiff appealed, assigning as error, among others, the action of the lower court in granting defendant's motion for a new trial; defendant appealed, assigning as error, among others the refusal of its motion for judgment n.o.v.
Judgment affirmed.
L. Pat McGrath, with him A. R. McGrath, for appellant (No. 209) and for appellee (No. 230).
William A. Challener, with him William A. Challener, Jr., for appellee (No. 209) and for appellant (No. 230).
Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Plaintiff, alleging that he suffered with an occupational disease resulting from defendant's violation of the Act of May 2, 1905, P.L. 352, sections 11, 13, 43 PS sections 5, 6, regulating employment in industrial establishments, obtained a verdict. On defendant's motion, the court granted a new trial; from that order the plaintiff appeals. The defendant appeals from the refusal of its motion for judgment n.o.v.
Plaintiff declared on violation of sections 11 and 13. Section 11 required that "Exhaust fans of sufficient power, or other sufficient devices, shall be provided for the purpose of carrying off poisonous fumes and gases, and dust from emery-wheels, grind-stones and other machinery creating dust. . . ." Section 13 required the employer to provide "not less than two hundred and fifty cubic feet of air-space for each and every person in every work-room . . . and shall provide that all work-rooms . . . be kept in a clean and sanitary condition. . . ." The verdict establishes that defendant did not supply a reasonably safe place to work measured by the statutory requirement. The effect of such violation was considered in Stehle v. Jaeger Automatic Machine Co., 220 Pa. 617, 69 A. 1116; Fritz v. Elk Tanning Co., 258 Pa. 180, 187, 101 A. 958. By continuing in the employment, plaintiff did not assume the risk: Fegley v. Lycoming Rubber Co., 231 Pa. 446, 80 A. 870; Solt v. Williamsport Radiator Co., 231 Pa. 585, 80 A. 1119; the Workmen's Compensation Act does not provide a remedy: Mauchline v. State Insurance Fund, 279 Pa. 524, 124 A. 168. The defense is that the action is barred by the statute of limitations.
Plaintiff operated a grinding machine (as he alleges) "breathing fine particles of dust arising from the grinding of steel with abrasive wheels." [1] The employment at this work began in 1926 and, with the exception of an intermission of 6 weeks in 1928, ended, according to plaintiff's evidence, April 5, 1930, when he became ill and was required to stop without being able to complete the day's work. The disease disabled him from work thereafter. It was diagnosed as silicosis [2] sometime after April 11, 1930. Defendant's contention is that plaintiff quit work March 18, 1930, and not on April 5th. The suit was brought March 28, 1932. It will be observed that if plaintiff's date, April 5th, be accepted as the termination of the employment, his suit was brought within 2 years, but if defendant's date be accepted, the action was not brought within two years of the termination of the employment.
The statute of limitations provides "Every suit hereafter brought to recover damages for injury wrongfully done to the person . . . must be brought within two years from the time when the injury was done and not afterwards. . . .": Act of 1895, P.L. 236, 12 PS section 34.
The learned trial judge submitted a special interrogatory asking the jury to ascertain the date on which the employment terminated and the jury reported April 5th, 1930, as the last working day. In the opinion granting the new trial, the learned trial judge stated that he was not satisfied with the conclusion of the jury on that point; he said the finding There may have been other reasons. [3]
When the determination of a fact is controlling and a court has granted a new trial because in its opinion the jury reached a result that cannot be sustained by the evidence, this court will not substitute its judgment for that of the trial judge who saw and heard the witnesses and was therefore in better position to pass on the question. The learned trial judge did not certify that, but for the single point referred to, the new trial would not have been granted: Andrzejewski v. Prudential Insurance Co., 321 Pa. 543, 184 A. 51, and cases there cited. There was no abuse of discretion, unless the record required that defendant's motion for judgment n.o.v. should have been granted.
Defendant's appeal is based on the refusal of its point for binding instructions: Fornelli v. R.R. Co., 309 Pa. 365, 164 A. 54, and cases following it. The request was based on the proposition that plaintiff's claim was barred by limitation. If it was, defendant is entitled to judgment; if the facts on which the application of the statute depends were in dispute, the order granting the new trial should be affirmed, no abuse of discretion appearing, as we have already said.
The verdict establishes that plaintiff is afflicted with silicosis, a disease caused by inhaling deleterious dust incident to his occupation and resulting from defendant's violation of the statute; it also establishes that plaintiff was suffering from this disease on or prior to April 5th, when he ceased working, assuming his evidence to be true. As "for injury wrongfully done to the person" the action "must be brought within two years from the time when the injury was done" our inquiry must be, when was the "injury wrongfully done"? There was breach of defendant's statutory duty to furnish a reasonably safe place to work during each and every day, from the time in 1928 when he resumed working on the grinding machine, to the time when he ceased. That period was continuous; the breach of statutory duty was continuous; it operated from the first working day to the last and, in dealing with the effect said to have resulted, must be treated as one tort, as one invasion of plaintiff's legally protected interest in bodily security. Similar breach of the employer's duty has been so regarded: Fritz v. Elk Tanning Co., 258 Pa. 180, 101 A. 958; Duffy v. India Refining Co., 58 Pa.Super. 473; McCray v. Sterling Varnish Co., 7 Pa. Superior Ct. 610, cases dealing with injuries to workmen resulting from exposure to deleterious working conditions. [4] If there were any question about the continuity of the period and of the wrong, the evidence would be for the jury but on this record there is no question about it. If on the retrial of the case, the evidence establishes that plaintiff's employment stopped prior to March 28th, as defendant contends, his action was not brought within two years from the time when he was subjected to defendant's breach of duty and he will not be entitled to recover for the obvious reason that he did not bring suit within the time specified by the legislature. If, however, the evidence shows that the wrong continued until April 5th, as he contends, his suit is in time. To recover, it will of course be necessary for him to show that the disease was contracted on or prior to April 5, 1930, even if not then fully matured. In referring to the evidence, in passing, we may add that it is immaterial, in dealing with the point under consideration, that the first symptoms of the disease which manifested themselves in March, 1930, were misunderstood to indicate pleurisy, if they were so misunderstood; the ultimate fact to be determined is whether between March 28th and April 5, 1930, plaintiff was suffering with any disease caused by defendant's requiring or permitting him to work in the conditions described above; if it now appears that as a result he was then suffering with incipient silicosis, even though it began prior to March 28th and matured afterward, he is entitled to recover all the resulting damages of which he can offer proof down to the time of trial as in other cases.
The parties differ in their interpretation of the statute of limitations. The plaintiff refers to decisions made in other jurisdictions construing Workmen's Compensation Acts for the proposition, as we understand it, that for occupational disease, [5] the time does not begin to run until the plaintiff knows or should know that he has the disease either during the period of employment or at any time after the employment ended. [6] That construction, where it prevails, is doubtless required by the terms of the compensation acts involved, but it cannot change or affect the settled construction for many years given to our act of limitations. There is a recognized distinction between common law litigation and the administration of Workmen's Compensation laws, which is not considered litigation in any technical sense: Gairt v. Curry Coal Mining Co., 272 Pa. 494, 498, 116 A. 382. It is well settled, as was said in Moore v. Juvenal, 92 Pa. 484, 490, that "Where the declaration, as in this case, alleges a breach of duty and a special consequential damage, the breach of...
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