Opinion
March 5, 1940.
1. CERTIORARI: Conflict. A ruling by the Court of Appeals, affirming a judgment of a circuit court which approved an award for a death by the Workmen's Compensation Commission, that there was substantial evidence to show deceased was afflicted with silicosis from breathing dust from paint used in a nearby shop, but did not rule that an occupational disease included the aggravation of latent tuberculosis, and on certiorari it is not necessary to consider that matter in determining whether there is a conflict.
2. CERTIORARI: Conflict: Silicosis. On a claim for a death caused by breathing paint dust while subsequent conditions of the plant where plaintiff worked were not admissible a ruling by the Court of Appeals that the chemical analysis of the paint, made during the time of the employment of the deceased was admissible, was not in conflict with any ruling of the Supreme Court.
3. CERTIORARI: Conflict. A ruling by the Court of Appeals that a point which first appeared in a reply brief was too late for consideration was not in conflict with a ruling of the Supreme Court.
4. CERTIORARI: Conflict. Where the Supreme Court held, obiter, that an "occupational disease" under the compensation law includes only diseases peculiar and incidental to the employment, and afterwards in an opinion adopted the obiter ruling as the rule of the court, a holding by the Court of Appeals to the effect that by an occupational disease, the Legislature intended, is a disease caused by or directly resulting from working conditions, was in conflict with the ruling of the Supreme Court.
WRIT GRANTED QUASHING THE OPINION OF THE COURT OF APPEALS IN PART.
James E. Nugent, Douglas Stripp and Morrison, Nugent, Berger, Byers Johns for relators.
(1) Respondents contravened prior controlling decisions of this court in holding that "occupational disease" under the Workmen's Compensation Law was not restricted to a disease peculiar and incident to the particular occupation but was a disease caused by or directly resulting from working conditions. Downey v. Kansas City Gas Co., 338 Mo. 812; Wolf v. Mallinckrodt Chemical Works, 336 Mo. 757; Belfast Inv. Co. v. Curry, 264 Mo. 496; State ex rel. Buerk v. Calhoun, 330 Mo. 1175; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1007. (2) Respondents contravened controlling decisions of this court in holding that "occupational disease" under the compensation law includes the aggravation or lighting up of latent or pre-existing tuberculosis or other diseases since, under such circumstances, the disease is not peculiar and incident to the employment, but to the employee's personal condition. Downey v. Kansas City Gas Co., 338 Mo. 803; Wolf v. Mallinckrodt Chemical Works, 336 Mo. 746; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389. (3) Respondents contravened prior controlling decisions of this court in holding that the chemical analysis of a paint sample obtained after the employee became ill was admissible in evidence. Wolf v. Mallinckrodt Chemical Works, 336 Mo. 763; State ex rel. Mfg. Co. v. Beck, 337 Mo. 854; Conduitt v. Trenton G. E. Co., 326 Mo. 146; James v. Kansas City Gas Co., 325 Mo. 1071; State ex rel. Baldwin v. Shain, 125 S.W.2d 46; Boll v. Condie-Gray Glass Paint Co., 321 Mo. 101. (4) Respondents contravened prior controlling decisions of this court in holding that they could not determine whether the evidence that death resulted from tuberculosis induced by silicosis had been introduced in violation of the stipulation of the parties. Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1007; Huegel v. Huegel, 329 Mo. 576; State ex rel. Fidelity Deposit Co., v. Allen, 85 S.W.2d 455; State ex rel. Talbott v. Shain, 334 Mo. 617.
Madden, Freeman Madden for respondents.
(1) Respondents' opinion is not in conflict with Downey v. Gas Company, 92 S.W.2d 580, and respondent being a court of final appellate jurisdiction had the right to place its own construction upon the Occupational Disease Amendment to the Missouri Workmen's Compensation Statutes, such amendment never having been construed by this court. Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Downey v. Kansas City Gas Co., 338 Mo. 803; State ex rel. Arndt v. Cox, 38 S.W.2d 1082; State ex rel. v. Hostetter, 85 S.W.2d 743, 337 Mo. 718; State ex rel. v. Cox, 282 S.W. 694; Busen v. Chevrolet Motor Co., 100 S.W.2d 277, 340 Mo. 137; Bieser v. Goran, 100 S.W.2d 897, 340 Mo. 354. (a) The interpretation given the Occupational Disease Amendment (1931) of the Missouri Workmen's Compensation Statute is not in conflict with the cases of Belfast Investment Co. v. Curry, 264 Mo. 483; State ex rel. Buerk v. Calhoun, 330 Mo. 1172, and Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000. Belfast Inv. Co. v. Curry, 264 Mo. 483; State ex rel. Buerk v. Calhoun, 330 Mo. 1172; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000; State ex rel. Talbott v. Shain, 66 S.W.2d 827, 334 Mo. 617. (2) Respondents did not contravene any controlling decisions of this court in holding that "occupational disease" under the compensation law includes the aggravation or lighting up of latent or pre-existing tuberculosis or other disease. Downey v. Kansas City Gas Co., 338 Mo. 803, 92 S.W.2d 580; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389; State ex rel. Baldwin v. Shain, 125 S.W.2d 41; State ex rel. Ward v. Trimble, 39 S.W.2d 373. (3) Respondents did not contravene any prior controlling decision of this court in holding that the chemical analysis of the paint sample obtained in February, 1934, was admissible in evidence. (4) Respondents did not contravene any prior controlling decision of this court in holding that they could not determine whether the evidence that death resulted from tuberculosis induced by silicosis had been introduced in violation of a stipulation of the parties and in any event this matter is not properly before this court in this proceeding for the reason that the point was first raised in a reply brief and was not considered by respondents except in the opinion handed down on July 3, 1939, and no motion for rehearing was filed by relator against that opinion. Orchard v. Mo. Lbr. Min. Co., 184 S.W. 1138; State ex rel. Silverforb v. Smith, 43 S.W.2d 1058; State ex rel. Met. Life Ins. Co. v. Daues, 297 S.W. 953; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 913, 336 Mo. 1000; State ex rel. K.C. Pub. Serv. Co. v. Shain, 124 S.W.2d 1098; State ex rel. Talbott v. Shain, 66 S.W.2d 826, 334 Mo. 617; State ex rel. Kansas City v. Ellison, 281 Mo. 67, 220 S.W. 498; State ex rel. Ward v. Trimble, 39 S.W.2d 373; State ex rel. Tunget v. Shain, 101 S.W.2d 1, 340 Mo. 445. (5) In the event this court should hold that the part of respondents' opinion which relators claim conflicts with the opinions of this court does so conflict, this court should not quash the decision of the Court of Appeals but should quash only that part of the opinion so held in conflict and permit its decision and the remainder of the opinion to stand, because the parts of the opinion complained or are not essential and the essential part of the decision of the Court of Appeals is based upon its holding to the effect that the evidence in the case at bar required the affirmance of the judgment and award under the latest ruling of this court in Smith v. Harbison-Walker Refractories Co., 100 S.W.2d 909. State ex rel. American Mfg. Co. v. Reynolds, 270 Mo. 589, 194 S.W. 878; Rule 34, Sup. Ct.; State ex rel. May Stores v. Haid, 327 Mo. 585, 38 S.W.2d 53; Newberry v. St. Louis, 109 S.W.2d 881.
Relator seeks to have quashed the opinion of a Court of Appeals in Fitzgerald v. Fisher Body St. Louis Company et al., 130 S.W.2d 975. The material facts follow:
Action under the Workmen's Compensation Law. John C. Fitzgerald was a carpenter and as such became an employee of the Fisher Body St. Louis Company in January, 1929. At that time he was in good health and weighed one hundred seventy-five to one hundred eighty-five pounds. He so continued until the latter part of 1933, at which time he began to decline in health. He gradually grew worse, lost weight and collapsed while at work on May 29, 1934. Thereafter he did no work for the company and died March 11, 1936. The commission awarded compensation to plaintiff, the widow. The award was affirmed by the circuit court and by the Court of Appeals in the opinion under consideration.
The deceased worked forty or fifty feet from a booth where automobiles were sprayed with paint. The spraying caused a fog to pervade the carpenter shop. It was fine red dust which settled on the floor, stock piles and clothing and body of the deceased. He daily discharged the dust from his nose and mouth. In February, 1934, a chemical analysis of the paint disclosed that it contained fine particles of silica, iron oxide, aluminum oxide, calcium carbonate and basis lead carbonate. Each ingredient was insoluble in water and a mechanical irritant. There also was evidence tending to show that the death of Fitzgerald was caused by "tuberculosis induced by silicosis."
I. Relators contend that the opinion rules that "occupational disease," under compensation law, includes the aggrevation of latent tuberculosis and that said ruling conflicts with certain cited cases of this court.
It will not be necessary to consider whether or not the cited cases ruled the question, for the reason said court did not rule that "occupational disease" included the aggravation of latent tuberculosis. On the contrary it ruled that there was substantial evidence tending to show that deceased continued in good health until the latter part of 1933 and thereafter became afflicted with silicosis, an "occupational disease," which caused the tuberculosis of which he died.
II. Relators also contend that the ruling of the Court of Appeals on the admissibility of the chemical analysis of the paint is in conflict with Wolf v. Mallinckrodt Chemical Works, 336 Mo. 746, 763, 81 S.W.2d 323; State ex rel. Mfg. Co. v. Beck, 337 Mo. 839, 854, 85 S.W.2d 1026; Conduitt v. Trenton Gas Electric Co., 326 Mo. 133, 146, 31 S.W.2d 21; James v. Kansas City Gas Co., 325 Mo. 1054, 1071, 30 S.W.2d 118; State ex rel. Baldwin v. Shain, 125 S.W.2d 41, 46; Boll v. Condie-Bray Glass Paint Co., 321 Mo. 92, 101, 11 S.W.2d 48.
In substance, we ruled in the Wolf and Beck cases that subsequent conditions of a plant were not admissible as tending to show conditions during the employment, unless there was evidence tending to show that said conditions were similar.
In the other cited cases no effort is made to show conflict. Relators argue the point on the merits.
As stated, in the latter part of 1933 the deceased noticed that he was not in his usual physical condition. However, he continued to perform his full duty until May 29, 1934. The chemical analysis was made during the time of his employment, and in February, 1934. The Court of Appeals ruled that the chemical analysis was admissible for the reason the dust from February to May 29th directly contributed to the death of decedent and for the further reason that said analysis tended to show that the effect of the dust on the employee was the same before the chemical analysis as after the chemical analysis.
III. At the trial relators objected to the admission of certain evidence as in violation of a stipulation of the parties. They contend that the refusal of the Court of Appeals to rule on the question is in conflict with Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 1007, 82 S.W.2d 909; Huegel v. Huegel, 329 Mo. 571, 575, 576, 46 S.W.2d 157; State ex rel. Fidelity Deposit Co. of N.Y. v. Allen, 85 S.W.2d 455; State ex rel. Talbott v. Shain, 334 Mo. 617, 66 S.W.2d 826.
Relators direct attention to no conflict with the cited cases. They argue this point on the merits.
On the question the Court of Appeals ruled that the point first appeared in a reply brief, and for that reason "is too late for consideration," citing Orchard v. Missouri Lumber Mining Co. (Mo.), 184 S.W. 1138, which sustains the ruling.
IV. Relators also contend that the opinion of the Court of Appeals in ruling that "occupational disease" under the compensation law is not restricted to diseases peculiar and incidental to the employment, conflicts with Wolf v. Mallinkrodt Chemical Works, 336 Mo. 746, 81 S.W.2d 323, and Downey v. Kansas City Gas Co., 338 Mo. 803, 92 S.W.2d 580.
The Wolf case was an action for damages under the common law and the statutes of Missouri. The answer was a general denial. The meaning of "occupational disease," under the compensation law, was in no way involved in said case. Even so, the opinion in said case stated that "occupational disease," under the compensation law, includes only diseases peculiar and incidental to the employment. The statement is not a ruling of this court on the question but were obiter dictum.
The Downey case also was an action for damages, but the question of the meaning of "occupational disease," under the compensation law, was for determination under the pleadings. In ruling the question in the Downey case we quoted the obiter from the Wolf case and thereby adopted said obiter as a rule of this court.
The opinion in the instant case ruled that "in the absence of any provision (in the compensation law) to the effect that an occupational disease under the act is a disease `incident' or `peculiar' to the work it is reasonable to say the Legislature intended that an occupational disease, within the meaning of the compensation law, is a disease caused by or directly resulting from working conditions." [Fitzgerald v. Fisher Body St. Louis Company et al., 130 S.W.2d l.c. 977.] The ruling is in conflict with the Downey case and the writ should be granted, quashing only this part of the opinion of the Court of Appeals. It is so ordered. All concur.