St. Joseph Lead Co. v. Jones

• Decision Date: 08 May 1934
• Docket Number: No. 9793.,9793.
• Citation: 70 F.2d 475
• Parties: ST. JOSEPH LEAD CO. v. JONES.
• Court: U.S. Court of Appeals — Eighth Circuit

70 F.2d 475 (1934)

ST. JOSEPH LEAD CO. v. JONES.

No. 9793.

Circuit Court of Appeals, Eighth Circuit.

April 9, 1934.

Rehearing Denied May 8, 1934.

Daniel N. Kirby, of St. Louis, Mo. (Ethan A. H. Shepley and Everett Paul Griffin, both of St. Louis, Mo., and Parkhurst Sleeth, of Bonne Terre, Mo., on the brief), for appellant.

S. D. Flanagan, of St. Louis, Mo. (Taylor Smith, of Farmington, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

This is an appeal from a judgment for personal injuries awarded to appellee because of the alleged negligence of appellant in failing to furnish a safe place to work, and in failing to observe the provisions of the Missouri act requiring employers to provide protection to employees from diseases. Rev. St. Mo. 1929, §§ 13252-13266 (Mo. St. Ann. §§ 13252-13266, pp. 4803-4809).

Appellant, at Desloge, Mo., operates a water softening plant, in which it was necessary to put powdered lime, sulphate of iron, and soda ash into tanks of water for the purpose of softening the water for use in the boilers of appellant's plant. The lime was poured into the tanks from 50-pound paper sacks. The sulphate of iron and soda ash were poured from metal receptacles, and in smaller quantities. Appellant claims that, at each operation of charging, it was the duty of the operator thus employed to pour into one of the tanks about 750 pounds of the lime. This was carried to the tank room in paper sacks, containing 50 pounds; one end of the sack was cut off, and the contents were poured into the tank from a position raised above it. Similarly, 220 to 230 pounds of the iron were poured into another tank, and about 86 pounds of soda ash into a third tank. This work was said to consume from forty minutes to one and one-half hours.

Although there was some height to the ceiling, and window ventilation in the building in which the tanks were situated, and although there was water in the tanks and the pouring was conducted as slowly as practicable, nevertheless dust arose in such quantities, particularly from the lime, as to cover the clothing of the employee and to enter the nasal passages to such extent as to produce burning and irritation.

Appellee testifies that he was employed by appellant November 1, 1930. He appears to have acted in the capacity of an assistant engineer in addition to his work in the water softening plant. In this latter work he had assistants at times, but it appears from the testimony that, during this employment, he was substantially in charge of the "day shift." The exact number of days on which he worked in charging the tanks is in dispute, but it sufficiently appears that, from the start, the dust had a very irritating effect, his lungs became sore and painful, and a cough developed resulting in the spitting up of blood. About the end of November, 1930, he notified his foreman that the lime dust was "killing" him, and thereafter he did no more work in the water softening plant. His condition grew worse, and he left the company December 10, 1930. Shortly thereafter he was confined to his bed for a period of seven or eight weeks, suffering from shortness of breath, soreness in the chest, and what he describes as a terrible cough. His physician, Dr. Watkins, diagnosed his trouble as a lung abscess. His temperature ran high, and an exploratory puncture of his chest found pus. To relieve this, the physician testifies: "I tapped him with a small syringe and found a fluid in his chest, that was rather a thick fluid; not as thick as pus, a true empyema. I tapped his chest six times thereafter at intervals of a week or ten days, getting out about one and a half quarts at each puncture, except the last time there was only a pint. I think it came from an inflammation of the pleural membrane of the lung. That is a secondary thing to a lung abscess; it is a complication of a lung abscess."

In the purulent exudation of secretion of the lung abscess the microscope showed many staphylococci, which are pus-producing bacilli. The testimony of the physician was that the lime dust, which entered the bronchi through the nasal passages, produced irritation, resulting in lesion. The staphylococcus, always present in the human system, lodged in this lesion and produced the abscess. At the trial, substantially two years after his initial illness, his condition is thus described by Dr. Watkins: "My conclusion was that he had abscess of the lung, and that is my opinion now. I have seen him every second week since then. He was quite a time getting so that he could get around. He still has an expectoration. The left chest is larger than the right chest; the right chest lags on respiration. He has a dullness covering one-half of his right lung, and he still has trouble in his chest, which is still an uncured abscess, although smaller than at the time when he was so desperately ill. He is not able to do physical labor. I don't think he will ever be. I think he will need frequent medical attention."

Dr. Ernst, a physician introduced by appellee, testified: "Any dust that causes an irritant may cause an abscess of the lung. Any dust; lime dust will cause an irritation. The dust fills up the small space in the lung, and then the lung revolts against the irritation and attempts to expel the dust, and in doing so may injure the lung, or weaken the lung, and an abscess may result."

Dr. McBratney, physician and surgeon, was asked, based upon his examination, his X-ray findings, and upon the history of the case stated to him in the form of a hypothetical question, to give his opinion, with reasonable certainty as to the cause of the condition he found appellee suffering from at the time of his examination. He said: "I would say that condition, primary condition started by the dust, would be an irritation of the lung, which was followed by infection, easily setting up the situation that I found on my examination."

Error is assigned to the action of the court in overruling appellant's demurrer to the petition. That demurrer was based upon the contentions that the entire Missouri act, requiring employers to provide protection to employees from diseases, is unconstitutional, in that it deprives appellant of its property without due process, takes private property for public use without compensation, and denies to appellant the equal protection of the laws; further, that section 13253 (Mo. St. Ann. § 13253, p. 4804) thereof enumerates certain poisonous chemicals, thereby excluding powdered lime dust, soda ash, or sulphate of iron from the list of dangerous elements or compounds because not mentioned, and finally that the Workmen's Compensation Commission has jurisdiction of the negligence alleged.

It is sufficient to point out that the demurrer to the petition was properly overruled so far as the challenge to the Missouri statute is concerned, because it also charged commonlaw negligence in the failure...