Smith v. Stanolind Pipe Line Co.
| Decision Date | 02 July 1945 |
| Docket Number | 39222 |
| Parties | Sherman L. Smith v. Stanolind Pipe Line Company, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied September 4, 1945.
Appeal from Carroll Circuit Court; Hon. James S. Rooney Judge.
Affirmed.
Donald Campbell, T. W. Arrington and R. R. Brewster Jr., for appellant; Brewster, Brewster & Brewster of counsel.
(1) The court erred in overruling defendant's demurrer because there was no proof that fibrosis of the lungs and enlargement of the heart were diseases peculiar and incident to pipe line employees engaged in the transportation of sour crude oil, therefore there could be no recovery on the theory that plaintiff sustained an occupational disease. Secs. 10211, 10212, R.S. 1939; Wolf v. Mallinckrodt Chemical Works, 336 Mo. 746, 81 S.W.2d 323; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Downey v. Kansas City Gas Co., 338 Mo. 803, 92 S.W.2d 580; State ex rel. Fisher Body v. Shain, 345 Mo. 962, 137 S.W.2d 546; Lovell v. Williams Bros., 50 S.W.2d 710; Maupin v. American Cigar Co., 229 Mo.App. 782, 84 S.W.2d 218; Industrial Commission v. Roth, 98 Ohio St. 34, 120 N.E. 172. (2) The court erred in overruling defendant's demurrer because plaintiff's injuries, if any, were the direct result of an accident or series of accidents; and, since both parties had elected to come under and be governed by the Workmen's Compensation Law, the court below was entirely without jurisdiction to entertain this cause. Sec. 3695, R.S. 1939; Downey v. Kansas City Gas Co., 338 Mo. 803, 92 S.W.2d 580; McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149; Vogt v. Ford Motor Co., 138 S.W.2d 684; Lovell v. Williams Bros., Inc., 50 S.W.2d 710; Tindall v. Marshall Auto Supply Co., 348 Mo. 1189, 159 S.W.2d 302; Rinehart v. Stamper, 227 Mo.App. 653, 55 S.W.2d 729; Seattle Can Co. v. Department of Labor, 256 P. 739. (3) The court erred in overruling defendant's demurrer because there was no proof that the sour crude oil transported by the defendant contained or emitted hydrogen sulphide gas in harmful quantities or concentrations sufficient to produce the diseases of fibrosis of the lungs and enlargement of the heart. Sec. 10212, R.S. 1939. (4) The court erred in overruling the defendant's demurrer because there was no proof that any device, means or method for the prevention of the inhalation of hydrogen sulphide gas was used or had been recognized as necessary to use by the pipe line industry or in similar industries, under similar conditions, and in similar places. Sec. 10211, R.S. 1939. Smith v. Harbison Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Wommack v. Orr, 176 S.W.2d 477; Coin v. Lounge Co., 222 Mo. 506, 121 S.W. 1; Reichmuth v. Adler, 348 Mo. 812, 155 S.W.2d 181; McClaren v. G.S. Robbins & Co., 349 Mo. 653, 162 S.W.2d 856. (5) The court erred in giving plaintiff's Instruction I because it was misleading and confusing in that it permitted a recovery upon an insufficient finding, and permitted a recovery based upon the defendant's failure to provide devices, means or methods concerning which there was no evidence. Secs. 10211, 10212, R.S. 1939; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909. (6) The evidence fails to establish any basis for the verdict and judgment thereon. Not only did the plaintiff fail to prove by a preponderance of testimony that the fibrotic condition of his lungs was caused by hydrogen sulphide gas, the evidence was to the contrary.
W. A. Franken, D. D. Thomas, Jr., Crawford & Harlan and George H. Miller for respondent.
(1) The court properly overruled defendant's demurrer because there was ample evidence and substantial proof that plaintiff was suffering from fibrosis of the lungs and enlargement of the heart or cardiac hypertrophy and that said diseases were the direct result of plaintiff's work. Upon this proof the question of whether or not plaintiff was suffering from an occupational disease, was purely a question for the jury. Plank v. R.J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Evans v. Chevrolet Motor Co., 232 Mo.App. 927, 105 S.W.2d 1081; Langeneckert v. St. Louis Sulphur & Chemical Co., 65 S.W.2d 648; St. Joseph Lead Co. v. Jones, 70 F.2d 475; Wagner Electric Corp. v. Snowden, 38 F.2d 599; Argonaut Mining Co., Ltd., v. Industrial Accident Comm., 70 P.2d 216; Ford Motor Co. v. Brady, 73 F.2d 248; Wommack v. Orr, 176 S.W.2d 477. (2) The court properly overruled defendant's demurrer because plaintiff's injuries were the direct result of the slow and chronic absorption of hydrogen sulphide gas and were not the result of an accident, and consequently not within the jurisdiction of the Workmen's Compensation Commission. Evans v. Chevrolet Motor Co., 232 Mo.App. 927, 105 S.W.2d 1081; Plank v. R.J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Langeneckert v. St. Louis Sulphur & Chemical Co., 65 S.W.2d 648; United States Gypsum Co. v. McMichael, 293 P. 773; Martin v. Tubize-Chatillon Corp., 17 S.E.2d 915; McIntyre v. E.J. Lavino & Co., 25 A.2d 163; Barron v. Texas Employers' Ins. Assn., 36 S.W.2d 464; Aetna Life Ins. Co. v. Graham, 284 S.W. 931; Casualty Underwriters v. Flores, 125 S.W.2d 371; Black v. Creston Auto Co., 281 N.W. 189. (3) There was substantial evidence that the sour crude oil transported by defendant contained and emitted hydrogen sulphide gas in harmful quantities and sufficient to produce plaintiff's injuries. Langeneckert v. St. Louis Sulphur & Chemical Co., 65 S.W.2d 648; Wagner Electric Corp. v. Snowden, 38 F.2d 599. (4) The court did not err in overruling defendant's demurrer to the evidence as there was substantial evidence that certain devices, means or methods for the prevention of the inhalation of hydrogen sulphide gas was used or had been recognized as necessary to use by the pipe line industry under similar conditions. Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Grange v. Chicago & E.I. Ry. Co., 334 Mo. 1040, 69 S.W.2d 955; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Smith v. Schumacker, 85 P.2d 967. (5) The court did not err in giving plaintiff's Instruction I. It, together with Instruction II, required the jury to find all the elements necessary for a recovery, based upon the pleadings and proof. Sec. 10211, R.S. 1939; Rishel v. Kansas City Pub. Serv. Co., 129 S.W.2d 851; Macklin v. Fogel Const. Co., 326 Mo. 38, 318 S.W.2d 14; McDonald v. Kansas City Gas Co., 322 Mo. 356, 59 S.W.2d 37; Bales v. Kansas City Pub. Serv. Co., 328 Mo. 171, 40 S.W.2d 665; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Schulte v. Carmichael-Cryder Co., 282 S.W. 181; Plank v. R.F. Brown Petroleum Co., 61 S.W.2d 328; Schneider v. Dubinsky Realty Co., 344 Mo. 654, 127 S.W.2d 691; Null v. Stewart, 78 S.W.2d 75. (6) The preponderance of testimony was to the effect that the fibrotic condition of plaintiff's lungs was the direct result of the inhalation of hydrogen sulphide gas. The demurrer was properly overruled.
Dalton, C. Bradley and Van Osdol, CC., concur.
Action for damages for personal injuries sustained and diseases contracted by plaintiff on account of alleged negligence of defendant. The petition charged a violation of the several occupational disease statutes and alleged that, as a result of such violation, plaintiff contracted fibrosis of the lungs and enlargement of the heart from the inhalation of harmful quantities of hydrogen sulphide gas. The cause was submitted under Sec. 10211, R.S. 1939, requiring employers "carrying on any work, trade or process . . . which subjects the employee to the danger of illness or disease incident to such work, trade or process, to which employees are exposed" to "adopt and provide approved and effective devices, means or methods" for the protection of such employees and "for the prevention of such industrial or occupational diseases as are incident to such work, trade or process." Verdict and judgment were for plaintiff in the sum of $ 18,000, and defendant has appealed.
In view of the issues presented, we shall state the evidence most favorable to plaintiff and omit defendant's evidence, unless it aids the plaintiff's case.
Defendant operated a system of pipe lines for transporting sweet crude petroleum from Texas oil fields to Indiana refineries. The system, as it extended through Lafayette and Carroll counties, consisted of four parallel lines of eight, ten and twelve inch pipe, laid 2 to 3 feet below the surface and extending through certain gatehouses and pumping stations. In 1932 defendant began using the 8 inch line for the transportation of sour crude oil from Winkler County, Texas. This oil was collected in storage tanks by other companies or was piped directly from oil wells to Ranger, Texas, where it was turned over to defendant for transportation. The distinguishing feature of this sour crude oil was that it contained hydrogen sulphide.
Hydrogen sulphide is a poisonous, toxic, irritant gas, having an obnoxious odor and, when the concentration of the gas is sufficiently high, it is definitely lethal. "There isn't a more dangerous gas." The gas is heavier than air and accumulates in low places. The amount of this gas carried in solution in sour crude oil varies, being dependent upon the particular wells from which the oil comes, the time of storage and other factors. The gas is given off slowly by the sour crude oil when there is a leak in the pipe line or when the oil is otherwise released from confinement. Plaintiff offered no direct evidence as to the extent of the concentration of hydrogen sulphide gas at any particular time in the sour crude oil being transported by defendant, or the amount of the gas given off at any time or place. Plaintiff...
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