Watson v. Borg-Warner Corp.

228 S.W.2d 1011, 190 Tenn. 209, 26 Beeler 209, 1950 Tenn. LEXIS 441
CourtTennessee Supreme Court
DecidedMarch 17, 1950
StatusPublished
Cited by8 cases

This text of 228 S.W.2d 1011 (Watson v. Borg-Warner Corp.) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Watson v. Borg-Warner Corp., 228 S.W.2d 1011, 190 Tenn. 209, 26 Beeler 209, 1950 Tenn. LEXIS 441 (Tenn. 1950).

Opinion

Mr. Justioe Gailor

delivered the opinion of the Court.

This is an action in negligence under the common law, for damages for personal injuries, filed in the Circuit Court of Shelby County, by Ella May Watson as plaintiff, against Borg-Warner Corporation and the Shell Oil Company as defendants.

The following are the essential facts developed by the plaintiff’s proof: During May 1948, plaintiff was employed by Borg-Warner Corporation at its Memphis Plant as a machine operator, and for the proper operation of the machine, it was necessary that oil flow through the [211]*211machine in such a way that the hands and arms of the operator came in contact with the oil during the operation. On or about May 26, 1948, Borg-Warner introduced a new kind of oil to be used in the machine, and purchased this new oil from the Shell Oil Company, Inc. About a day and a half after the new oil was put into use, plaintiff noticed an eruption of the skin on her hands, and reported the fact to her foreman. She continued to operate the machine and to come in contact with the oil f'or another week, during which time the rash grew steadily worse. She then reported to the nurse at the Borg-Warner Plant, and was examined and given medicine by the nurse. On the nurse’s instruction, she reported to Dr. Everett and to Dr. Howard, both Company Doctors, who gave her further medical treatment. Despite the treatment, the diseased condition of the skin continued, and on instruction of the nurse, plaintiff was sent to a hospital in Memphis, where she remained from June 15 to July 1, 1948.

During her hospitalization, the symptoms of plaintiff’s disease were, according to lay witnesses, a rash, swelling, exudation of an oily substance through the skin, with blisters and stripping off of the skin.

Also, while plaintiff was in the hospital, a representative of the Maryland Casualty Company, the compensation insurance carrier for Borg-Warner Corporation, visited her and gave her a check for $20, the amount of weekly compensation for temporary total disability due her under the Tennessee Workmen’s Compensation Act, Code, Section 6878. Subsequently, she received further checks from the Insurance Company for $60. These checks are exhibits to plaintiff’s testimony, and she admits receiving and cashing checks in the total amount of [212]*212$80, representing compensation for four weeks’ disability at the rate of $20 per week. She also bad lier medical and hospital bills paid by her employer or the compensation carrier.

These are the essential facts brought out by the plaintiff’s evidence at the trial. Though plaintiff, during her disability, had at various times been examined and treated by four doctors, she introduced no expert testimony, whatever. No medical definition of the disease nor its probable cause, was in evidence. No chemist or doctor was called to analyze the oil or to give expert opinion that from the known chemical components of the oil, a disease of ’ the skin such as that suffered by the plaintiff might, could or would have resulted. Except for the objective symptoms of a skin disease, as we have stated them, there is absolutely no proof what the disease was, — whether it was a “skin disease” simpliciter or whether the objective symptoms visible on the skin surface, were manifestations of an internal disease or disability-

At the end of the plaintiff’s proof, both defendants made motions for a directed verdict. The Trial Judge, recognizing that there had been no medical nor expert proof of what the disease was, nor its probable cause, undertook, with the help of a definition from Webster’s dictionary, to make a diagnosis himself. He found that the plaintiff was suffering from ‘ ‘ dermatitis ’ ’; the plaintiff’s form of dermatitis was an occupational disease and compensable under the Workmen’s Compensation Act as it was in force at the time of the occurrence, Section 1, Chapter 197, Public Acts of 1947; that plaintiff, by accepting the' $80 from the Insurance Carrier of her employer, lost her common-law right of action, not only [213]*213against her employer, Borg-Warner, hnt also against the codefendant, Shell Oil Company. Doubtless, in so holding, the Trial Judge was actuated by rules of law made in the following cases: Bristol Tel. Co. v. Weaver, 146 Tenn. 511, 243 S. W. 299; Mitchell v. Usilton, 146 Tenn. 419, 242 S. W. 648; Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S. W. (2d) 577; Wilson v. City of Chattanooga, 179 Tenn. 234, 165 S. W. (2d) 373. Accordingly, the Trial Judge directed a verdict for both defendants, and he later overruled motion for a new trial.

The plaintiff perfected her appeal to the Court of Appeals. That Court, holding that the Trial Judge was not competent to make the diagnosis, and that the burden was on defendants to show that plaintiff was suffering from, and disabled by a disease compensable under the Workmen’s Compensation Act, Code, Section 6851 et seq., reversed and remanded the case for a new trial.

Defendants have filed petition for certiorari, which we have granted. We have concluded that the action of the Court of Appeals was erroneous. Plaintiff declared in negligence under common-law rules, against the defendants. To make a prima facié case and justify submission of the issues to a jury, it was incumbent on the plaintiff to make prima facie proof of the fact that the disease from which she suffered was caused by some act or omission of the defendants, and that such act or omission was negligence under the circumstances.

Giving the plaintiff’s evidence all possible weight and the advantage of all reasonable inferences, short of speculation and surmise, she proved only that (1) she had operated the machine for some considerable time without disability, (2) that shortly after the Shell Oil Company furnished and Borg-Warner filled the ma[214]*214chine with a new kind of oil, plaintiff developed a disease of the skin, and so suffered the disability for which she sued. There is no competent testimony or prima facie proof, either of the nature and medical definition of the disease .or of its probable cause. In fact, the plaintiff proved nothing except that she noticed the eruption on her skin after the change of oil. The isolated fact that one event occurs after another is not by itself sufficient to warrant an inference that the event which is first in time is the cause of the latter.

“The question of causation will not get to the jury at all, unless the Judge thinks that 12 men can reasonably find that Defendant’s tort was, at the moment of the happening of the damage, a continuing efficient cause of the damage and not a mere antecedent fact.” Jeremiah Smith, Legal Cause in Actions of Tort, 25 Harvard Law Review, p. 303, citing Bishop, Non-Contract Laws, Sec. 4441. (Emphasis supplied.)

As we view it, the technical medical name of plaintiff’s disease was not an essential of plaintiff’s proof, but proof that plaintiff’s disease was of such character that it could or would probably, in the light of medical clinical experience, be caused by contact with an oil having the chemical components of the oil actually used, was an essential and a missing element of plaintiff’s proof. Some further proof that the defendants had known, or negligently failed to inquire about the dangerous property of the oil, would also have been necessary to render them liable to plaintiff. There must be proof that the defendants reasonably should have foreseen the “possibility of harm”. Prosser — Torts, p. 177.

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Bluebook (online)
228 S.W.2d 1011, 190 Tenn. 209, 26 Beeler 209, 1950 Tenn. LEXIS 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watson-v-borg-warner-corp-tenn-1950.