*1 Mills Holliston Tennessee v. McGuffin. (Knoxville, September Term, 1940.)
Opinion filed November 1940.
Rehearing January denied 1941.
(1) *4 City, plaintiff in for of Jolmson & BowmaN, SimmoNds error. Kingsport, in error. for defendant
Harry L. .Barrett, opinion of the delivered the Mr. Justice Chambliss Court. judgment in appeal a in error from an
This is John Mc- Kingsport in favor of $1,000 Law Court ground declaration of a based the second Guffin 5340, charging 5339 and Sections violation of Code, Chapter originally 10 of 9 and Sections 8, were factory workshop and as the known Public Acts charged specific the failure was The violation statutes. install maintain Holliston Mills to defendant of the machinery, blowers, fans, etc., such as such ventilation particularly protect employees, John would its injurious plaintiff effects from the below, McGuffin, gases generated poisonous in the course fumes operation plant. alleged a action declaration that former in the It was de- had been removed been instituted which had taken, Court, fendant to the Federal where non-suit present within action been instituted had and that the twelve months thereafter. guilty pleas of not Mills filed defendant Holliston joined.
and of issue the Statute of Limitations and progress raised In the of the trial the defendant Mills by special pleas Act the additional defense that the spe- 1919, hereinbefore mentioned, unconstitutional, cifically furnishing (1) too suf- because indefinite, ficiently persons there- certain enable affected standard (2) violation; to determine observance, its *5 violative of
because Section Article and Section State Article of the Constitution and the 14th. amend- ment the Federal to Constitution. Appeals first carried to the case was Court upon that Court transferred to this the as- Court,
sumption questions that substantial constitutional were presented. assigned challenging-
Holliston Mills has errors judgment overruling trial in court, defend first, general ground ant motion for a ’s directed verdict of the support there was no to evidence a verdict plaintiff; refusing in to the1 hold relied second, statutes limiting on unconstitutional; in the defendant third, and, to five witnesses as material and determinative facts. necessary go
1. It is not further than the state ment of the case in the brief filed behalf Holliston jury Mills to ascertain that there before the some wás adequate provision material evidence that had not been effectively prevent injurious carry made to or off fumes gases, particularly generated chlorine, connection pro with manufacture of which the cloth the Mills employee duced; and of the further fact that this suf injuries lungs breathing fered throat and his from gases these or fumes. It will be borne this mind that preponder weight Court with or concerned only ance but examines the record evidence, any ascertain whether or not there substantial upon jury, finding- material evidence which con Judge, curred in the trial could be A sustained. num ber witnesses are introduced who show while these gases originate fumes and did the room in which plaintiff below he desk, his where was en worked, gaged twenty in clerical within work, was stationed feet sliding opened adjoining of a door which into an room generated operated these which were machines commonly they drawn .injurious were fumes and plaintiff. There through opening and blown question sus- material evidence to that there is can be Judge correct think the trial and we facts, tain these *6 jury holding to determine whether for the in that it was steps precautions been and had not all reasonable by safeguards practicable maintained all taken, requirements compliance of with the inMills .defendant distinctly question of fact. the statutes. This was plaintiff’s upon Judge, of motion at the close The trial jury of the first proof, the consideration from the took charging law want a common count, which was count, particulars mentioned, hereinbefore due care jury which, count, on the second the case submitted statutory charged re- of the violation stated, as before quirements touching insist matters. Now counsel these requiring provisions the main- that of the statutes safeguards, amount to etc., tenance of reasonable affording requirements as to more than the common law argue place counsel since that, a safe work; Judge he trial the common should ruled out law count, statutory gone count. further ruled out have apparently a dis- that the Court took Counsel assume charged violation count tinction because the second assumption which the statute, of a defense argue apply. risk would not Counsel this penal distinction the character of statute to this application. has nothing record,
We find on the face of the Judge, by trial connection with the action taken just why the two indicate he between took a distinction assuming ground stated but that it was counts, view that the distinction we are inclined to the counsel, 8 might properly appears
indicated be taken. It abe general recognized assumption rule tbe defense of permissible of risk is not where a statute suck as this leading point violated. has been Our case on American Zinc Co. v. Graham, Tenn., 586, 589, W., J., S. wherein C. reviews numerous cases Neil, required and so holds. In that the statute case involved precautionary equipment employed to be mines. principle applies here. Also, see the case of Tennessee Corp. App., Eastman Tenn. W. Newman, 270, 121S. (2d), certiorari denied Court. It will passed be borne mind this statute was in exercise police power of the it State and the same statute that under consideration in the Newman Case, supra, directly plaintiff’s wherein was held that the acquaintance with work conditions of could support assumption on to *7 relied defense risk. general rule was therein that, “when reaffirmed, by the statute violated is the the not master servant does regardless knowledge.” the assume risk of his Moreover, we think that the defendant not make out does a case recovery ground. on the facts which would defeat on this plaintiff There is abundant evidence that the did not appreciate danger, although the he soon became aware great of inconvenience. assignment argue first under this
Also, counsel plea the of year. the iStatute Limitations one section 8572. Code, As the before declaration al stated, leged bringing the by of a former its suit and dismissal bringing present non-suit and the the suit within plea twelve months thereafter. The filed the defendant raising up simply “plaintiff’s alleged this issue set that any, year cause of if accrued action, more than one before year institution of this and more than one suit, before original and defendant here of Ms suit, institution year upon pleads the one of limitations statute relies agree complete with etc. counsel We bar,” as a question directly plaintiff ruled this is below holding in Harris, Tenn., Railroad v. of this Court plea in held to which similar 47 S. W., simple filing plea did not insufficient; that making proof put plaintiff the burden regard. of the declaration the averments sustain assignment overruled. must be This argument, 2. the substance of As we understand the (1) unconstitutional is the contention that statute is vague that it does that it is so and indefinite its terms just give violation what would constitute a notice authority delegates (2) which be- thereof; being longs Legislature, named the officials alone required empowered what and what determine is provisions, pertinent by, law. The or a violation of, being follows: are declaration, those set out in the as required per- or more five
“5339. where Ventilation workshop, employed. Every factory, associa- are sons — persons five or more or tion, other establishment employed carried work while are shall be so ventilated exhausted the air become so therein shall not persons injurious em- health as to become ployed far as to render therein, harmless, impurities practicable, gases, vapors, or other dust, all process manufacturing generated course of *8 handicraft carried on therein.” protect employees against
“5340. be used to What to injurious factory, gases. Every or dust, filaments, — workshop, or other establishment where a association, process by filaments, on .work or which dust, carried injurious gases produced generated, or or are are by persons employed
liable be inhaled therein, person by authority process or work whose said provided carried on canse be and shall used, said workshop, factory, or ex- association, establishment, conveyors, pipes receptacles, haust or blowers fans, with extending therefrom to each con- machine, hoods apparatus by trivance or or in- dust, filaments, jurious gases produced provide generated; are or or purpose mechanical other to be for the means maintained carrying receiving collecting off or dust, such impurities may devitalized or filament, air, other be to the detrimental health of those in or in con- or about, place nection such as herein mentioned. with, Provided, (cid:127) if natural ventilation sufficient to exclude harm- require- provided, ful elements enumerated be above complied ments of section shall have been with pipes . . . as herein mentioned. fans, blowers, Said adjusted properly shall hoods fitted and and of power effectually prevent and dimensions sufficient to injurious gen- gases produced or dust, filaments, or apparatus erated said or from machines, contrivances, escaping atmosphere into of the room or rooms factory, workshop, said where or other establishment, persons employed.” are Mayor,
In the
of this
Court
etc.,
Jonesboro
Kincheloe,
688, 257 S.
Tenn.,
W., 418,
wherein
constitutionality
of an ordinance was construed and-
challenged
upheld,
charge
uncertainty
dealing
indefiniteness, illustrative
were reviewed
cases
with ordinances and statutes. The ordinance in that case
premises
keeping
made unlawful the
calves
within
corporate
way
“in
limits,
such
or manner as that
they
will
town]
disturb the
[of
residents thereof
recognized
their noises.” It was
a statute
ordi--
*9
of
and
certain in its
the offense
nance mnst be
definition
penalty
far as
inflicted
that
it;
in the
so
certain
“
application
possible
certain in their
be
such laws should
caprice
operation,
to the
their
not left
and
execution
Nashville,
duty
v.
enforce them.” Jones
those whose
it is-to
of
In
986.
985,
72 W.,
S.
550,
Tenn.,
1
necessity
supra,
for
“The
Kincheloe
it
said:
Case,
may
principle
that one
definiteness is founded
lawfully punished for
of a
a violation
statute
not be
give
notice of the
ordinance which
its terms
does
definite,
It
‘certain and
must be
of
offense.
nature
reading
may
average
after
care,
that
man
with
so
due
penalty
incur a
will
whether he
same,
understand
uncer
his
not.
is void for
actions or
Otherwise it
tainty.’ 19
Court-declared
R.
810.”
L.,
However,
C.
determining what
is no
and fast rule
there
hard
but
indefiniteness,
does and what does
constitute
the lawmakers
that wide latitude must
left
protection
of
health or
enactment
for the
of
laws
preservation
opinion,
peace.
As
said
impossibility always
offense
matter of
to define the
is a
wholly
precise
in such
to relieve
law
from
terms as
deprive
enforcing
any charge indefiniteness and
Many
discretionary
illustrations
of all
latitude.
officers
given,
degree is al
are
wherein a reasonable
latitude
enforcing
among others,
enactments
officers,
lowed
disturbing
dealing
disorderly
loitering,
with
conduct,
public worship,
never
etc. These' enactments
undertake
exactly
a violation.
define
constitutes
The same
what
speed
principle
regulating
auto
is involved
statutes
against
driving
highways, providing
mobiles
reckless
excessively high speed,
been attacked on
which have
(cid:127)
uncertainty,
ground
alleged
indefiniteness
upheld.
leading
but have been in numerous
A
cases
early
quoted
case
from in
is State
Schaef
96 Ohio
fer,
St., 215, 117
N.
L. R.
1918B,
E.,
A.,
Ann.
1137.
Cas., 1918E,
The Court holds
what
applies,
known as the rule of reason
what
reasonable
nigh incapable
being
what
is unreasonable
well
*10
precise
specific
under
and
but
our .criminal
definition,
procedure,
being
as well as
left to
civil,
the determination
of the Courts.
"Due care” and “reasonable doubt”
Recognition
given by
are illustrations.
was
United
Supreme
States
Court in
Standard Oil Co. v. United
221
31
L.
States,
U.
S.
55
34 L. R.
S., 1,
Ct., 502,
619,
Ed.,
(N. S.),
A.
Ann.
834,
Cas.,
and United
1912D,734,
States v.
American
221
Tobacco
31
Co.,
106,
U.
S.
S.,
107,
Ct., 632,
descriptive
It average held in the Kincheloe Case that readily keeping man would know when he animals they peace in such manner as that would disturb the just neighborhood, in instant a manu- case difficulty knowing facturer should have no in whether equipping operating plant or not he was so his give poisonous vapors affording to out and fumes without adequate ventilation and relief therefrom.
This statute was construed and its constitution ality Hosiery sustained this Court in Athens Mills v. opinion 144 Thomason, Tenn., 159, S. W., by Mr. Justice it and was that declared McKinney, opinion police regulation, that it “awas for the enacted preservation working life and health those ’’ the establishments therein. enumerated While it is true specific questions that the made now were made in carefully case, Act as a whole was reviewed purposes its aims and on as to commented beneficial employees. significant employers both It objections now Act raised did occnr not then but now either counsel or are offered for Court, application twenty years time the first after and State reading wide administration. We are of challenged of these two Sections herein for in Code any employer enable definiteness, would desiring good comply faith to do therewith to so with difficulty. out serious He should be able to ascertain injurious being gases, when are fumes, etc., created and possible for him should be ventilate render so as to relatively par these no harmless. We see fumes, etc., difficulty complying requirement ticular with the respect the statute with whenever installation, necessary, Certainly, with exhausts, outlets, etc. fans, inspectors pro the aid skilled and trained who are employer vided statute fail could to be *11 sufficiently duty and while it is made the of informed, inspectors, these in the exercise of their to discretion, principle process enforce of act, the of due law is punishment alleged violated, because the for violations juries, of the for statute is matter the courts and to may whom whoever of is accused violation his de submit good, comply fense of faith effort to with the law.
Nor do we find merit in attack made ground alleged delegation powers. of unlawful of In considering question kept the distinction must delegation legislative in power mind between the of Legislature may power delegate, which and which legislative may is delegate. which it character, delegation Before power will this Court declare a of un appear clearly power it must constitutional, that the question purely legislative. See, a full discussion question, of this of this Court the recent 14 County, be 165 Tenn., of ex rel. Knox 319,
case State v. page (2d), ginning 54 976. In case S. W. right many of the and tbe clear decisions are reviewed recognized Legislature generally confer shown to be upon designated authority in the and discretion officials quote from enacted. as follows execution the laws We opinion: question leading dealing “A case with this Legislature delegation power v. Clark, is Field L. 294. Therein 143 U. S. 649-700, 12 Ct., 495, Ed., S., approved quotes following- Mr. Justice Harlan ‘ “ ’’ pertinent of the rule: The true distinction, statements Judge speaking- supreme for the court of Rannev, delegation power said, well “is between has Ohio, necessarily to make a discretion law, involves conferring authority shall or dis be, as to what it cretion to be under its exercised execution, pursuance of cannot be done; the law. The first objection latter made.” W. no valid can be Cincinnati, County Com’rs, & Z. [77], R. Co. Clinton Ohio St., v. Reading, language In 88. Moers Pa., [188], are the court was: “Half on our the statutes books depending- in the alternative, on the discretion some person persons duty de whom is confided the termining proper whether occasion for execut exists ing them. But it cannot that the exercise of such be said ’ ’ ’ ’’ making- discretion is the of the law. applicable principles thus stated are de
terminative here. *12 question assignment
3. The raised under final a is challenge Judge limiting of the action of the trial testify number witnesses to the tendered to facts Judge the case. trial limited both to five sides along lines of evidence. The witnesses the same record
15 that this what at close of the shows is occurred testi- mony : please,
“Mr. Bowman: Your we ten or Honor, have along twelve witnesses more line who same as these just testimony very have Their testified. is material, like to them. and we would call They they
“The made the Court: statement that had several and I I witnesses said limit the number would on witnesses both sides to five. exceptions.”
“Mr. Bowman: We reserve
assignment
applica
This
must he
overruled,
of the
tion
rule
well established
that this Court will not
ground
alleged
Judge
reverse
error
the trial
excluding testimony
transcript
when the
fails
show
proposed testimony
what the
would have been.
is
It
impossible for
otherwise
Court
determine whether
plaintiff
any prejudice
or
suffered
because of the
complaint
ruling
rely
of which
made.
Counsel
on the
Taylor,
of this Court in Conlee
Rep., Shugart, 111 76 Tenn., v. 693; 179, W., S. Rep., 101 777; 102 Co. v. Scales, Am. St. Insurance 821, 49 Tenn., W., S. 743. 628, bring
In no to case, the instant effort was made practice,” “approved as held in Truslow about, being v. 31 to 199, 95 S. have State, Tenn., W., testify for in the absence witnesses the record jury.
Upon the find no error whole case reversible we judgment must be affirmed. Petition to
On Behear. By petition argued to rehear it is that this court general apply exception overlooked or to failed to the rejected testimony pre rule that on the trial must be appeal may served the record in order the court whether or determine reversible been error com has rejection. exception applies mitted its This where being prove witness offered to a certain fact or facts is permission testify, refused to either because the witness incompetent give himself testimony, to held to for pro instance when or because the infamous, matter posed testimony beyond be established his scope pleadings, or otherwise irrelevant and im 'example, material; if the court was even if established it would have effect result the case. This was situation before the court in on, Railroad v. Hunt Tenn., 609,88 W., 182, S. applied. exception where this There trial court permit condemnation refused case witnesses testify prices neighboring as to the at other lots apparently taking had been the trial court sold, the view question legally that the of value could not thus be de termined. Ferguson rely holding State, also on the
Counsel (2d), wherein the 61 W. Tenn., 467, 468, S. rejected requiring exception general testi- rale recognized ap- put mony record into the to he sufficiency proved. new of a motion for a In case motion was that the involved. This court held trial was *14 refusing good face the trial court erred in on and that its testimony support In to of the motion. hear offered response rule testi- to to invoke the that the the effort preserved, mony that the first not this court found was testi- face the substance the motion contained on its given to mony tendered be the which would witness truth the'above statement.” the “to the court show was hear the there witness, The court declined to so nothing the could observance of more the counsel do in testimony preserved requiring proposed to be the rule already found this in the record. indicated, court But, complied sufficiently with in that the rule this was appeared proposed testimony the substance the place, In the called face the the of motion. second exception applied in the Case, Hunton attention to the exception: supra, and thus re-stated this general recognized, exception well “An to rule is appearing application now us, to the case before have to an line or court entire when on trial excludes permit testimony, declining to in- to be character any testimony toward to directed troduced, consider, given pleadings, a within or other- because not issue, pres- generally In a wise such situation, inadmissible. presentation appellate to the court of ervation and required for evidence offered ob- details question Assuming that motion in vious reasons. complaint legal ground a which relief, stated granted, then the action of the trial we must be think judge striking* refusing* out it made to consider it unnecessary, exception, incorporate under the above preserve proposed testimony. grounds With the n —the nothing left on stricken,. was foundation — Relief evidence. be- base was denied defendant, not testimony .charge, his would sustain be- his cause but by analogy charge pleading, cause, .to demurrable- his ” (cid:127) was insufficient. testimony In the case no instant witness incompetent, proof proposed or because the excluded beyond pleadings generally “or in otherwise original opinion, remarked in our As admissible.” Taylor, Case, instant case is unlike Conlee Conlee 285 S. A. L. Tenn., 507, 940, in that W., 35, R., put there counsel into asked allowed the record testimony which he witnesses so offered, might on.appeal just testimony this court see what compliance general have rule, would with the been, *15 by judge. and this the was refused trial The emphasizes point the Conlee the Case holds and rule be course, would of such con not, enforced under ditions.
Nothing attempted of this kind was done or Presumably general rely the instant case. counsel on the statement to the court the all addressed at conclusion of testimony, calling (cid:127)of defendant’s without the name any have or witness, “we ten twelve more witnesses ’’ along* just the same line who have as this, testified, etc. only Not or the no witness called but number named, And- n “along* left the etc., indefinite. same line,” entirely general vague present showing too and a to to the trial to court or this court of what the witnesses may would It that the swear. observed witnesses who range, had for testified the defendant had covered a wide (1) plaintiff including before and after the health of impairment; alleged employment the extent his and his place (2) plaintiff’s of work defendant’s the location of physical plant; (3) effects health and condition employees who of various other thereon of the fumes, plant testimony; (4) gave audits the construction (5) equipment; effect of and extent and existence gas (6) gas evi in World asWar, the use fumes; testimony (7) effects; ill of doctors as medical dence of its gas generally experts and on to effects of fumes as having (8) plaintiff, large introduced; been number testimony of one of two textile ..of-whom chemists, qualified experts, (9) objected etc.; as not were factory inspectors ex as to their different testified findings. aminations not have court told, could and this trial court general get from the no substantial information,
can particular what counsel testi- made statement alleged deprived mony er- defendant was judge, ruling to be to see of the trial so as able roneous prejudice— say whether or suffered defendant ultimate test. which after all is the appears that the facts the instant case do It thus bring in the it within announced Case the rule Conlee general exception bring within-the and do not recognized Case and hr rule announced in Hunton Ferguson Case. might other have been There are reasons that declining assignment assigned for error sustain objection question, exception example, came *16 during ruling too late. The court had announced this plaintiff’s proof, stating introduction of that he was going* number limit counsel both sides as indicating on one of facts and five as the set witnesses objection exception number. No taken at that time counsel on either and the court side, did enforce ruling plaintiff. to the itNow hereto- not, testimony fore until close of shown, all the objection very counsel for the defendant made his general ruling. manner informal to this limitation This page rule down in laid 26 R. is C. 1034: L., at party except “If a desires to a limitation number of he should do witnesses, so when limitation after he announced, and not has examined the limited number of witnesses.”
Supporting cases are cited notes. And this rule practice obviously well based. Counsel should not permitted be as here to sit and hear court announce applicable ruling to both sides and see it enforced plaintiff toas then at the conclusion of all the testimony interpose exception. an might
For this and other reasons that noted, petition to rehear must be dismissed.