Wolf v. Mallinckrodt Chemical Works
| Decision Date | 30 March 1935 |
| Docket Number | No. 30368.,30368. |
| Citation | 81 S.W.2d 323 |
| Parties | HENRY WOLF v. MALLINCKRODT CHEMICAL WORKS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.
REVERSED AND REMANDED.
Thomas Bond for appellant.
(1) An occupational disease is one which is incident to the employment, and is the ordinary, usual and natural result thereof. Industrial Commission of Ohio v. Roth, 120 N.E. 172; Matthiessen & Hegeler Zinc Co. v. Industrial Board, 120 N.E. 249. (2) Plaintiff's illness, if not due to syphilis, was due to accident, or unusual susceptibility, and is not the result of occupational disease. See cases cited under point 1. (3) There was no evidence that defendant knew, or ought to have known, that any work or process at the plant would cause occupational disease. Therefore, defendant was under no duty to provide the safety devices described in the Occupational Disease Act. Boll v. Condie-Bray Glass & Paint Co., 11 S.W. (2d) 52; Kolbow v. Haynes-Langenberg Mfg. Co., 3 S.W. (2d) 228; R.S. 1929, sec. 13252. (4) There was no evidence that defendant could reasonably have anticipated that plaintiff would suffer any illness as a consequence of the work at which he was put, and therefore defendant was under no duty to guard against it. Hysell v. Swift & Co., 78 Mo. App. 51; Sharp v. Stuebner Cleaning & Mere. Co., 300 S.W. 562; Zasemowich v. Am. Mfg. Co., 213 S.W. 804; Lowe v. Railroad Co., 265 Mo. 592; Anderson v. Box Co., 103 Mo. App. 387; Corcoran v. Wanamaker, 185 Pa. 496, 39 Atl. 1108. (5) There was no substantial evidence of any violation of the Occupational Disease Act. (6) Instruction 7 was erroneous, because it permitted the jury to find that defendant was guilty of negligence in failing to post notices of known dangers, and "known means of avoiding, so far as possible, the injurious consequences thereof," without requiring the jury to find that there were any such means of avoidance or that defendant had any knowledge thereof, thereby omitting an essential element of the negligence as defined in the statute. R.S. 1929, sec. 13264.
S.F. Pinter and Mason, Goodman & Flynn for respondent.
(1) An occupational disease is one which results from the occupation in question. Where the plaintiff is claiming that he suffered from an occupational disease, it is no necessary part of his case to show that others in the same situation suffered from the same disease. Cropper v. Titanium Pigment Co., 47 Fed. (2d) 1038; Wagner Elec. Corp. v. Snowden, 38 Fed. (2d) 599; Boll v. Condie-Bray Glass & Paint Co., 11 S.W. (2d) 48; Labanoski v. Hoyt Metal Co., 126 N.E. 548; May v. Belleville Enameling & Stamping Co., 247 Ill. App. 275; Jannusch v. Weber Bros. Metal Works, 249 Ill. App. 1; Wilcox v. International Harvester Co., 116 N.E. 151; Zajkowski v. Am. Steel & Wire Co., 6 A.L.R. 349, 258 Fed. 9; Wiseman v. Carter White Lead Co., 100 Neb. 584; Thompson v. United Laboratories Co., 221 Mass. 276; Fox v. Peninsular White Lead & Color Works, 84 Mich. 676; Wagner v. Jayne Chemical Co., 147 Pa. 475. (2) Plaintiff, having shown that when he entered the defendant's employment in 1917 he was a person in good health, weighing 175 pounds; that when he left the employment in 1923 he had become ill, lost weight to the extent of forty pounds, and was suffering from a degeneration of the spinal cord, known as combined sclerosis and due to zinc poisoning, and having further shown that for nine months prior to his final collapse he worked in an atmosphere heavily clouded with light dust of zinc salts; that no respirator was provided for his use in this work; that no effective devices were provided for taking off this dust; that the particular zinc salt dust, that is, stearate of zinc and sulphate of zinc, is poisonous and that, when breathed in and swallowed, it is capable of being absorbed into the human system and, having further shown that in the winter time he was forced to eat his meals in the dust-laden atmosphere, forbidden to open the windows and forbidden to shut down the machines which were scattering the dust, and that he received no warning of the dangers to which he was subjected, he made a prima facie case both under the occupational disease statute and at common law. Cropper v. Titanium Pigment Co., 47 Fed. (2d) 1038; Boll v. Condie-Bray Glass & Paint Co., 11 S.W. (2d) 48; Labanoski v. Hoyt Metal Co., 126 N.E. 548; May v. Belleville Enameling & Stamping Co., 247 Ill. App. 275; Jannusch v. Weber Bros. Metal Works, 249 Ill. App. 1; See other cases cited supra under point 1; Wagner Elec. Corp. v. Snowden, 38 Fed. (2d) 599. (3) The statute, Section 13253, specifies zinc and its salts as specially dangerous to the health of employees when used by employees in harmful quantities or under harmful conditions, or come in contact with in a harmful way. The defendant is a chemical company engaged, among other things, in the manufacture of these specified zinc salts. Plaintiff's regular work for months was the manufacturing of zinc stearate in an atmosphere dense and clouded with the light dust of this substance, with nothing in the way of a respirator furnished to protect him. The exposure to this poison then being not the result of any casual or incidental work, but being constant in connection with his regular work, the defendant is bound to have knowledge of it and to have anticipated that plaintiff would suffer the illness which he did suffer. Hysell v. Swift & Co., 78 Mo. App. 44; Mather v. Rillston, 156 U.S. 399; Nickel v. Columbia Paper Stock Co., 95 Mo. App. 226; Thompson v. United Laboratories Co., 221 Mass. 276. (4) Instruction 7 cannot be said to assume that there are known means of avoiding the danger described. The instruction merely tells the jury that it was the duty of the defendant, under the law, to post notices "as to any known means of avoiding, so far as possible, the injurious consequences of such work." The duty in this regard is described in the exact language of the statute. It was not error so to define the defendant's duty. Kippenbrock v. Railroad Co., 270 Mo. 485. (5) The statute itself assumes that there are known means and devices for avoiding these dangers. The requirement that these means and devices should be used is mandatory, and the instruction for this reason would not be erroneous if it did assume that such means and devices were known and available. Boll v. Condie-Bray Glass & Paint Co., 11 S.W. (2d) 48.
This case comes to the writer upon reassignment. Defendant appeals from an adverse judgment of the circuit court, city of St. Louis, in the sum of $12,500. The verdict of the jury was for $25,000 but was reduced by remittitur. Plaintiff sued for injuries to his health caused by contracting an occupational disease while he was employed in defendant's chemical works in St. Louis. Defendant's principal complaint is that the trial court erred in refusing to sustain its demurrer to the evidence.
Plaintiff, by his second amended petition, charged that for about six years prior to August 31, 1923, he was employed by defendant, Mallinckrodt Chemical Works, at its chemical manufacturing plant in St. Louis; that "for about one and a half years or more" prior to August 31, 1923, he, in the course of his employment, handled and was about chemicals and minerals which emitted poisonous gases, vapors, fumes and dust in harmful quantities and under harmful conditions. These chemicals and minerals with which plaintiff worked, according to the petition, were zinc stearate, pyrogallic acid, and fourteen other simples and compounds. Plaintiff further alleged that, while he was so employed, he inhaled and absorbed poisonous gases, vapors, fumes and dust, and as a result he contracted "a severe form of chronic occupational disease."
The negligence attributed to defendant was based on the common law and the Missouri statutes. The common-law negligence charged was that defendant did not furnish plaintiff a reasonably safe place in which to work by failing to provide respirators while plaintiff was about chemicals and minerals which emitted poisonous gases, vapors, fumes and dust. Failure to warn plaintiff that his health would be endangered by the inhalation and absorption of gases, etc., was also alleged.
Statutory negligence pleaded was: (1) Failure of defendant to adopt and provide approved and effective devices, means or methods for the prevention of industrial or occupational diseases "incident to plaintiff's said work;" (2) its failure to provide adequate and approved respirators, and "to provide working clothes to be used exclusively by plaintiff in his work;" (3) its failure to provide hoods with suction fans for machines which subjected plaintiff to the inhalation of dust and poisonous gases; (4) its failure to cause plaintiff to be examined once a month by a physician for the determination of the existence or development of any occupational disease; (5) its failure to post "an appropriate notice of the known dangers to the health of its employees and particularly the plaintiff arising from the work together with simple instructions as to any known means of avoiding so far as possible the injurious consequences thereof." Defendant by its answer admitted that it was engaged in the manufacture of chemicals and other products in St. Louis and denied all other allegations.
In our opinion the test of the demurrer is whether there was evidence tending to prove that combined sclerosis — a degenerative process of the spinal cord — from which experts testified plaintiff was suffering — was an occupational disease under the applicable law. Although plaintiff charged in his petition that he was engaged in handling and being about harmful chemicals for about one and a half years or more prior to his termination of his employment on August 31, 1923, he testified, without objection as to the time covered, concerning his work during his...
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