Tennessee Eastman Corporation v. Newman

• Decision Date: 20 May 1938
• Parties: TENNESSEE EASTMAN CORPORATION v. NEWMAN.
• Court: Tennessee Supreme Court

121 S.W.2d 130

TENNESSEE EASTMAN CORPORATION v. NEWMAN.

Court of Appeals of Tennessee, Eastern Section.

May 20, 1938.

Certiorari Denied by Supreme Court October 15, 1938.

Appeal in Error from Circuit Court, Sullivan County; Shelburn Ferguson, Judge.

Action by George Newman against the Tennessee Eastman Corporation to recover damages under Code 1932, §§ 5339, 5340, for an alleged occupational disease contracted during his employment by defendant. From a judgment for plaintiff, defendant appeals in error.

Affirmed.

Worley, Hauk & Minter, of Kingsport, and Susong & Parvin, of Greeneville, for plaintiff in error.

Harry Garrett, of Kingsport, for defendant in error.

PORTRUM, Judge.

The defendant-in-error, plaintiff below, George Newman, was an employee of the Tennessee Eastman Corporation from the year 1929 until March of the year 1935, when because of an alleged occupational disease contracted during his employment he became disabled and was compelled to quit his work, and not having recovered he instituted this suit in November 1935, seeking to hold the corporation liable for a violation of the Tennessee Workshop and Factory Inspection Act, carried into the Code under Sections 5339, 5340. The case was removed by the defendant to the Federal Court and it went to trial, and at the conclusion of the evidence the judge directed a verdict in favor of the defendant upon the common law count, but overruled it as to statutory count; but before the case was submitted to the jury the plaintiff took a voluntary non-suit, and the court ordered that the case be dismissed without prejudice. The present suit was instituted within one year of the dismissal of the first suit.

To the declaration the defendant filed a plea of not guilty, and a special plea of the statute of limitations of one year. Code 1932, § 8595. Issue was joined upon these pleas and the case went to trial before the court and a jury. At the outset of the trial the plaintiff agreed that the defendant might file an additional plea of res adjudicata based upon the trial in the Federal Court, and upon a hearing of this plea upon the record of the Federal Court the trial judge was of the opinion that it was an adjudication notwithstanding the voluntary dismissal ordered by the Federal Court without prejudice, and he denied plaintiff the right to rely upon the statutory count of his declaration, nor upon violation of the section of the Code codifying the Workshop and Factory Inspection Act, which had been laid as the basis of liability in a count in the first declaration but did permit the plaintiff to rely upon Section 5340 of the Code, and upon the violation of this section the case went to trial. The plaintiff took no exception to the revisal order of the trial judge, and the issue before this court is the violation of Section 5340 of the Code. Plaintiff claims his disability arose from inhaling over a long period of time dust or small particles of sodium carbonate, commonly called soda ash, while unloading this chemical from railroad cars into the receptacles provided by the company at its manufacturing plant. And that the company had violated the statutory duty in failing to protect the plaintiff from the injurious effect of this dust, or chemical particles. The statute relied upon reads as follows and is entitled, "What to be used to protect employees against dust, filaments, or injurious gases."

"Every factory, workshop, association, or other establishment where a work or process is carried on by which dust, filaments, or injurious gases are produced or generated, that are liable to be inhaled by persons employed therein, the person by whose authority the said work or process is carried on shall cause to be provided and used, in said workshop, factory, association, or establishment, exhaust fans, conveyors, receptacles, or blowers with pipes and hoods extending therefrom to each machine, contrivance, or apparatus by which dust, filaments, or injurious gases are produced or generated; or provide other mechanical means to be maintained for the purpose of carrying off or receiving and collecting such dust, filament, devitalized air, or other impurities as may be detrimental to the health of those in or about, or in connection with, such place as herein mentioned. * * * Said fans, blowers, pipes and hoods shall be properly fitted and adjusted and of power and dimensions sufficient to effectually prevent the dust, filaments, or injurious gases produced or generated by said machines, contrivances, or apparatus from escaping into the atmosphere or the room or rooms of said factory, workshop, or other establishment, where persons are employed."

With the requirements of the Act in view we will state the method of operation of the plant by the defendant, and the facts as developed in the proof of the case. Defendant's manufacturing plant is located at Kingsport, Tennessee, employing more than 3000 men; it manufactures various articles, such as artificial silk thread, cellulose, alcohol, and other articles, and in the manufacture of these articles it uses many chemicals, among others being sodium carbonate, which is called throughout this record "soda ash."

The plaintiff was twenty-three years of age when he went to work for the defendant in 1929; he was then well-built and able-bodied, and was physically fit, having undergone a physical examination by the defendant's physician. He was assigned to the duty of unloading from the railway cars into the receptacle at the side of the car provided by the defendant this chemical known as soda ash, and he continued in the performance of these duties until his disability. Soda ash is a white powdery substance and was shipped to the defendant's plant in ordinary railway cars, being loaded into the cars in bulk or loose form, the doors of the car being boarded up with plank or heavy paper two-thirds of its height, the cars being loaded about two-thirds full.

To unload the cars the defendant ran the cars up the tipple so that the ash could be placed in the building where it could be used. The car was run up beside a small house, which was constructed at side of track on the tipple at a point so that the car could be placed with its door opposite the house, and connected by placing a plate of metal from the car door into the house. The house was constructed similar to a telephone booth with a missing door, and in the floor was an intake 12 inch pipe with a flared mouth serving as a hopper in which the soda ash was dumped. The ash fell down this pipe by the force of gravity some 20 feet or the height of the tipple, which was constructed and used to obtain the elevation, into a closed receptacle connecting with another pipe-line containing a revolving cup-chain, and these moving cups scooped up the ash and carried it up the incline pipe and deposited it in storage bins known as the still house. This rapidly moving cup-chain stirred up the ash and created a continuous dust cloud which ascended the pipe-line to the small house on the tipple, completely filling it and over-pouring into the space between the house and car; entering the car and filling it with dust.

This condition continued during the unloading of the cars, and the employee was required to perform his duties in the dust storm. In unloading the cars the employee standing on the metal plate connecting the car with hopper-house, opened the door and first shoveled the soda ash into the hopper; later, when enough had been taken out, he used a scraper with handles and wheels. The handling of the ash necessarily created some dust, and perhaps this could not be reasonably controlled, except by the use of masks which were used, but the dust arising out of the hopper and permeating the surrounding atmosphere was not controlled by masks since it continually seeped under the masks and entered the mouth, nose and eyes of the workmen. It is not shown why this condition could not have been controlled by the installation of suction, similar to the system used by cotton gins in unloading cotton, or some other method. No attempt was made to install any system to take care of the dust.

The plaintiff-in-error assigns three errors, and then groups the questions raised under propositions of law and facts which are discussed in the brief. We find this a more satisfactory way of disposing of the questions raised than dealing directly with the assignments of error, and we shall follow this course and dispose of the propositions as made. The first is designated (a) and states the proposition that Section 5340 of the Code codifying the Workshop and Factory Inspection Act is not applicable to employees engaged in work in the open air outside of buildings, and that the plaintiff was so engaged and was without the protection of the Act. If this be true, the suit must fail for the declaration is based solely upon this section of the Code. In view of the intent and purpose of the Act, the court is of the opinion that the place of work here is, and should be classified as, "Other establishments where the work or process is carried on by which dust, filaments, or injurious gases are produced, or germinated, that are liable to be inhaled by persons employed therein." And that it was the duty of the employer to comply with the Act by the installation of exhaust fans, blowers with pipes and hoods, or contrivance or apparatus by which dust, et cetera, may be expelled or controlled. That the place of work was an integral part of the factory, and that dust arose from the operation and within the factory and was expelled upon the employee, who was not working in what should be classified as the open air where natural ventilation would expel the dust particles as contemplated by the legislative enactment. We are cited to no authority construing this or similar enactments, which attempts to classify an open air operation. The primary purpose of the Act was to guard the health of the workmen,...