56 Ga. App. 203 | Ga. Ct. App. | 1937
Jesse C. Connell brought the present action against the Fisher Body Corporation. The court sustained a general demurrer, and the plaintiff excepted. The petition alleged in substance that the defendant was engaged in the manufacture of bodies for automobiles, and maintained a manufacturing plant for that purpose; that the petitioner went to work in the wood shop of the defendant on September 1, 1928, and continued to work for the defendant until about October 29, 1935; that until September 1, 1934, he was a strong and able-bodied man and was in excellent health; that “in said wood shop and adjacent to-the work bench where your petitioner was required to work, there was a circular saw operated by electricity, which was continuously used in sawing wood, and . . the operation of said circular saw caused a terrific amount of dust to fill the air in and about your petitioner and caused your petitioner to breathe the air which was filled with particles of dust;” that “said particles which your petitioner was forced to breathe irritated the lining of your petitioner’s lungs
The present case is both interesting and important. In an amicus curiae brief we are warned of the wide door which would be opened to claims for injury to health of emploj'ees if we should hold the defendant liable in this case. We have carefully considered the authorities touching on the questions presented, and confess that it has been difficult for us to arrive at our decision. The injury sustained by plaintiff is a disease commonly known as tuberculosis, which he alleges he contracted because of certain conditions of his employment. A disease so arising is commonly referred to as an “occupational disease.” In not a few authorities we find the statement that an action for an occupational disease would not lie at common law. In McCreery v. Libby-Owens-Ford Glass Co., 363 Ill. 321 (2 N. E. (2d) 290), in denying a recovery
That a disease brought about by the negligence of another person was a compensable injury at common law seems to be well supported by the authorities. In Jones v. Rinehart & Dennis Co., 113 W. Va. 414 (168 S. E. 482), the deceased employee was a laborer in the employ of defendant, in charge of the construction of an underground tunnel. It was alleged in the petition that because of the presence of great quantities of silica dust in the tunnels, which the deceased was required to breathe, he contracted the disease of silicosis and died. The employer was charged with negligence in failing to furnish a safe place to work, failure to employ experienced foreman, failure to adopt and promulgate proper rules, failure to instruct and warn the decedent of dangers incident to his employment, failure to provide proper tools and equipment, and failure to provide circulation of air. The court said: “That, at common law, employees have right of action against employers for accidental injuries received by employees in the course of their employment through negligence of the employer, can not be gainsaid. The reports abound in such cases. But the question with which we are more vitally concerned is whether such right exists for damages arising from disease contracted in the course of employment through the negligence of the employer. We find it stated that at common law an employee has no right of action for injury arising from occupational disease. Adams v. Acme White Lead &c. Works, supra, cited in Industrial Commission v. Brown, supra. We understand that holding to mean that such right of action does not exist in the employee merely because he has contracted disease as an incident of his employment, in the absence of a showing of negligence on the part of the employer, because such disease may arise in spite of due care of the employer to prevent it being contracted by the employee. In such circumstances it becomes a risk of the employment which un employee, sui juris, must be presumed to have taken upon himself. But that an employee has a right of action at common law for disease arising from his employment through the negligence of the employer seems clear.” Citing Smith v. International High Speed Steel
An employer is therefore equally liable to an employee for a disease contracted by the employee in the course of his employment, where such disease was brought about by the negligence of the employer, as well as for personal physical injuries brought about by his negligence. “The doctrines which directly define the liability of employers for injuries received by employees while doing the work were not fixed or formulated in that period of English jurisprudence upon which we have based the jurisprudence of this State; for the first action in England against an employer for injuries to his servant was decided in England in 1837, long after the period as to which this State adopted the prevailing law in England as the general outline of its legal system; so that it has been necessary for the courts in the latter days to formulate these doctrines by applying the general common-law principles to the particular transactions as they appear from time to time, in the cases brought against employers for injuries to employees. Practically all of what we call the law of master and servant consists merely in the specific application of general common-law doctrines to the concrete facts and relationships as they appear in the actions brought before the court.” Braswell v. Garfield Cotton-Oil Mill Co., 7 Ga. App. 167 (66 S. E. 539). It would therefore be just as reasonable to say that at coriimon law no action lay against an employer for injuries sustained by his employee in the course of the performance of his duties, as it would be to say that at common law no action could be maintained against an employer for disease contracted by the employee in the course of the performance of his duties. One of
Thus, while we are prepared to uphold the right of the plaintiff to maintain an action for disease contracted in the course of his employment and through the negligence of the master, we are, on the other hand compelled to hold that the judge properly held the present petition subject to demurrer. A servant not only assumes the ordinary risks of his employment, but he assumes all obvious risks, or risks which he could know of by the exercise of ordinary care and diligence. He can not consent to expose himself to an obvious risk or one which he should know of by the exercise of ordinary care, and then recover damages which arise as a result of such exposure. The- plaintiff alleges that there was a circular saw next to his work bench, and that it caused “a teriffic amount of dust to fill the air in and about” him, and that breathing this dust irritated the lining of his lungs and caused him to contract the disease of tuberculosis. He does not allege, nor do we construe his petition to mean, that the diist thus breathed actually furnished the germ which causes tuberculosis. He thus in effect
Moreover, there is an. entire absence of an allegation that he could not have discovered the danger to his health by the use of ordinary care and diligence. In our judgment we are bound by the decision of this court in Webb v. Tubize-Chatillon Cor., 45 Ga. App. 744 (165 S. E. 775). There the facts were somewhat similar to those in the case sub judice; and the court held that the “petition failed to show that the plaintiff had a right of action at common law, and was properly dismissed on demurrer.” If the risk complained of as having caused the damage sought to be recovered was obvious (and we have held that it was, under the allegations of this petition), then of course there would be no duty on the part of the employer to warn the employee of the danger. “In an action by á servant against a master for alleged failure of duty on the part of the latter in not giving to the servant warning of a danger incident to his employment, it must appear that the master knew or ought to have known of the danger, and that the servant injured did not know and had not equal means
Judgment affirmed.