Hutchison v. SEMLER ( 1961 )

Ox Reheabixg

K. C. Tanner, Portland, for petition. Phillips, Coughlin, Buell & Phillips, Portland, contra. Before McAllister, Chief Justice, and Rossman, Perry, Goodwin and Lusk, Justices.

ROSSMAN, J.

The plaintiff-appellant, Jacob J. Hutchison, filed a petition for rehearing which claims that we erred in the following particulars:

“1. The opinion of the court failed to consider the decision of the United States Court of Appeals for the Ninth Circuit in the case of Reynolds Metal Co. v. Yturbide, (CA-9,1958), 258 F2d 321 * * *.

“2. The statement of facts in the opinion erroneously stated that ‘the grinding wheel of the grinding machine contained silica.’ * * *

“3. The opinion of the court erroneously states that ‘the plaintiff sought to create the impression that the defendants sacrificed ventilation to pinch-penny tactics’ when in truth and in fact, as the record plainly discloses, the installation which was made by the defendants after complaint had been made with respect to the ventilation was a hole in the wall in which was inserted a fan * *

We did not overlook Reynolds Metal Co. v. Yturbide, supra, when we wrote our challenged opinion: We read that decision with care. Since it was not concerned with silicosis, and Urie v. Thompson, 337 US 163, 93 L Ed 1282, 69 S Ct 1018, 11 ALR2d 252, was concerned with that illness and the statute of limitations which likewise constitute the two crucial issues of this case, we thought that resort to the Urie case was preferable. The Reynolds case arose out of a claim that the operation of the defendant’s aluminum reduction plant near the home of the plaintiff was negligent and that it caused the plaintiff to become poisoned by fluorides which originated in the plant. The decision states:

“* * * It was not disputed, in fact it was stipulated, that ‘fluorides in some quantities and forms, did escape, when the potlines of said plant were operating, from defendant’s plant.’ * * *”

The Reynolds case resolved the principal issue in the case, negligence, through the use of the doctrine of res ipsa loquitur. It was concerned in part, as is this case, with the question as to when a party who claims that he was injured by a continuing tort must file his action so as to avoid the bar of the statute of limitations. We do not believe that it ruled upon that issue differently from our decision. The latter ruled in accord with the Urie and Reynolds opinions that “the statute of limitations began to run in the ease at bar when the plaintiff became apprised, or as a reasonable man should have known, that his health was being undermined by the dust which he was breathing.” There is no contention that the rule just stated is unsound.

In view of the fact that two chemists from two laboratories who examined the grinding wheel reported that it contained silica, we are somewhat perplexed by the contention above quoted from the petition for a rehearing which urges that our decision erroneously stated that the grinding wheel contained silica. Dr. Nealley Wood, a chemist, at the request of the defendants, examined the wheel and also an abrasive wheel which formed a further part of the defendants’ laboratory. He testified that each contained silica. Referring to the grinding wheel, his report stated:

“ ‘f. Chemical analysis to determine free silicon dioxide (quartz) on small grinding wheel......

“ ‘Results of the tests were as follows: Sample number one, test (a)’—that’s the sieve analysis on the material from under the grinding wheel. Now, these percentages that I give are the percentages by weight retained on the screen when you screen it. The amount that’s left on there is weighed and this is the percentage. On a 100 mesh screen, 47.6 per cent; on the 200 mesh screen, 22.7 per cent; on the 325 mesh screen, 13.4 per cent; and the amount passing the 325 mesh screen was 16.3 per cent.”

Dr. Wood’s report as to the abrasive wheel was substantially the same as the report from which we just quoted. Another chemist who examined this material gave similar testimony. The testimony of the two witnesses is unchallenged.

In writing our original opinion we mentioned the grinding wheel because the plaintiff, in testifying, referred not only to the sandblasting machine and to the silica investments, but also to all other equipment in the laboratory including these wheels which he seemingly held under suspicion. We do not believe that our statement is erroneous.

The third contention of the plaintiff above quoted concerns the ventilation of the room. It is true that after the plaintiff felt that the room was not properly ventilated and spoke to the defendants, there was installed in the wall of the room that faced to the out doors a “ten inch hole through the wall with a fan blowing air in.” The words quoted were taken from the plaintiff’s testimony. That ventilation device was installed while the plaintiff still worked in the laboratory. It was in addition to several ducts that formed a part of each dust creating machine and which were intended to prevent dust from escaping from the machine into the room. When it developed that the hole in the wall and its fan did not suffice, the window which our original opinion mentioned replaced the hole and the fan. Our original opinion did not mention the hole and its fan because the assignment of error was not concerned with that item of ventilation. It was concerned with nothing except the ruling of the trial judge which received in evidence some letters that explained the delay in installing the window. The plaintiff does not challenge our ruling that the letters were properly received in evidence. The hole in the wall and the fan were not relevant to a consideration of the assignment of error just mentioned nor to any of the others.

The above disposes of all contentions submitted by the petition for a rehearing. We have found no error. The petition is denied.