17 S.E.2d 915 | Ga. Ct. App. | 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 *482 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.
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 *485 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 *486 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,
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 *488 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.