Schiele v. Hobart Corp.

Decision Date05 December 1978
Docket NumberNo. A7603-03253,A7603-03253
Citation587 P.2d 1010,284 Or. 483
PartiesMyrtle M. SCHIELE, Appellant, v. HOBART CORPORATION, d/b/a the Hobart Manufacturing Company, a corporation, Dayton Electric Manufacturing Co., a corporation, George Bach Co., dba Hobart Sales & Service Company, a corporation, Franklin Electric Subsidiaries, Inc., f/k/a J. B. Dove, Inc., f/k/a J. B. Dove & Sons, Inc., a corporation, Blake, Moffitt& Towne, Inc., a/k/a Saxon Industries, a corporation, Borden Chemical, a division of Borden, Inc., a corporation, Respondents, Filmco Packaging Film, a subsidiary of R. J. Reynolds Tobacco Co., Defendant. ; SC 25473.
CourtOregon Supreme Court

Alan M. Scott, Portland, argued the cause for appellant. With him on the brief was Galton, Popick & Scott, Portland.

John R. Barker, Portland, argued the cause for respondent Dayton Electric Manufacturing Co. With him on the brief were William R. Miller, Jr., and Jones, Lang, Klein, Wolf & Smith, Portland.

James H. Clarke, Portland, argued the cause for respondents Borden Chemical and Blake, Moffitt & Towne, Inc. Ridgway K. Foley, Jr., Portland, argued the cause for respondent Franklin Electric Subsidiaries, Inc. With them on the brief were Tooze, Kerr, Peterson, Marshall & Shenker, Edwin J. Peterson, and Paul J. Lorenzini, Portland, for respondents Hobart Corporation and George Bach Co.; Souther, Spaulding, Kinsey, Williamson & Schwabe, and Wayne A. Williamson, Portland, and Dezendorf, [284 Or. 484-A] Spears, Lubersky & Campbell, and David B. Markowitz, Portland.


HOLMAN, Justice.

Plaintiff, a meat wrapper, brought an action seeking damages for permanent injuries which is based upon a products liability cause of action. Defendants are the manufacturers and distributors of various meat wrapping machines, the manufacturer of a ventilating unit incorporated in one of the machines, and the manufacturer and distributor of a polyvinyl chloride meat wrapping film used with the machines. Following an exchange of pleadings and the taking of plaintiff's deposition, defendants moved for summary judgment; they asserted that facts disclosed in plaintiff's deposition showed that the applicable statute of limitations barred her claim. The trial court granted the motion and plaintiff appeals.

Plaintiff's deposition discloses the following facts: plaintiff began work as a meat wrapper at Fred Meyer in Portland, Oregon, in November of 1948. She worked in that capacity from 1948 through March of 1974. In May or June of 1972 Fred Meyer purchased and installed defendant Hobart's meat wrapping machine which allegedly incorporated defendant Dayton Electric's ventilator. The machine used a hot wire to cut the polyvinyl chloride meat wrapping film allegedly manufactured by defendant Borden Chemical. In December of 1972 plaintiff began using the new meat wrapping machine during a considerable part of her work day. Prior to this time, plaintiff had been in good health. Soon after beginning use of the machine, she began to experience a variety of health problems, more specifically, nausea, dizziness, choking, coughing, and difficulty catching her breath. Almost from the outset, plaintiff associated these problems with the fumes which the machine generated as its hot wire cut the polyvinyl chloride meat wrapping film.

Between January of 1973 and October of 1973, plaintiff's condition worsened. Her choking and coughing increased. She began to cough at night and experienced pain in her lungs. In the summer of that year she began to cough up quantities of white sputum at night. While at work she experienced coughing spells six to eight times a day which forced her to walk out to a breezeway to get air. She complained about the problem to her employer's manager but nothing was done.

Between October of 1973 and January of 1974, plaintiff's condition continued to deteriorate. She experienced fatigue, shortness of breath, and a burning sensation in her eyes, in addition to the symptoms previously described. To facilitate breathing at night, plaintiff elevated her head with two or three pillows.

In January of 1974, plaintiff noticed that her lungs were more sore than usual. During the latter part of January and the first part of February 1974, the pain became almost constant. Plaintiff put in her last day at work on March 12, 1974. Almost immediately thereafter she was hospitalized for plumonary pneumonia. After testing and x-rays during March 1974, plaintiff's doctors informed her on or about April 15, 1974, that her illness was possibly due to her exposure to polyvinyl chloride fumes on the job.

Plaintiff filed her complaint in this action on March 8, 1976.

The party moving for summary judgment bears the burden of establishing that no genuine issue of material fact exists and that he or she is entitled to judgment as a matter of law. ORS 18.105; Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978); Taylor v. Baker, 279 Or. 139, 566 P.2d 884 (1977); Santilli v. State Farm, 278 Or. 53, 59, 562 P.2d 965 (1977); Forest Grove Brickworks v. Strickland, 277 Or. 81, 84-85, 87, 559 P.2d 502 (1977). Defendants rely on the statute of limitations. ORS 12.010 provides that

"(a)ctions at law shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued * * *."

ORS 12.110(1) provides that

"(a)n action * * * for any injury to the person * * * shall be commenced within two years."

This case necessitates our determining when the two-year statute of limitations contained in ORS 12.110(1) begins to run (the cause of action accrues) on a claim alleging that defendants' negligence caused an occupational disease. Once we have resolved that issue we must determine whether the record relied on by defendants in their motion for summary judgment satisfied the requirement of ORS 18.105 that no genuine issue of material fact exist as to the passage of the two-year period.

Plaintiff contends that the statute of limitations did not begin to run until plaintiff was informed of the nature of her disease or injury by a physician and its possible cause. Since this did not occur until April of 1974 she argues that her March 8, 1976, filing fell within the limitation period. Defendants argue that the limitation period began to run when plaintiff first became aware of her symptoms and their cause. Since she first associated her symptoms with the fumes prior to March 8, 1974, defendants believe the two-year limitation period had expired by the time plaintiff initiated her action.

Both parties agree that this court's decision in Hutchison v. Semler, 227 Or. 437, 361 P.2d 803, 362 P.2d 704 (1961), must serve as the starting point for any analysis of when the period of limitation begins to run in an occupational disease case. In Hutchinson, the plaintiff worked as a laboratory technician in the defendant's dental laboratory where he encountered silica dust produced by grinding machines and sandblasters. He eventually developed silicosis. Plaintiff's complaint alleged that defendant had negligently failed to provide proper ventilation. Defendant answered with a general denial and the affirmative defense that the statute of limitations barred plaintiff's cause of action. At trial, plaintiff testified that he first experienced the symptoms of silicosis in the early part of 1956 and that he associated his symptoms of the disease with the lack of proper ventilation in the workshop at that time. Plaintiff instituted his action in December of 1958. The trial court gave the following instruction to the jury:

" * * * if you find under the evidence in this case that the plaintiff knew, or in the exercise of reasonable care should have known, Of the existence of the physical condition for which he seeks to recover damages in this case for more than two years prior to the time he commenced this action, you should return your verdict in favor of the defendants * * *." (Emphasis ours.)

The jury returned a verdict for defendant and plaintiff appealed.

On appeal, plaintiff contended that the period of limitations did not begin to run until he left defendant's employ. This court rejected that argument and upheld the trial court's instruction to the jury. The court stated that

" * * * the statute of limitations began to run in the case at bar when the plaintiff became apprised, or as a reasonable man should have known, that His health was being undermined by the dust which he was breathing." (Emphasis added.) 227 Or. at 446, 361 P.2d at 807, 362 P.2d at 704.

In reaching this conclusion, the court relied heavily on a United States Supreme Court decision, Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), a case which also involved work-place induced silicosis.

In Urie, the plaintiff entered the defendant's employ in 1910. In subsequent years he regularly breathed silica dust blown into the place where he worked by the defendant's locomotives which were equipped with defective sanding apparatus. In 1940, lung problems incapacitated him for further work and he filed the action under review on November 25, 1941. The applicable period of limitations was three years. The court stated that

" * * * the traditional purposes of statutes of limitations * * * require the assertion of claims within a specified period of time after notice of the invasion of legal rights." 337 U.S. at 170, 69 S.Ct. at 1025, 93 L.Ed.2d at 1292.

The court referred to Urie's blameless ignorance.

"The record before us is clear that Urie became too ill to work...

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    ...Bank v. Davies, 274 Or. 663, 548 P.2d 966 (1976), or until those matters should reasonably have been learned, Schiele v. Hobart Corporation, 284 Or. 483, 587 P.2d 1010 (1978). Similarly, we construed the limitation in the Tort Claims Act which runs from the date of 'such accident or occurre......
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1 books & journal articles
  • Nullum tempus: governmental immunity to statutes of limitation, laches, and statutes of repose.
    • United States
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    • April 1, 2006
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