Spence v. Bath Iron Works Corp...

• Citation: 37 A.2d 174
• Parties: SPENCE v. BATH IRON WORKS CORPORATION.
• Decision Date: 13 April 1944
• Court: Supreme Judicial Court of Maine (US)

37 A.2d 174

SPENCE

v.BATH IRON WORKS CORPORATION.

Supreme Judicial Court of Maine.

April 13, 1944.

Exceptions from Superior Court, Sagadahoc County.

Action by Reginald C. Spence against the Bath Iron Works Corporation to recover damages resulting from an occupational disease. Verdict for plaintiff, and defendant moves for a new trial and brings exceptions.

Exceptions sustained.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, MURCHIE, and CHAPMAN, JJ.

Edward W. Bridgham and Harold J. Rubin, both of Bath, for plaintiff.

William B. Mahoney, of Portland, and John P. Carey, of Bath, for defendant.

MURCHIE, Justice.

The issues here presented for consideration arise under three exceptions to rulings made by the justice who presided in the trial court, duly noted by the defendant and allowed on its behalf, and under a general motion for new trial based on the usual grounds, including allegation that the damage award of $2,500 is excessive.

The first two exceptions relate to the admission, over objection, of evidence intended to prove that the defendant knew, or should have known, that the plaintiff was required to handle materials of a dangerous or deleterious nature in his work, and to establish negligence on its part in failing to warn the plaintiff of the hazard or to provide safeguards to protect him from the danger of infection necessarily incidental to that work. There can be no doubt on the record that the jury would have been justified in finding that the plaintiff became infected with a skin disease, which the dermatologists call halacne or halowax acne, as the direct result of handling and working upon degaussing cables in defendant's shipyard.

The defendant is an assenting employer under the Workmen's Compensation Act, R.S.1930, Chap. 55, but the damage for which recovery is sought results from an occupational disease rather than from accidental means, and compensation therefor under the terms of that act is not available. Dillingham's Case, 127 Me. 245, 142 A. 865.

No case in this jurisdiction heretofore has raised the issue whether an employee may recover from his employer in a common law action for damage suffered from an occupational disease contracted in the course of his employment but the great weight of authority permits such recovery on proof that the employer knew, or should have known, that the hazard of disease existed in the employee's work in a manner neither apparent nor known to him, and that the employer neither gave him warning of the fact nor furnished recognized safeguards against the risk. See the annotation in 105 A.L.R. commencing at page 80, and particularly Thompson v. United Laboratories Co., 221 Mass. 276, 108 N.E. 1042. The basis of recovery, in Massachusetts as generally in those jurisdictions where it is permitted, rests upon the application of principles thoroughly recognized and established in this court.

Ample authority supports the principles that an employer, although not an insurer of his employees' safety, must use due care to furnish a reasonably safe place of work, Elliott v. Sawyer, 107 Me. 195, 77 A. 782; Sheaf v. Huff, 119 Me. 469, 111 A. 755; Morey v. Maine Cent. R. Co., 127 Me. 190, 142 A. 585; and that when a hazard known to the employer and not to the employee is involved the duty rests on the former to warn the latter of the fact. Welch v. Bath Iron Works, 98 Me. 361, 57 A. 88; Dirken v. Great Northern Paper Co., 110 Me. 374, 86 A. 320, Ann.Cas.1914D, 396; Kimball v. Clark, 133 Me. 263, 177 A. 183. There seems to be no sound basis for distinction either between damage suffered by a particular happening or event and that which flows from impairment of health over an interval of time, or between a defect in machinery, appliances or a place of work and a dangerous quality in materials or instrumentalities required to be handled, and we would not hesitate to permit recovery for an occupational disease on proper proof that an employer had negligently failed to warn of a risk of disease known to him which was neither apparent nor known to his employee. We do not reach this issue in the instant case presently because the verdict must be set aside on the exceptions. It is clear that evidence improperly admitted may have been the basis for the factual finding of negligence on the part of the employer.

The evidence discloses that the plaintiff entered the employ of the defendant in April 1942, that he worked a short time wiring guns and was then transferred to a crew engaged in installing degaussing equipment. The dates are not all definitely set forth, but proof is ample that infection developed after the plaintiff had been engaged in such work less than two months, and that he appeared at the defendant's First Aid Room on June 27th, 1942. Two fellow employees engaged in the same kind of work suffered like infections at later times, and after longer periods. One declared that he contracted the rash 5 or 6 months after he commenced to handle degaussing cables, but gave no date except that he entered the employ of the defendant in March 1942. Another said that it was “two months anyway” aftter he began to work on the cables before he was bothered with the infection, and that he first noticed it in March 1943.

During all the time pertinent to the present inquiry the defendant was engaged in the construction of naval craft for the United States Government, on which it was required to install the equipment in question, the exact nature and operation of which are not material. Armored cables and terminal boxes were involved, and plaintiff's...