Steiner v. Spencer
| Decision Date | 11 May 1940 |
| Citation | 145 S.W.2d 547,24 Tenn.App. 389 |
| Parties | STEINER et al. v. SPENCER. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court December 14, 1940.
Appeal in Error from Circuit Court, Davidson County; A. B. Neil Judge.
Action by H. L. Spencer against Morris Steiner and another, doing business as Cumberland Battery Company, for injuries arising from an occupational or industrial disease contracted while in the employ of the defendant. From a judgment for the plaintiff, defendants appeal in error.
Reversed and remanded.
Trabue Hume, Davis & Gale and J. T. McCary, all of Nashville, for plaintiffs in error Steiner and others.
Jay G Stephenson and W. Barry Pendleton, both of Nashville, for defendant in error Spencer.
This suit was instituted by the plaintiff, H. L. Spencer, to recover damages for injuries arising from an occupational or industrial disease--lead poisoning, contracted while in the employ of the Cumberland Battery Company, as a result of its negligence.
The Cumberland Battery Company manufactures storage batteries for automobiles, in which lead plates are used. In the preparation of the plates dust is raised which contains fine particles of lead. Their plant was not equipped with suction fans, etc. The plaintiff, Spencer, contracted lead poisoning while an employee.
The declaration contained two counts. The first count was based on averments of common-law negligence as follows: That the company did not furnish him a reasonably safe place to work; that they negligently failed to equip their factory with the necessary safeguards for the protection of the employees; that he was compelled to work in a room the air of which was heavy with lead dust; that the company knew or should have known of the dangerous character of the dust; that he did not know that it was dangerous, and was not warned by the company; that as a result of the company's negligence he contracted lead poisoning.
The second count was based on the averment that the defendants were violating Code, sec. 5340 (Tennessee Workshop and Inspection Act), which requires that every factory where work is carried on which produces dust, etc., shall be equipped with exhaust fans, pipes, hoods, to remove such dust.
The defendants pleaded the general issue of not guilty.
The case was tried by the judge and a jury. At the close of the plaintiff's evidence, and again at the conclusion of all the evidence, the defendants moved the court for peremptory instructions in their favor, which motions were overruled.
The jury found in favor of the defendants on the first count of the declaration, and returned a verdict of $1,500 in favor of the plaintiff, against the defendants, on the second count, and judgment was entered accordingly.
The defendants' motion for a new trial was overruled, and they appealed in error to this court, and have assigned errors as follows:
(1) There is no evidence to support the verdict under said second count of the declaration, and the court erred in refusing to direct a verdict in favor of the defendants.
(2) The court erred in charging the jury as follows:
(3) The Court erred in not setting aside the verdict of the jury under the second count of the declaration, under the statute, because the jury had found in favor of the defendants under the common-law count.
Code, sec. 5340, is as follows: (1919, ch. 110, sec. 10.)
Morris Steiner and Harry Lightman, as partners, operate the Cumberland Battery Company, which is engaged in manufacturing batteries for automobiles. The plates of the batteries are lead.
H. L. Spencer, the plaintiff, removed to Nashville from Dickson County. He was about thirty-four years old and in good health. He had worked on the State highways and had operated a saw mill while in Dickson County. In Nashville he was employed by the defendants. He was what was called a "group burner." His duties required him to break lead plates apart (they were cast two in a mold, fastened together in the center), then to set a group of them in a rack and solder or "burn" them together.
In breaking the plates apart and working on them a dust was created which contained fine particles of lead and oxide of lead, poisonous to human beings when inhaled.
The room in which he worked was not equipped with the exhaust fans, blowers, pipes and hoods required by the statute, Code, sec. 5340, to be installed in such shops, where the natural ventilation was not sufficient.
The room was 35 by 92 feet. Practically the entire front was composed of doors and windows. There were two doors at the rear end of the room, each 6 by 12 feet, and four skylights, each about 5 feet square. These windows, etc., were kept open when the weather would permit. An ordinary 30-inch fan was installed in the front end of the room, and one at the end of the "group burner" bench.
The defendants supplied each employee with a respirator or mask to be worn over the nose and mouth, containing cotton fibre to catch the dust, and instructed them to wear them. They also instructed the employees not to eat anything or smoke cigarettes while at work or until they had washed all dust from their hands. They also instructed them to each take a hot shower bath each afternoon before leaving the shop, using a special type of soap, which was furnished, in order to remove all lead dust from their bodies.
The plaintiff admitted that he smoked while at work, in violation of the rules, sometimes ate candy while at work, and was careless about bathing. But he insisted that there was not always enough hot water. He admitted that he only occasionally wore a respirator, but insisted that he could not breathe with one on well enough to carry on the work. The sub-foreman, the foreman, and the partners all knew that he was not wearing a respirator.
The partners composing the Battery Company knew that lead poisoning could be caused by breathing the dust formed by lead particles, such as was produced in this workshop.
It appears that when Spencer first went to work for the company he did not know about the danger of lead poisoning. But he was told by his employers to be careful about inhaling the dust or getting it in his mouth and about washing it off in the afternoon when quitting work. But he was not informed of the serious character of lead poisoning. The other employees also informed Spencer about lead poisoning. He knew the danger of it but did not appreciate its character or extent.
Spencer became sick in February, 1938, after he had been employed by the company almost a year; he went to work there in March, 1937.
This suit was instituted March 3, 1938.
Several other employees contracted lead poisoning at about the same time that Spencer did.
An occupational or industrial disease is a disease caused by, or especially incident to, a particular employment. 71 C.J. 599, § 357.
Occupational diseases are not within the scope of the Workmen's Compensation Law in Tennessee. Code, sec. 6851 et seq.; Morrison v. Tennessee Consolidated Coal Co., 162 Tenn. 523, 39 S.W.2d 272.
Such diseases were unknown to the common law. Martin v. Eagle Picher Lead Co., D.C., 21 F.Supp. 142; Connell v Fisher Body Corp., 56 Ga.App. 203, 192 S.E. 484; Adams v. Acme White Lead & Color Works, 182 Mich. 157, 148 N.W. 485, L.R.A.1916A, 283, Ann.Cas.1916D, 689; Industrial Commission v. Brown, 92 Ohio St. 309, 110...
To continue reading
Request your trial
-
Housh v. Morris
...at 20, 414 S.W.2d at 123; See also Tennessee Eastman Corp. v. Newman, 22 Tenn.App. 270, 121 S.W.2d 130 (1938) and Steiner v. Spencer, 24 Tenn.App. 389, 145 S.W.2d 547 (1940). 3 Since the holding in Frazor, however, our courts have adopted and continuously applied the "discovery rule." This ......