Opinion
No. 36348.
February 24, 1947.
1. MASTER AND SERVANT.
Burden was on employee to show existence of carbolic acid in sufficient quantity to cause injury to one doing his work in a proper manner, that employer knew of existence of carbolic acid or would have known of it in exercise of reasonable diligence, and that, so knowing or having reason to know, it did not warn employee of the danger and made no provision to protect him, and that his injuries were proximately caused by the carbolic acid.
2. MASTER AND SERVANT.
In action against employer by employee for skin infection allegedly resulting from presence of two-tenths of one per cent. of carbolic acid in water which employee during his work necessarily got on his hands, evidence as to existence of carbolic acid in such quantity as to cause injury and that injuries were proximately caused by existence of carbolic acid was insufficient for jury.
APPEAL from the circuit court of Jones county. HON. F.B. COLLINS, J.
Welch Cooper, of Laurel, for appellant.
With the medical testimony as it is in this record this Court was bound to accept the diagnosis of the doctors that the trouble with Scruggs is dermatitis repens caused by a germ known as a staphylococcus. That being true, the peremptory instruction should have been granted.
The medical testimony is conclusive on both judge and jury in this case. If, then, the cause be unknown to all those who have devoted their lives to a study of the subject, it is wholly beyond the range of common experience and observation of judges and juries, and in such a case medical testimony, when undisputed, as here, must be accepted and acted upon in the same manner as in other undisputed evidence; otherwise the jury would be allowed to resort to and act upon nothing else than the proposition post hoc ergo propter hoc, which this court has long ago rejected as unsound, whether as evidence or as argument.
Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625.
Assuming for argument's sake that there was phenol in the water, we say that appellant was entitled to a directed verdict for the reason that there is no proof in this record that appellant knew that phenol was in the water, or in the exercise of reasonable care should have known. It is fundamental for a master's liability for negligence that the proof show that the master knew of the negligent condition, or in the exercise of reasonable care should have known of it.
Hope v. Natchez, C. M.R. Co., 98 Miss. 822, 54 So. 369; Gulf, M. N.R. Co. v. Brown, 143 Miss. 890, 108 So. 503.
In view of the cause to which appellee attributes his injuries, such act could only be negligent upon proof, first, that the preparation with which the timbers had been treated was poisonous and liable to injure a person engaged in handling the timbers; second, that appellant knew, or by exercising ordinary diligence might have known, that it was poisonous and capable of producing injury; and, third, that appellee did not know that it was poisonous and likely to injure him, and did not have equal opportunities with appellant of knowing thereof at the time he was injured.
Pinkley v. Chicago Eastern I.R. Co., 246 Ill. 370, 92 N.E. 896.
See also Gould v. Slater Co., 147 Mass. 315, 17 N.E. 531.
It is not sufficient for a plaintiff seeking recovery for elleged negligence by an employer towards an employee to show a possibility that the injury complained of was caused by negligence. Possibilities will not sustain a verdict. It must have a better foundation.
Kramer Service v. Wilkins, supra; Illinois Cent. R. Co. v. Cathy, 70 Miss. 332, 12 So. 253; Stevens Co. v. Daigneault, 4 F.2d 53; Canfield v. Iowa Dairy Co., 172 Iowa 164, 154 N.W. 434.
There was no evidence whatever tending to show that appellant should have reasonably anticipated the harmful effects of the phenol. It was not required to consult medical experts about a matter unquestioned in its business.
Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Crane Co. v. Bowen, 15 Tenn. App. 217; Pecos Co. v. Collins, 110 Tex. 577, 173 S.W. 250, 212 S.W. 477, 222 S.W. 156; Corcoran v. Wannamaker, 185 Pa. 496, 30 A. 1108.
Leonard B. Melvin and Jeff Collins, both of Laurel, for appellee.
In determining the propriety of a peremptory instruction the evidence is to be taken most strongly against him who asks it.
American Trading Co. v. Ingram-Day Lumber Co., 110 Miss. 31, 69 So. 707.
Everything must be considered as proved which the evidence establishes either directly or by reasonable inference against the party who asks for the peremptory instruction.
Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Peugh, 140 Miss. 479, 106 So. 81; New Orleans N.E.R. Co. v. Martin, 140 Miss. 410, 105 So. 864; Gulf S.I.R. Co. v. Hales, 140 Miss. 829, 105 So. 458; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110.
The master is charged with knowledge of the usual and ordinary dangers and hazards to which he is exposing his employee and is bound to know the nature of the constituents and general characteristics of the substances used in and about his business or in that part thereof wherein an injury may occur or has occurred; and this rule is applied without serious question in cases of the use of dangerous chemicals.
American Sand Gravel Co. v. Reeves, 168 Miss. 608, 151 So. 477; Whitehead v. Newton Oil Mfg. Co., 105 Miss. 711, 63 So. 219; Illinois Cent. R. Co. v. Gill, 88 Miss. 417, 40 So. 865; Ness Creameries v. Barthes, 170 Miss. 865, 155 So. 222; Benjamin v. Davidson-Gulfport Fertilizer Co., 169 Miss. 162, 152 So. 839; Wilbe Lumber Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Mississippi Power Co. et al. v. Stribling, 191 Miss. 832, 3 So.2d 807; National Casualty Co. v. Hoage, 64 App. D.C. 33, 73 F.2d 850; 29 Cyc. 504, Sec. J.
A knowledge of condition indicative of dangers as to which a warning should be given may be charged to the employer where similar occurences have taken place, or where his foreman or other representative has knowledge of the facts. But an oblgation rests upon an employer to acquaint his employees with the dangers which can be ascertained by a knowledge of scientific principles governing substances and processes used in the employment, and to which in his ignorance, the employees will otherwise be subject.
Mississippi Power Co. v. Stribling, supra; Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295, 95 A.L.R. 157; Allen Gravel Co. v. Curtis, 173 Miss. 416, 161 So. 670; Ness Creameries v. Barthes, supra; Whitehead v. Newton Oil Mfg. Co., supra; Illinois Cent. R. Co. v. Gill, supra; American Sand Gravel Co. et al. v. Reeves, supra; Benjamin v. Davidson-Gulfport Fertilizer Co., supra; Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; National Casualty Co. v. Hoage, supra; 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; Cishowski v. Clayton Mfg. Co. et al., 105 Conn. 651, 136 A. 472; Harvey v. Welch, 86 N.H. 72, 163 A. 417; O'Connor v. Armour Packing Co., 15 L.R.A. (N.S.) 812, 14 Ann. Cas. 66; Zajkowski v. A. Steel W. Co., 6 A.L.R. 350, 30 Am. St. Rep. 350, 18 R.C.L. 571, Sec. 78; Smith v. Peninsular Car Works, 1 Am. St. Rep. 542; Harrison-English Construction Co. v. Rollinson, 109 F.2d 602.
Masonite Corporation failed to furnish Scruggs a safe place to work.
Wilbe Lumber Co. v. Calhoun, supra; Ness Creameries v. Barthes, supra; Brooks v. DeSoto Oil Co., 100 Miss. 849, 57 So. 228.
Scruggs brought an action at law against Masonite Corporation to recover money damage for personal injuries allegedly suffered by Scruggs as a result of the failure of Masonite to fulfill its duty to Scruggs as an employee as hereinafter set out in the declaration. He recovered a judgment for three thousand dollars and Masonite appeals.
The main contention of appellant on this appeal is that the proof shows no liability against it and that its request for a peremptory instruction should have been granted by the trial court. We will deal only with that question.
The declaration alleged that appellant was engaged in the manufacture of Masonite boards and in such manufacture used chemicals, the nature and extent of which plaintiff did not know; ". . . and the defendant did not inform him, and did not notify him that they were using any chemicals in the manufacture of the boards, and put him to handling said Masonite board while it was wet and dripping with water, which was negligence and carelessness, and by the exercise of reasonable care the defendant would have known that the plaintiff's hands would be poisoned and damaged, and he would be seriously injured . . .," and that as a result of handling the wet boards his hands and body became "infected or poisoned with said chemical and broke out with sores over his hands and arms and his face and body . . ." Defendant plead the general issue.
The proof of the plaintiff shows that the finished boards are from one-eighth to one-fourth inch in thickness and twelve to sixteen feet long. That in the process of manufacture they reach a machine called the spray rack. The boards are placed upon this rack. Under this rack is a vat supposedly containing water. The boards are washed, or sprayed, on the under-side by means of a wire brush revolving in this water, throwing the water against the boards. After working a short time in other departments Scruggs was put to work at this spray rack. It was the duty of appellee, and his co-workers, to place the wet sides of these boards together after they had been sprayed and send them on their way to the warehouse. In thus placing the boards together the hands of the employees became, and remained, wet. After working at this rack three or four weeks appellee's hands became infected, or diseased, caused, as he claims, by handling these boards, and his neck and face also became infected by his hands coming in contact with them, as a result of which he suffered much pain and considerable expense. The water in this vat, after its use as a spray, drains from the vat through a closed pipe, emptying outside the building. Sometime subsequent to the injury appellee, through a nephew, obtained at the end of this drain-pipe a sample of this discharged water, and sent it for examination to the State Chemist at Mississippi State College. The analysis disclosed that this discharged water contained two-tenths of one percent phenol or carbolic acid. In other words, there was one part phenol to four hundred and ninety-nine parts water.
Scruggs informed Masonite of his trouble. He went to a number of doctors, including the regular doctor for Masonite. He used only one of these, Doctor J.W. Stringer, as a witness. As to the nature of the trouble, Dr. Stringer testified that the eruption had the appearance of smallpox, except the pustules were a little smaller; that the hands were covered with blisters. But he frankly stated he did not know what it was. "It was something new to me." As to the cause of it he said, "Looked like it might have been a chemical, just to look at it." However, he did not undertake to state what did cause it. He also said that the foregoing percentage of phenol and water was a very diluted solution; that phenol was a fine antiseptic — a germicide — in proper solution and that he used it for that purpose in his office; that it was used to counteract infection; that it might be used to a strength of four percent without harm; that if it caused harm the injury would be a burn and not an infection. In fact, he said that two-tenths of one percent phenol might be used in the eye without injury, but he thought the lining of the stomach more delicate than the eye. He also said there were many different kinds of skin diseases and that the causes were as varied as the diseases.
Appellee also showed that four other employees at this plant, after working various lengths of time, had developed skin troubles, more or less serious, but none of these worked at the spray rack.
That, in substance, was appellee's case.
On behalf of Masonite it was shown that the water used in this vat for spraying the boards was pumped from a well two hundred feet deep into a covered tank with a capacity of 100,000 gallons, from which it flows to the vat through a closed pipe; that nothing is added to the water from its source to the vat; that at or near the vat is a cut-off which divides the water, part going to the vat and part to a drinking fountain near-by; that the water at this fountain is used generally for drinking purposes by the employees working in that part of the plant, and that no ill effect has ever come from such use.
It was further shown that out of the hundreds of persons who had worked at the spray rack appellee was the only person who had developed any trouble.
Dr. H.H. Harned, Professor of Bacteriology at Mississippi State College, testified that students in chemistry under him, both young men and young women, regularly bathed their hands in water containing two percent phenol, as a suitable disinfectant.
Dr. J.G. Thompson of Jackson, Mississippi, an expert on skin diseases, who treated Scruggs, and the only skin expert who did treat him, testified that Scruggs had an eruption on his hands and a slight eruption on his face — blisters and pustules, that is, blisters with pus in them; that he had what is called dermatitis repens; that there are two types of repens: the first type is caused by the patient's general condition and it continues to recur. It is characterized by rings and blisters containing pus, and results in a shrinking of the skin. In the second type there are blisters with pus in them but the blisters are smaller than in the first type, and with proper treatment the trouble may be entirely cured; that the common type is a boil or rising; this type results from a germ, or an organizm, known as staphylococcus; that this germ is practically everywhere; in kitchens, on floors of homes, about farms, around machinery, in factories and other places. This type results from infection. Scruggs had the second type. He further said phenol, if used in solution sufficiently strong, would cause a burn — not an infection; that it is a disinfectant; that he found no evidence of a burn on Scruggs. He said, ". . . I didn't think of carbolic acid when I examined him;" that doctors bathe their hands in phenol as a disinfectant and some use a solution as strong as two percent; that in his opinion the use by the ordinary person of a solution of phenol of the strength of two-tenths of one percent would not affect the skin in any way, either as a disinfectant or to produce burns.
Now, in view of the cause to which Scruggs attributes his injuries, the burden was upon him to show, first, the existence of the chemical in such quantity as to cause injury to one doing his work in a proper manner; second, that Masonite knew of the existence of such chemical or would have known of it by the exercise of reasonable diligence; third, that so knowing, or having reason to know, it did not warn him of the danger and made no provision to protect him from the harmful result; and fourth, that his injuries were proximately caused by the existence of such chemical.
As to the first and fourth requisites it cannot be said, in our opinion, with any degree of certainty, that his injury was caused by the percentage of phenol in this water, conceding, for the purpose of the conclusion, the existence of phenol. According to the proof the injury would not have resulted even though he had bathed his hands in the solution. Again, the nature of his trouble was not such as would have been produced by the use of phenol. The undisputed evidence is that phenol causes a burn and the proof is Scruggs had an infection. In addition to that, it is shown, without contradiction, that this condition might have been produced by various causes. At most, considering all of these matters together, it is the merest possibility that this phenol caused the injury. In such case no recovery can be had. Railroad v. Cathey, 70 Miss. 332, 12 So. 253; Kramer Service, Inc., v. Wilkins, 184 Miss. 483, 186 So. 625; Equitable Life Assur. Soc. v. Mitchell, 201 Miss. 696, 29 So.2d 88.
As to the second requisite, there is no proof Masonite knew of the existence of this phenol, or that it had information charging it with such knowledge. The water, uncontaminated, was pumped from a deep well into a covered tank and thence through a closed pipe to the vat. The employees drank, without ill effect, the same type of water that went into the vat. Hundreds of employees had worked at this rack and none had been injured. The employer had no notice that work at this rack might result in such injury. The peremptory instruction should have been given. See Hope v. Natchez, C. M.R. Co., 98 Miss. 822, 54 So. 369; Gulf, M. N.R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506; Pinkley v. Chicago Eastern I.R. Co., 246 Ill. 370, 92 N.E. 896, 35 L.R.A. (N.S.) 679.
Reversed and judgment here for appellant.