Svoboda v. Mandler
| Decision Date | 29 October 1937 |
| Docket Number | 30143. |
| Citation | 275 N.W. 599,133 Neb. 433 |
| Parties | SVOBODA v. MANDLER. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
Two alleged trivial accidents, which did not cause deceased to lose any time from his work, and did not accelerate aggravate, or change in any way the slow, steady progress of an occupational disease, cannot be made the basis for a recovery under the Nebraska workmen's compensation law (Comp. St.1929, § 48-152).
Appeal from District Court, Douglas County; Dineen, Judge.
Proceeding under the Workmen's Compensation Law by Gabriela Mandler for the death of Michael, her husband, opposed by Frank Svoboda, employer. From a judgment vacating an award of compensation to the claimant, the claimant appeals.
Affirmed.
Anson H. Bigelow, of Omaha, for appellant.
Votava, McGroarty & Sklenicka, of Omaha, for appellee.
Heard before GOSS, C. J., and ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ., and CHAPPELL, District Judge.
This is an appeal from a disallowance by the trial court of a claim for compensation made by the widow of a deceased workman.
A hearing was first had in May, 1935, before Stephen Vail, deputy labor commissioner, of Omaha, who dismissed the claim, and then a hearing was had before Lawrence Welch, one member of the compensation court, in June, 1936, and the claim was again denied. An appeal was then taken and a hearing was had before the three members of the compensation court, and claim was allowed at $15 a week for 350 weeks, together with an allowance of funeral benefits, medicine, drugs, autopsy, and the claims of a number of doctors, the whole allowance amounting to more than $5,600.
From this award of the compensation court, appeal was taken to the district court, and after a trial in that court a decree was entered, and the award of the compensation court was vacated and the claim was dismissed.
The evidence discloses that Michael Mandler, deceased, sailed from Hamburg to the United States in December, 1923, and in 1926 entered the employ of the defendant, Frank Svoboda, manufacturer of monuments at Omaha, and for about a year and a half did general work in repairing machinery, setting monuments, helping about the yard, and then started work as a sandblaster, which occupation he continued for about six years, losing very little time from his work except for an attack of pneumonia and nose bleed in 1932.
In sand-blasting in the defendant's plant, the side of the monument to be carved is covered with hot glue, and the letters or designs to be carved are then outlined upon this coating of glue, and with a sharp knife the glue is then cut through and pulled away, exposing the bare granite or marble where it is desired to be cut away. The monument is then placed in one small room, and the sand-blaster takes his station in another small room, separated with a wooden partition except for a portion of the wall directly in front of the monument, where the partition is replaced by a screen and rubber, permitting the sand-blaster to move his arms in all directions, while holding a heavy hose, ending in a metal jet, through which fine, sharp silica sand is blown under a pressure of about 100 pounds to the square inch against all the portions of the monument which are to be cut away by the sand-blast. The sandblast makes no impression upon that part of the monument protected with the thick coating of glue, but eats away the surface of the hard stone which is exposed where the glue has been cut away with a sharp knife. The room in which the monument is placed is filled with dust of this sharp sand rebounding from the monument, it is impossible to prevent some of this dust from coming through the opening through which the sand-blaster works with his hands and directs the jet of sand at the monument.
The defendant testified that he had given positive orders that the sand-blaster must wear a mask while at this work, and had provided a number of kinds of masks, but Mr. Mandler (whose habit it was to smoke a pipe almost continuously during the working hours) would repeatedly take off the mask, against orders, and in hot weather often refused to wear it, as he said he could not breathe.
A number of medical experts testified in this case, some upon each side, and while they differed in some of the details, yet the principal facts relating to Mr. Mandler's increasing disability, and the resulting death, were about as follows:
When he wore a properly-fitting mask of approved design, scarcely any dust could get into his nose. When he breathed through his nose, if any of the fine particles of dust were in the air they would be trapped in the passages through the nose, and practically no particles of dust would reach the lungs. The particles of sand lodging in the passages of the nose on the mucous membrane are at first taken care of by nature, by coughing out, and by the lymphatics. As time goes on, increasing deposits of dust lodged in the nose caused catarrh, the inflammation of which thickens the passages of the nose, making a person resort to occasional mouth breathing to get sufficient air.
When a sand-blaster discards the mask and breathes through his mouth, there is no protection by nature to trap the dust particles, many of which lodge in the cells of the lungs. Some particles can be coughed out, but an increasing number remain, and this silica dust remaining in the cells of the lungs brings about a disease known as silicosis, and this causes miliary tuberculosis, which usually runs for six months to a year, which it did in this case, and finally death resulted from complications on September 13, 1934. The experts testified that silicosis, or stonecutter's disease, usually resulted in death in from five years to fifteen years, depending upon whether they worked outdoors or in a closed room, whether they wore masks, and depending somewhat upon the constitution of each individual, some resisting the onslaught of the disease much longer than others.
Silicosis is a definite occupational disease of the lungs, caused by breathing in air containing sharp particles of dust which lodge in the lungs. It follows a definite course, with a period of onslaught, then increasing severity in which the normal lung tissue is gradually replaced by fibrous or scar tissue over each particle of dust lodged in the lung, and miliary tuberculosis usually ensues, together with other complications, before death occurs.
The general term of this disease, covering both metallic and mineral particles, is pneumoconiosis, which is acute in metal mining, quarrying, drilling, tunneling, smelting, foundries potteries, glassworks, as well as in stone, marble, and granite manufacturing, especially in sand-blasting. The United States department of labor, in a report published in April, 1937, states that 900,000 laborers are exposed to the disease; 105,000 of...
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