OPINION
FULBRIGHT,
J.
This is an appeal from the order of the circuit
court of Jasper county sustaining defendants' joint
special demurrer to plaintiff's petition in which
plaintiff seeks to recover damages for an occupational
disease alleged to have been contracted by him. Separate
demurrers were filed alleging that the petition does not
state sufficient facts to constitute a cause of action
against the corporate defendant and the individual
defendants, but no ruling was made by the court on either of
these demurrers. Subsequently, an amended special demurrer to
the petition by all of the defendants was filed, assigning as
grounds therefor, "1. Because it does not state facts
sufficient to constitute a cause of action against said
defendants; 2. Because there is a defect of parties
defendant; 3. Because several causes of action have been
improperly united." By leave of court plaintiff amended
his petition by interlineation reducing the amount sued for
from $ 25,000 to $ 7,500. Defendants' amended and special
demurrer was by the court sustained and as the plaintiff
refused to plead further, his petition was dismissed by the
court and the defendants discharged. Thereupon plaintiff duly
appealed to this court.
Since
this cause comes to us on appeal from the action of the trial
court in sustaining a demurrer to the petition, said
petition, omitting caption and signatures, although somewhat
lengthy, is set out in full.
"Comes
now the plaintiff, and for his cause of action against the
defendants, states that the defendant, The Eagle-Picher Lead
Company, is a corporation duly organized and existing
according to law, and as such, was at all of the times herein
mentioned engaged in the business of manufacturing, smelting
and refining lead and lead products from its raw state, at
various places throughout the United States, and particularly
at Joplin, Missouri, where it owns and operates a plant and
place of business; that the defendants, John A. Schaeffer and
J. Edward Webb, were the managers, officers and directors of
said defendant corporation, and as such were the persons who
were chargeable with the duty, imposed by law, of carrying
out and performing the regulations of the statutes of the
State of Missouri, for the violation of which complaint is
herein made; that the defendants, J. Edward
Webb, A. J. Smith, Leonard Vaughn, Bartley Geddes, Ray Webb,
Charles Kiecker, Charles Smith and Ed Durrall were at all of
the times herein mentioned, foremen and vice-principals of
the said defendant corporation, and as such, had charge,
direction and supervision of the work and the men employed by
the defendant corporation in the manufacture and production
of lead and lead products at said company's place of
business in Joplin, Missouri.
"Plaintiff
states that for a number of years, prior to October, 1933, he
entered the employ of the defendant, The Eagle-Picher Lead
Company, and worked for said defendant company until about
October, 1933, at its plant and place of business located on
'Smelter Hill,' in Joplin, Missouri, during all of
which time he was directed and required by said defendants to
work in the W. C. cleanout, litharge, slag-eye, red lead,
S.W. C. departments and blast furnace and mill room, and
where lead and lead compounds in their various forms were
constantly and continuously used and employed; that in the
doing of said work, large and dangerous quantities of
noxious, harmful and poisonous dusts, gases, smoke and fumes
were produced, created and generated, and the air which
plaintiff was required to breathe, and in which he was
directed and required to work, was constantly ladened with
said substances, consisting in lead dusts, gases, smoke and
fumes, by reason of the performance of said processes and
work; that said conditions existed and prevailed throughout
said defendant company's entire plant, and in the eating
quarters and wash rooms; that said harmful, noxious and
poisonous lead dusts, fumes and smoke were blown into the
room in which the plaintiff was directed to work from all
adjacent departments.
Plaintiff
further states that all of said defendants had charge,
control and supervision over the plaintiff and his work, and
directed the plaintiff in the manner of doing the work, and
all of said defendants knew the conditions and circumstances
as aforesaid, and under which plaintiff worked, and knew that
by requiring plaintiff to work in said places where said
noxious, harmful and poisonous lead dusts, fumes, smoke and
gases were produced, created and generated, that plaintiff
would be required to, and did breathe, inhale and absorb said
poisonous, harmful and noxious substances, and by so doing,
plaintiff's health would likely be greatly and seriously
weakened and impaired, and that the cumulative effect of said
inhalations and absorptions would produce the dangerous and
deadly disease of lead poisoning.
"Plaintiff
further states that the defendants negligently and carelessly
failed to warn the plaintiff of the danger of inhaling and
absorbing said noxious, harmful and poisonous dusts, fumes
smoke and gases, although said defendants, and each of them
knew, or by the exercise of ordinary care
on their part, should have known that the inhalation and
absorption of said substances aforementioned, would be
dangerous and injurious to plaintiff's health.
"Plaintiff
further states that at various and sundry times (the exact
dates are unknown to the plaintiff), during the course of his
employment, complaint was made of said dust, smoke and fumes
being in the air, but said defendants, and all of them,
negligently neglected and refused to furnish plaintiff with
an adequate and sufficient respirator and assured plaintiff
that working under said conditions would not hurt him, and
said defendants negligently and carelessly ordered and
directed plaintiff to proceed with his said work and to work
under said conditions so that he would be required to breathe
and absorb said lead substances aforementioned, when they,
and each of them knew, or by the exercise of ordinary care on
their part, should have known that by requiring plaintiff to
work under said conditions, it would be harmful to plaintiff
and injurious to his health, and plaintiff states that when
said defendants gave plaintiff said negligent orders, the
said defendants were acting within the scope and course of
their employment as foremen and vice-principals of the
defendant, The Eagle-Picher Lead Company, and were doing a
part of the defendant's company's work at the time,
and plaintiff states that acting upon said orders and relying
upon said foremen and vice-principals' said assurances of
safety and relying upon said foremen's superior knowledge
and judgment, as foremen and vice-principals of The
Eagle-Picher Lead Company, the plaintiff continued in said
work.
"Plaintiff
states that the defendants negligently and carelessly
violated sections 13252, 13254, 13255, 13258, 13259, 13260,
13264, of the Revised Statutes of Missouri, 1929, in the
following particulars:
"1.
The defendants failed to exercise ordinary care to employ any
reasonably effective means, methods and appliances to prevent
plaintiff's health from being impaired by said dusts,
fumes and smoke and lead compounds, although by the exercise
of ordinary care, it could have done so.
"2.
The defendants failed to provide plaintiff with an adequate
and approved respirator or breathing device in good
condition, without cost to the plaintiff, so as to prevent
the inhalation of said noxious, harmful and poisonous
substances.
"3.
The defendants failed to provide for and place at the
disposal of the plaintiff and maintain in good condition,
without cost to the plaintiff, working clothes to be kept and
used exclusively by him.
"4.
The defendants failed as often as once every calendar month
to cause plaintiff to be examined by a competent, licensed
and reputable physician for the purpose of ascertaining if
there existed in the plaintiff any
industrial or occupational disease due to or incident to the
character of work in which plaintiff was engaged.
"5.
The defendants failed to provide, separate and apart from the
workshop in which plaintiff was engaged, a dressing room and
lavatory for the use of defendants' employees,
particularly the plaintiff, which was free from said noxious
and poisonous substances, aforementioned, and failed to
provide it with a sufficient number of basins or spigots, or
with adequate washing facilities, including hot and cold
water, or with clean, individual towels and soap, or with
sufficient shower baths.
"6.
The defendant failed to provide its employees, particularly
the plaintiff, with eating quarters which were free from said
noxious and poisonous dusts, fumes, gases, smoke and lead
compounds, and failed to provide him with sanitary drinking
fountains containing wholesome drinking water, without cost
to and within reasonable access of the plaintiff.
"7.
The defendants failed to provide and maintain adequate
devices for carrying off all of said poisonous and injurious
fumes, dusts and smoke and failed to provide and maintain
adequate and efficient facilities for carrying off all of...
