Wommack v. Orr

• Decision Date: 06 December 1943
• Docket Number: No. 38634.,38634.
• Parties: ROLLA WOMMACK, Appellant, v. CHARLES T. ORR.
• Court: Missouri Supreme Court

176 S.W.2d 477

ROLLA WOMMACK, Appellant, v. CHARLES T. ORR.

No. 38634.

Supreme Court of Missouri.

Division One, December 6, 1943.

Appeal from Jasper Circuit Court. — Hon. Ray E. Watson, Judge.

AFFIRMED.

Roy Coyne and Emerson Foulke for appellant.

(1) The courts of Missouri have long recognized the right of action of an employee against his employer for an occupational disease where that right of action is based on negligence. Wolf v. Mallinckrodt Chemical Works, 81 S.W. (2d) 323; Whiteley v. Eagle Picher Lead Co., 115 S.W. (2d) 536; Smith v. Harbison-Walker Refractories Co., 100 S.W. (2d) 909. (2) The exclusion of the testimony of Dr. Murray was error and was prejudicial to plaintiff's case. Wolf v. Mallinckrodt Chemical Works, 81 S.W. (2d) 323; Smith v. Harbison-Walker Refractories Co., 100 S.W. (2d) 909; Cleveland v. Laclede-Christy Clay Products Co., 113 S.W. (2d) 1065; Seitz v. Pelligreen Const. & Inv. Co., 203 S.W. 503; Langeneckert v. St. Louis Sulphur Co., 65 S.W. (2d) 648. (3) There was sufficient substantial evidence, viewing said evidence in the light most favorable to plaintiff, to require the submission of the cause to the jury. It was, therefore, error to instruct the jury to return the verdict for the defendant. Wolf v. Mallinckrodt Chemical Works, 81 S.W. (2d) 323; Smith v. Harbison-Walker Refractories Co., 100 S.W. (2d) 909; Cleveland v. Laclede-Christy Clay Products Co., 113 S.W. (2d) 1065; Mooney v. Monark Gasoline & Oil Co., 298 S.W. (2d) 1065; Marsanick v. Luechtefeld, 157 S.W. (2d) 537; Pevesdorf v. Union Elec. L. & P. Co., 64 S.W. (2d) 939; Wurst v. American Car & Foundry Co., 103 S.W. (2d) 6.

Allen McReynolds and Paul E. Bradley for respondent.

(1) Plaintiff alleged in his petition that he contracted an occupational disease while working for the defendant as an ore hauler. An occupational disease has been defined by this court as a disease which is "peculiar and incident to" the employment in which the worker is engaged. Wolf v. Mallinckrodt, 81 S.W. (2d) 323, 336 Mo. 746. Plaintiff offered no proof upon this question. (2) The negligence asserted was at common law, the petition stating that the defendant negligently failed to provide plaintiff a safe place in which to work, and negligently failed to warn plaintiff of the dangerous character of the work. There were no statutory requirements existing or invoked by the plaintiff. His right must be decided under common law rules. Under those rules, the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business. No man is held to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same. Smith v. Harbison-Walker Refractories Co., 100 S.W. (2d) 909, 340 Mo. 389; Reichmuth v. Adler, 155 S.W. (2d) l.c. 183, 348 Mo. 812; Schaum v. Telephone Co., 336 Mo. 228, 78 S.W. (2d) 439. (3) The defendant's demurrer was properly sustained because the plaintiff failed to tender any testimony of any kind showing the usual and ordinary way commonly adopted by those in the business of hauling ore. There was no evidence of any kind or character as to the practices in the trade or business of ore hauling. The only witness offered by the appellant in an effort to establish negligence on the part of the defendant was Dr. A.B. Murray, and he testified that he had no experience in hauling ore, or any acquaintance with that type of work, either by experience or by observation, and no knowledge of the methods of ore haulers. In the absence of such testimony no standards were used by which negligence could be measured. Reichmuth v. Adler, 155 S.W. (2d) 181, 348 Mo. 812; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W. (2d) 909; Schaum v. Telephone Co., 336 Mo. 228, 78 S.W. (2d) 439; Marques v. Koch, 176 Mo. App. 143. (4) Where proof of facts raise equally valid inferences of negligence causing the injury, or other causes not attributable to the defendant, plaintiff fails to make a prima facie case. Grindstaff v. Goldberg, 40 S.W. (2d) 702, 328 Mo. 72; Cole v. Uhlman Grain Co., 100 S.W. (2d) 311, 340 Mo. 277; Leuttecke v. St. Louis, 140 S.W. (2d) 45, 346 Mo. 168; State ex rel. Thompson v. Shane, 159 S.W. (2d) 582, 349 Mo. 27; Goransson v. Ritter-Conley Mfg. Co., 85 S.W. 338, 186 Mo. 300; Strauther v. Railroad, 188 S.W. 1102. (5) The cause of action asserted by the plaintiff is based upon common law negligence. The negligence has to do with operations which do not come within the purview of the Factory Act (See. 10212, R.S. 1939); hence, the statute has no relevancy to the cause of action. Pryor v. Natl. Lead Co., 87 Fed. (2d) 461. (6) Plaintiff offered no substantial proof that he contracted silicosis as the result of his employment with defendant. Bieser v. Goran, 340 Mo. 354, 100 S.W. (2d) 897; Hunt v. Armour Co., 345 Mo. 677, 136 S.W. (2d) 312; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W. (2d) 644; Kimmie v. Terminal R. Assn., 334 Mo. 596, 66 S.W. (2d) 561.

BRADLEY, C.

Action to recover $25,000 damages for injuries alleged to be the result of the occupational disease of silicosis, and alleged to have been caused by the negligence of the defendant. At the close of plaintiff's case the trial court directed a verdict for defendant. The jury returned a verdict as directed; judgment was entered thereon, and plaintiff appealed.

As to the negligence alleged, plaintiff, in the brief, says: "The petition charges common law negligence only. There are two specific charges of negligence in the petition, first, that the defendant negligently failed to provide the plaintiff with a reasonably safe place to work, and second, that the defendant negligently failed to warn the plaintiff of the dangerous conditions under which the plaintiff was required to work, although the defendant knew or could have known by the exercise of ordinary care that the plaintiff's place of work and the conditions under which he worked were dangerous and would injure plaintiff's health."

The answer was a general denial. There is no claim that the cause is one under the Workmen's Compensation Act.

Plaintiff testified that he commenced work for defendant in November, 1932; worked till February, 1935, then was on the farm about a year, and returned to defendant in March, 1936, and continued to work for defendant until July 11, 1940. Plaintiff's work was hauling ore. Three men constituted a hauling crew, and the ore was loaded on a truck at an ore bin and then hauled to a railroad car and unloaded therein, and plaintiff "was paid by the car." Part of the time plaintiff worked in the cars into which the ore was unloaded from the trucks. Of his work in the car plaintiff testified:

"They (the two other men) hauled the ore to the car and shoveled in the car and my job was to put it back in the car so that the car could be loaded up to capacity and be kept away from the door as much as possible. They went to the bins and loaded it in the truck... . When the truck gets to the car, two of them unload and the man in the car throws it back... . This dust would fly; get in your mouth and your eyes and nose and your ears; all over you and you have to hunt air. By that I mean when the dust would get too thick from float ore, you would have to hunt air... . I seen it so thick you had to hunt air so you could breathe with any ease at all... . My face and nose would be anywhere from, I should say, two feet to three feet from the ore... . The two men standing in the truck picked up the canvas (between the truck and the car) and give it a flip so what ore is on there would go in the car. That would cause just as much or more dust to accumulate than the shovel would... . I was exposed to this dust practically all of the time in the eight to fourteen hours a day that I worked... . The dust accumulated on my arms and on my face, on my clothes... . It got in my nose and my eyes and my ears. I could certainly feel the effects of breathing the dust; it would just be dust in your nose or your mouth; you could see this dust in the air through the sunshine; you could see it otherwise than in the sun any time if you wanted to look for it. In the air the dust in the float ore looked more like, I should say, smoke than anything else."

Plaintiff also worked at the bins in loading the ore, and of this work, he testified: "Dust accumulated around the loading operations from the bins to the truck. Some of these bins are closed bins and some are open. I have seen dust in closed float bins until I would have to go to the window and stick my head out and get a good breath. There would be particles of dust on the coarse ore there the same as there would be in the car, and when shoveling it out of the truck the dust would be just practically the same as other places. The conditions were the same there, I will say, as they were the other places because the stuff flies there the same as it would be in loading into the truck or backing into the car. You could see it in the air if you wanted to look for it; you didn't stop to look for it, of course, when you were working that way... . I first learned that I had dust on my lungs in April, 1939... . There was no interruption in my employment with Mr. Orr from March, 1936, when I went back to work for him until I quit on July 11, 1940. Around a year or so before I quit I noticed that there was something wrong with me; I noticed shortness of breath; easily fatigued, weakness. About two months before I quit I had pains in my chest... .

"I have made complaint to Mr. Whitescarver (defendant's foreman) about these dust conditions; I complained about the dust and the stuff flying and he always said it won't hurt you; I complained a number of times; I couldn't enumerate them from the time I first started to work until I quit, and his answer was always the same — that it won't hurt you. I was never...