Opinion
39428.
DECIDED APRIL 3, 1962. REHEARING DENIED APRIL 25, 1962.
Action for damages. Fulton Superior Court. Before Judge Alverson.
Smith, Kilpatrick, Cody, Rogers McClatchey, Ernest P. Rogers, Barry Phillips, for plaintiff in error.
Hamilton Lokey, Lokey Bowden, Joseph E. Cheeley, Jr., contra.
1. Judicial notice may not be taken of a medical definition about which there is a conflict of medical authority or that is subject to being disproved.
2. Plaintiff here did not assume the risk of contracting pneumoconiosis from suede and leather dust.
3. ( a, b) Some of the special demurrers were properly overruled but others should have been sustained.
DECIDED APRIL 3, 1962 — REHEARING DENIED APRIL 25, 1962.
J. L. Greeson brought a common-law action against Genesco, Inc., to recover damages because he had allegedly contracted the disease of pneumoconiosis while in the employment of and on account of alleged negligence of the defendant. The pertinent allegations of the petition can be summarized as follows: The plaintiff worked for defendant from 1941 until May 29, 1959, and the period from 1945 until 1959 was spent as an "upper leather cutter" in the defendant's shoe factory. The machine which plaintiff operated "created a constant turbulence in the area and the turbulence thus created kept the air in and around petitioner constantly filled with minute particles of leather, suede and fabric and dust." During the last year of plaintiff's employment he cut more of the suede leather, which is softer and produces more minute particles and dust in this operation.
A number of similar machines were in operation in the same room where plaintiff worked. Plaintiff did not know the danger of his employment or of the possibility of contracting pneumoconiosis. The defendant did know or could have known that plaintiff and those similarly situated could contract pneumoconiosis.
The allegations of negligence were: "(a) In failing to furnish petitioner with a safe place to work. (b) In failing to adopt and promulgate proper rules for the protection of petitioner from the particles, dust and dyes from the leather and suede he was working with as aforesaid. (c) In failing to warn and instruct petitioner of the dangers incident to his employment. (d) In failing to furnish proper tools and equipment for the operation of said work of petitioner. (e) In failing to provide for proper ventilation and circulation of air so as to reduce the particles and dust in the air required to be breathed by petitioner. (f) In failing to provide petitioner with a mask or other protection to prevent his inhaling such dust and leather particles. (g) That while full well knowing the danger of petitioner's employment, and the probability of his contraction of pneumoconiosis, in continuing to fail to furnish proper safeguards, material, mask or ventilation, so as to prevent the contraction of pneumoconiosis by petitioner." There were allegations of fact to support each specification of negligence.
The plaintiff amended his petition after defendant's first demurrers. The defendant renewed in writing both its general and special demurrers and they were all overruled. Defendant seeks review of this last order.
The contentions of defendant's general demurrer are twofold, viz., (1) that this court should take judicial notice that "pneumoconiosis" is caused only by inhaling mineral and metallic particles; and, (2) that plaintiff assumed the risk of his employment.
1. In support of its first contention, the defendant cites a number of medical authorities of which the following definition of pneumoconiosis is illustrative: "A disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." Webster's New International Dictionary (3rd Ed.) (Emphasis added). Others cited to the same effect are Webster's, supra, (2d Ed.); Blakiston's New Gould Medical Dictionary (2d Ed.); 18 Encyclopedia Britannica 101 (1957 Ed.). The argument then proceeds that, since this court would judicially know that "pneumoconiosis" can only be caused by mineral or metallic particles, presence of the suede or leather dust as alleged here could not have caused the plaintiff to have that disease.
It is clear that the doctrine of judicial notice can be utilized in rulings on demurrers. Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440, 458 ( 79 S.E.2d 832); North British c. Ins. Co. v. Mercer, 211 Ga. 161 ( 84 S.E.2d 570). However, it is equally clear that this court will not and cannot take judicial notice of any scientific fact that is subject to being disproved. Irwin v. Torbert, 204 Ga. 111, 125 ( 49 S.E.2d 70); Central of Ga. R. Co. v. Lawley, 33 Ga. App. 375 (3) ( 126 S.E. 273). See generally, Green, Georgia Law of Evidence §§ 4-5.
The plaintiff comes forward with the following definition of pneumoconiosis: "Lung diseases due to the inhalation of minute particles. It is attended by fibroid induration and pigmentation." Dorland, American Illustrated Medical Dictionary (17th Ed.) The same authority listed a number of forms of pneumoconiosis which are not caused by mineral or metallic particles but are caused by cotton dust (byssinosis), tobacco dust (tabacosis) and ostrich feathers (ptilosis). To the same effect is a discussion in Gray, Attorney's Textbook of Medicine (3d Ed.) § 132.02 and the definition in Maloy, Medical Dictionary for Lawyers (2d Ed.).
A number of cases from other jurisdictions support the proposition that pneumoconiosis is a generic term which includes all lung diseases caused by dust particles of any sort. Walter Bledsoe Co. v. Baker, 119 Ind. App. 147 ( 83 N.E.2d 620, 621); Brown v. St. Joseph Lead Co., 60 Idaho 49 ( 87 P.2d 1000, 1004); Mercatante v. Michigan Steel Casting Co., 320 Mich. 542 ( 31 N.W.2d 712, 713); Golden v. Lerch Bros., Inc., 211 Minn. 30 ( 300 N.W. 207, 210). See 32A Words Phrases, 345-347 (Perm. Ed.).
Judicial notice should be used sparingly by the court to strike down pleadings. Where there is apparent conflict in the medical authorities as to the causes of a named disease and where the definition urged by the defendant is apparently subject to disproof, we cannot take judicial notice of any such causes or definition and on the basis thereof sustain a general demurrer.
2. Defendant's assumption of risk point is bottomed on Connell v. Fisher Body Corp., 56 Ga. App. 203 ( 192 S.E. 484). In Connell, plaintiff worked in the defendant's wood shop where he was seated next to a circular wood saw. This saw was alleged to have been continuously in operation which "caused a terrific amount of dust to fill the air in and about [plaintiff] and caused [plaintiff] to breathe the air. . ." The dust breathed by plaintiff was alleged to have caused him to have tuberculosis.
There the defendant's general demurrer was sustained on the basis that the plaintiff had assumed not only "the ordinary risks of his employment, but . . . all obvious risks, or risks which he could know of by the exercise of ordinary care and diligence." It was further stated that "It is inconceivable to this court that a man possessing ordinary intelligence would not know that to inhale dust is deleterious to health, and therefore subjects him more readily to infection by disease germs." Connell v. Fisher Body Corp., 56 Ga. App. 203, 209, supra.
However, the court did, at page 208, indicate a willingness to "uphold the right of the plaintiff to maintain an action for disease contracted in the course of his employment and through the negligence of the master. . ." This was later done in cases like Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 ( 11 S.E.2d 682), Martin v. Tubize-Chatillon Corp., 66 Ga. App. 481 ( 17 S.E.2d 915) and Peerless Woolen Mills v. Pharr, 74 Ga. App. 459 ( 40 S.E.2d 106). The cases involved lead poisoning, sulphuric acid blindness and soap (dye) poisoning, respectively. In each it was held that the servant had not assumed the risk because it was not obvious (the court either distinguished or ignored Connell, supra) and that the master was chargeable with knowledge of the diseases that might be contracted.
This last doctrine is known as the "assumption of skill" and means that the master is "conclusively presumed to have knowledge of the nature of the constituents and general characteristics of the substances and things used in his business . . . [which] frequently make the knowledge implied against the master superior to that implied against the servant as to things used in connection with the master's business." Beard v. Georgian Mfg. Co., 8 Ga. App. 618 (2) ( 70 S.E. 57). And, having such knowledge, the master is under a duty to warn his servant of the dangers involved. Code § 66-301. See applications of the same rule in varying factual circumstances: Burton v. Wadley Southern R. Co., 25 Ga. App. 599, 603-4 ( 103 S.E. 881); Hines v. Little, 26 Ga. App. 136 (3) ( 105 S.E. 618); Decatur Lumber Co. v. Fulton, 26 Ga. App. 499 (3) ( 106 S.E. 609); Central of Ga. R. Co. v. Lindsey, 28 Ga. App. 198 (2) ( 110 S.E. 636); Padgett v. Southern R. Co., 48 Ga. App. 214, 218-219 ( 172 S.E. 597); Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 (2), 624, supra; Pappadea v. Clifton, 96 Ga. App. 115, 122 ( 99 S.E.2d 455).
This "assumption of skill" doctrine applies equally here in that the defendant is presumed to have knowledge of the allegedly deleterious effects of the suede and leather dust. We are not prepared to say that the presence of suede and leather dust is as obvious as the presence of sawdust in the air ( Connell v. Fisher Body Corp., 56 Ga. App. 203, supra). Nor are we prepared to say that the plaintiff here should have known that he would contract pneumoconiosis from inhaling this dust any more than a plaintiff should have known that he would get lead poisoning from lead fumes and dust ( Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, supra) or sulphuric acid blindness from sulphuric acid fumes ( Martin v. Tubize-Chatillon Corp., 66 Ga. App. 481, supra) or dye or soap poisoning from exposure to soap and alkali solutions ( Peerless Woolen Mills v. Pharr, 74 Ga. App. 459, supra). This court is and should be reluctant to solve problems of negligence and diligence except in plain and indisputable cases. We think this is a problem for the jury here.
The general demurrer was properly overruled.
3.(a) Turning now to a consideration of the special demurrers we find that most of them relate to matters raised by the general demurrer. The allegations that the plaintiff contracted pneumoconiosis are attacked as vague and indefinite because it is not alleged what variety of pneumoconiosis was contracted. (Demurrers 2, 6-d). The allegation that plaintiff did not know he could get pneumoconiosis from inhaling this dust, and that inhaling the dust was the proximate cause of his disease are attacked as being conclusions (Demurrers 6-b, 8-a) or vague and indefinite (Demurrer 8-b). All of these demurrers are controlled by our ruling on the general demurrer and there was no error in overruling them.
In another paragraph it is alleged that defendant knew that certain named measures were necessary "in order to prevent petitioner from contracting various diseases of the lungs including pneumoconiosis." The demurrers (4-a and b) directed to the quoted portion of the allegation on the ground that it was immaterial and that it was vague and uncertain as to the types of diseases and type of pneumoconiosis were meritorious only in part (as to the diseases) and therefore cannot be sustained. American Home c. Ins. Co. v. Harvey, 99 Ga. App. 582 (3) ( 109 S.E.2d 322); Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 325 ( 60 S.E.2d 802).
Special demurrers 3, 6-a and 6-b were expressly abandoned.
(b) It is also alleged that before and during the time that plaintiff worked for defendant, some of defendant's other employees contracted "various diseases of the lungs," which fact was known to the defendant but not to plaintiff. This allegation is irrelevant and immaterial here because the lung diseases are not named, they are not connected by allegations with inhaling leather or suede dust or shown to be related in any other way to plaintiff's complaint, and demurrers on these grounds should have been sustained (Demurrers 5-a, b, c).
The general demurrer was properly overruled as were special demurrers 2, 4-a, b, 6-b, d, 7 and 8-a, b. Special demurrers 5-a, b and c should have been sustained.
Judgment affirmed in part; reversed in part. Carlisle, P. J., and Russell, J., concur.
ON MOTION FOR REHEARING.
Defendant insists that it is entitled to have plaintiff specify in his petition which of the forms of pneumoconiosis he suffers from, and thus to have its special demurrer calling for that information sustained. Since plaintiff does allege that he suffers from pneumoconiosis caused by the inhalation of leather and suede dust, the demurrer is not meritorious. If the facts are alleged as to what caused him to contract the disease it is enough. The scientific name for his particular trouble is, we think, a matter of proof.
Motion denied.