Rue v. Eagle Picher Lead Co.

• Decision Date: 03 April 1931
• Citation: 38 S.W.2d 487,225 Mo.App. 408
• Parties: MILAS J. RUE, APPELLANT, v. EAGLE-PICHER LEAD COMPANY, RESPONDENT
• Court: Missouri Court of Appeals

38 S.W.2d 487

225 Mo.App. 408

MILAS J. RUE, APPELLANT, v. EAGLE-PICHER LEAD COMPANY, RESPONDENT

Court of Appeals of Missouri, Springfield

April 3, 1931

Appeal from Circuit Court of Jasper County.--Hon. Harvey Davis Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Thomas J. Roney for appellant.

(1) The finding of the commission in this case has the force and effect of the verdict of the jury, and should not be set aside if supported by any substantial evidence, although the circuit judge might feel that a different conclusion would have been reached by him if he had been called upon to decide the question in the first instance. Brewer v. Ash Grove Co., 25 S.W.2d 1086; Hager v. Pulitzer Pub Co., 17 S.W.2d 578; Rolens v. Keller Const Co., 24 S.W.2d 1077; Cobb v. Standard Accident Co., 31 S.W.2d 573; Woods v. American Coal Co., 25 S.W.2d 144; Keller v. Commission, 302 Ill. 610, 135 N.E. 98; Mitchell v. Coal Co., 195 Iowa 415, 195 N.W. 145; Stone v. Blackmer Co., 27 S.W.2d 459; Hazard Co. v. Scott, 206 Ky. 759, 268 S.W. 548; Miller v. Morris Co., 162 N.W. 17; Anderson v. Kiene, 174 N.W. 301; Morris v. Coal Co., 266 Pa. 216, 109 A. 914; Shaw v. Piano Co., 44 S.D. 346, 184 N.W. 204; Hackley Co. v. Commission, 173 Wis. 128, 179 N.W. 590. (2) The injury to appellant was by an "accident" as distinguished from an "occupational disease," in that it arises by a definite event, the date of which can be fixed with certainty on June 17, 1928, and a definite time, to-wit: between 5:00 and 8:30 o'clock A. M. of that day. Brewer v. Ash Grove Co., 25 S.W.2d 1086; Peru Plow Co. v. Industrial Com., 311 Ill. 216, 142 N.E. 546; Townsend v. Tagard, 81 Ind.App. 610, 144 N.E. 556; Gilleland v. Ash Grove Cement Co., 104 Kans. 771, 180 P. 793; Gilleland v. Zinc Co., 112 Kans. 39, 209 P. 658; Van Vleet v. Pub. Service Co., 111 Neb. 51, 195 N.W. 467; Tintic Milling Co. v. Ind. Com., 206 P. 278, 23 A. L. R. 325; Roth v. Ind. Com. of Ohio, 7 O. App. 386.

John Campbell, A. E. Spencer and A. E. Spencer Jr., for respondent.

The company was engaged in a work which is declared by the statute to be especially dangerous to the health of employees (section 13253). The disease from which plaintiff claims to be suffering is an occupational disease incidental to such employment. Plaintiff makes it clear that the situation at his place of work that morning was just the same as the situation always there; there was nothing unusual about it and it was just what was to be expected any time any man went there and shoveled the dry lead powder. The dust was produced by the men in handling and working this powder. It therefore seems clear that appellant was the victim of an occupational disease. If there had been a failure to provide a mask, or if an insufficient mask was furnished, this would not change the situation. The disease would still be occupational and therefore excluded from the compensation law, and the liability of the company if any, would be based upon the statutes as an occupational disease. Chop v. Swift & Co., 118 Kan. 35, 233 P. 800; St. Louis M. & S. Co. v. Ind. Co., 113 Okla. 179, 241 P. 170; Thomas v. Ford Motor Co., 114 Okla. 3, 242 P. 765; Bamberger Coal Co. v. Com. of Utah, 66 Utah 203, 240 P. 1103; Meade Fibre Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989; Hoag v. Kans. Ind. Laundry, 113 Kans. 513, 215 P. 295; Taylor v. Swift & Co., 114 Kans. 431, 219 P. 517; Linnane v. Brewing Co., 91 Conn. 158, 98 A. 507; Jenner v. Imperial Furn. Co., 200 Mich. 265, 166 N.W. 943; Depre v. P. Coast Forge Co., 259 P. 720; Echord v. Rush, 261 P. 820; Lerner v. Rump Bros., 241 N.Y. 153, 149 N.E. 334; Milling Co. v. Ind. Com., 60 Utah 14, 206 P. 278.

COX, P. J. Smith, J., concurs. Bailey, J., dissenting.

OPINION

COX, P. J.

Milas J. Rue, appellant, contracted lead poisoning while in the employ of respondent and filed a claim for compensation under our Workmen's Compensation Statute. The commissioner found in his favor and made an award for him. The respondent appealed to the circuit court, where, upon presentation of the finding of the commission and the evidence on which such finding was based, the court held no case was made by the claimant and reversed and quashed the award of the commission and discharged the defendant. The claimant appealed to this court.

The award of the commission was set aside and quashed because the circuit court was of the opinion that the evidence taken at the hearing before the commission was not sufficient to sustain the award and whether the court was right in that holding is the only question upon which we are required to pass.

It is a familiar rule of law and conceded in this case that the finding of the commission stands upon the same footing as the verdict of a jury and if there is any substantial evidence to sustain it, the court must uphold it. It is also conceded that in determining whether the evidence will sustain the award the claimant must be given the benefit of all the evidence in his favor. There is no conflict in the evidence except some slight difference of opinion between physicians who testified as experts. The facts are substantially as follows: Until this alleged accident, the claimant was in good health; had never had any trouble with his stomach and his physical condition was good in every respect. It was conceded that his work required him to work in a room where lead dust was in the air and it was necessary for him to wear a mask to protect him in breathing in order to prevent breathing the lead dust which was recognized as dangerous to health and these masks were provided for that purpose by the employer. The claimant in detailing what occurred at the time of the alleged accident stated: "On the evening before I went to packing the paint, I went down to the stock room and got a muzzle (mask). The muzzle seemed to be dry and it seemed like it had been lying on the shelf and it was hard and some one else had used the muzzle. I washed it out in boiling water in the lavatory and cleaned it and went to work a little while and could not draw my breath. It was too large for my face. It had a piece of inner tube of an automobile sewed on it in this way (indicating) and I put it on and it hung loose on my face. It was too big for my mouth. When I would breathe, in place of coming through the sponge, it would come out here on the side. The other man's head was bigger than mine and it would drop down here as I would swing my head down in shoveling and let air come down on me and I went and washed it again and went back and I got sick at my stomach and I just kept getting sick and I went out and got another drink. I shoveled maybe an hour longer when everything turned black on me and spotches in front of my eyes and I began to stagger and had to quit and went home. I took cramps; got nervous and went on that way at home for two weeks when I fell over and woke up in Freeman Hospital."

Dr. McCormack, a physician, called by claimant, testified: "I visited Mr. Rue July 28, 1928, when his condition was nervous; complained of pains in his stomach and in his head. He had typical blue lines on his gums; soreness over his whole abdomen; unable to stand steady on his feet, in short, almost all the signs of lead poisoning." This doctor was asked this question: "Q. Where one has worked around a lead plant for a space of three weeks, sometimes tying sacks of paint, sometimes wheeling cans of paint around and for three and one-half hours of this time in a room where they were bolting paint and during these three and one-half hours became violently ill and sick, is that condition of sickness due to the natural taking in of white lead so as to make it a natural sickness growing out of handling of paint or would it be due to an excessive amount at one time?" To which he answered: "I would say it would be due to an excessive amount at one time." Also "Q. Doctor, how long does it take when working around white lead to become inoculated with white lead so as to bring the condition you found Mr. Rue in at this time ordinarily? A. I believe ordinarily it takes longer than a year. Q. If his health was good, never complained of any of this nervousness; never complained of any pains in his stomach or any suffering of the stomach prior to June 17, 1928, would it be possible for one to receive an excessive amount of paint (white lead) to put in this condition in one day? A. It would be. Q. Doctor, in order for white lead poisoning to develop in the usual and ordinary way, what are the symptoms? A. His first attacks are rather light. He probably becomes dizzy for a few minutes and usually complains of a blurred vision and later on occurs the first symptoms that cause the cramps in the stomach. If they have worked for a long period of time in a smelter, usually the stomach is the first thing they complain of. It is my experience they have a number of light attacks long before they even get to where they are indisposed and in my opinion it would take longer than a year. The first symptoms would be very light and he could continue to work. In the ordinary and usual and natural way he wouldn't receive any of these ill effects for a year after he began to work at a white lead plant. That is usually the case. That is the usual and average result."

This evidence was taken before Commissioner Orin H. Shaw, who made a temporary award to claimant on December 21, 1928. On February 11, 1929, further testimony was heard by Commissioner Shaw. Claimant testified that he was not then able to work and was still under the care of Dr. McCormack. Dr. McCormack then testified that claimant had been under his care since the last hearing and he did not know that he could yet do any work.

Dr Cummings, for defendant, testified...