West v. Atlas Chemical Industries, Inc., 65 C 181(2)

• Decision Date: 11 February 1966
• Docket Number: 65 C 182(2).,No. 65 C 181(2),65 C 181(2)
• Citation: 264 F. Supp. 697
• Parties: William A. WEST v. ATLAS CHEMICAL INDUSTRIES, INC., a Corporation, formerly Atlas Powder Company, a Corporation, Nora WEST v. ATLAS CHEMICAL INDUSTRIES, INC., a Corporation, formerly Atlas Powder Company, a Corporation and the Travelers Insurance Company.
• Court: U.S. District Court — Eastern District of Missouri

264 F. Supp. 697

William A. WEST v. ATLAS CHEMICAL INDUSTRIES, INC., a Corporation, formerly Atlas Powder Company, a Corporation, Nora WEST v. ATLAS CHEMICAL INDUSTRIES, INC., a Corporation, formerly Atlas Powder Company, a Corporation and the Travelers Insurance Company.

Nos. 65 C 181(2), 65 C 182(2).

United States District Court E. D. Missouri, E. D.

February 11, 1966.

Jo B. Gardner, Monett, Mo., and Orville Richardson, St. Louis, Mo., for plaintiff.

Alphonso H. Voorhees, St. Louis, Mo., for Atlas Chemical Industries, Inc.

Evans & Dixon, St. Louis, Mo., for Travelers Ins. Co.

MEMORANDUM

MEREDITH, District Judge.

This matter is pending on the motion of defendant The Travelers Insurance Company for summary judgment. The complaints herein allege that plaintiff William A. West was injured and disabled while working for the J. A. Tobin Construction Company in Buchanan County, Missouri, on or about June 9, 1960, by breathing and inhaling toxic fumes from chemical explosives. Plaintiffs' claims against defendant Atlas Chemical Industries, Inc., allege negligent manufacture and labeling of such explosives and negligent failure to warn as to the toxic nature of such explosives. Plaintiffs' claims against defendant Travelers allege that Travelers was the Workmen's Compensation carrier for J. A. Tobin Construction Company, that Travelers' agents made periodic worksite inspections and knew of the dangers to plaintiff William A. West in working with said explosives, and that such agents negligently failed to warn plaintiff of such dangers or to require plaintiff's employer to cease using such deleterious material. Plaintiffs' original complaints were filed on June 1, 1965, and named as parties defendant the Atlas Powder Company (Atlas Chemical Industries) and the Hartford Accident and Indemnity Company. Plaintiffs' first amended complaint, filed September 23, 1965, added The Travelers Insurance Company as an additional party defendant.

This motion for summary judgment is based on two grounds. First, it is contended that the pleadings, depositions and affidavits show, as a matter of law, that the claims of plaintiffs are barred by the five-year Missouri statute of limitation, § 516.120, RSMo 1959, V.A.M.S. Second, it is contended that the Missouri Workmen's Compensation Law provides the exclusive remedy against this defendant and bars the alleged common law claim. We shall take these up in order.

Section 516.120, RSMo 1959, V.A.M.S., provides a five-year limitation period for personal injury cases of the type here involved. The limitation period begins to run when the cause of action accrues. Section 516.100, RSMo 1959, V.A.M.S., provides:

"* * * the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained."

Plaintiffs' second amended complaint alleges that "(s)aid plaintiff did not learn that his condition was caused as a result of inhaling said substances until April of 1961." Defendant, in support of its motion, contends that any cause of action these plaintiffs may have against it accrued on or about June 9, 1960, because the damage resulting from the alleged wrong was sustained and capable of ascertainment as of that time. Accordingly, the complaint against this defendant having been filed September 23, 1965, it is contended the five year limitation period has run.

Defendant relies heavily on the deposition of William A. West. This deposition indicates that plaintiff was aware of the nature of his disabled condition on or about June 9, 1960, and related his condition to his work with chemical explosives. He testified that he progressively suffered more severe physical illness and symptoms as he worked with nitro carbon and nitrate, that he suffered from coughing and sneezing which became nearly constant, that his hands became stiff, that the bottoms of his feet and the palms of his hands became thick, that his feet were dragging and that he suffered severe headaches. (Deposition, pages 52-62) He testified that his physical condition became so bad he had to quit work and secure medical attention, and that he had told his foreman that he thought the chemical nitro carbon and nitrate was the cause of his trouble. He further testified that at least three doctors told him within a few weeks after quitting work that he was suffering from poison.

Additionally, defendant has submitted copies of certain letters written November 1, 1960, to the J. A. Tobin Construction Company and The Travelers Insurance Company claiming that William A. West became totally disabled by occupational disease or a series of trauma on or about June 9, 1960, resulting from the chemical explosives he had been using in his work. Also, defendant calls our attention to a letter written by plaintiffs' present attorney, which accompanied the original complaints filed in this case, containing this postscript: "P. S. The statute of limitations runs June 9, 1965 in this case." Finally, defendant has submitted an affidavit of Dr. E. L. Pfuetze to the effect that he examined William West on February 15, 1961, and that Mr. West told him he had been unable to work since June 9, 1960, after loading ammonium nitrate and nitro carbon of nitrate.

Rule 56(c), Federal Rules of Civil Procedure, provides for the entry of summary judgment if

"* * * the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The plaintiffs contend that there is a genuine issue of fact as to when the alleged cause of action accrued, that the deposition and letters relied on by defendant do not rise to the dignity of judicial admissions, and that

"* * * It goes without saying that, even sworn testimony by deposition, can be changed by a witness in the course of a jury trial, and the jury then has the question of determining which version is the correct one, even though both are under oath."

It is also argued that the deposition testimony above referred to does not specifically and directly relate William West's complaints to the chemical explosives he was using; that at most he was speculating as to the cause of his difficulty.

Plaintiffs correctly state that the time of accrual of a cause of action is a question of fact. But, at issue here is whether there is a genuine issue of fact. Most of the Missouri law dealing with latent or occupational disease injuries arise in Workmen's Compensation cases. These cases indicate that an injury from such a disease is reasonably discoverable and apparent, the standard laid down in § 287.063(6), RSMo 1959, V.A.M.S., when the employee loses time from his work or has to seek medical advice. Enyard v. Consolidated Underwriters, 390 S.W.2d 417, 432 (Mo.1965). The rule set out in § 516.100, RSMo 1959, V.A.M.S., that the damage be sustained and capable of ascertainment is also a rule of reason, turning on the time when the damage can reasonably be discovered or made known so that the right to commence an action arises. Rippe v. Sutter, 292 S.W.2d 86, 90 (Mo.1956), Allison v. Missouri Power & Light Co., 59 S.W.2d 771, 773 (Mo.App.1933). There can be no doubt that the record before the court on a motion for summary judgment may show conclusively that plaintiff was aware, on a given date, of such facts that the only reasonable conclusion to be reached is that the damage was sustained and capable of ascertainment at that time. Gruenewaelder v. Wintermann, 360 S.W.2d 678 (Mo.1962). In such a case, summary judgment is appropriate for there is no genuine issue of fact.

The record now before the Court clearly shows that plaintiffs' causes of action accrued prior to April 1961, the time alleged in the complaint. The letters of notice to J. A. Tobin Construction Company and The Travelers Insurance Company, written November 1 and November 21, 1960, respectively, specifically state the nature of plaintiff's disablement and directly relate his condition to the chemical explosives used by him on and before June 9, 1960. Additionally, these letters corroborate the deposition testimony indicating that plaintiff was aware of the nature and cause of his difficulties on or about June 9, 1960. The letter to The Travelers Insurance Company states:

"Notice during the second period of employment to the employer was in April, 1960, to Bill McMantle, but he continued his work through June 9, 1960

...