Opinion
No. 32253.
September 28, 1936. Suggestion of Error Overruled October 26, 1936.
1. MASTER AND SERVANT.
Employer is not guarantor of safety of place of employee's work, and is only required to use reasonable care to furnish employee a reasonably safe place to work.
2. MASTER AND SERVANT.
In employee's action for chronic bronchitis allegedly caused by failure of feed manufacturer to furnish employee reasonably safe place to work, evidence that manufacturer should have reasonably anticipated harmful effects of dust from grain held insufficient for jury.
APPEAL from the circuit court of Lauderdale county. HON. ARTHUR G. BUSBY, Judge.
Gilbert Cameron, of Meridian, for appellant.
Peremptory instruction should have been granted defendant as it was pure speculation as to the source of plaintiff's afflictions.
Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; 1 Sutherland, Damages, page 207; 8 R.C.L. 438; 39 C.J. 1115, sec. 1310, footnote 56; Miss. Central R.R. Co. v. Lott, 118 Miss. 844.
There is no common law remedy for industrial or occupational disease.
Adams v. Acme White Lead Color Works, 182 Mich. 157, 148 N.W. 485; L.R.A. 1916A 283; Sylvester v. The Buda Co., 281 Ill. App. 139; Miller v. American Steel Wire Co., 90 Conn. 349, 97 A. 345; Gordon v. Travelers' Ins. Co., 287 S.W. 911; Berry v. Atlantic White Lead Linseed Oil Co., 51 N.Y. Supp. 602; Industrial Commission v. Brown, 92 Ohio St. 309, 110 N.E. 744; Peru Plow Co. v. Industrial Commission, 311 Ill. 216, 142 N.E. 546; Ewers v. Buckeye Clay Pot Co., 163 N.E. 577.
The common law prevails in this state except as modified by statute.
R.R. v. Scott, 108 Miss. 871, 67 So. 491, Ann. Cas. 1917E 880; Richardson v. Sims, 118 Miss. 728, 80 So. 4; Ins. Co. v. Pannell, 169 Miss. 50, 152 So. 635.
No negligence was shown against the appellant.
The undisputed proof is that it is impossible to operate a mixed feed plant without the presence of dust. This is so obviously true as to need no proof. It is the common knowledge of men who know anything about handling grain from the corn crib, grist mill to the great granaries of the world. The only way to eliminate dust would be to eliminate the plant or abandon the grain.
In common law states, without exception there is no liability to an employee for disease unless it is the direct and proximate result of the negligence of the employer and that negligence must be proven as in any other case.
A.L.I., Restatement of Agency, sec. 499C; Koetsier v. Cargill Co., 217 N.W. 51; Webb's Pollock on Torts, 45; 4 Thompson on Negligence (2 Ed.), sec. 3774; Kitteringham v. Sioux City Pacific Ry. Co., 63 Iowa 285, 17 N.W. 585; Gould v. Slater Woolen Co., 147 Mass. 315, 17 N.E. 531; Fox v. Peninsular, etc., Works, 84 Mich. 676, 48 N.W. 203; Allen Gravel Co. v. Curtis, 173 Miss. 416, 161 So. 670; American Sand Gravel Co. v. Reeves, 168 Miss. 608, 151 So. 477; Benjamin v. Davidson-Gulfport Fertilizer Co., 169 Miss. 162, 152 So. 839; Newell Construction Co., v. Flynt, 172 Miss. 719; 6 A.L.R. 355.
It is undisputed that respirators were furnished the employees and that some of the employees sometimes used these respirators. It is further undisputed that the dustiest part of the business was at times when the machines were being tested. It was at such time and place that Bullock claims to have spit up blood, whereas there was on hand to his knowledge respirators to be used.
These respirators were not used because the grain dust was considered to be harmful, but were furnished because there are certain men who cannot stand dust — and Jones was not one of that type — and the respirators were provided for the comfort of the employees.
The master can only be called upon to furnish the appliances. If they are furnished and the servant refused or neglects to use them, then the employer has violated no duty to him and cannot be held liable.
Anderson v. McGrew, 122 So. 492, 154 Miss. 291.
The verdict is contrary to the overwhelming weight of the evidence.
Walker Broach, Jr., of Meridian, for appellee.
Despite differences of opinion, all of the doctors in this case, both for the defense as well as the plaintiff, admit and testified that irritation will ensue from matter that is not or cannot be dissolved. If it be mechanical irritation, the plaintiff has proved his case from the medical aspect by showing the terrific dust concentrates inhaled over a period of time, thus hopelessly breaking down the plaintiff's body defenses. If it be chemical irritation, the plaintiff has proved his case under the uncontradicted rebuttal testimony of Dr. Stingily showing actual injurious oils extracted from grain dust and his testimony that such oils are even more irritating than the chemicals contained in silica.
As we understand the law, by the overwhelming weight of authority medical books can never be injected into testimony, introduced in evidence, or read to a witness, even on cross examination, unless and except the witness has given an opinion based upon that particular book, when it is then allowed for the sole purpose of contradicting what the witness says the book upon which he relies says.
10 R.C.L. 1163, sec. 364; 3 Wigmore on Evidence, sections 1690 to 1700; Tucker v. Donald, 60 Miss. 460, 45 Am. Rep. 416; 3 Wharton Stille's Medical Jurisprudence, sec. 562; Hall v. Murdock, 72 N.W. 150, 114 Mich. 233; City of Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 679.
If the testimony revealed in this record does not substantiate plaintiff's contentions of injury proximately caused by the negligence of the defendant, then we do not know under any set of circumstances how such matters can ever be proved.
Miss. Central Ry. v. Lott, 118 Miss. 816, 80 So. 277, 249 U.S. 616, 63 L.Ed. 803, 39 Sup. Ct. Rep. 391; Crane Elevator Co. v. Lippert, 11 C.C.A. 521, 63 Fed. 942; Balzer Saginaw Beef Co., 165 N.W. 785; Keegan v. Minneapolis St. L.R. Co., 76 Minn. 90, 78 N.W. 965; Beauchamp v. Saginaw Mining Co., 50 Mich. 163, 15 N.W. 55, 45 Am. St. Rep. 30.
Mississippi has held that if the disease or affliction is caused by negligence the servant may recover under the common law.
Allen Gravel Co. v. Curtis, 161 So. 670.
There is a duty at common law to warn and instruct employees and furnish them with means to avoid inhaling elements that are poisonous or injurious to their health.
Jacque v. Locke Insulator Corp., 70 F.2d 680; Zajkowski v. Amer. Steel Wire Co., 258 F. 9, 6 A.L.R. 348; Thompson v. United Laboratories Co., 221 Mass. 276, 108 N.E. 1042.
The appellant here says that the undisputed proof is that it is impossible to operate a mixed feed plant without the presence of some dust. This statement we concede, but it simply bears out the plaintiff's contentions in this case, that is, that the ordinary dust concentration from the ingredients used in making mixed feeds is not dangerous, but it is the unusual and highly concentrated dust accumulations that generally existed at the plant of the defendant that caused the injuries herein complained of. And in this very fact lies the reason why workers exposed to grain dust have not suffered more greatly from injuries such as herein complained of, which statement is further evidenced to be true by the repeated declarations of the defense witnesses, to the effect that the dust condition found by the jury to obtain at the plant of the defendant was inexcusable and utterly unnecessary.
There is no question here, as suggested by the appellant, of the master being held to be the insurer of the health of his employees. The plaintiff below, appellee here, does not ask that, has never asked that, and does not expect that. His complaint and verdict is based upon alleged negligence of the master, not ordinary, but gross, and, as testified to by the president of the defendant company itself, to paraphrase, inexcusable. The jury has found this condition to exist and on competent and reliable testimony which preponderated clearly in favor of the plaintiff.
Koetsier v. Cargaill Co., 207 N.W. 51.
Not only medical science itself was unanimous in refusing to support the contention of the defendant that no harmful effects would follow the conditions under which the plaintiff worked, but the knowledge of ordinary human experience itself teaches contrary to the contentions of the defendant.
We find it to be elemental that it is not some certain specific injury that the master must anticipate to render him liable to the servant, or any particular consequence of his negligence, but only that some injury or harm is likely to result from his negligence.
39 C.J., Master Servant, page 290, sec. 415; Fletcher v. Ludington Lbr. Co., 142 La. 151, 76 So. 592; Dulligan v. Barber Asphalt Co., 201 Mass. 227, 87 N.E. 567; Hamilton v. Standard Oil Co., of Ind., 19 S.W.2d 679; Jacque v. Locke Insulator Corp., 70 F.2d 680; Veney v. Samuels, 107 So. 517, 142 Miss. 476; McCahill v. New York Transportation Co., 201 N.Y. 221, 94 N.E. 616, 48 L.R.A. (N.S.) 131, Ann. Cas. 1912A 961; Tice v. Munn, 94 N.Y. 621; Long v. Stadium Purchasing Corp., 216 App. Div. 558, 215 N.Y. 502; Clover-Clayton Co., Ltd., v. Hughes (1910), A.C. 242; First National Bank of Ottawa v. Wedron Silica Co., 351 Ill. 560, 184 N.E. 897; Madison v. Wedron Silica Co., 352 Ill. 60, 184 N.E. 901; St. Joseph Lead Co. v. Jones, 70 F.2d 475; Ford Motor Co. v. Brody, 73 F.2d 248; Green v. Standard Wholesale Phosphate Acid Works, 29 F.2d 746; Peaslee-Gaulbert Co. v. McNath, 148 Ky. 265, 146 S.W. 770, 39 L.R.A. (N.S.) 465, Ann. Cas. 1913E 392; Thonhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N.E. 474; Adams v. Grand Rapids Refrigerator Co., 160 Mich. 590, 125 N.W. 724, 27 L.R.A. (N.S.) 953, 136 Am. St. Rep. 454, 19 Ann. Cas. 1152; Wagner Elec. Corp. v. Snowden, 38 F.2d 599; Clark v. Banner Grain Co., 261 N.W. 597; Fritz v. Elk Tanning Co., 101 A. 958, 258 Pa. 180; Gatliff Coal Co. v. Ramseur's Admx., 228 S.W. 1028, 191 Ky. 10; Log Mountain Coal Co. v. Crunkleton, 169 S.W. 692, 160 Ky. 202; Davies v. Rose-Marshall Coal Co., 134 Pa. 180, 74 Wn. 565; Jellico Coal Co. v. Wall, 170 S.W. 19, 160 Ky. 730; Eureka Oil Co. v. Mooney, 292 S.W. 681; Olchefsky v. Mercier, Bryant, Larkins Brick Co., 215 N.W. 317, 240 Mich. 536; Lewis v. Whitney, 238 Mich. 74, 213 N.W. 456; Hatcher v. Globe Mfg. Co., 16 P.2d 824, 170 Wn. 494; Plank v. R.J. Brown Pet. Co., 61 S.W.2d 328; Langeneckert v. St. Louis Sulphur Chemical Co., 65 S.W.2d 648; Downing v. Oxweld Acetylene Co., 169 A. 709, 112 N.J. Law 25; Pevesdorf v. Union Elec. Light Power Co., 64 S.W.2d 939; 6 A.L.R. 355; Fritchman v. Chitwood Battery Co., 8 P.2d 368; Trout v. Wickwire Spencer Steel Corp., 195 N.Y.S. 528; Midland Coal Co. of Olive Hill, Ky. v. Rucker's Admr., 277 S.W. 838, 211 Ky. 582; Elkshorn Coal Corp. v. Kerr, 263 S.W. 342, 203 Ky. 804; Jellico Coal Co. v. Adkins, 247 S.W. 972, 197 Ky. 684; Johnson v. E.E. Orcutt Garage, 157 A. 46, 103 P. Super. 507; Travelers Ins. Co. v. Smith, 266 S.W. 574; Depre v. Pacific Coast Forge Co., 276 P. 89, 151 Wn. 430; Dodd v. Independence Stove Furnace Co., 51 S.W.2d 114; Pellerin v. Washington Veneer Co., 2 P.2d 658; Hurley v. New York Brooklyn Brewing Co., 43 N YS. 259; Amalgamated Sugar Co. v. Industrial Commission, 56 Utah 80, 189 P. 69; Vogeley v. Detroit Lbr. Co., 196 Mich. 516, 162 N.W. 975; Peso v. Crucible Steel Co., 195 App. Div. 288, 187 N YS. 66; Pickwick Greyhound Lines, Inc., v. Silver, 125 So. 340, 155 Miss. 765; Pan American Life Ins. Co. v. Jennings, 161 So. 160.
There is such a multitude of authorities showing injuries from dust, fume and gas inhalation that we simply cannot attempt to give to the court all of the many cases under Workmen's Compensation Acts, but which might be of help, as tending to show how far the courts have gone in tracing disease. We only cite a few.
Carroll v. Industrial Commission of Colorado, 69 Colo. 473, 195 P. 1097, 19 A.L.R. 107; Tintic Milling Co. v. Industrial Commission of Utah, 206 P. 278, 23 A.L.R. 325; Dove v. Alpena Hide Leather Co., 198 Mich. 132, 164 N.W. 253; 20 A.L.R. 4; McGarry v. Industrial Commission, 290 Ill. 577, 125 N.E. 318; Balzer v. Saginaw Beef Co., 199 Mich. 374, 165 N.W. 785; Peso v. Crucible Steel Co., 195 App. Div. 288, 187 N.Y.S. 66; McPhee's case, 222 Mass. 1, 109 N.E. 633, 10 N.C.C.A.; Blackburn v. Coffeyville Vitrified Brick Tile Co., 107 Kans. 722, 193 P. 351; Geizel v. Regina Co., 114 A. 328, 116 A. 924; Barron v. Texas Employers Ins. Assn., 36 S.W.2d 464.
We also call the court's attention to a consideration of the following, which, while inconclusive in themselves as to the question under consideration, perhaps may be enlightening as showing injury from grain dust.
Hartford Accident Indemnity Co. v. Industrial Accident Commission, 163 P. 225; Cambridge Mfg. Co. v. Johnson, 160 Md. 248, 153 A. 283.
But aside from this host of authority hereinbefore recited, and the undoubted and repeated recognition by the courts of liability for affliction sustained from the inhalation of foreign matter, and irrespective of this host of authority, Mississippi has definitely in the past few years, determined these questions against appellant's contentions and in favor of the plaintiff below, appellee here.
The following Mississippi cases, in our humble judgment, sustain this assertion and we submit that as hereinbefore shown not only are they supported on sound reason, but by the overwhelming weight of authority.
American Sand Gravel Co. v. Reeves, 151 So. 477, 168 Miss. 608; 39 C.J. 491, 510; 18 R.C.L. 571; 1 Labatt, 298-301; Adams v. Grand Rapids Refrigerator Co., 160 Mich. 590, 125 N.W. 724; 27 L.R.A. (N.S.) 953, 136 Am. St. Rep. 454, 19 Am. Cas. 1152; Benjamin v. Davidson-Gulfport Fertilizer Co., 152 So. 839, 169 Miss. 162; Allen Gravel Co. v. Curtis, 161 So. 670, 173 Miss. 416; 39 C.J. 490, sec. 604.
The three above Mississippi cases, cited, do conclusively answer all the plaintiff's contentions, without recourse to any further authority whatsoever, and have conclusively determined the course of the Mississippi courts on these questions.
Argued orally by V.W. Gilbert, for appellant, and by Walker Broach, Jr., for appellee.
Appellee brought this action in the circuit court of Lauderdale county against appellant to recover damages for an injury suffered by him (chronic bronchitis) alleged to have been caused by appellant's failure to furnish him a reasonably safe place to work.
For a good many years appellant has operated a plant in the city of Meridian for the manufacture of mixed feeds for horses, cattle, and chickens, the principal ingredients of which are oats, corn, alfalfa meal, and molasses. The plant is rather large. Appellee was one of the employees from January, 1921, to March, 1931. Most of the time he was in charge of the horse feed unit. After appellee quit the employment, he developed chronic bronchitis, diabetes, high blood pressure, and hardening of the arteries. The injury for which he sues is chronic bronchitis; the suit was not brought until four and one-half years after he quit appellant's employment. He claims the ailment was caused by breathing dust generated by the operation of the plant, and that such dust caused the plant to be an unsafe place to work. The ground of liability is that appellant by the exercise of reasonable care could have prevented the dust.
It would be well to keep in mind the definitions of organic and inorganic dust; organic dust is that which is made from plant life; inorganic dust is mineral dust and comes from rock, coal, and other minerals, and is often referred to as silica. It is agreed among the expert witnesses that the breathing of mineral dust is harmful, and may cause chronic bronchitis and other respiratory diseases; it sticks — does not dissolve — and irritates. The controversy is as to whether the breathing of organic dust is harmful.
Before going into the evidence, it would probably be well to state the governing principles of law. The master is not the guarantor of the safety of the place to work; the obligation to furnish a safe place is not an absolute one. The master is only required to furnish a reasonably safe place, and that obligation is modified by the phrase "reasonable care;" in other words, he is only required to use reasonable care to furnish his servant a reasonably safe place to work. If the place is not reasonably safe, still there is no liability on the part of the master if he has used reasonable care to make it reasonably safe. McComb Box Co. v. Duck, 174 Miss. 449, 164 So. 406; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Anderson v. McGrew, 154 Miss. 291, 122 So. 492; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; McLemore McArthur v. Rogers, 169 Miss. 650, 152 So. 883; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475.
Appellee's evidence showed he had chronic bronchitis, and that during the ten-year period of his employment there was a great deal of dust in the plant caused by its operation and coming principally from the conveyors and elevators; that he complained of this to the superintendent. Appellee testified, and so did his witnesses, Winslett, Ross, Bullock, and Clay, who had been employed in the plant, that at times the dust was very dense and at other times not so bad, that it came from the feedstuff as it was moved in the conveyors and elevators, and that it could have been prevented, not entirely, but to a large extent, by certain repairs and additions to such conveyors and elevators.
Appellant used as witnesses Wright, manager of a mixed feed plant at Jackson in this state; Steed, the engineer who designed and sold most of the machinery in appellant's plant; Locker, who was engaged in the manufacture of cereal products in Memphis, Tenn.; Leonhard, who had had twenty years' experience in designing and supervising such plants; Guyton, who worked in appellant's plant for several years and now engaged in a similar plant in Memphis, Tenn.; Broomfield, who was feed and fertilizer inspector for this state from January, 1928, to June, 1935; Johnson, fire insurance commissioner and inspector for the rating bureau of this state; Sturges, the owner of a mixed feed mill at Meridian in this state. They all testified that appellant's plant was a standard plant — in all respects properly equipped; that in its operation the generation of dust was unavoidable, but that appellant's plant generated no more dust than other standard plants; they all agreed that the history of the operation of such plants showed that the dust generated from the handling of the feedstuffs was harmless.
Expert medical testimony was used by both sides. Appellee introduced Drs. Stingily, Key, and Robinson; they testified that in their judgment chronic bronchitis might be caused by the constant breathing of organic dust. Appellant introduced Drs. Cleveland, Wilson, Gully, Bourdeaux, Lewis, and Boswell, all of whom testified that organic dust, the character of dust generated in appellant's plant, was harmless to those working in it; that much of it was expelled from the respiratory system by coughing, and that not expelled was absorbed and passed out of the system through the usual channels; that that, however, was not true of inorganic dust, that it stuck where it landed and caused irritation which might result in chronic bronchitis and other respiratory diseases. Dr. Boswell, for many years superintendent of the State Tuberculosis Sanitorium, testified that he had examined thousands of patients for chest diseases, and he knew from experience and from medical authorities which he had read that the breathing of organic dust was harmless, while the breathing of inorganic dust was not, and that, where they were mixed, the combination was still harmless, unless there was at least eighty-five per cent. "pure silica" — inorganic dust. Dr. Boswell testified further that for several years he had operated a mixed feed plant in connection with the sanitorium similar to the appellant's and that it generated dust, but it was organic dust, and therefore harmless.
It was undisputed in the evidence that appellant's was a standard plant operated in the customary way, generating no more dust than other like plants, and that the dust generated was organic dust, not inorganic dust.
Now, grant that the medical testimony on behalf of appellee is true, that organic dust is capable of producing chronic bronchitis; in other words, that appellant failed to furnish appellee a reasonably safe place to work. This alone did not make out a case of liability. Appellee was required to go further and show that the unsafe place was the result of appellant's failure to exercise reasonable care in providing the place. In the construction and operation of its plant, appellant was governed by the experience of those engaged in the same business. There was no evidence that appellant knew, or had any intimation, that there was a difference of opinion in the medical profession as to whether organic dust was harmful. Negligence is the failure to do something which a reasonable person, guided by the consideration which ordinarily regulates the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. "Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible." Pollock on Torts (9 Ed.), p. 41.
There was no evidence whatever tending to show that appellant should have reasonably anticipated the harmful effects of the dust. Appellant had the right to stand on the history of the business, which showed the dust generated by such plants to be harmless. It was not required to consult medical experts about a matter unquestioned in the business. There being no evidence that appellant should have reasonably anticipated the harmful effects of the dust, there was no case for the jury. Appellant was entitled to its requested directed verdict.
Reversed, and judgment here for appellant.