Smith v. Harbison-Walker Refractories Co.

• Citation: 100 S.W.2d 909,340 Mo. 389
• Decision Date: 05 January 1937
• Docket Number: 34329
• Parties: Sadie Smith, Executrix of the Estate of Henry Irvin Smith, v. The Harbison-Walker Refractories Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

100 S.W.2d 909

340 Mo. 389

Sadie Smith, Executrix of the Estate of Henry Irvin Smith, v. The Harbison-Walker Refractories Company, a Corporation, Appellant

No. 34329

Supreme Court of Missouri

January 5, 1937

Appeal from Audrain Circuit Court; Hon. W. C. Hughes Judge.

Reversed and remanded.

F H. Atwood and Hollingsworth & Francis for appellant.

(1) The second amended petition constituted a departure and a variance from the original and first amended petitions. Defendant's motions to strike were erroneously overruled. Jacobs v. Railroad Co., 204 S.W. 954; Scovill v Glasner, 79 Mo. 449; Arrowood v. Delaney's Estate, 295 S.W. 522; Liese v. Meyer, 143 Mo. 547; Ross v. Land Co., 162 Mo. 317; Purdy v. Pfaff, 104 Mo.App. 331. (2) The court erred in submitting this case to the jury for the reasons: (a) There was no proof either that the defendant was engaged in any work or process that produced occupational disease nor that the disease which plaintiff claimed to have contracted was an occupational disease. Wolf v. Mallinckrodt Chemical Works, 81 S.W.2d 323; Lovell v. Williams Bros., 50 S.W.2d 713; Industrial Commission v. Roth, 120 N.E. 172, 6 A. L. R. 1463; Maupin v. Am. Cigar Co., 84 S.W.2d 218. (b) There was no proof that defendant knew, or could have known, that the dust generated at its plant was disease producing. Kolbow v. Haynes-Langenburg Mfg. Co., 3 S.W.2d 226; St. Joseph Lead Co. v. Jones, 70 F.2d 475; Wolf v. Mallinckrodt Chemical Works, 81 S.W.2d 333; Maupin v. American Cigar Co., 84 S.W.2d 218. (c) There was no proof that there was any device or means known to be more effective than the devices and means used by defendant to prevent inhalation of dust. Pevesdorf v. Union E. L. & P. Co., 64 S.W.2d 947; B. & O. Ry. Co. v. Groeger, 45 S.Ct. 149; Penn. Pulverizing Co. v. Butler, 61 F.2d 311. (3) Plaintiff's Instruction 2 was erroneous in that: (a) It assumed there was evidence that plaintiff was engaged in an occupation which might produce disease peculiar to the work or process being done. Cases under subsections (a) and (b), Point (2). (b) It gave the jury a roving commission to determine what constituted "approved and effective devices" within the meaning of Section 13252. Wolf v. Mallinckrodt Chemical Works, 81 S.W.2d 333; Pevesdorf v. Union E. L. & P. Co., 64 S.W.2d 948; Plank v. Brown Petroleum Co., 61 S.W.2d 332; Parks v. Libbey-Owens-Ford Glass Co., 195 N.E. 616; Boshuizen v. Thompson-Taylor Co., 195 N.E. 625. (4) Plaintiff's Instruction 6-A was erroneous in that: (a) The law only required defendant to adopt such devices as were the ordinary general and customary devices in use at that time; whereas, said instruction fixed defendant's liability as an insurer. Pevesdorf v. Union E. L. & P. Co., 64 S.W.2d 948. (b) Said instruction omitted the requirement that the defendant must, or could have, known that the dust generated at its plant was dangerous and that defendant must have known, or could have known, that the grinder and hood were inadequate, and that defendant knew, or could have known, that there were other devices more effective. Wolf v. Mallinckrodt Chemical Works, 81 S.W.2d 323. (c) There was no evidence of any means of ventilation more adequate than the means used by defendant. Wolf v. Mallinckrodt Chemical Works, 81 S.W.2d 323. (d) There was no evidence that any respirator was made or marketed that was effective. Pevesdorf v. Union E. L. & P. Co., 64 S.W.2d 948; Wolf v. Mallinckrodt Chemical Works, 81 S.W.2d 323. (e) It gave the jury a roving commission to determine the means and methods of ventilation required of defendant. Pevesdorf v. Union E. L. & P. Co., 64 S.W.2d 947; Degonia v. Ry. Co., 224 Mo. 564; State ex rel. Cent. Coal & Coke Co. v. Ellison, 270 Mo. 645; Gandy v. Ry. Co., 44 S.W.2d 634. (f) It was calculated to lead the jury into awarding a verdict in favor of plaintiff if defendant failed to furnish respirators or failed to post notices of known dangers or failed to ventilate the room, regardless of whether such failures were the proximate cause of plaintiff's injuries. Pevesdorf v. Union E. L. & P. Co., 64 S.W.2d 946. (5) Plaintiff's Instruction 6 was erroneous in that: (a) There was no evidence authorizing a jury to find that the defendant knew, or could have known, that there was danger to plaintiff's health in doing the work required of him or that defendant knew, or could have known, of any means or device to prevent his injuries. Cases under subsections (b) and (c), Point (2). (b) It permitted the jury to determine that failure to post notices of known dangers was the proximate cause of plaintiff's injuries without any evidence to support such a finding. Friegge v. Brooks, 70 S.W.2d 995; State v. Melton, 33 S.W.2d 894; Larsen v. Webb, 58 S.W.2d 967. (6) Plaintiff's Instruction 4 was erroneous in that it authorized a verdict for plaintiff if defendant failed to provide plaintiff with an adequate respirator, there being no evidence that there was an adequate respirator on the market or that defendant could have known of such a respirator. Wolf v. Mallinckrodt Chemical Works, 81 S.W.2d 323; Pevesdorf v. Union El. P. & L. Co., 64 S.W.2d 947. (7) Plaintiff's Instruction 3 was erroneous in authorizing the jury to return a verdict in favor of plaintiff if defendant failed to ventilate the enclosure whereat plaintiff worked so as to render harmless all dust as near as could be, for the reasons: (a) It assumed that defendant knew, or could have known, that the dust generated at the grinders was hurtful and harmful. (b) It assumed that defendant knew, or could have known, of means of ventilating the room. (c) It gave the jury a roving commission to determine how and in what manner said room could be so ventilated. (8) Plaintiff's Instruction 1 was erroneous in that it made defendant an insurer of plaintiff's safety contrary to the authorities heretofore cited.

A. C. Whitson and S. D. Flanagan for respondent.

(1) Plaintiff's second amended petition was not a departure from his prior petitions. His cause of action was not changed, and there was no new cause of action grafted on the stem of the original proceeding. The same evidence would support all the petitions, the same measure of damages would apply to all, and a recovery under the original petition would bar a recovery under the second amended petition. There was, therefore, no departure. Wright v. Groom, 246 Mo. 163, 151 S.W. 465; Jacobs v. Railroad Co., 204 S.W. 956; Walker v. Railroad Co., 193 Mo. 477, 92 S.W. 83; Rippee v. Ry. Co., 154 Mo. 364, 55 S.W 438; Schwab Clothing Co. v. Railroad Co., 71 Mo.App. 241; Stewart & Jackson v. Van Horne, 91 Mo.App. 656; Hudson v. Railroad Co., 173 Mo.App. 631, 159 S.W. 9; Bick v. Vaughn, 140 Mo.App. 595, 120 S.W. 618; Jensen v. Hinberks, 92 S.W.2d 109; Hughes v. Abraham Lincoln Life Ins. Co., 84 S.W.2d 973. Even if there was a departure defendant waived any objection thereto by pleading to the second amended petition and by going to trial thereon. Cain v. Cap Sheaf Bread Co., 57 S.W.2d 763; Ingwerson v. Ry. Co., 205 Mo. 336, 103 S.W. 1143; Grymes v. Mill & Lbr. Co., 11 Mo.App. 362, 85 S.W. 946; Sanguinett v. Webster, 153 Mo. 367, 54 S.W. 563; Liese v. Meyer, 143 Mo. 556, 45 S.W. 282. If defendant could not be ready for trial by reason of the amendment, it should have asked for a continuance by filing an affidavit of surprise, and having failed to do so, it waived any objection that the allowance of the amendment worked a surprise on it. Sec. 941, R. S. 1929; Kuh v. Garvin, 28 S.W. 847, 125 Mo. 547; Grymes v. Lumber Co., 85 S.W. 946, 111 Mo.App. 358. (2) The court did not err in submitting this case to the jury as: (a) There was ample proof that the defendant was engaged in a work or process that produced illness and disease peculiar and incident thereto. Plank v. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328. (b) There was ample evidence to establish that defendant knew or should have known that the dusts generated at its grinders were harmful. Defendant will be presumed to have knowledge of the dangers inherent in the dust generated under the rule that the master is bound to take into account the properties of such substances as he employs for the purposes of his business, even though it is scientific information if it be readily attainable. Wolf v. Mallinckrodt Chemical Works, 81 S.W.2d 333, 336 Mo. 746; Mooney v. Monark Gasoline & Oil Co., 317 Mo. 1255, 298 S.W. 69; Hysell v. Swift & Co., 78 Mo.App. 44; Thompson v. United Laboratories Co., 221 Mass. 280, 108 N.E. 1044; Fritz v. Elk Tannery Co., 258 Pa. 180, 101 A. 158; Harvey v. Welch, 163 A. 417; Adams v. Refrigerator Co., 160 Mich. 593, 125 N.W. 725, 27 L. R. A. (N. S.) 953. (c) There was ample proof from defendant's own witnesses that there were efficient and effective respirators in general use, which defendant could have provided for plaintiff. However, it was not necessary for plaintiff to show that there was any device or means known to be more effective than the device used by defendant, as plaintiff made out a case by showing that defendant was carrying on a work or process which was likely to produce illness or disease peculiar or incident thereto, and that it failed to provide adequate devices, means and methods to prevent such illness and diseases. Boll v. Condie-Bray Glass & Paint Co., 321 Mo. 92, 11 S.W.2d 48. Defendant's duty to furnish a respirator was mandatory under the statute and it could not excuse its failure to provide a respirator by showing that it had provided another device, which in its opinion was as good or better. Millsap v. Beggs, 122 Mo.App. 10, 97 S.W. 956; May v. Belleville Enameling Stamping Co., 247 Ill.App. 281. (3) Plaintiff's Instruction 2 was not erroneous. (a) There was ample evidence that plaintiff was engaged in an...