Martin v. Tubize-Chatillon Corporation , 66 Ga. App. 481 ( 1941 )

1. Where one, employed by a manufacturer of rayon, sustained an injury to his eyes, impairing his eyesight, as the result of exposure to the fumes emanating from sulphuric acid, which is one of the ingredients of rayon and is used in its manufacture, and it appears that because of the alleged negligence of the manufacturer in not providing sufficient ventilation in the place where the employee had to perform his work, and in not taking adequate precautionary measures, such employee in performing his work was exposed to these fumes over a period of years, the injury to his eyesight was the result of an occupational disease, and was not an accidental injury within the contemplation of the workmen's compensation act.

2. The employee's exposure to such fumes for three days by working continuously sixteen hours daily, which was about twice the time ordinarily worked daily, in the spinning room of the employer for such time, did not necessarily show that the employee's injury was the result of his "unusual, sudden, and unexpected" exposure to the sulphuric acid fumes, and that such injury was, therefore, as a matter of law, an accidental injury within the meaning of the compensation laws of Georgia.

3. Under the facts the employee did not assume the ordinary risks of his employment by knowingly working at a hazardous undertaking as a result of which he became injured, but it appears that he had no knowledge of the danger of being exposed to sulphuric acid fumes, which was not an obvious danger as to him under the facts, but which was known to the employer and could have been safeguarded against by the use of proper precautions upon the employer's part.

DECIDED DECEMBER 4, 1941. REHEARING DENIED DECEMBER 19, 1941. Dewitt T. Martin instituted suit against Tubize-Chatillon Corporation, to recover damages for the impairment of his eyesight which he alleged was caused by and grew out of the nature of the work performed by him as a result of the negligence of the defendant. The plaintiff alleged that his employer was engaged in the manufacture of rayon; that sulphuric acid is one of the ingredients of rayon and is used in its manufacture, and that he was exposed to the fumes of this acid in the defendant's plant; that he was employed in the "viscoss spinning room" of the defendant's manufacturing plant; that on account of the use of such acid in the manufacture of rayon and as an ingredient, the air in and about the plaintiff and his work at the defendant's plant was filled with the fumes of such acid, which was breathed by him, and the acid entered his body internally and externally; that the plaintiff is an uneducated man and was possessed of no scientific knowledge whatever as to the process of making rayon, or of the "hidden and latent danger" attending the manufacture thereof by exposure to the fumes from the acid; that the plaintiff had no knowledge whatever of chemistry and of the danger arising from the use of sulphuric acid, breathing the fumes thereof, and having such fumes come in contact with his body and eyes; that the defendant did not notify the plaintiff or give him any warning that sulphuric acid and the elements thereof would in any way affect his health or his eyes; that upon inquiry made by the plaintiff the defendant's foreman informed the plaintiff that the fumes of the acid would not affect his health or his eyes in any way whatever, and were not dangerous to health; that the defendant employed a physician for the purpose of examining its employees and caring for their health; that this physician informed the plaintiff that the fumes from sulphuric acid could not and would not endanger the plaintiff's health or affect him in any way; that he believed the foreman and the doctor; that he worked in the defendant's plant, "where he was exposed to said fumes for a period of approximately six years;" that on and before December 24, 1938, he was required and did work in such spinning room sixteen hours a day for three days, which was twice the time that a workman was ordinarily required to work therein, and as a result thereof was continuously exposed to the sulphuric acid fumes for that time; that "finally, on December 24, 1938, and after said exposure his eyes began to burn and he lost the sight thereof entirely;" that he was treated by an eye specialist and his sight partially restored to one half the normal vision, "only when he wears glasses;" that before this time there was no defect in his vision and he had never had trouble with his eyes and did not wear glasses to aid him in seeing; that his loss of vision is permanent and he will never recover his ordinary and natural sight; that as the result thereof his earning capacity is impaired and he is capable of doing only manual labor where sight is not necessary; that that part of the defendant's plant wherein the plaintiff was employed was filled with "spinning looms, the same being located at every available space, and there was not sufficient ventilation to carry off said fumes and prevent the same being breathed by petitioner and coming in contact with his body;" that there were not sufficient suction fans or pipes to carry off the fumes and replace them with clean air; that the defendant did not furnish sufficient precautionary measures to prevent plaintiff from being exposed to such fumes, failed to provide proper ventilation for its plant and the place where the plaintiff worked, and failed "to confine and carry off said fumes, and as a result thereof the same were released" in the room where the plaintiff was working; that the defendant knew or in the exercise of ordinary care should have known that it was necessary that the fumes "be confined, or that sufficient ventilation be furnished to persons working in said plant to prevent persons therein from breathing sufficient amounts of said fumes or to absorb the same through their skin and to cause sickness and disease;" that the defendant gave the plaintiff no warning; that it was the duty of the defendant to furnish the plaintiff with a safe place in which to work, and in failing to properly ventilate the work room and to carry off or to confine the fumes the defendant failed to comply with this duty.

The plaintiff alleged that the defendant was negligent (a) in failing to furnish the plaintiff with a safe place to work, (b) in failing to provide proper ventilation in the room in which the plaintiff was working so as to carry away the fumes of the acid, (c) in failing to confine the fumes so that they would not be breathed by the plaintiff or come in contact with his body, (d) in failing to warn and instruct the plaintiff of the danger incident to his employment, (e) in telling and instructing the plaintiff that the fumes were not dangerous and would in no way affect his health, and (f) in failing to provide the plaintiff with proper tools with which to work and in failing to provide a mask or other protection to prevent his inhaling the fumes of the acid and to prevent such fumes coming in contact with his body. By an amendment the plaintiff alleged "that on account of his exposure to the fumes of said acid for the long period of time he had worked for said defendant, and particularly his continuous exposure for sixteen hours per day for three successive days prior to December 24, 1938, his blood and body gradually became filled and impregnated with said acid, causing his eyes to become affected, and resulted in the partial loss of the sight thereof as above set forth, and that the same is an occupational disease and did not result from accident or injury within the terms of the workmen's compensation act of Georgia."

The defendant demurred to the petition on the grounds, that no cause of action was set out; that the petition showed that if any conditions existed as alleged "it is subject to the jurisdiction of the Industrial Board of Georgia, and is not within the jurisdiction of this court;" that the petition shows that if any injuries occurred to the plaintiff "they were assumed risk incidental to the employment;" that the petition failed to show any facts "constituting occupational disease," but that the allegations showed an industrial accidental injury subject to the jurisdiction of the Industrial Board, and not a cause of action in this court. By an amendment the defendant demurred generally to the petition on the grounds that if the plaintiff suffered any injuries they resulted from the ordinary and usual risks of his employment; that if the defendant was negligent at all the plaintiff, by the use of ordinary care, could have avoided the consequence to himself of any such negligence; that if any right existed in favor of the plaintiff it was enforceable only before the Industrial Board administering the workmen's compensation act, and that board alone has jurisdiction of this controversy; and that the petition failed to allege any facts that show that the plaintiff's condition is the result of an occupational disease, and fails to allege what any such disease is, or the nature thereof, but alleges facts which show an accidental injury compensable under the compensation statute. The defendant specially demurred to various paragraphs of the petition. Ground 7 of the original demurrer is as follows: "Petitioner shows that if he suffered any ill effects that it must have been on account of some peculiar susceptibility of his own, as the petition inferentially alleges that many other men worked under the same conditions and does not show that the effect the plaintiff alleges he suffered was a normal effect, or that plaintiff knew or had any reason to know that plaintiff was in any way abnormal and would be abnormally susceptible."

The judge sustained the demurrer on each and every ground thereof, and dismissed the action. The plaintiff excepted. The controlling question is whether the allegations of the petition show that the plaintiff's injuries resulted from an occupational disease or whether they resulted from an accidental injury compensable under the workmen's compensation act. The plaintiff alleged that his employer was a manufacturer of rayon; that sulphuric acid is one of the ingredients of rayon and is used in the manufacture of rayon, and that in the kind of work performed by him for his employer he was exposed to the fumes which emanated from sulphuric acid; that his place of work was not sufficiently ventilated to carry off these fumes; that they filled the air in the place of work and had to be breathed into his lungs; that he was ignorant of the dangers incident to inhaling such fumes; that the defendant did not inform him of this danger, and did not provide any mask or take any other precautionary measures to prevent the plaintiff from breathing such fumes; that in his work he was exposed to such fumes for several years, and that on or before December 24, 1938, he was required and did work in the spinning room of the defendant for three days at sixteen hours a day; that his injury occurred by reason of "his exposure to the fumes of said acid for the long period of time he had worked for said defendant and particularly his continuous exposure for sixteen hours per day for three successive days prior to December 24, 1938."

An occupational disease is one caused by or especially incident to a particular employment. It is a diseased condition arising gradually from the character of the work in which the employee is engaged, that is, a disease acquired in the usual and ordinary course of an employment which from common experience is recognized to be incidental thereto. It has been said to be the natural and reasonably to be expected result of a workman following a certain occupation for a considerable period of time. See Lumbermen's Mutual Casualty Co. v. Lynch, 63 Ga. App. 530,534 (11 S.E.2d 699). In Middlebrooks v. AtlantaMetallic Casket Co., 63 Ga. App. 620 (11 S.E.2d 682), this court held the defendant master liable to its servant for injuries resulting from the inhalation of fumes, dust, and particles of lead over a period of time while engaged in the manufacture of metallic caskets. The petition in the present case alleges a state of facts similar to those in the Middlebrooks case. It is contended, however, by the defendant that the plaintiff's injuries were not the result of his exposure to these fumes over a long period of time, but were caused by his continuous exposure to such fumes sixteen hours each day for three days, and that for this reason the present case is not like the Middlebrooks case and falls within the ruling inLumbermen's Mutual Casualty Co. v. Lynch, 63 Ga. App. 530 (11 S.E.2d 699), where this court held: "Disability to an employee caused by a disease which results from unusual, sudden, and unexpected inhalation of gas or fumes, while performing the duties of his employment, where the disease causing the injury is not the natural result of the existence of conditions necessarily incident to the work being performed, is the result of an injury by accident and is compensable under the compensation act." This court does not agree with this contention. It appears from the petition as amended that the plaintiff's injuries were brought about by exposure to sulphuric acid fumes over a considerable period of time, and that his continuous exposure for sixteen hours each day for three days hastened his injuries which in all probability would have resulted without such three days of continuous exposure although perhaps not so soon as such injuries did result. The allegations do not show a sudden and unexpected inhalation of sulphuric acid fumes. Therefore it does not appear that the injuries were caused by a disease which resulted from unusual and unexpected inhalation of fumes so as to render such disease one resulting from accident or injury within the contemplation of the workmen's compensation law. Rather, the allegations show a disease caused by and incident to the plaintiff's working in a factory where rayon was being manufactured, and where the air was filled with sulphuric acid fumes, which factory was not properly ventilated so as to prevent the inhalation of such fumes by those working therein. Under the allegations the jury would be authorized to find that the plaintiff's exposure to sulphuric acid fumes caused his injury, and that if the defendant's plant had been properly ventilated, or if the defendant had provided proper precautionary measures, such injury might not have been sustained. In Berkeley GraniteCo. v. Covington, 183 Ga. 801 (190 S.E. 8), the Supreme Court held: "Where as the result of an employer's negligence an employee breathes quantities of granite dust over a period of time and in the course of his employment, and the breathing of said dust causes the disease of silicosis, such disease is not the result of an injury or accident within the meaning of the Georgia workmen's compensation act (Code, § 114-102), and is not compensable thereunder." See also Covington v. BerkeleyGranite Cor., 182 Ga. 235 (184 S.E. 871); Simmons v.Etowah Monument Co., 42 Ga. App. 633 (157 S.E. 260); 71 C. J. 599, and cit.

The petition does not show that the plaintiff is not entitled to recover because he assumed the ordinary risks of his employment and was injured because he knowingly worked at a hazardous undertaking; but it appears that the plaintiff was unaware of the danger of breathing sulphuric acid fumes; that the defendant knew or ought to have known of such danger; that such danger was not an obvious one; and that the defendant took no precautionary measures to prevent its employees, including the plaintiff, from breathing sulphuric acid fumes.

The petition as amended set out a cause of action, and the court erred in sustaining the general demurrer and the special demurrers which are covered by the rulings herein made. All the rulings sustaining the demurrers and which the plaintiff in error complains of are herein passed on.

Judgment reversed. Sutton, J., concurs. Felton, J., concursin the judgment.