Schwitzer-Cummins Co. v. Hacker

Decision Date06 May 1953
Docket NumberNo. 18341,SCHWITZER-CUMMINS,18341
Citation123 Ind.App. 674,112 N.E.2d 221
PartiesCO. v. HACKER.
CourtIndiana Appellate Court

Murray, Mannon, Fairchild & Stewart and James L. Murray, Indianapolis, for appellant.

Howard L. Eads, Indianapolis, William Temple Stoops, Indianapolis, for appellee.

KELLEY, Judge.

Appellee was an employee of the appellant and on June 23, 1951 filed his application with the Industrial Board upon Industrial Board Form 115 for compensation under the provisions of the Indiana Workmen's Occupational Diseases Act. The full Industrial Board by a majority decision, on May 8, 1952, found for appellee and that on May 15, 1951, the latter was an employee of appellant at an average weekly wage in excess of $45; that appellee was on said latter mentioned date operating a milling machine for appellant and 'was compelled to inhale different kinds of dust which permeated the air in the room in which plaintiff worked, all of which caused inflammation in plaintiff's lungs and bronchial tubes, resulting in an occupational disease'. The Board further found 'that the temporary total disability which plaintiff is now suffering and which he has been suffering since the 15th day of May, 1951, is due to a disease known as bronchiectasis, which was an incident of an occupational disease, which is a direct causal connection between the condition under which the plaintiff performed his work and the disease followed as a natural incident of the work as a result of exposure occasioned by the nature of plaintiff's employment'. Award of compensation was made to appellee.

Appellant challenges said finding and award of the Board as being contrary to law and specifies two grounds, viz.: (1) that it is not supported by any evidence, and (2) it does not rest upon a substantial factual foundation. The basis of this challenge is appellant's contention that if the appellee suffers from bronchiectasis, the disease is not an occupational disease within the purview of the Occupational Diseases Act, because it is general to the public and one to which the public is exposed outside of any employment, and, further, that if the breathing of such dust did irritate appellee's lungs 'to the extent that an inflammation developed, to which his bronchiectasis was incidental, such inflammation itself was a condition or disease to which the general public, irrespective of any employment, is exposed'. Appellant further says '* * * not a scintilla of testimony was presented that either the lung disease or the primary inflammation, if either existed, met with the statutory definition of an occupational disease, since each was by abundant testimony defined as an ordinary disease or condition of life to which the general public is exposed outside of any employment. * * *', and appellant then submits its interpretation of the Occupational Diseases Act to the effect that the disease must be incidental to the 'character of the business' and must not result from a 'hazard to which workmen would be exposed outside such employment'.

The evidence most favorable to appellee given at the hearing before the full Board, while not as clear, cogent and satisfactory in some respects as might be desired, sufficiently shows by direct evidence and the reasonable inferences permissible therefrom, that the appellee was a man of 36 years of age, in good health and without any previous serious illnesses, other than an appendectomy, and that following a pre-employment examination by appellant's physician, was employed by appellant in December, 1950, as the operator of a milling machine; that on or about March 4, 1951 appellee was assigned to the operation of two large milling machines; these machines were each equipped with two cutting wheels and were used to cut off end portions of cast iron bars weighing variously from 2 to 60 pounds; appellee's position was between the two machines, which were from four to six feet apart, and his work consisted of placing and setting a cast iron bar in one machine and while it was cutting that bar, to pick up, place and set a bar in the second machine and by the time this latter operation was completed, the cutting of the first bar was finished and while the second machine was cutting the second bar the appellee would pick up and place another bar in the first machine, and so on during his entire working time; this work was strenuous and required appellee to be active and to breathe deeply; the cast iron bars were painted prior to the cutting with a paint composed of 94 per cent iron oxide and 6 per cent zinc chromate which was subjected to heat resulting from the cutting process; there was testimony to the effect that heat applied to the paint would cause the zinc chromate to break down into various oxides, one of which was chromate oxide, which could be very irritating to the lung tissues.

The room in which said milling machines were located housed other machines also, all of which, including appellee's machines, were dry grinders using no wet or oil solutions; these machines were not equipped with blowers; there were two windows overhead which would not stay open, and a stationary fan over the aisle which could not be operated because of objections by other workmen that it made too much draft; there was no ventilation near appellee; as a result of the running of these machines and the cutting of the cast iron, fogs of dust, laden with iron particles constantly filled the working space, collected around the head and person of appellee, settled upon the machines, the floor, and upon and into the tool boxes, and turned the color of appellee's underclothing to a 'dark brown'.

The appellee had never had colds or lung trouble prior to working for appellant and was told by appellant's examining physician at the pre-employment examination that he was 'all right' and that he should 'go on to work'; that as a result of working in and breathing the said dust, appellee's eyes became swollen and the eyelids sore; he first noticed 'a running nose and headaches', then shortness of breath, dizzy spells, weakness upon exertion, numbness of legs and arms, sleeplessness, sharp pains in the left side of chest, swelling of face, throat, legs and arms, frequent coughing, and sometimes coughing up 'rusty material', mucous 'real brown' in color and occasionally blood, and spitting up of mucous in quantities as high as 'one to one and a half cups every twenty-four hours'; that for a considerable time appellee had difficulty sleeping in a bed but sat propped up with cushions; appellee lost from 25 to 30 pounds in weight; that for two months after quitting work for appellant, appellee's underclothing and bed sheets 'would be stained a dark brown, as iron rust'; that appellee is unable to work in his present condition.

Another employee who worked for appellant on a grinder during the same period as appellee but in another department, became affected with the dust, coughed up quantities of it, and quit his employment with appellant because, as he said, he 'found out what it would do for anybody'.

Several physicians testified in the case and the general effect of their testimony is that appellee was suffering from a disease known as bronchiectasis and that such is a disease which the general public could develop if the conditions were sufficient; that the appellee was running a temperature, his blood count was 24% below normal, and his heart inclined to function improperly; that the dust breathed by appellee as his work for appellant was contaminated with an irritant and had an irritating effect upon his respiratory tract which was contributed to by exposure to chromate oxides; that appellee had a pulmonary infection, arising out of and in the course of his employment; that the irritation resulting from such contaminated dust in his place of employment was sufficient to and did cause inflammation of appellee's lungs, and that such inflammation is a disease to which the bronchiectasis was incidental; that an operative removal of the diseased area is required for the cure of appellee.

The Indiana Workmen's Occupational Diseases Act was enacted in 1937 and put in force on June 7, 1937. It is found in Acts 1937, ch. 69, Sections 1 to 32 inclusive, and Burns' Indiana Statutes, Anno., 1952 Replacement, Sections 40-2201 to 40-2231, inclusive. It would serve no good purpose to here set forth in full, in haec verba, Section 6 of the Occupational Diseases Act. Suffice it to say that said Section 6 of the Act is divided into two clauses or subdivisions. Subd. (a) defines 'occupational disease' as one 'arising out of and in the course of the employment.' It then excludes ordinary diseases to which the general public is exposed outside of the employment 'except' such as follow as an incident of occupational disease as in said section defined. (Our emphasis). Subd. (b) then delineates the requisites necessary to establish a disease as occupational. A short reference to the antecedent history culminating in the adoption of the Act will serve to shed some light upon the true objects and intents in the passage thereof.

Prior to the enactment of this legislation it was difficult to find coverage of ailments and disease under the Workmen's Compensation Law because of the requirement of establishing definite dates and circumstances to support accident and injury cases; further, where relief for disease disability was sought under the Indiana Employers' Liability Law, many obstacles were encountered to the satisfactory proof of the negligence of the employer. Our courts were constantly buffeted with appealed claims for diseases arising out of the employment where the elements of accidental injury were not present. The efforts of our courts to cope with these unfortunate situations naturally resulted in the appearance of judicial inconsistencies attributable, no doubt, to the ever varying factual situations. See, for examples Standard Cabinet...

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7 cases
  • McSpadden v. Big Ben Coal Co.
    • United States
    • Iowa Supreme Court
    • 23 Enero 1980
    ...provided that the claimant's particular disease arose from the peculiar hazards of his employment. Cf. Schwitzer-Cummins Co. v. Hacker, 123 Ind.App. 674, 112 N.E.2d 221 (1953) (bronchiectasis caused by inhalation of iron dust held occupational disease, defined, in part, in Ind.Code § 22-3-7......
  • Baker v. Westinghouse Elec. Corp.
    • United States
    • Indiana Supreme Court
    • 23 Junio 1994
    ...incident of the work" might to some be thought elastic enough for the task. This point is well made in Schwitzer-Cummins Co. v. Hacker (1953), 123 Ind.App. 674, 112 N.E.2d 221, where the court explained that an occupational disease is one caused by the particular conditions of an employee's......
  • Collins v. Neevel Luggage Mfg. Co., 25632
    • United States
    • Missouri Court of Appeals
    • 3 Abril 1972
    ...593, 596(3), where the holding in Allis-Chalmers was reaffirmed.) The Appellate Court of Indiana, in Banc, in Schwitzer-Cummins Co. v. Hacker, 123 Ind.App. 674, 112 N.E.2d 221, construed its Occupational Disease Act, a statute identically worded to both our own and that of Illinois. Claim w......
  • Mutual Chemical Co. v. Thurston, 154
    • United States
    • Maryland Court of Appeals
    • 17 Marzo 1960
    ...69 Ohio App. 169, 41 N.E.2d 433, Ramsey v. Bendix Aviation Corp., 1946, 314 Mich. 169, 22 N.W.2d 259; and Schwitzer-Cummins Co. v. Hacker, 1953, 123 Ind.App. 674, 112 N.E.2d 221--cited by the claimant, although not directly in point in that they involve different factual situations and stat......
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