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Mescall v. W. T. Grant Co.

January 25, 1943


Appeal from the District Court of the United States for the Southern District of Indiana, Indianapolis Division; Robert C. Baltzell, Judge.

Author: Kerner

Before MAJOR, KERNER, and MINTON, Circuit Judges.

KERNER, Circuit Judge.

This appeal is from a judgment in favor of the defendant in an action brought to recover damages alleged to have been caused by defendant's failure to furnish a safe place of employment, for fraud in depriving plaintiff of his action for damages, and on a contract to pay the plaintiff's salary during his disability. There was a trial before a jury. At the conclusion of all the evidence, the court, being of the opinion that there was no evidence which would warrant a finding that defendant's negligence was the proximate cause of plaintiff's illness, that there was no evidence of fraud and no contract to pay plaintiff throughout his life, instructed the jury to return a verdict for the defendant, and judgment for costs was entered thereon. To reverse the judgment, plaintiff appeals.

The principal question presented is whether the court erred in directing the jury to find for the defendant. In the consideration of the question, we commence with the elementary propositions, requiring no citation of authorities, that cases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact; and that negligence and what is the proximate cause of an injury are questions of fact to be properly submitted to and determined by them in view of the circumstances. But, there are times when it is proper for a trial court to direct a verdict. In Indiana, on a motion to direct the jury to find for the defendant, the rule is that the court must accept as true all facts which the evidence tends to prove and draw against the defendant all inferences which the jury might reasonably draw, and, in case of conflict in the evidence, consider only that which is favorable to the plaintiff, Lyons v. City of New Albany, 54 Ind.App. 416, 103 N.E. 20, and Gulbranson v. Hart, 90 Ind.App. 171, 168 N.E. 483.

Plaintiff was in defendant's employ from 1934 to April, 1939. From July 1936, to December 16, 1936, as a trainee, he worked in defendant's store in Columbus, Ohio, consisting of four stories and a basement, with salesrooms in the basement and on the first floor, offices and rest rooms on the second, and stockrooms on the third and fourth floors. During November and December, 1936, the weather was cold. The plaintiff complained of the cold near the entrance doors and in the display windows, and asked for a small electric heater to use in the display windows. The salesrooms were heated; the offices to 82 degrees, and the stockrooms to 42 degrees. The plaintiff's work included the maintenance of department stock from supplies in the stockrooms, replenishing and changing sales counters, work in the offices, window trimming and display arrangement, inventory work in the offices and stockrooms, and going back and forth among and in the departments, offices and stockrooms. For six weeks prior to December 16 he worked from 7:30 A.M. to 11 P.M. and on Sundays from 9 A.M. to 4 P.M. For two weeks prior to December 16, he suffered wiht a cold, was tired and rundown, and on December 16 he had a fever and fainted. He was sent home and confined to his bed until December 23, and, then, on december 24, he returned to his home in Indianapolis, Indiana, and was confined to his bed with pneumonia. Three weeks later Dr. Alfred A. Storey discovered he was afflicted with phlegmasia alba dolens, an inflammatory condition in the veins of both legs.

Dr. Storey testified that "over-work and sudden changes of temperature are contributing factors in the production of pneumonia." but that "one can contract pneumonia without a cold"; that phlebitis is one of the complications of pneumonia, and that the cause of plaintiff's pneumonia would be "purely guess work."

The plaintiff calls attention to § 871-15 Throckmorton's Ohio Code, (Baldwin's 1936 Edition) which provides that every employer "shall furnish a place of employment which shall be safe for the employes therein," and "shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employes," and rests his case upon the claim that by exposing plaintiff to changing temperatures which caused plaintiff to contract pneumonia and phlibitis, defendant failed to furnish a safe place of employment.

Before the plaintiff can recover he must show by affirmative evidence taht the defendant has been guilty of some act of negligence, and it must appear that the injury claimed was the natural and probable consequence of the negligence.

The defendant was bound to exercise reasonable care to provide a safe place in which the plaintiff was to work, but the application of this principle was limited to the duty of reasonable care - reasonableness depending upon the danger attending the place - to eliminate defects in the physical equipment used. Lang v. United States Reduction Co., 7 Cir., 110 F.2d 441.

There was no statute in the State of Ohio specifically limiting the hours of employment, and we find no authority that recognizes a duty upon an employer to maintain any particular temperature in places of employment or to maintain all parts of the places of employment at a uniform temperature.Neither is there a presumption that plaintiff's exposure to changing temperatures while in the employ of the defendant caused him to contract pneumonia, - that is an affirmative fact for the plaintiff to establish. His claim cannot be said to have been established by circumstantial evidence, unless the facts relied upon are of such a nature that it is the only conclusion that can fairly or reasonably be drawn.

An inference of fact can be drawn only from premises which are certain, Evansville Metal Bed Co. v. Loge, 42 Ind. App. 461, 85 N.E. 979. In our case, there was no direct evidence that the plaintiff's contracting of pneumonia was occasioned by being exposed to changing temperatures while in defendant's employ, and whatever evidence there was, left the matter uncertain and showed that the cause of plaintiff's pneumonial was purely guess work. The result was that there was no evidence to sustain plaintiff's claim. It was not for the jury to guess; consequently the giving of the peremptory instruction was proper.

As an additional ground for affirming the judgment of the District Court, the defendant makes the point that if the plaintiff ever had cause of action based upon negligence, it became barred on December 17, 1938. As before noted, the plaintiff left the defendant's Columbus, Ohio, store on December 16, 1936. He filed his complaint in this case on April 7, 1941. The Indiana statute of limitations on actions for personal injuries is two years. (Burns Indiana Stat. 1933 Ed. § 2-602).

To avoid the statute, the plaintiff contends that the defendant is estopped from claiming the benefit of the statute because of fraud, and on the further ground that the defendant promised him his salary during his disability; that he relied upon the promise and forbore to sue; and that, ...

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