Row v. Cape Girardeau Foundry Co.

• Decision Date: 04 June 1940
• Docket Number: 25409
• Citation: 141 S.W.2d 113
• Parties: ROY ROW, (Plaintiff) Respondent, v. CAPE GIRARDEAU FOUNDRY COMPANY, a Copartnership, composed of THOMAS C. GUNDELFINGER and H. GUNDELFINGER, Defendant, AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, (Garnishee) Appellant
• Court: Missouri Court of Appeals

141 S.W.2d 113

ROY ROW, (Plaintiff) Respondent, v. CAPE GIRARDEAU FOUNDRY COMPANY, a Copartnership, composed of THOMAS C. GUNDELFINGER and H. GUNDELFINGER, Defendant, AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, (Garnishee) Appellant

No. 25409

Court of Appeals of Missouri, St. Louis

June 4, 1940

Appeal from Cape Girardeau Court of Common Pleas. Hon. L. L. Bowman Judge.

OPINION

W.E. Bennick, COMMISSIONER.

This is a proceeding in garnishment in aid of an execution issued upon a judgment for $1,500 which was rendered against defendant, Cape Girardeau Foundry Company, in an action brought by Roy Row, one of its employees, to recover damages for illness or disease allegedly brought about as the result of defendant's nonobservance of certain statutory and common-law obligations for his health and safety. By the singular "defendant", we are of course conveniently referring to the trade name which has been adopted by the two individuals who are themselves the actual judgment debtors. The garnishee is American Mutual Liability Insurance Company, which has been summoned to answer upon the theory that it is indebted to defendant under a standard workmen's compensation and employer's liability policy of insurance, which it had concededly issued to defendant covering the period of time in question in the principal action, and by which it had agreed, not only to pay any compensation awarded and benefits required under the provisions of the workmen's compensation law, but also to indemnify defendant against loss by reason of the liability imposed upon it by law on account of injuries to its employees sustained by accident occurring during the policy period.

A fair and proper understanding of the issues raised on the appeal requires a statement of the facts and circumstances leading up to the institution of the garnishment proceeding.

Plaintiff entered defendant's employ in August, 1936, and thereafter continued in its service until the latter part of December of that year, when he was compelled to quit work on account of the presence of a disability for which he subsequently recovered the judgment upon which the instant writ of garnishment is based.

On March 10, 1937, plaintiff filed with the workmen's compensation commission a claim for compensation, alleging that on December 18, 1936, while "working as a machine moulder with heavy material", he had sustained an injury to his "back and shoulder". It would appear that on the day stated, while handling a heavy mold or form into which hot metal was poured for the manufacture of castings, be suddenly experienced a very severe pain between his shoulders, which not only incapacitated him for the further performance of his duties, but also interfered with his breathing. The same incapacity was again present on succeeding days when he attempted to resume his work; and finally, after examination and treatment by one or more physicians, he was told that he had a tubercular infection in the lower lobe of his right lung, which had suddenly become active, due, no doubt, to the heavy work he had been doing, which might naturally be expected to have aggravated a latent tubercular condition and to have resulted in an acute exacerbation or increase in the violence of the disease.

Plaintiff's contention before the commission was, necessarily, that he had suffered an accidental injury arising out of and in the course of his employment, which had either caused the tubercular flare-up, or else had aggravated a pre-existing, latent tubercular condition. There was no contention, incidentally, that his disease was "occupational" in its character and origin so as to have entitled him to compensation under the occupational disease amendment to the act; and indeed the policy recites that defendant had not elected, and had bound Itself not to elect, to bring itself within the act with respect to occupational diseases during the term of the policy.

An answer denying each and every allegation of the claim was filed by the employer and Insurer, who are, respectively, the defendant or judgment debtor and the garnishee herein.

Thereafter the claim was set down for a hearing before a referee of the commission; and on June 28, 1937, a decision was rendered by the referee, denying compensation upon the theory "that the condition complained of by the employee was neither caused nor aggravated by an accident arising out of and in the course of his employment on December 18, 1936".

What the referee's decision implied, of course, was that plaintiff's tuberculosis, was not the result of an accidental injury within the meaning and purview of the compensation law; and with no appeal having been taken from such award, the same became "conclusive and binding" upon the parties in the same sense as would the judgment of a court in like circumstances. Sec. 3342, R. S. Mo. 1929 (Mo. St. Ann., § 3342, p. 8275).

Immediately following the denial of compensation upon the ground that no accidental injury had been sustained, plaintiff instituted the action against defendant, which ultimately resulted in the rendition of the judgment upon which the writ of garnishment is based.

Various demurrers and pleas in abatement predicated upon jurisdictional grounds were sustained by the court, until plaintiff was finally caused to file a second amended petition, which the court held good as against the assaults upon it by defendant.

In said petition, carefully avoiding all reference to the purely occupational disease sections which are to be found included among the general statutory provisions for the health and safety of employees, plaintiff charged both statutory and common-law negligence against defendant, particularly upon the theory of a violation of Sections 13248 and 13249, R. S. Mo. 1929 (Mo. St. Ann. §§ 13248 and 13249, p. 4802), which require, among other things, that every corporation, company, or person engaged in operating any foundry in this state in which four or more men are employed (as in defendant's foundry) shall maintain adequate and efficient devices for carrying off all poisons or injurious fumes, gases, and dust from such foundry.

Plaintiff then alleged that during all the time of his employment by defendant, the latter, unmindful of its duties and of the statutes above referred to, required him "to do and perform the heaviest of manual labor" and "to lift and carry heavy molds filled with sand", and also required him "to do and perform his daily tasks in said foundry while dusts, fumes, and gases were present therein in very large quantities, and no ventilating system of any kind was ever installed during the period of plaintiff's employment to remove said dusts, fumes, and gases".

The concluding portion of the petition was as follows:

"Plaintiff states that such negligence and carelessness consisted of operating said foundry in a building which was very old containing a dirt floor throughout, with no ventilating system or fans, ducts, etc., poorly lighted and heated only with several open fires contained in empty steel barrels, in which trash, wood, paper, coal, and other combustibles were burned without there being any pipe or flue connected to carry off the fumes and gases, with a large oven in which moulds were baked and an open furnace in which large quantities of metal were melted from day to day, in which, chemicals were poured, and that during the winter months in which plaintiff was employed in said foundry the same was kept closed to keep out the cold, and all of said fumes, gases, and dusts resulting from the operation of said foundry under the conditions above described were present at all times in large quantities without effort on the part of defendants toward their removal.

"Plaintiff states that the performance of his duties under the conditions above described, which existed at all times during his employment, and the breathing of such dusts, fumes, end gases, weakened and injured his lungs, and the heavy manual labor undermined his health, and that the whole of said employment under said conditions weakened his health, and that on or about the 18th day of December, while working at said foundry, he was seized by a sudden and severe pain in his chest and lungs, which forced him to stop his efforts for a time. That a similar incident occurred the following day, and plaintiff reported to the defendants the matter, and later to a physician, where he learned that he had sprained the muscles of his back. That said sprain healed, but despite this fact plaintiff continued to grow weaker, his nervous system was impaired, he developed chills and fever, and finally plaintiff developed tuberculosis.

"Plaintiff states that he filed a claim before the Workmen's Compensation Commission of the State of Missouri, asking In said claim compensation for his diseased condition, for the reason that such condition resulted from an accident which occurred on or about the 18th day of December, 1936, when his back was sprained as above...