*1 211 statute, supra, judgment prejudice dismissal with to future required, being only action was kind then of dismissal .the possible on the record made. A dismissal with prejudice, under such circumstances proof, where has the burden does no right See, violence by jury. to-the constitutional trial Hineline v. Minneapolis Honeywell Regulator Co., Baltimore Fed. Line, Redman, Sup. & Carolina Inc. Ct. U. v.
L. 1636. The Killoren, Ed. case of State ex Motz supra, rel. supra, Motz, contrary
Suess v. in so far as hold they are over- ruled. judgment is reversed and the cause directions remanded.with judgment
to enter of dismissal with prejudice plaintiff’s right prosecute Bradley, C., opinion further cause. is that there dispute, no amount the cause should be transferred to City Appeals. C., the Kansas Osclol, Court Van concurs.
PER foregoing C., adopted opinion by Dalton, CITRIAM: The opinion as the judges the court. All the concur. Guy Urie,
William Appellant, Thompson, T. A. Trustee of the Company. Missouri Pacific Railroad S. W. No. 38629. 176 (2d) 471. One,
Division December January
Rehearing Denied, 3, 1944. *2 N. Louis appellant; M. Anderson for Pugh W. Trusty & Wolf on brief. Patterson, Chas- Chastain Bishop, D. C. Cole, L. J. J.
Thomas respondent. tain <&Smith *4 damages alleged
BRADLEY, $30,000 to recover C. Action The court sus- trial by the disease silicosis. have been caused to petition plaintiff appealed. and tained demurrer to a alleges: plaintiff, at all times mentioned the That petition The engaged in company interstate commerce and the railroad were trustee, prior 31, 1933, to trains; that March of interstate operation Company by the Pacific Railroad operated the railroad was Missouri fireman; said as a locomotive plaintiff company and that worked for by operated railroad been a trustee or that said date the has since company has worked for the railroad and the trustees; plaintiff that Joplin years, his during time run between trustee City trains; plaintiff and discovered Kansas on interstate first “injury physical May, his and 1940.” condition alleges petition through negligence further plaintiff silicosis, became defendant, afflicted with.bilateral as a totally incapacitated carry- result has direct thereof he been ing May, 1940; on his duties for the railroad since conditions said negligence defendant, were the direct result of the as follows: “ (1) keep Defendant failed appurtenance to locomotive and plaintiff thereof upon which required proper to work a and safe operate they condition to services which were put to without unnecessary peril life to and limb in that the defendant used in the sanding put device used .on said to on locomotives sand the rails sand containing very material high quantity, percentage, or of silica dioxide, or wit, silica ranging to per about to cent often said sanders were so they put that when set operation were to sand under the wheels and stop or speed slacken the or to enable engines pull sufficiently, unnecessary quantities excessive such material would frequently sanding come from the devices on to and such rails ground material when used would be dust the wheels and brakes of containing said locomotives and dust such usual and unusual quantity of silicon dioxide would come from such use and into the locomotives frequently where worked and quantity unusual quantity such breathed him knew, defendant the exercise of due care should have known that such sand so used very high contained percentage material *5 silica or silicon dioxide frequently the dust form and of excessive quantity of sanders, because said and come into cab the and be breathed and that over a period breathing of such of time such likely to cause life and would and health dangerous to tbe was dust resulting plaintiff. to condition plaintiff “ reasonably a plaintiff furnish failed to negligently (2) Defendant plaintiff on which locomotives work that to in which place safe for the supplied with sand were as -fireman work required to very high of silica or percentage a contained thereof sanders knew, fact and still such above, and defendant dioxide silicon engines above the conditions under and used same said used defendant
described. using sandy contain- substance Although defendant was "(3) using said that would silica, locomotives and quantity such of ing containing be dust silica to large quantities of and silica cause allow negli- inhaled, yet defendant the cab and be into created and come negligently to furnish plaintiff and failed gently failed to warn said the inhalation of silica prevent a or respirator him with device to dust. engines alleges sanding
"Plaintiff that devices on further customary for the usual type all and and used were of usual keeping customary purpose ordinary and and if care exercised sandy adjusted large silica material quantities them such of such escape; would not does not know whether the same that containing high quality kind of was used other sand such silica railroads; sanding operated . . . that such devices same manner of other and the same means as devices on locomotives railroads, regular working kept and if in normal condition would and large not allow quantities above stated. silica dust to form as negligent "Plaintiff further states that of said acts omissions severally defendant operated concurrently him be- causing to or injured come and afflicted his with such bilateral silicosis and caused health strength to be impaired, weakened and. and to render him physically carry unable on work, permanently his in- that he ’’ jured and earning power destroyed. his alleged (1) demurrer petition that the "does state facts sufficient against defendant”, constitute cause of action (2) that "petition any, action, shows if . the cause . . did not arise or within years accrue prior three institution this to the action, and the same is barred.” Defendant, respondent here, makes that point appeal and, should be dismissed, dispose we question. first It is con tended proper "no affidavit appeal” was filed. See. 1184 R- S. A., Mo. R. "any S. Sec. 1184, provides party suit aggrieved by any judgment any any court civil from circuit cause which an appeal prohibited is not Constitution, may take his appeal . . any judgment final See. R. S. the case.” 1939, Mo. R. A., Sec. 1186, provides appeal shall that “no such allowed unless appellant agent shall, during his
217 affidavit”, court his file in judgment) (of the term, same etc. January, 1943, term at steps concerned were and All orders 28. January petition sustained to was demurrer the court. The 13, court, March appeal. for filed affidavit February 11, defendant following suggestion, made the order: plaintiff’s at judgment in this cause and made that the record court finds “The during January 1943, being 28, same January under date of naught held, and for be set aside term, court, should 1943, of this record, judg- set motion, hereby does court, upon its own and the order, adjudge aside. The court doth now ment and decree up court defendant’s record be doth now take decree that the that petition amended and does sustain said plaintiff’s to second demurrer Whereupon, further. the court plead demurrer. Plaintiff refuses to judgment for plaintiff’s petition and enters defendant dismisses ’’ against plaintiff costs, for he execution therefor. and that have Immediately following order, plaintiff application above “refiled appeal”, granted. an appeal and affidavit for and the was says: In the brief defendant “It will be that noted the abstract show, show, nor transcript does not will the on this file court any February judgment 11, that final rendered on 1943. The was judgment sought appealed judgment from in this case is the entered 13, (for on March appeal) The affidavit February could judgment 11th not have been the final directed to was entered this case on 13th.” March appeal
An
will not be dismissed because
affidavit
therefor
judgment
sworn to
was rendered
trial
where the
court’s
before
attention
called
Guaranty
was not
the defect.
rel.
State
Title
ex
& Trust Co. Broaddus
al.,
1,
544;
v.
et
Mo.
108 S. W.
Marshall
v.
Estate,
Shoemaker’s
App. 429,
164 Mo.
to support recovery under theory, either if it does, whatever cause stated is barred limitations. petition Does the state a cause action, negligence, under Employers Federal Liability Act? alleged, It is and admitted demurrer, that both plaintiff defendant, at all times mentioned in petition, engaged were in interstate commerce, hence the federal govern acts cause, whatever any, plaintiff may if have. Ry. Seaboard Air Line Co. Horton, 492, v. 635, 233 U. S. 34 S. Ct. 168, 39 S. S. Ct. Porter, 249 U. Y. R. Co. 1062; N. Cen.
58 L. Ed.
Ry.
279 U.
Stapleton,
Co.
L. Ed.
C. & O.
188, 63
Ry.
Kuhn, 284
861; &
U. S.
O.
Co. v.
Ed.
C.
L.
S. Ct.
45,
It report” is stated brief that contain defendant’s “the books no engineer acquired where a fireman a case locomotive or silicosis charged petition, manner purposes in the but for it stands that plaintiff acquire demurrer admitted did so silicosis. appears, supra,
As recovery before can be had under the Employers Liability Act, Federal it injury must be shown that sustained was negligence, the result of and “it is a prin fundamental ciple in law negligence person required that a is not to antici pate guard against an ordinarily occurrence which an prudent and person careful reasonably anticipated.” could not have Nelson v. Co., 655, Heinz Stove 320 8 (2d) 918, Mo. S. W. l. c. Jones v. Ry. St. F. Co., 802, Louis-S. 333 Mo. 63 (2d) S. W. 98, l. c. cited; City cases there Charles, Guthrie v. of St. 347 Mo. 152 (2d) 91, S. W. l. c. and cases there cited. “No one is held higher degree law to a than average of care in the trade or business engaged. which he is ... A man, conducting his business way that everybody in a does, else like has business measured up to the bj^ standard demanded the law and has the ordinary .exercised prudent care engaged men in the business.” McClaren v. G. Co., Robins & 653, 162 Mo. S. W. 856, l. 858, c. and cases there cited; Smith v. Harbison-Walker Co., Refractories Mo. 389, (2d) 909, S. W. l. c. alleges sanding It will be noted that “that devices on engines customary type and used for the were all of the usual and customary usual and was exercised in purpose ordinary and if care keeping adjusted large sandy quantities them such silica allegation implication material would escape.” not this defective, is that the not trouble sanders such were but that the adjustment maladjustment. wrong Just what with alleged, not claim that plaintiff does not situation one ipsa loquitur for the res rule. hold,
We do think it not reasonable under demurrer, facts admitted that defendant should have antici- pated we, plaintiff’s injury, and therefore, petition rule that the does negligence state facts sufficient to' constitute cause of action for Employers Liability under Federal Act. alleged duty support recovery
Will the facts breach Inspection appears, supra, under the Boiler alleges Act? As the petition keep appurte “defendant failed locomotive and operate nances ... proper thereof and safe condition to unnecessary . without to life peril and limb in that the de *8 sanding fendant used in the devices ... a sand material con taining very high percentage ranging a or quantity of silica . . . about 80 or 90 percent, and often said sanders when were so that they operation were set in . unnecessary quan- . . excessive and tities of such frequently material would from sanding come devices ground onto the and ... rails be to dust (which) come . . (cab) . into the locomotive where plaintiff (and) worked by him, breathed . and defendant knew . . period that over a dangerous breathing time such of such dust was . . and would likely cause” injury complained of.
Negligence is liability not basis for under Inspection the Boiler “imposes Act. This upon act the carrier an continuing absolute and duty parts to maintain the locomotive and (its) all appurtenances thereof, condition, in proper operate and safe (in to active service) peril to unnecessary Lilly without or life limb.” v. Grand Co., 481, Trunk R. 317 U. S. 63 347, 323, Western S. Ct. 87 Ed. L. and cases there cited. And it is further Lilly held in the case that imperfections “conditions other than mechanical can plainly render ” equipment operate unsafe to without unnecessary peril life to dr limb. Lilly ease, Under the construction in the others, sanding and many adjustment is device or machine which out is appliance, an unsafe under, thing the very carrier, that Inspection Act, Boiler alleges against. insures Plaintiff that the omissions of defendant demurrer, his silicosis. Measured caused one of the omissions adjust machines, the sanding failure and by the demurrer plaintiff’s result of such omission is silicosis. We think petition are stated in the facts sufficient support recovery for Inspection the Boiler Act. breach of
220 is termed What Is limitation? barred plaintiff’s cause part is a A., 23, Inspection Act, Boiler 45 S. C. Sec. U. is no statute 1-50. There Safety A., Secs. Appliance 45 U. C. Act, S. limitation, but since Appliance prescribing Safety Act limitation question commerce engaged in interstate plaintiff was the Federal governed by year prescribed limitation is the three Grand Lilly, A., 56; Sec. Employers 45 S. C. Liability Act. U. Co., supra. E. Trunk Western “any L. Ed. 1. e. It is case Lilly stated 325] [87 injured reason of employee engaged who in interstate commerce bring action Act) may his (Boiler Inspection a violation of the Act Act, charging the Employers’ Liability Federal violation under the Co., & R. Chesapeake O. Inspection Act”, citing Boiler Moore 760; 759, 755, L. 205, 210, 211, 402, 78 Ed. 291 U. S. Ct. 230, Donaldson, 121, 246 U. S. S. Ct. Great Northern R. Co. v. N. A. Baltimore 616, 1918C, 581, 62 L. C. Ann. Cases C. Ed. 169, 69 Ed. 419. & 45 S. Ct. Groeger, 521, Ohio 266 U. S. R. Co. v. L. 25, Plain November commenced present cause was 1940, alleges 'injury May, his and that he first tiff discovered carrying on time, totally incapacitated been from that he “has ’’ did accrue his his cause of action defendant, duties limi so, not claim May, until then does If such be defendant disease, occupational such disease tation has run. Silicosis an has been defined follows: sense, ordinary and i's occupational disease, “An its accustomed em result of a particular a disease is the natural incident or which long- gradually from developing the effects of ployment, usually known serving, of its employment, work at the because continued risk the same a hazard employment, relation to the to attach _and.is in distinguishes ordinary occupations it from the run attending Evans v. Chev employments general.” excess of that Co., W. l. c. App. Motor Mo. 105 S. rolet *9 Works, citing 746, 336 Mo. 81 S. Wolf v. Mallinckrodt Chemical W. (2d) 803, 92 (2d) 323; Downey City Co., Kansas Gas 338 Mo. S. W. v. 710; W. (Mo. App.), (2d) 50 S. v. Williams Bros. Lovell 782, (2d) Maupin Cigar Co., App. 84 W. American Mo. 1114, Joseph Co., App. 224 Mo. 32 S. W. 218; Miller v. St. Transfer (2d) C. J. 449; 71 Indemnity Corp. Com- v. State Industrial Accident
Associated (Calif.), (2d) 1075, compensation a case. The mission Pac. was silicosis; interposed; injury due to defense limitation was was of began from the time the limitation was six months and to run o’f injury. ruling question it c. : In Pac. was [12 1076] disease, as occupational “An which is before us proceeding, con- present is one in which the cumulative effect of the from absorption quantities small deleterious substance tinual of employment' in manifest ultimately of the results the environment incon- substance is deleterious pathology; any exposure one to the absorptions repeated the accumulation sequential itself, but specific no It brings follows factor about the disease. which charged being the with can the substance be date of contact with exposure injurious consequences of the injury, inasmuch as date the. time; point than a time rather product of a period are the only ‘injured’ held to' employee can be be consequently the afflicted manifest deleterious accumulated effects of the substance when the be, becomes disabled employee themselves, and this when 901, an 60, N. E. was Co., 352 Ill. Madison v. Wedron Silica The damages injury from the disease of silicosis. due to' action for 1924, continued working for the defendant plaintiff started his quit work because of forced to when he “was until The defendant of silicosis. condition” caused disease physical recovery because limitations barred years a two statute of contended duty damage required “the first inhalation or breach of damages injury for an within two of an action for the commencement ruling question In of action years after the cause accrued.” court said: is of slow recognized occupational an disease “This has court upon its creeps unnoticed an illness that
development; insidious have filed at say must suit ... To that the victim. injury means that an
time of first of the silica dust inhalation logical . . The view not, fact, proved. could as matter of quit employee is work the time forced to be- to consider when injuries resulting in final cause cumulative of successive effect injury. first disablement rather than the inhalation or right o'f limitations does commence to run until statute of upon e., disablement —i. occu- action arises. That when the arises ’’ quit he work. pational puts disease him in such a condition that must Co., Plazak Steel 324 Pa. 188 Atl. Allegheny damages resulting from the disease of silicosis. recover for injury interposed. The court said Atl. 1. c. : Limitation was [188 133] injury wrongfully inflicted, “The time when has been when accrues, period limitation the cause action which the belongs, the class to this is when the begins, in actions of working duty reasonably place occurs. provide breach of safe servant, continuous, If the relation is as in that of master continuous until cumulative effect and the is likewise default disease, par- disability occupational in the form o'f total or produces above, is re- tial, perform duty, the master’s failure to his as we said single continuing wrong employment garded long as a so brought wrong must therefore be redressed action Such continues. employ- thereafter from time years two and not when the
within terminates.” ment *10 Commission,
Marsh v. Industrial Accident Cal. Pac. (2d) supreme case. the court 933, involved silicosis In case California said 1. : (2d) Pac. c. [18 935-7] “Depending exposure upon the duration and of the intensity the dust, infections, size particles; of the the intercurrence of and the like, develop few months may comparatively the disease within may years many may take itself after only and even manifest lapse years following several cessation of In exposure. ... occupational specific origin' impossible such an disease, the date of day of determination. It is the after exposure day cumulative effect of injurious that'produces results; very and because of the fact ‘injury’, statutory sense, period is referable to a of time time, rather point adopted than a some rational norm must be determining the ‘date of the injury’ practical application of limitations, injury statute embodied in the act. . The dates time when the diseased condition- culminates an in- capacity employer’s liability for work. It is that time at that the be- fixed; for then injury comes until the workman had received no legal sense, though lodged the seeds productive injury had long his frame before. . When a pro- disease latent may gressive, it culminate uiitil a considerable after time employment So, disabling has delayed, terminated. if the result is then injury delayed, is correspondingly right com- pensation does incapacity not accrue until occurs.” present ease, In under the demurrer, admissions made plaintiff’s cause May, of action accrued in 1940, when he became incapacitated, and was not barred. judgment should be remanded, reversed and the cause with
direction to set aside the sustaining order demurrer and dis- missing and it is petition, so ordered. Osdol, GG., Dalton and Van concur. PER opinion CURIAM: The foregoing adopted isC., by Bradley, opinion All judges of the court.
as the concur. Billy Billy Agent O. O. Representative Agnew, Agnew, Henry Harvey Norton, Heinson, Shaffer, William Arthur G. R. Carnes, Wyman, Sanners, Herbert Orville Olive San Everything doing business as Johnson Johnson, v. J. A. ners Store, Appellant. 38600. 176 S. W. 489. No. Two,
Division December Rehearing Overruled, January 3, Motions for and to Transfer Banc