Petition for A Writ of Certiorari — Sylvania Electric Products, Inc. v. Barker
Supreme Court brief1956
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In the
Supreme Court of the Bnited States
Octoser Term 1956
No. 644
SYLVANIA ELECTRIC PRODUCTS, INC.,
Petitioner,
V.
IRENE BARKER, Exxcurn.
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
CIRCUIT COURT OF APPEALS
FOR THE FIRST CIRCUIT
THomas H. Manory,
10 State Street
Boston 8, Massachusetts
Josepnx G. Bryer Attorney for Petitioner
Epwarp F. Manony
Gzorce T. Papua
Of Counsel
Blanchard Pr’ating Company, Boston, Mass. — Law Printers
Opinion below
Jurisdiction __..
ES Oa fae ae ee 2
— / 8 2
„ 8 Be ea ee 3, 36
MN 60g nis Ci so, Ae ae eee 3
Proceedings in the District Court bet
Proceedings in the Cireuit Court of Appeals 8
Reasons for allowing writ 9
1. The decision violates common law principles of
liability for negligence relating to substances
not inherently dangerous, generally recognized
throughout the various states 9
2. The decision applies a statute of limitations to
the causes of action generally recognized as not
— pe ĩͤ ae 12
The decision applies an improper principle in
the permission of fraudulent practices of and
perjury by plaintiffs in personal injury cases 16
The decision applies a principle to life expectancy
and future earnings generally condemned in the
. ᷣ Te ee 16
eee TO Be gad gr SP 17
Appendix A. Opinion of Circuit Court of Appeals 19
Appendix B. Statutes involved ..... sss 36
Appendix C. Report of Harman v. Mitcham Works
Ltd., Supreme Court of Judicature, Court of Ap-
peal, England, June 195 40
Crrations
Massachusetts
Bartlett v. Hall 288 Mass. 532 14, 16
Beausoleil’s Case 321 Mass. 344 16
Bloom v. Warshaw 1954 Mass. Adv. Sh. 881 12
Brophy’s Case 327 Mass. 557 16
ii Index.
Capucci v. Barone
Carter v. Yardley & Co. Lid.
Copithorn v. B. & M. R. R.
Crowley’s Case
DeFelippo’s Case
Deignan v. Lubarsky
Farley v. Tower Co.
Foley v. Boston Consol.
Gas Co.
266 Mass.
319 Mass.
301 Mass.
287 Mass.
284 Mass.
318 Mass.
271 Mass.
1955 Mass. Adv. Sh. 499 12
Gallo v. Leahy 297 Mass. 265
Gauld v. John Hancock
Mutual Life Ins. Co. 329 Mass. 724
Howard v. Lowell Coca-Cola
Bottling Co. 322 Mass. 456
John B. Frey Co. Inc. v.
Silk, Ine. 245 Mass. 534
Lebourdais v. Vitrified
Wheel Co. 194 Mass. 341
Lemieux v. B. & M. R. R. 219 Mass. 299
Maloney v. Brackett 175 Mass. 479
Peterson v. B. & M. R.R. 310 Mass. 45
Smith v. Brown 302 Mass. 432
Sturman v. Davis 321 Mass. 442
Thornhill v. Carpenter-
Morton Co. 220 Mass. 593
Walker v. Benz Kid Co. 279 Mass. 533
England
Harman v. Mitcham Works,
Ltd. See App. C.
Nebraska
Dryden v. Omaha Steel Works 148 Neb. 1
McCall v. Hamilton Co.
Farmers Tel. Assn. 135 Neb. 70
Index.
United States
Fritz v. Pa. Ry. Co. 185 Fed. 2nd 31
Mommand v. Universal Film
Exch. (DC-Mass.) 43 Fed. Sup. 996
Ramsden v. Knowles
(CC-Mass.) 151 Fed. 718
Thompson v. Camp 163 Fed. 2nd 396
Urie v. Thompson 337 U.S. 163
Wetherbee v. Elgin, Joliet &
Eastern Ry. 191 Fed. 2nd 302
Zimmerman v. General Elec-
tric Co. (D.C.-Conn.) 126 Fed. Sup. 690
STaTUTES
Revised Statutes of Nebraska of 1943 (1948 Ed.)
Section 25-201 „
Section 25-207
Section 26-217
Section 30-809
Section 30-810
Chapter 260, § 2
Chapter 260, § 9
In the
Supreme Court of the Anited States
Octroser TERM 1956
No.
SYLVANIA ELECTRIC PRODUCTS, INC.,
Petitioner,
V.
IRENE BARKER, Execurrr,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
CIRCUIT COURT OF APPEALS
FOR THE FIRST CIRCUIT
Sylvania Electric Products, Inc. prays that a Writ of
Certiorari issue to review the decision and judgment of
the Circuit Court of Appeals for the First Circuit, en-
tered in the above case or cases on December 20, 1955.
Opinion Below
The opinion of the United States Court of Appeals for
the First Cireuit (App. A, 19), #4992 and #4993 Ist Cir.
December 20, 1955 is set forth in Appendix A.
— —
ot Joint Record Appendix and Proceedings are cited herein as
2
Jurisdiction
The order of the Circuit Court of Appeals affirming the
judgments of the District Court was entered on December
20, 1955. Upon application of the petitioner, the Circuit
Court of Appeals on January 4, 1956 ordered a stay of
the mandate until further order of that Court and set
February 10, 1956 for the filing of the within petition in
this Court. The jurisdiction of this Court is invoked under
Section 1254 (1) of Title 28, United States Code Annotated.
Questions Presented
1. Can an alleged common law tort feasor manufacturer
of fluorescent glass tubes be charged with knowledge as
of early 1946 that the chemical element beryllium with
which element the tubes were lined, might, by inhalation,
produce a progressively fatal disease of the lungs known
as berylliosis in a person working on such tubes when no
such disease was known, no such dangerous characteristic
was suspected, and there was no such common knowledge
and no such information in the possession of physicians,
chemists or other scientists prior to late 1947, so as to
fix liability upon it for negligent failure to warn of such
danger?
2. Can the statute of limitations relating to Employ-
ers Liability cases under the Workmen’s Compensation
Statute of a state where an injury occurs be applied to a
personal injury case based upon common law negligence
of that same state in a trial at common law between a
citizen of that state and a defendant of a different state
in the United States District Court sitting in the latter
state whose statute of limitations covering common law
actions is entirely different?
3. Can a plaintiff suffering personal injuries be per-
mitted by perjuring himself successfully to deceive and
defraud one of two courts, for the purpose of obtaining
3
meney and by false statements under oath diametrically
opposed in the two instances profit materially and finan-
cially therefrom in both courts?
4. Can a jury be permitted to consider opinion evidence
from an actuary as to the life expectancy of a person of
the decedent’s age at death and the capitalization of the
alleged gross earning capacity of the decedent during that
life expectancy, where the actuary admits that neither the
life expectancy given nor the earning capacity assumed
would apply to the decedent because he had been bed-
ridden and progressively deteriorating in health for some
years prior to the date and age used as the basis for
the opinion and during the same period of years prior
to death had no earning capacity whatever?
Statutes Involved
The statutes involved are set forth in Appendix B.
Statement
The Proceedings in the District Court
The two actions at law arise out of the same facts.
The first action (No. 4992) was begun in 1950 by Rexford
L. Barker for a tortious personal injury allegedly due
to the inhalation of beryllium while blowing into beryl-
lium coated fluorescent glass tubing manufactured by the
defendant and bought by the deceased’s employer in
Omaha, Nebraska, in 1946, and allegedly causing a beryl-
liosis or pulmonary granulomatosis (JRA, 9-13), The sec-
ond action (No. 4993) was begun in 1954 for the tortious
death of Rexford L. Barker, allegedly resulting in 1954
from the said berylliosis (JRA 24-28). Both actions were
consolidated for trial by order of the court (JRA 41).
The evidence was by way of oral testimony, depositions
and exhibits. Barker began blowing suc’ beryllium coated
tubing as early as 1931 (JRA 66, 73, 81, 111). After a
4
tube was heated he would blow into one end of it and
bend it into the shape of letters for neon signs (JRA,
45-46). In 1941 he, himself, coated the inside of plain
glass tubes with similar fluorescent powders (JRA, 77,
111). The fluorescent powders so used by Barker in coat-
ing tubes and the powders with which the tubes of other
manufacturers were coated prior to 1946 contained beryl-
lium (JRA, 109, 111). From 1939 to 1944 such beryllium
coated tubing, blown by Barker, was supplied by at least
five manufacturers other than the defendant and none
by the defendant (JRA 68-75, 77, 109, 115-117, 123-124).
As early as 1941 Barker was exposed to beryllium (JRA,
173) and as early as 1943 evidenced symptoms of berylli-
osis in that he quickly became short of breath on exertion
and easily fatigued (JRA, 164-165). In 1948 Barker con-
sulted several physicians, among whom was Dr. F. L. Dunn
of Omaha, Nebraska, who finally, after several weeks and
several other diagnoses, diagnosed the condition as beryl-
liosis due to inhalation of beryllium or beryllium oxide
(JRA, 141, 146).
For a few weeks in early 1944, Barker’s employer bought
and used some 4200 feet of the defendant’s tubing during
a period when his employer’s exclusive manufacturer and
supplier (General Electric Company) was troubled by 4
strike (JRA, 76, 79). Other than that short period, General
Electric Company furnished all the coated tubing used
by Barker from early 1944 to 1948 when he quit work—
some 45,000 to 50,000 feet of tubing (JRA, 119, 122).
In 1948 or 1949 Barker brought action under the
Nebraska Workmen’s Compensation Act (JRA, 61-63),
to recover for his total disability from berylliosis, against
his employer in the Nebraska Court, having jurisdiction
thereof. In November, 1949, Barker filed a petition in
that Court for permission to compromise or settle said
claim for total disability in a lump sum, which petition
5
was signed and sworn to by him (JRA, 61-63; Ex. A,
JRA, 258-270). In the said petition, Barker swore that
he had contracted berylliosis in the course of his employ-
ment from exposure to fluorescent powders containing
beryllium (par. I, II, III of Ex. A, JRA, 258-270) and
further averred that his exposure to said occupational
disease was at least 40% contracted and incurred during
a period prior to the time when the Occupational Disease
Statute of Nebraska became effective (agreed upon by
counsel as August 1943), and that at least 40% of his
disability and medical expenses are not covered by said
Statute, and that defendants (employer and insurer) are
therefore not liable for at least 40% of the full benefits
scheduled in said Statute’ (par. III of Ex. A, JRA
259). The Nebraska Court, on December 7, 1949, entered
its decree upon said petition basing it upon specific find-
ings of fact, identical with or substantially identica) with
the said sworn statement of Barker (Ex. B, par. 3, JRA,
270-281). The Court also found as a fact that Barker
was („fully informed in the premises and is acting solely
upon his own information and upon the advice of his
own counsel after extended and exhaustive consideration
of the entire matter, and is not acting upon any repre-
sentations of the defendants or any of their representa-
tives“ (par. XXI of Ex. B, JRA, 270-281). The Nebraska
Court thereupon entered the said decree granting Barker’s
petition against his employer and the employer’s compen-
sation insurance carrier, for the cash payment of $3,750.00
and certain obligations as to future payments (Ex. B;
JRA, 280-281).
Thereafter Barker made claim against General Elec-
trie Company for the same permanent total disability
claiming that its coated tubing was the cause or a cause
of his disability. In May 1950, Barker executed a release
of all liability to General Electric Company for $17,500.00
6
(JRA, 86-90; Ex. C., JRA, 281-283). This release, while
in some respects resembling a covenant not to sue, appears
to be a general release for the disability due to berylli-
osis or a complete satisfaction therefor. It recited that
General Electric Company furnished Barker’s employer
with its products (coated tubes) from July 11, 1944 to
August 20, 1949, that Barker claimed ‘‘to have sustained
injuries and to have become permanently disabled by
reason of contacts and use, in his occupation, of products”
of that company, that Barker desired to settle such claims
as he had against that Company ‘‘and for all damages
that he may sustain or his estate may sustain or the
dependents or next-of-kin . . . may sustain in the event
of his death, as a result of said claimed injuries. He
further released that company for all damages . . on
account of injuries. .. resulting from damage and injury
claimed to have been sustained. . . as hereinbefore set
forth... Barker sought therein to limit the scope of.
the instrument to General Electric Company (Ex. C, JRA,
281-283). Similarly worded releases were simultaneously
signed by Irene L. Barker, individually and as wife of
Rexford L. Barker, in the sum of $2,000.00 (Ex. D, JRA,
283-285) and by Irene L. Barker, as Guardian of their
minor son, James R. Barker, in the sum of $500.00 (Ex. E,
JRA, 286-288).
Upon chemical analysis, made in 1951, of one of the
defendant’s tubes furnished in 1946, but not a tube used
by Barker, it appeared that there was but 87/100 of 1%
(0.0087) of beryllium in the coating of the tube (JRA,
128-129).
Dr. F. L. Dunn, over objection, testified that R. L. Barker
was substantially bedridden from September 1948 and
died as a result of heart failure or lung failure on Septem-
ber 12, 1952 (JRA, 150). At no time did he express the
opinion nor was there any other evidence that the de
7
fendant’s tubes were an adequate cause for the berylli-
osis or that any particular amount of beryllium or of
tubing with 0.0087 beryllium was adequate (JRA 145,
156, 157, 160-162, 164).
Dr. F. L. Dunn also testified, that in 1948 Barker told
him that he could not mow the lawn in 1943 as well as
in 1942 and that he found himself short of breath; that
in his opinion shortness of breath and fatigue were sympto-
matic of berylliosis at that time (JRA 165); that once
beryllium crystals got into the lungs they remained there
and that berylliosis developed progressively thereafter
(JRA 162, 166), the objective symptoms possibly not
appearing for several years thereafter (JRA, 166-167);
that Barker told him that he himself coated fluorescent
tubes in 1941 (and had been exposed to inhalation of beryl-
lium from 1941 on) (JRA, 173); and that the crystals
found in Barker’s lungs were not known to be beryllium
(JRA, 167-169).
Dr. Dunn further testified without any contradiction
that Barker’s was the first and apparently the only case
of berylliosis in Nebraska up to late 1948, the only one
that he knew of anywhere, (JRA, 165-166) and one which
took him some 16 weeks so to diagnose (JRA, 140-141,
169-172). There was no testimony that any similar case
had occurred anywhere in the world previously,
The trial court, over the defendant’s objections (JRA
133-135) permitted an actuary, John Boermeester, called
by the plaintiff, to testify in the death case, that a man
born on May 24, 1910, (the date of Barker’s birth) would,
on Septembér 12, 1952 when he died, have a life
expectancy of 28.1 years and that the then present value
of $6,000.00 (gross annual earnings) as of the date of
death for such life expectancy would be $114,534.00. No
caution was given to the jury by the court as to these
two items as was required under the circumstances.
8
In cross-examination, he testified that this life ex-
pectancy had no reference to Barker, who was a bed-
ridden invalid with a serious, progressive and fatal disease
of some four years prior to his death (JRA, 136-137) and
that the capitalized assumed earnings had no applicability,
because for the same four years, prior to his death Barker
had been totally incapacitated to earn anything (JRA, 197).
Motion was made to strike this evidence unsuccessfully
(JRA 211).
The defendant, except for the introduction of Exhibits
A, B, C, and D, rested at the conclusion of the plaintiff's
evidence (JRA, 198, 211) and duly moved in writing in
each case for a directed verdict in its favor, which motions
were denied subject to its exceptions (JRA, 241-244).
The jury returned a verdict for the plaintiff upon the
personal injury action for $30,498.00 and in the death
action for $61,750.00 (JRA, 250).
Thereafter, the defendant duly filed a motion in each
case for the entry of judgment n.o.v. and for a new trial
under Rule 50 (b) which motions were also denied (JRA,
251-253).
The Proceedings in the Circuit Court of Appeals
The cases presented upon appeal to the Cireuit Court
of Appeals were based upon (1) the denial of the two
motions for the direction of verdicts in its favor, (2) the
denial of the two motions for judgment for ihe defendant
n.o.v. and for new trial, (3) the admission and failure to
strike Boermeester’s testimony, and (4) thé instructions
given to the jury and the failure to give requested instrue-
tions.
The Cireuit Court of Appeals affirmed the judgments of
the District Court.
9
Reasons for Allowing the Writ
1. The decision of the Cireuit Court of Appeals with
reference to ex post facto knowledge of a conditionally
dangerous substance, conflicts with the common law prin-
ciple of negligence as a cause of action for personal in-
jury in every common law state in the United States and
particularly in the United States District Courts hereto-
fore applying such law. If allowed to stand, it will invite
in future trials the application of the principle of ex post
facto responsibility and the principle of nunc pro tunc
knowledge to attribute later acquired information to
earlier and non-negligent lack of knowledge. Neither one
of these principles should be permitted to be applied to
such a case and the decision of the Circuit Court of Appeals
ought not to be permitted to stand as a justification there-
for.
The Cireuit Court of Appeals in substance holds that,
admitting there was no evidence whatever of any actual
knowledge chargeable to the defendant in early 1946 (App.
A, 26), when it made and sold its tubes to the plaintiff’s
employer, that beryllium oxide if inhaled might produce
(what doctors late in 1947 and early 1948 concluded to
be and named as) berylliosis, nevertheless, because it was
determined by a post mortem examination in 1952—for
the first time in history, so far as the evidence goes—that
beryllium inhaled into the lungs could produce berylliosis
the defendant was presumed to have such knowledge in
1946 (App. A, 27). :
Thornhill v. Carpenter Morton Co., (1915) 220 Mass.
993, cited by the Circuit Court of Appeals as authority
for this proposition, is, in fact, no such authority. This
ease dealt with varnish stains containing volatile oil, ben-
zine and petroleum products all of which ingredients were
held to be commonly known to be dangerous. So too as to
10
Farley v. Tower, (1930) 271 Mass. 230 also cited. It dealt
with pyroxyloid or celluloid, compounds of cellulose and
nitric acid or gun cotton also held to be commonly known
to be dangerous. Carter v. Yardley d Co. Lid., (1946) 319
Mass. 92 dealt with a manufacturer who, admittedly, did
not know all of the ingredients used in the skin lotion
which it made and sold. So far as the manufacturer was
concerned, he took no steps to see that any known skin
poison or irritant was not used.
The case at bar is entirely different. Sylvania Electric
Products, Inc. knew that it was using beryllium. It did
not know, and had no reason to know that beryllium was
inherently dangerous or conditionally dangerous and there
was no evidence that any manufacturer of such tubes or
anybody else had or should have such knowledge.
The law of Massachusetts applicable to the two cases
which was not applied in either court below and which,
it is submitted, is the ecmmon law doctrine in all states
following the common law doctrine of negligence, provides
that to be classified as inherently dangerous a substance
must be ‘‘commonly recognized’’ or known to be such.
In the case of Lebourdais v. Vitrified Wheel Co., 194 Mass.
341, the Court in discussing this subject on page 343 said:
„ . . where by reason of its nature the article sold
is commonly recognized as intrinsically dangerous to
life or property, among which gunpowder, nitro-
glycerine and other highly explosive compounds,
naphtha and poisonous drugs are some familiar ex-
amples, if the seller without notice of their dangerous
or noxious qualities delivers them to a customer or
to a carrier who is ignorant of these properties, he
is liable not only to him, but to others to whom while
in the exercise of reasonable care they are the proxi-
mate cause of injury .. .’’
11
This common law doctrine was applied in the only case
of berylliosis found by counsel involving such issue
Harman v. Mitcham Works Lid., (1955) Supreme Court
of Judicature, Court of Appeal, England, not yet in the
reports, but reproduced herein as Appendix C.
The Harman case involved a manufacturer of beryllium
coated tubes and an employee who contracted berylliosis
while making such tubes, It is very similar to the case
at bar so far as concerns the issues herein discussed. The
court ruled that the chemical element beryllium was not
shown to be and was not in fact inherently dangerous;
that the defendant manufacturer was not chargeable with
knowledge as of July 1947, when it manufactured the
tubes in question, by reason of any actual or imputed
knowledge or of available information that beryllium was
conditionally dangerous when used to coat the inside of
fluorescent glass tubes; that such knowledge or information
was not available to che industry generally until late in
1947; and that in the absence of such knowledge, at the
time of manufacture the defendant manufacturer could
not be found to be negligent.
It is submitted that this is the common law principle
applicable to the case at bar and that the decision of
the Cireuit Court of Appeals, in seeking to apply a different
rule, violates the precedent established in every common
law jurisdiction as well as reason and justice.
The burden of proof of such negligence under the appli-
cable Massachusetts law was upon the plaintiff and there
was no burden upon the defendant to disprove negligence.
Peterson v. B & M RR, (1941) 310 Mass. 45; Smith v.
Brown, (1939), 302 Mass. 432; Copithorn v. B & M RR,
(1938), 301 Mass. 510.
The principle of res ipsa loquitur does not apply nor
does the burden of proof or the burden of going forward
with evidence shift to the defendant as suggested by the
12
Cireuit Court of Appeals (App. A, 27). Foley v. Boston
Consol. Gas. Co., 1955 Mass, Adv. Sh. 499; Bloom v.
Warshaw, 1954 Mass. Adv. Sh. 881; Walker v. Benz Kid
Co., (1932) 279 Mass. 533. See also Gauld v. John Han-
cock Mut. Life Ins. Co., (1953) 329 Mass. 724; Howard v.
Lowell Coca Cola Bottling Co., (1948) 322 Mass. 456;
Sturman v. Davis, (1947) 321 Mass. 442; Deignan v. Lubar-
sky, (1945) 318 Mass. 661; Gallo v. Leahy, (1937) 297
Mass, 265.
It is extremely important that the decision of the Cir-
cuit Court of Appeals, therefore, be reviewed and the law
applicable to the cases brought into conformity with that
of all common law jurisdiction throughout the country.
2. The decision in applying the Statute of Limitations
of Nebraska (limited to cases under its Workmen’s Com-
pensation Statute) to a common law negligence action
brought in the United States District Court for the Dis-
trict of Massachusetts violates the principle of Conflict
of Laws, not only as applied in Massachusetts but in
many if not all of the States, viz—that the Statute of
Limitations of the forum State applies to the issue of
seasonability of such an action. This decision ignores or
repudiates the law of such States and, unless overruled,
will complicate future trials in every court in which an
issue of such conflict arises.
Under Conflict of Laws principles generally applied and
particularly as applied in Massachusetts the law of the
forum or State in which the United States District Court
sits controls the trial on procedural matters including the
statute of limitations applicable to the cause of action.
Mommand v. Universal Film Exch., (D.C.-Mass. 43 Fed.
Sup. 996; Ibid (CCA Ist, 1948) 172 Fed. 2nd, 37; Ramsden
v. Knowles, (C.C. Mass., 1906) 151 Fed. 718; Ibid (CCA Ist,
1906) 151 Fed. 721, cert. denied 206 U.S. 562.
The Massachusetts Statute, General Laws, Tercen. Ed.,
13
C. 260, § 2, in force where the complaint was filed there-
fore, applied to the personal injury case directly and
indirectly to the death case. It provided generally that
the period of limitation for a negligently caused personal
injury action expired six years from the date it accrued
(App. B, 38-39).
Section 9 thereof further limited this period by pro-
viding that ‘‘no action shall be brought by any person
upon a cause of aetion which was barred by the laws of
any state or country while he resided therein“ (App. B).
The Nebraska Statute—Rev. Stats. 1943 Sect. 25.207—in
effect during the period involved, limited a cause of
action for negligence to four years after the occurrence
giving rise to it (App. B, 39).
The Cireuit Court of Appeals, erroneously, it is sub-
mitted held that the Nebraska Statute of Limitations re-
lating to Statutory Workmen’s Compensation applied to
the cases at bar. Its decision is likely to prejudicially
affect actions tried hereafter in any State other than
that in which a cause of action arises. It erred (1) in that
it held that General Laws (Ter. Ed.) c. 260 § 9 of the
Massachusetts statute incorporated an entire Nebraska
Statute of Limitations whereas it merely further limited
its own period, (2) in that it held that the Nebraska Statute
of Limitations affecting tortious personal injury claims
at common law incorporated that of the Nebraska Work-
men’s Compensation Act applicable only to cases brought
thereunder and (3) in that it held that the Massachusetts
statute of limitations would be presumed to do likewise
(App. A, 23-25).
That § 9 of the Massachusetts Statute was but a further
limitation of its own provisions and not an incorporation
of other terms of the Nebraska Statute is clear from
reading it with General Laws (Ter. Ed.) c. 260 6 2. Under
it the cause of action for common law negligence acerues
14
and the time from which the statute begins to run, is at
the time when the first act occurs which sets in motion
a series of events which result in the alleged injury. It
is immaterial under Massachusetts law whether the effects
of that act are known or even anticipated at that time.
Bartlett v. Hall, (1932) 288 Mass. 532; Maloney v. Brackett,
(1931) 275 Mass. 479; Capucci v. Barone, (1929) 266 Mass.
578. See also as to beryllium exposure Zimmerman v.
Gen. El. Co. et al, (D.C.-Conn.-1954), 126 Fed. Supp. 690.
The Circuit Court of Appeals ruled that the Nebraska
Statute of Limitations applicable solely to Workmen’s
Compensation cases brought thereunder in Nebraska does
not begin to run until an employee acquires ‘‘ knowledge
of a compensable disability’? (App. A, 25). The case the
Court cites as authority therefor—Dryden v. Omaha Steel
Works, (1947) 148 Neb. 1 was a case brought under the
Workmen’s Compensation Act, as were all the cases
similarly cited to that Court by the appellee-plaintiff. The
Circuit Court of Appeals thereupon gratuitously assumes
that in the absence of evidence to the contrary the same
rule would be applied to common law negligence actions
in Nebraska (App. A, 27) and applies that principle to the
case, and in effect incorporates it into the Massachusetts
Statute of Limitations.
There is, however, a vast difference between the philoso-
phy underlying Workmen’s Compensation Acts and cases
thereunder on the one hand and common law torts on the
other. The basic principle underlying Workmen’s Com-
pensation Acts is social justice—the obligation of society
or a portion thereof—an industry—to care for its em-
ployees and to compensate them for disability received
in the industry wholly apart from any question of negli-
gence, contributory negligence, assumption of risk, ete.
It is proper that under these circumstances and in such
15
field the discovery of the compensable disease or disability
should start the period for limitation for legal action.
The case of Urie v. Thompson, (1949) 337 U.S. 163 cited
by the Cireuit Court of Appeals was a Federal Employers
Liability Act case which held that ‘disabling disease
caused in violation of the act was compensable as well as
a physical injury.
On the other hand the underlying theory or philoso-
phy of common law negligently caused personal injury
is retributive justice—the obligation to compensate for a
wrong done to another. The law enforcing such an obli-
gation rightly provides that there must not only be a
breach of duty, but—in Massachusetts and Nebraska—the
injured party must also be free of contributory negligence
and must not have voluntarily assumed the risk of injury.
The decision of the Circuit Court of Appeals in this
respect, again, is certain to affect and prejudice many
future trials throughout the country unless corrected to
conform to the law as generally applied in t' e various
States.
The court also erred, and prejudicially to the same
extent in holding that not only would it assume that
Nebraska Courts would apply this Workmen’s Compen-
sation Law principle to common law torts sued on in
Nebraska but that Massachusetts Courts would do like-
wise.
In Massachusetts the law of Massachusetts is not assumed
to be the same as that of Nebraska in the absence of evi-
dence to the contrary, as the Circuit Court of Appeals
seems to assert (App. A, 31) but the law of Nebraska is
assumed to be the same as that of Massachusetts. John
B. Frey Co. Inc. v. Silk Inc., (1923) 245 Mass. 534;
Lemieux v. B & M RR, (1914) 219 Mass, 399.
The Massachusetts Courts apply to Workmen’s Com-
pensation Law cases substantially the same principle as
16
Nebraska. Brophy’s Case, (1951) 327 Mass. 557; Beau-
soleil’s Case (1947) 321 Mass. 344; Crowley’s Case, (1934)
287 Mass. 367; DeFelippo’s Case, (1933) 284 Mass. 531.
They do not apply this same principle to common law
torts. Bartlett v. Hall, (1934) 288 Mass. 532; Maloney v.
Brackett, (1931) 275 Mass. 479; Capucci v. Barone, (1929)
266 Mass. 578.
3. The decision which in effect permits a plaintiff liti-
gant, by means of sworn testimony to persuade a Nebraska
Court in 1949 to award him Workmen’s Compensation
for disability by way of occupational disease beginning as
early as 1943 and contracted through exposure to beryllium
prior to August 1943, and by directly contradictory sworn
testimony to persuade a jury in Massachusetts in 1954 to
award him damages for a common law personal injury
cause of action by repudiation of his sworn statement: to
the Nebraska Court as false, known to be false and made
solely to deceive that Court into awarding him money,
establishes a most dangerous principle in the law of torts.
It capitalizes dishonesty and fraud upon the courts and
ought to be seriously considered by this Court before it
is permitted to be adopted and followed generally.
4. The decision permits an actuary’s opinion as to the
life expectancy of a man of the decedent’s age as of the
date of his death and a capitalization of an alleged gross
earning capacity as of that date for that life expectancy.
In so doing it violates the rules heretofore generally
applied in the State Courts and United States Courts
(1) that such evidence is wholly improper and inadmissible
if it is not related specifically to the life expectancy of
the decedent, Wetherbee v. Elgin etc. Ry. Co., (CCA 7th)
191 Fed. 2nd, 302, 311; Fritz v. Pa. Ry. Co., (CCA Tth)
185 Fed. 2nd, 31, 36; Thompson v. Camp, (CCA 6th) 163
Fed. 2nd, 396, 403; (2) that anticipated benefits to the
statutory beneficiaries and not the gross earnings of the
17
deceased are the criteria of such a capitalization, Wether-
bee v. Elgin, Joilet & Eastern Ry., (CCA 7th-1951), 191
Fed. 2nd, 302; (3) that the capacity to earn which is
assumed must be evidenced by an earning capacity upon
the date taken for the capitalization and (4) that the
court must caution the jury upon these matters, Wetherbee
v. Elgin etc. Ry. Co., (CCA 7th) 191 Fed, 2nd, 302, 311;
Fritz v. Pa. Ry. Co., (CCA 7th) 185 Fed. 2nd, 31, 36;
Thompson v. Camp, (CCA 6th) 163 Fed. 2nd, 396, 403.
The decision, ought not, therefore, be permitted to stand.
It is clear that Boermeester’s capitalization was upon
an improper basis. The charge to the jury confirms this.
The court instructed the jury that Barker’s earnings
amounted to $6,000.00 per year and that . She (plaintiff)
is entitled to recover pecuniary losses that resulted from
Barker’s loss of salary, which you now know was $6,000.00
a year“ (JRA, 228.229). Barker deposed that it was
$5980.00 before tax deductions (JRA, 65). So too did his
wife (JRA, 179).
Conclusion
It is submitted that the questions raised herein are
important and require reconsideration to coordinate the
principle of common law and conflict of laws in the various
State Courts and Federal Courts.
Wherefore, your petitioner prays that a writ of certiorari
issue under the seal of this Court, directed to the Court
of Appeals for the First Cireuit, commanding said Court
to certify and send to this Court a full and complete
transcript of the record and of the proceedings of said
Court had in the cases numbered and entitled on its docket
nos. 4992 and 4993, Sylvania Electric Products, Inc.
Defendant-Appellant v. Irene Barker, Executrix, Plaintiff-
Appellee, to the end that this cause may be reviewed and
—
18
determined by this Court as provided by the statutes of
the United States; and that the judgment herein of said
Circuit Court of Appeals be revised by this Court, and
for such further relief as to this Court may deem proper.
Dated January 1956.
* Attorney for petitioner
(s) Tuomas H. Manony
Joskrn G. Bryer
Epwarp F. Manony
Georce T. Papua
Of counsel
United States Court of Appeals
For the First Circuit
Nos. 4992 and 4993.
SYLVANIA ELECTRIC PRODUCTS, INC.,
DEFENDANT, APPELLANT,
v.
IRENE BARKER, Execurerm,
PLAINTIFF, APPELLEE.
No. 4994.
IRENE BARKER, Exxcurnm,
PLAINTIFF, APPELLANT,
v.
SYLVANIA ELECTRIC PRODUCTS, INC.,
DEFENDANT, APPELLEE,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS.
Before Macruver, Chief Judge, and Woopsury and
Hartigan, Circuit Judges.
Thomas H. Mahony for Sylvania Electric Products, Inc.
Peter E. Marchetti and Harry B. Otis, with whom Thomas L.
Mackin and A. Sheppard Taylor were on brief, for Irene Barker,
Executrix.
OPINION OF THE COURT.
December 20, 1955.
Woopsury, Circuit Judge. These three appeals from two
judgments entered on verdicts returned by a jury for the
plaintiff present several questions of law both substantive
and procedural. They arise out of the facts stated below
in the light most favorable to the plaintiff.
20
Irene Barker, the plaintiff and the appellee in Nos. 4992
and 4993, is a citizen of Nebraska and the widow and exee-
utrix by appointment of the appropriate courts of both
Nebraska and Massachusetts of Rexford L. Barker who,
during his lifetime, was also a citizen of Nebraska. The
latter, who will be referred to hereinafter as the decedent,
was a bender of glass tubing used in making neon signs,
and from the mid-1930’s on he was employed in that cap-
acity by Neon Products Company, Inc., of Omaha, Neb-
raska. His work consisted in plugging one end of a glass
tube and blowing into the other end with his mouth to
create pressure in the tube so that it would not kink or
collapse while it was being heated in a gas flame to a
malleable state and bent into the shape desired. It appears
that when a tube cooled and the olower's lips were removed
the heated air in the tube being under pressure blew back
against the blower’s lips, and it would seem to some extent
into the blower’s mouth.
During the early years of the decedent’s employment
only plain glass tubing was used. But starting about 1941
glass tubing coated on the inside with a compound con-
taining beryllium came into use. At first this coating gave
the appearance of having been painted on, and it did not
slough off during the bending process, although it did have
some tendency to flake off after a sign made with such
tubing had burned for a time. During 1944, perhaps to
remedy this defect, a new type of coated tubing came into
use. This tubing was also coated on the inside with a beryl-
lium compound but the coating was powdery and as a result
it had a tendency to slough off during the heating and
bending process. Thus when there was a blow-back the
blower got some of the powder on his lips and in his mouth.
The decedent did no tube blowing in 1945 but worked
outside during that entire year erecting and repairing
signs. He resumed blowing tubes in 1946, and early in that
21
year his employer, while temporarily unable to obtain
tubes from its usual source, General Electric Company—
from which it had bought some forty to fifty thousand feet
of coated tubing from 1944 to 1948—purchased hbout
forty-five hundred feet of beryllium coated tubing manu-
factured by the defendant, Sylvania Electric Products,
Inc., a Massachusetts corporation. All but two or three
hundred feet of this Sylvania tubing was fabricated into
signs in 1946 and the decedent blew most if not all of it.
Late in 1947 the decedent began to notice shortness of
breath and coughing, and early in 1948 he sought medical
assistance. The first two doctors he consulted gave him
no help but later in the year, about November, a third doc-
tor, after a thorough study of the decedent’s symptoms
and medical history and exhaustive laboratory and x-ray
tests, diagnosed the trouble as berylliosis, a chronic disease
of the lungs caused by inhaling particles of beryllium.’
In the meantime, however, in September, the decedent had
had to quit work because of his failing health.
Late in 1948 or early in 1949 the decedent brought an
action against his employer and its insurance carrier in
the appropriate local court in Nebraska to recover under
the Nebraska Workmen’s Compensation Act for his total
disability. In July 1949 he was awarded compensation and
the defendants appealed. In November both he and the
defendants applied to the court jointly for permission
to settle for a lump sum payment of $3,750, and about two
weeks later their petition was approved. The court in its
decree approving the settlement found that the decedent
was ‘‘fully informed in the premises“ and was acting
solely upon his own information and upon the advice of
his own counsel after extended and exhaustive considera-
The jury found specifically that by December Ist, 1948 the dece-
ent knew or should have known that he was suffering from the
22
tion of the entire matter and [was] not acting upon rep-
resentations of the defendants or any of their representa-
tives. And in paragraph III of both the application for
leave to settle and the decree approving the application
it is stated: N
„That plaintiff avers that shortly prior to Septem-
ber, 1948, he contracted an occupational disease known
as berylliosis and consisting of a fibrosis of lung tissue,
resulting from exposure to florescent powders con-
taining beryllium, and that said beryllium poisoning
culminated on or about September 13, 1948 in perma-
nent total disability. That plaintiff stipulates that
his exposure to said occupational disease was at least
40% contracted and incurred during a period prior
to the time when the Occupational Disease Statute of
Nebraska became effective,? and that at least 40%
of his disability and medical expenses are not covered
by said Statute, and that defendants are therefore
not liable for at least 40% of the full benefits scheduled
in said Statute.“
The following year the decedent made a claim against
the General Electric Company to recover damages for the
same total and permanent disability. This claim was
settled in May, 1950, for $17,500 and the parties entered
into an agreement and release which in some respects re-
sembles a covenant not to sue. At any rate it purports
to settle only the decedent’s claim against General Electric
Company and expressly reserves ‘‘all rights, claims and
demands that he may have against other suppliers of ma-
terial to Neon Products Company.“ At the same time the
plaintiff herself, both individually and as guardian of her
minor son, executed similar agreements and releases with
2 Counsel agree that this statute became effective in August 1943.
23
General Electric in consideration of $2,000 and $500 respec-
tively.
Three months later, in August 1950, the decedent brought
suit in the court below under its diversity jurisdiction
against Sylvania Electric Products, Inc., to recover for the
same total and permanent disability. He died on Septem-
ber 12, 1952, before the case was reached for trial and the
action was prosecuted thereafter by his widow in her cap-
acity of executrix. This case on appeal is No. 4992 on our
docket. On February 12, 1954, the executrix also brought
suit against the defendant in the same court under the
Nebraska death statute and this case on appeal bears our
docket number 4993. The actions were consolidated below
for trial by jury, the jury returned verdicts for the plain-
tiff, and the defendant thereupon took the present appeals
from the judgments entered on the verdicts. After the
judgments were entered the plaintiff moved that interest
be added to the amount of each judgment calculated at six
per cent from the dates of the respective writs. These
motions were denied and the plaintiff appealed but later
abandoned her appeal in the death case. Her appeal in the
personal injury case is No. 4994.
Sylvania Electric Products, Inc., as appellant, contends
that the application under oath for permission to settle
the Nebraska workmen’s compensation case for a lump sum
payment, and the Nebraska court’s decree thereon, estab-
lish conclusively that the decedent had and knew that he
had berylliosis at least as early as Angust 1943. It rests
three arguments on this contention. First, it says that its
fault, if any, could not be causal, for none of its tubing
was used by the decedent’s employer until 1946. Second,
it says that the decedent’s cause of action for personal
injuries prosecuted after his death by the plaintiff as exec-
utrix is barred by the Nebraska four-year statute of limita-
tions (Rev. Stats. of Neb. 1943 (1948 Ed.) § 25-207) which
24
applies because of the provision in the Massachusetts
statute of limitations (General Laws, Ch. 260 § 9) that,
‘no action shall be brought by any person upon a cause of
action which was barred by the laws of any state or country
while he resided therein.“ And third, it says that the
statutory bar to the maintenance of the action for personal
injuries also bars the death action, because the Nebraska
death statute provides that the cause of action for wrongful
death permits such actions only if the party fatally injured
could have maintained an action and recovered damages
had he lived.
We do not pause to consider these arguments in detail
for the foundation upon which they rest is unsound. The
judgment of the Nebraska court in the workmen’s com-
pensation case is not binding here under the doctrine of
res judicata because that was a suit against different de-
fendants—the decedent’s employer and its insurance car-
rier. Nor does the joint application for leave to settle the
compensation case for a lump sum payment require the
finding that the decedent was suffering from berylliosis
prior to 1943. The statement quoted above from the appli-
cation signed by the decedent is that his exposure to beryl-
liosis began prior to 1943, but that he did not contract the
disease until ‘‘shortly prior to September, 1948.’’ This is
not a statement that he was suffering, and knew thai he
was suffering, from berylliosis before 1943. But, even if it
could be construed as a statement to that effect, it would
not conclusively bind the plaintiff. So construed it would
be admissible as a prior contradictory statement but as
such its only use would be to detract from the credibility of
the decedent’s contradictory statements in his deposition
put into evidence at the trial. It would also be admissible
as a declaration against interest. As such it might indicate
affirmatively that the decedent had contracted berylliosis
prior to 1943. Still it would constitute at the most only
25
contradictory evidence which the jury could reject in favor
of the evidence tending to show that the decedent’s beryl-
liosis did not manifest itself until sometime late in 1947
or early in 1948, although insofar as it was caused by the
defendant’s tubing it must have been caused sometime in
1946.
This raises the question of when the decedent’s cause of
action accrued under the law of Nebraska. For if it accrued
prior to August 1946 his action for personal injuries
brought in August 1950 is barred by the Nebraska four-
year statute of limitations which applies because of the
provision of the Massachusetts statute of limitations cited
above.
Undoubtedly the decedent was exposed to the beryllium
in the defendant’s tubes before August 1946. But so far as
the evidence in the record is concerned, he was similarly
exposed after that date. But the question of the precise
time when the decedent actually contracted the disease
from which he died need not detain us, for what apparently
controls under the Nebraska law is the time when the de-
cedent knew that he had the disease. The Nebraska court
has repeatedly held in workmen’s compensation cases that
the statutory period within which such actions must be
brought does not begin to run until the employee acquires
knowledge of a compensable disability, see the recent case
of Dryden v. Omaha Steel Works, 148 Neb. 1 (1947), and
from this we assume, in the absence of authority to the
contrary, that it would apply the same liberal rule in ac-
tions of tort like the present. See Urie v. Thompson,
Trustee, 337 U.S. 163 (1949). Thus, since the jury found
specially that the decedent did not know that he had beryl-
liosis until the first of December 1948, it follows that his
personal injury action was not barred by the Nebraska
four-year statute of limitations.
We turn now to the question of the sufficiency of the
evidence to support the verdicts for the plaintiff.
There was evidence from which the jury could reason-
ably find that the decedent without knowing it contracted
berylliosis in 1946, that his disease was caused in part by
blowing tubes during that year manufactured by the defen-
dant, that his disease manifested itself late in 1947 or early
in 1948, that the decedent became totally incapacitated by
it in mid-September 1948, that his disease was not diag-
nosed until some two months later, and that after its onset
it progressed gradually until it caused the decedent’s death
on September 12, 1952.
We may assume that the defendant either knew or onght
to have known the uses to which its beryllium coated tubes
would be put, the method commonly used in fabricating
them for their intended purpose, and that in their fabrica-
tion beryllium particles would be deposited on the work-
men’s lips and in their mouths. But neither the plaintiff
nor the defendant introduced any evidence that in 1946
the defendant knew or was chargeable with knowledge that
inhalation of beryllium was dangerous to health. Indeed,
it would seem from Harman v. Mitcham Works, Lid., de-
cided by the Supreme Court of Judicature, Court of Appeal,
on June 21, 1955, that it may not have been until after 1946
that any one had any occasion whatever to believe that in-
halation of beryllium particles would cause chronic disease
of the lungs. Is this lack of direct evidence in the record
that the defendant either knew or at least ought to have
suspected that beryllium posed a danger to health fatal
to the plaintiff’s cases?
The nature and extent of the defendant’s liability as the
manufacturer of the coated neon tubing involved is, under
well established principles, determined by the law of Neb-
raska where the decedent’s injury occurred. And, it seems
very evident fro a the citation and quotation in Driekosen
27
v. Black, Swalls and Bryson, 159 Neb. 531 (1945), from
§§ 388, 390, and 392 of the Restatement, Torts, vol. II, that
the substantive rule in Nebraska is that a manufacturer
is liable to a person injured by his product only when the
manufacturer either knows, or from facts known to him
should realize, that his product is, or is likely to be, danger-
ous for the use for which it is supplied. The question re-
mains whether proof of this knowledge of actual danger
or realization of possible danger is an essential part of a
plaintiff’s affirmative case, or whether lack of such knowl-
edge or realization is a matter for the manufacturer to
show in defense.
In Massachusetts the rule seems to be that every manu-
facturer is presumed to know the nature and qualities of
his products.* Thornhill v. Carpenter-Morton Co., 220 Mass.
593 (1915); see Farley v. Tower, 271 Mass. 230 (1930);
and Carter v. Yardley, 319 Mass. 92 (1946) does not indi-
cate to the contrary. Thus, once a plaintiff establishes in
a Massachusetts court that a manufacturer-defendant’s
product is dangerous in its ordinary use, and that no
warning of its danger was given, a presumption of the
defendant’s knowledge of the danger arises, and this pre-
sumption with, of course, proof of causation and injury,
completes the plaintiff’s p~ima facie case. Hence in Massa-
chusetts it is up to a manufacturer-defendant to come for-
ward, if it can, with exculpatory evidence of its faultless
ignorance of the dangers of its product to those who might
use it. But does this Massachusetts rule of presumptive
knowledge apply in the case at bar or must we Inok to Neb-
raska’s rule, whatever its rule may be?
The question posed lies in the field of conflict of laws.
28
Thus, in accordance with the views expressed in Judge
Magruder’s opinion in Sampson v. Channell, 110 F. 2d 754
(C.A.1, 1940), cert. den. 310 U.S. 650, endorsed in Palmer v.
Hoffman, 318 U.S. 109 (1943), we refer to the conflicts rule
in Massachusetts for the answer, for our choice of law
must conform to the choice which would be made by the
Supreme Judicial Court of that Commonwealth.
We cannot be sure what conflicts rule the Massachusetts
courts would apply in the exact situation presented since
we have found no Massachusetts case in point. Nevertheless
we think the highest Massachusetts court would choose its
own rule of presumptive knowledge as applicable in the
case at bar in conformity with the general rule stated in
§ 595 of the Restatement, Conflict of Laws, which under
the heading Proof of Facts reads as follows:
**(1) The law of the forum governs the proof in court
of a fact alleged.
(2) The law of the forum governs presumptions and
inferences to be drawn from evidence.“
And see particularly Comment c. under the above section.
Further support for this view is found in Gregory v.
Maine Central R. R. Co., 317 Mass. 636 (1945). In that case
the court considered the question whether a plaintiff in a
suit in Massachusetts for personal injuries suffered in
Maine had the burden of proving his lack of contributory
fault in accordance with the law of Maine or whether the
burden of proving his contributory fault rested upon the
defendant in accordance with a Massachusetts statute. In
holding that the Massachusetts statute applied, the court,
with copious citations which we omit, spoke on pages 639
and 640 as follows:
‘‘What conduct constitutes contributory negligence
of the plaintiff is a question of substantive law
governed by the law of Maine, where the injury hap-
pened. But the law of the forum—Massachusetts—
29
governs the procedural question of the burden of proof,
and under our statute the burden of proof of con-
tributory negligence is on the defendant. The appli-
cable substantive law of Maine as to what conduct
constitutes contributory negligence goes no farther
than to define it as a failure, contributing to the injury,
to exercise as much care as the ordinarily prudent
man would have exercised under like circumstances.
Whether the evidence conclusively shows such failure
or not, is a procedural question to be determined ac-
cording to rules of practice in force in Massachusetts.’’
Since the Massachusetts statute referred to in the above
quotation puts on the defendant the burden of proof in the
sense of the burden of going forward with the evidence,
which concerns us here, as well as the burden of proof in
the sense of the burden of persuasion, with which we are
not concerned, the Gregory case indicates that the burden
of going forward with the evidence is regarded in Massa-
chusetts as a preoedural matter to be determined in accord-
ance with the rules of practice in force in the forum. We
do not think the rationale of this case is limited to contrib-
utory negligence.* Therefore we conclude that the plaintiff
may maintain her cases even though she did not introduce
any direct evidence that the defendant knew or should have
at least suspected that its product was or might be danger-
ous to those who would use it.
Sylvania Electric Products, Inc., as appellant in Nos.
Perhaps the foregoing discussion of conflict of laws principles is
academic for the reason that the Massachusetts court might apply its
local rule of presumptive knowledge on quite different reasoning.
Nebraska court so far as we can discover has never considered the
Massachusetts rule either to adopt it or to reject it, and in this situa-
tion, if the Massachusetts court should hold that Nebraska law applied,
it might well follow the usual practice and assume in the absence of
indications to the contrary that its rule of presumption was also the
rule in Nebraska.
30
4992 and 4993 makes the further contention that it is re-
lieved of all liability by the releases given to General
Electric Company by the decedent and by the plaintiff in-
dividually and in her capacity of guardian of her minor
son. The argument is that in the releases the decedent and
the plaintiff admitted receipt‘of complete satisfaction from
General Electric Company for their respective injuries.
Wherefore it is said taat to permit them to recover here
would be to allow them more than one satisfaction for their
injuries, which, of course, they cannot have. Thus, it is
asserted that the reservation in the releases of rights
against other suppliers of material to the decedent’s em-
ployer is void and without effect because the releasors
had nothing to reserve.
Again factual basis for the contention is lacking. The
releases as we read them do not purport to have been
given in full settlement of all the releasors’ damages. They
purport only to release General Electric Company insofar
as it and it alone contributed to cause the losses suffered
by the plaintiff and the decedent. Thus, the court below
correctly charged the jury that it should deduct the gross
amounts received in settlements or compromises ($28,502),
from any verdict it might return for the plaintiff.
We have considered other arguments advanced by Syl-
vania Electric Products, Inc., as appellant, such as its
argument that the decedent was guilty of contributory neg-
ligence as a matter of law, only to reject them as without
merit. We do not think they call for separate discussion.
Irene Barker’s appeal from the denial of her motion to
amend the judgment in the personal injury case by adding
interest on the amount of the verdict calculated from the
date of the writ remains for consideration. .
She rests her claim to interest exclusively on § 6-B of
Chapter 231 of the Massachusetts General Laws quoted in
31
the margin.’ We do not think the Massachusetts statute
applies.
Both parties appear to concede, and we agree, that under
the rule of Klazon v. Stentor Electric Mfg., Inc., 313 U.S.
487 (1941), the applicable law must be chosen in accord-
ance with the conflicts rule of Massachusetts. And, as
pointed out earlier in this opinion, Massachusetts follows
the usual rule that liability in personal injury cases is
governed by the law of the place where the injury occurred,
Trudel v. Gagne, 328 Mass. 464 (1952); Gregory v. Maine
Central R. R., 317 Mass. 636 (1945). Presumably also, al-
though we have found no case in Massachusetts squarely
on the point, the courts there would follow the usual rule
stated in § 412 of the Restatement, Conflict of Laws (1934),
that ‘‘The measure of damages for a tort is determined by
the law of the place of wrong.“ That is to say, in the words
of Comment a. on § 412, ‘‘what items of loss are to be in-
cluded in the damages’’ is determined by the law that
creates the right to recover in the first place.
On principle, interest on a verdict from the date of the
writ is an item of substantive damages awarded / in order
that the plaintiff may be more fully and justly compen-
sated for the wrong complained of.“ Moore-McCormack
Lines, Inc. v. Amirault, 202 F.2d 893, 895 (C.A.1, 1953).
And Massachusetts accepts this general principle, for in
"Amico v. Cariglia, 330 Mass. 246 (1953), the Supreme
Judicial Court of Massachusetts in discussing the statute
now under consideration and its predecessor said that
>
|
5 “Interest from Date of Writ added to Damages Awarded in Cer-
in Civil Actions. In any action of tort in which a verdict is rendered
finding made for pecuniary damages for personal injuries to the
i
|
|
ff]
i
Fad
ee
FA
i
F
|
32
Under both statutes interest was to be included as an item
of damages. Under Massachusetts conflicts rules, there-
fore, it follows that the plaintiff’s right to interest on the
verdict in the personal injury case figured from the date
of the writ must be determined by the law of Nebraska.
We are not referred to any Nebraska authority support-
ing the plaintiff’s position. In this situation the Nebraska
rule is presumed to be the general common-law rule as it
prevailed in Massachusetts prior to the statutory changes,
see John B. Fray Co. v. S. Silk, Inc., 245 Mass. 534 (1923),
and the Massachusetts rule prior to the statutory changes
was that interest is not an element of the damages re-
coverable in actions of tort for personal injuries. Cochran
v. Boston, 211 Mass. 171 (1912); see D’ Amico v. Cariglia,
330 Mass. 246, 247 (1953).
The judgments of the District Court are affirmed.
Magruder, Chief Judge (concurring). I concur in the
opinion and judgment of the court.
It is undisputed that under the substantive law of Neb-
raska a manufacturer owes a duty of ordinary care to re-
mote but foreseeable users of his manufactured products,
and is liable to such users for harm proximately caused by
the manufacturer’s negligence. If suit had been brought
in a Massachusetts state court on this alleged Nebraska
tort, no doubt the Massachusetts courts would apply the
foregoing substantive law of Nebraska. See Peterson v.
Boston d Maine R. R., 310 Mass. 45 (1941). Judge Wood-
6It should be noted that plaintiff's reliance on this case for the
proposition that the inclusion of interest from the date of the writ is a
the statutory change in the method of computing interest from
putation by jury to computation by the clerk of court, not the right to
have interest included as a part of the damages.
33
bury’s opinion has found indications in the Massachusetts
decisions that in such a suit, without regard to whether a
Nebraska court would do the same thing, the Massachusetts
courts would apply a ‘‘presumption,’’ regarded by them as
a rule of local procedure, that the manufacturer who puts
the component parts together must be taken to know the
nature and quality of the resultant product which he solicits
the public to purchase. By this is meant not a conclusive
or irrebuttable presumption, which becomes a rule of sub-
stantive law (see Am. L. Inst., Rest. of Conflicts § 595,
Comment c; Peterson v. Boston & Maine R.R., 310 Mass.
45, 47 (1941)), but that such knowledge is a **compelled
inference’’ in the event that the manufacturer fails to dis-
charge his burden of ‘‘going forward with evidence“ tend-
ing to show that he neither knew, nor in the exercise of
care would have discovered, by preliminary tests or inspec-
tions, the potentially dangerous character of the manu-
factured product. Such was the situation in the case at
bar, where the defendant did not go forward with any evi-
dence of an exculpatory nature. The manufacturer in that
situation is treated as if he knew, that is, he is „charged
with knowledge,“ for by force of the presumption it must
be taken that he actually knew, or in the exercise of due
care would have discovered, the dangerous properties of
his product before putting it on the market. Judge Wood-
bury’s opinion also concludes that a federal district court
sitting in Massachusetts in a diversity of citizenship case
such as this would be bound to apply the rule of presump-
tion which the Massachusetts state courts would apply,
even though the state courts for their own purposes might
classify such presumption as a local rule of. procedure.“
See Boyle v. Ward, 125 F. 2d 672 (C. A. 3d, 1942).
I assume that Judge Woodbury’s opinion is right in the
foregoing respects, but since the subject matter is cer-
tainly a difficult and cloudy one I should like to add an
34
additional comment which tends to support the court’s
conclusion that the judgments for the plaintiff, now on
appeal, should be affirmed. If Judge Woodbury’s opinion
is correct, the plaintiff below was entitled to a binding
instruction that Sylvania must be taken to have known that
the powdered beryllium with which it coated its glass tubing
might cause a lung disease to artisans making the ordinary
and expectable use of the product. The district court gave
no such binding instruction, but the error, if it was an error,
has become harmless to the plaintiff in view of the fact
that the jury brought in a plaintiff’s verdict anyway.
In the charge to the jury the district court said that a
manufacturer who produces an article that is inherently
dangerous ‘‘is presumed to know the nature and quality
of the product and its component parts; and if he or it
knew or should have known the product was inherently
dangerous, the manufacturer owed a legal duty to use
reasonable care to prevent injury to those whom he knows
or has reason to know will use or come in contact with the
product.’’ By this I take it the district court merely meant
that it was permissible for the jury to infer as a fact, on
the preponderance of probabilities, that the manufacturer
knew or should have known the dangerous character of its
product. I say this because later in the charge the district
court distinctly left it to the jury to determine as a fact
whether the defendant knew or should have known by the
exercise of reasonable care ‘‘that the tubes were inherently
dangerous, namely that the powder particles of the tubes
would slough off in their use and the powder content, beryl-
lium, . . . was poisonous.’’ The jury were told that it was
for them to resolve that question. ‘‘If the defendant did not
know or should not have known by the exercise of reason-
able care, the plaintiff cannot recover, as it is the plaintiff’s
burden of proof to prove that the defendant knew or should
have known.’’
35
In other words, all that the court below did was to apply
to the situation the familiar rule of res ipsa loquitur in
the simple form of a permissible, but not a compelled, in-
ference. See Sweeney v. Erving, 228 U.S. 233, 240 (1913);
Umted States v. Hull, 195 F.2d 64, 66 (C.A. Ist, 1952).
The Massachusetts state courts would certainly have gone
this far, and I take it also that the Nebraska courts would
have done so, even though they might not have applied a
rule of ‘‘presumption,’’ that is, a compelled inference of
knowledge in the absence of exculpatory evidence offered
by the manufacturer. See Miratsky v. Beseda, 139 Neb.
299, 297 N. W. 94 (1941); Security Ins. Co. v. Omaha Coca-
Cola Bottling Co., 157 Neb. 923, 62 N.W.2d 127 (1954);
Benedict v. Eppley Hotel Co., 159 Neb. 23, 65 N.W.2d 224
(1954). And see Note, The Procedural Effect of Res Ipsa
Loquitur in Nebraska, 33 Neb. L. Rev. 620 (1954).
36
Appendix B
Nebraska Law—Statute of Limitations
Revised Statutes of Nebraska of 1943 (1948 Ed)
Section 25-201. Civil Actions; when commenced.
„Civil actions can only be commenced within the
time prescribed in this chapter, after the cause of
action has accrued.”’
Section 25-207. Actions for trespass, conversion, other
torts and frauds.
„The following actions can only be brought within
four years: (1) An action for trespass upon real
property; (2) An action for taking, detaining or in-
juring personal property, including actions for the
specific recovery of personal property; (3) an action
for an injury to the rights of the plaintiff, not arising
in contract, and not hereafter enumerated; and (4) an
action for relief on the ground of fraud, but the
cause of action in such case shall not be deemed to
have accrued until the discovery of the fraud except
as provided in sections 76-288 to 76-289.’’
Section 25-217. Action; when deemed to commence.
An action shall be deemed commenced, within the
meaning of this chapter, as to the defendant, at the
date of the summons which is served upon him; when
service by publication is proper, the action shall be
deemed commenced at the date of the first publication,
which publication shall be regularly made.“
37
2. Death case
Rev. Stats. of Nebraska—1948 Edition
Sect. 30-809, Action for Wrongful Death; Creation.
„Whenever the death of a person shall be caused
by the wrongful act, neglect or default, of any person,
company or corporation, and the act, neglect or de-
fault is such as would, if death had not ensued, have
entitled the party injured to maintain an action and
recover damages in respect thereof, then, and in every
such case, the person who, or company or corporation
which would have been liable if death had not ensued,
shall be liable to an action for damages, notwithstand-
ing the death of the person injured and although the
death shall have been caused under such eireum-
stances as amount in law to felony.”’
Sect. 30-810. Action for Wrongful death; Limitation;
In whose Name Brought; J udgment ; Disposition of Avails;
Compromise of Claim; Procedure.
Every such action, as described in section 30-809,
shall be commenced within two years after the death
of such person. It shall be brought by and in the
name of his personal representatives, for the exclu-
sive benefit of the widow or widower and next of kin.
The verdict or judgment should be for the amount
of damages which the persons in whose behalf the
action is brought have sustained... A personal rep-
resentative shall not compromise or settle a claim
for damages hereunder until the court by which he
was appointed shall first have consented to and ap-
proved the terms thereof.
38
Nebraska—W orkmen’s Compensation Law.
Section 48-151—Terms defined . . .
(2) The word ‘accident’ as used in this act shall,
unless a different meaning is clearly indicated by the
context, be construed to mean an unexpected or un-
forseen event happening suddenly and violently, with
or without human fault, and producing at the time
objective symptoms of an injury.
3) The term ‘occupational disease’ shall mean
only a disease which is due to causes and conditions
which are characteristic of and peculiar to a particular
trade, occupation, process or employment and shall
exclude all ordinary diseases of life to which the
general public are exposed.“
Prior to enactment of Sub-section 3 above in 19431
Occupational disease was specifically excluded from the
paragraph relating to accidents unless arising in ‘‘smelt-
ing, metal refining or battery manufacturing industries.”
McCall v. Hamilton Co. Farmers Tel. Assn, (1938) 135
Neb. 70, 74.
Massachusetts General Laws, Chapter 260, section 2:
‘‘Limitation of Six Years— The following actions
shall, except as otherwise provided, be commenced
only within six years next after the cause of action
accrues: First, Actions of contract founded upon
contracts or liabilities, express or implied, except
actions limited by the preceding section or actions
upon judgments or decrees of courts of record of the
39
United States or of this or any other state of the
United States.
Second, Actions of tort.
Third, Actions of replevin.’’
Massachusetts General Laws, Chapter 260, section 9:
Suspension in Case of Non-Resident Defendant.—If,
when a cause of action hereinbefore mentioned accrues
against a person, he resides out of the commonwealth,
the action may be commenced within the time herein
limited after he comes into the commonwealth; and
if, after a cause of action has accrued, the person
against whom it has accrued resides out of the com-
monwealth, the time of such residence shall be ex-
cluded in determining the time limited for the com-
mencement of the action; but no action shall be brought
by any person upon a cause of action which was barred
by the laws of any state or country while he resided
therein.“
40
Appendix C
In THE Supreme Court or JUDICATURE
Court or APPEAL,
Royal Courts of Justice,
Tuesday, 21st of June, 1955.
Before:
Lorp Justice DennincG
Lorp Justice Birkett and
Lorp Justice Parker
HARMAN
v.
Mircuam Works LrMIrep
(Transcript of the Shorthand Notes of The Association of
Official Shorthandwriters, Ltd., Room 392, Royal Courts
of Justice, and 2, New Square, Lincoln’s Inn, London,
W. C. 2).
Mr. Tristram Beresrorp, Q. C., and Mr. P. H. Ripmay (in-
structed by Messrs. Lewis, Holman & Lawrence, agents
for Messrs. Ross & Son, Horley) appeared on behalf of
the Appellant (Plaintiff).
Mr. E. Ryver RIchARDSOx, Q.C., and Mr. R. Horkixs (in-
structed by Messrs. Carpenters) appeared on behalf of
the Respondents (Defendants).
JUDGMENT
Lorp Justice Denninc: Mrs. Harman is a young mar-
ried woman with two small children. Her life has been
ruined by chronic beryllium poisoning. She has spent long
41
periods in hospital. She suffers from breathlessness, chok-
ing feeling, cough, palpitation, lassitude and mental strain.
Her life has been shortened by 25 years. This has all been
due to two months work which she did for the Defendants
from July to September, 1947. They required her to work
with a beryllium compound which is a deadly poison. One
witness said that it is more dangerous than a poison. It is
more like a radio-active material in an atomic plant. A
slight exposure to it may have fatal results which do not
appear for months or even years afterwards. The Defend.
ants did not give Mrs. Harman the slightest warning that
there was any danger in it. They say that they did not
know themselves at that time that it was dangerous, So
they refuse to pay her any compensation at all.
Let me now say who the Defendants are, They are a
branch of the great concern known as Phillips Radios which
is a worldwide organisation, In 1946 they were engaged
in producing fluorescent lamps which was an important
new industry. They had previously bought fluorescent
powders from other people, but at the end of 1946 they
decided to make some of the powder themselves. They
built a new laboratory where they put in hand an ‘‘experi-
mental process’’, as they described it, of mixing ingre-
dients for producing a fluorescent medium. The work was
“being hurried’’: but this was no doubt because they did
not wish to be left behind in this new field. They got
information from their associates in America on how to
make this fluorescent medium: they employed a research
chemist, Dr. Rothschild, who had made it in Germany be-
fore the war: they looked up the American Chemical Ab-
stracts to see if there were any patents affecting the work:
and they then started work on the process.
It was in this process that Mrs. Harman was engaged
when she was poisoned. She had been with the company
for some years on other work but on 14th July, 1947, she
42
was put into the new laboratory where this experimental
process was being carried on. Her actual work was to sieve
powder through a wire sieve with a brush but she helped
with all parts of the process. After two and a half
months she left on the 4th October, 1947, for domestic
reasons. Some months later she was stricken with this
dreadful illness due to the poisoning in the process.
The Defendants say that, when they put her on to this
work, they had no knowledge that this process was danger-
ous and no reason to suspect it. They had been buying
fluorescent powders for three or four years from large con-
cerns like General Electric Company and British Thomson-
Houston, Those concerns had never hinted that they were
dangerous. The Defendants’ workmen had used the pow-
ders and had never had any trouble with them. The Amer-
ican associates of the Defendants gave no warning of any
danger. Nor had Dr. Rothschild. So the Defendants had
no suspicion that the beryllium compound was a toxic sub-
stance; and they gave no warning about it to Mrs. Harman
or any of their employees.
The Defendants, however, frankly admit that if they had
had any suspicion that it was toxic they would have made
a search which would have put them on their guard. Dr.
Sutherland, their chief chemist, who was in charge of this
process was asked: ‘‘do you agree that had any inquiry
been made—real research been made—before putting these
people on to work with beryllium, there would have been
available to you the knowledge that beryllium was a toxic
substance?’’, and he answered: ‘‘Yes, but we made no
specific search with reference to beryllium because we did
not suspect beryllium at all’. He added: If I had any
idea that it was alleged to be a toxic substance, I would
ask for a literature survey to be made, and I would ask
our medical officer to study the situation and make recom-
43
mendations to us’’. Let me examine what would have hap-
pened if he had done so.
If the Defendants had had a literature survey made, they
would have discovered in their very own library an entry
which showed that these beryllium compounds were danger-
ous. It was an entry in the American Chemical Abstracts
which they always took. Indeed they consulted it in March,
1947, for beryllium patents. But they did not consult it
for beryllium toxicology. If they had done so, in the issue
for 20th November, 1946, they would have found this entry:
„Delayed chemical pneumonitis occurring in workers ex-
posed to beryllium compound’’, (A reference is then given
in an article on the subject in the American Journal of
Industrial Hygiene). Case reports are given for 17 cases
of a delayed chemical pneumonitis which occurred in a
fluorescent factory where Be compounds are used, The
American article which is there referred to was available
in England at that time. It was certainly in the Patent
Office Library, and probably in the library of the British
Medical Association. If the Defendants had referred to
the article itself they would have found a full discussion
starting with the words ‘‘A puzzling disease has appeared
in employees of a concern manufacturing fluorescent lamps
... beryllium has attracted little attention in the United
States until recently because it has been used in American
industry very little until the war years—Kress and Crispell
in 1944 presented cases of an atypical pneumonia in men
working with fluorescent powder containing beryllium. Six
months ago Van Ordstrand presented an extensive report
of illness in the workers of the beryllium industry. The
present series is concerned with pulmonary disease in an
industry where beryllium compounds are used’’. Dr. Suth-
erland, the Defendant’s chief chemist, admitted that a
specific search would have found those documents,
Apart from those documents if the Defendants had asked
44
their medical officer to study the situation there is no doubt
that he would have reported that the substance was dan-
gerous. Dr. Franks, their present medical officer was asked
what his opinion would have been if he had read the litera-
ture available at the end of 1946. He answered: ‘‘I would
have considered beryllium oxide dangerous at the end of
1946’’: and he added: I could have obtained, if I had
wanted it, all the relevant American literature on this
problem at the end of 1946 from the library of the British
Medical Association in London’’. The learned Judge seems
rather to have discounted Dr. Franks’ evidence but he
was the only medical officer called by the Defendants—or
indeed on either side—and I see no reason why this admis-
sion should not be taken against them. Furthermore, the
British Medical Journal had published an article as far
back as 9th October, 1943, on the toxie hazard of beryl-
lium’’ which referred to an American article on ‘‘The
Toxicology of Beryllium’’, in which it was said that a
chemical pneumonia had been observed in three workmen
employed in extraction of beryllium oxide.
It is quite plain, therefore, that the Defendants, by mak-
ing research, could have discovered that this substance was
dangerous before ever they put Mrs. Harman on to work
with it. As it was, they did not make any research into
its toxic qualities. The reason was because they did not
suspect the substance at all. So they found out nothing
and gave her no warning.
The Defendants did not discover the dangerous nature
of the substance until the 15th December, 1947, by which
time Mrs. Harman had left their employment. One of their
medical officers in Blackburn then reported that ‘‘lung
diseases, acute and chronic, have been recorded in the basic
beryllium industry and in the fluorescent lamp and radio
tube industry where beryllium compounds have been used”’.
In 1948 the dangers of beryllium were discovered to be so
45
great that it was no longer used and has been replaced
by a different substance altogether.
Such being the facts, the Judge has exempted the De-
fendants from any liability to pay compensation to Mrs.
Harman. He states his conclusions in these guarded words:
J am unable to say that, in all the circumstances of this
case, I am satisfied_that the Defendants ought to have
known that their process was a dangerous one, which means
too, that I am unable to say that the Defendants are actu-
ally in breach of their duty to the Plaintiff’’. It looks as
if the Judge thought the case very near the line and only
decided as he did because he was not satisfied that the
Defendants ought to have known of the danger. Despite
the care which the Judge gave to this case, I think there
is one thing which he overlooked. He failed to recognise
the high duty of care which the law places on those who
deal in dangerous things. This beryllium compound was
beyond doubt a thing which was dangerous in itself—
dangerous per se, as it is said. It comes, therefore, within
the special category in which the law requires people to
use the greatest possible care. The duty was described by
Lord Dunedin in these words: ‘‘It has, however, again and
again been held that in the case of articles dangerous in
themselves such as loaded firearms, poisons, explosives
and other things ejusdem generis, there is a peculiar duty to
take precautions imposed upon those who send forth or
instal such articles when it is necessarily the case that
other parties will come within their proximity’’, see Domin-
ion National Gas Company v. Collins, 1909 Appeal Cases
at page 646. That passage was expressly approved by
Lord Atkin in Donoghue v. Stevenson, 1932, Appeal Cases
at page 596 where he said that it ‘‘exactly sums up the
position“.
It is worth recalling the words in which great lawyers
have spoken of this duty in regard to dangerous things.
46
Sir Frederick Pollock said in his book on Torts that in
these cases the law ‘‘subjects the actor to strict responsi-
bility. Sometimes the term ‘Consummate care’ is used to
describe the amount of caution required, but it is doubtful
whether even this be strong enough’’. (15th Edition,
page 386). Lord Macmillan, in an oft-quoted passage, said
that the law exacts a degree of diligence so stringent
as to amount to practically a guarantee of safety’’, see
Donoghue v. Stevenson, 1932, Appeal Cases at page 612.
Lord Simonds expressly accepted those words in Read v.
Lyons, 1947 Appeal Cases at page 182, and added his own,
saying that the obligation ‘‘is to be ultra-cautious in carry-
ing his ultra-hazardous activity“.
Those emphatic statements clearly apply where the De-
fendant knows that the thing is dangerous, but what is
the position when he does not know? Can he escape his
due responsibility by pleading ignorance? Surely not. The
duty has never been stated to rest on knowledge, see Burfitt
v. Kille, 1939 2 King’s Bench at page 749, per Mr, Justice
Atkinson. The reason is plain: a dangerous thing has a
more deadly potential in the hands of a man who is ignorant
than one who knows of the danger. A man who points a
loaded gun cannot escape his responsibility by pleading
that he did not know it was loaded. Consider the old case
where a man had taken out the priming and did not know
the gun might go off. He had used as much care as would
commonly be thought enough and still he was held re
sponsible, see Dizon v. Bell (1816) Maule and Selwyn, at
page 198. Take a modern case where a forwarding agent
handed a dangerous chemical ferro-silicon to a bargee for
carriage. The ferro-silicon was packed in casks, and the
forwarding agent did not know it was dangerous and was
not negligent in not knowing. During the journey the
ferro-silicon gave off poisonous fumes and killed the bargee
and injured his wife. The forwarding agents were held
47
liable, not only for the death of the bargee (with whom
they had a contract) but also for the injuries to his wife
with whom they had none, see Bamfield v. Goole, 1910, 2
King’s Bench, at page 94. Lastly take the case where manu-
facturers supplied a special cleaning fluid called **pluper-
fect liquid“ for cleaning ships. They had supplied it in
large quantities for eight or nine years without complaint.
They knew the ingredients but did not know it was dan-
gerous. It turned out that, when this liquid came into
contact with cast iron, it generated an explosive gas. An
explosion occurred and damaged the ship. Mr. Justice
Roche held that the liquid was a thing dangerous in itself
and that the manufacturers were liable to the shipowners,
even though they had no contact with him and did not
know the stuff was dangerous. Nor was any negligence
found against them in not knowing, see Anglo-Celtic Ship-
ping Company v. Elliott ( 1926) 42 Times Law Reports,
at page 297.
If and in so far as those cases would seem to suggest
that there is an absolute liability for dangerous things,
irrespective of negligence, they cannot stand with Read v.
Lyons, 1947, Appeal cases at page 156: but in so far as
they put a very high duty of care on a man to find out
whether the thing is dangerous or not, and to give warning
of it, they are in my opinion perfectly good law. In regard
to things which are duugervus iu themselves, the law re-
quires everyone who deals in them to take the greatest
possible precautions not only to avoid the danger when it
is known, but also to find out whether there is danger or
not. If the Defendants in this case had handed the beryl-
lium compound to a carrier, without giving him any warn-
ing that it was dangerous, they would undoubtedly be
liable to any one of the carrier’s servants who was injured
by it. So should they be liable when they hand it to one
of their own servants, and requires her to work with it,
— —
48
without giving her any warning that it is dangerous. It!
all very well for them to say that they did not suspect i
They ought to have suspected it until it was proved harn
less. They were starting a new process, an ‘‘experimenté
process’’, as they themselves called it. It behoved then
not only to call in their research chemists to tell them ho
to make it, but also to call in their medical officers to advis
them whether it was safe for their workers to handle. The
did not do this: and their failure to do so was a breae
of duty for which they are responsible.
It was suggested that if there was any breach of duty
her illness was not caused by it. I do not agree with thi
suggestion. It does not come well from a person, wh
has broken his duty to say that, if he had not broken i
the damage would have occurred just the same, see Moriso
v. Walter in the House of Lords recited by Lord Justice
Scutton in Coldman v. Hill, 1919, 1 King’s Bench a
page 457. If I am right up to now it means that, if th
Defendants had done their duty, they would have foun
out that this substance was dangerous. Thereupon the
would be bound, I should have thought, to warn the Plain
tiff of the danger. In Donoghue v. Stevenson, 1932, Appes
Cases at page 602. Lord Thankerton said the duty wa
either to afford protection or to give adequate warning. |
the Defendants had warned Mrs. Harman that the sul
stance was dangerous, she would probably have said sh
would rather not work with it: and in that case she woul
not have been injured. The damage is therefore traceab
to the: breach of duty.
I would only add that, as I see it, this case shows th
justice of our law about dangerous things. It does n
seem right that a great concern should exploit a ne
process at the risk of their workers without a word |
them of the dangers which it entails. It lies ill in the
mouths to say that they did not know it was dangero!
49
when their own medical officers, if they had been asked,
could have looked it up and told them so.
I would allow the appeal.
Lorp Justice bmxett: This is an appeal from a judg-
ment of Mr. Justice Gorman given on the 17th of January
of this year. It raises questions of great importance, and
also reveals facts of the most unusual kind. The Writ
which was issued in July, 1953, was settled by Counsel
of very great experience in this class of case and read:
“The Plaintiff’s claim is for damages for personal injuries
and consequential losses and expenses occasioned to the
Plaintiffs by reason of the negligence and/or breach of
statutory duty of the Defendants their servants or agents
between the months of July and October, 1947, at their
factory premises known as Salfords, Redhill, in the County
of Surrey“.
When the Statement of Claim came to be delivered in
October of 1953 the same learned counsel in Paragraph 3
stated the issue in this form: ‘‘The Defendants’ said prem-
ises at Salfords aforesaid in the year 1947 were known
as the Mullard Research Laboratories, and therein inter
alia, was carried on a certain process in connection with
the mixing of ingredients for use in fluorescent lighting
tubes. The said ingredients consisted inter alia of beryl-
lium, which was in fact and as the Defendants their serv-
ants or agents knew or ought to have known a substance
of high toxity to human beings the use of which involved
danger to health in particular if the same in any form was
inhaled’’, At the trial before Mr. Justice Gorman, the
learned Counsel appearing for the Plaintiffs and the De-
fendants agreed (to use the words of the learned Judge)
„that this paragraph of the Statement of Claim crystallised
exclusively the allegations of breach of duty alleged against
the Defendants, and that this alone was the issue of breach
of duty which in this action I have to determine. That
50
issue would thus appear to be in terms: Did the Defendants
or their servants or agents know, or ought they to have
known, that the beryllium compounds with which the Plain-
tiff was working were of high toxicity to human beings,
the use of which involved danger to health, in particular
if the same were inhaled in any form?’’. |
The Plaintiff, Mrs. Harman, was a young married woman
of 22 years of age in July of 1947. She had been employed
by the Defendants since 1942, but on July the 14th, 1947,
she worked in a new laboratory the Defendants had built
at Salfords, Redhill, and continued to work there until the
4th of October, 1947, when she left the employment of the
Defendants for domestic reasons of her own. When she
left the Defendants she was in perfect health and no com-
plaints of ill-health were raised by her, or on her behalf,
during the time she worked in the laboratory. For nine
months after she left the Defendants she was apparently
quite well, but in July of 1948 she began to feel unwell.
The agreed medical report which was before the learned
Judge was made in December, 1954, and from that docu-
ment it is clear that her illness was due to acute beryllium
poisoning. It was admitted at the trial before Mr. Justice
Gorman that Mrs. Harman was working in the laboratory
from July to October, 1947, that she there was working
with two compounds of beryllium, of which one was beryl-
lium oxide and the other zinc beryllium silicate. Both these
compounds were powders. It was also admitted that she
was never warned about any dangers connected with the
work she had to do in connection with the two compounds,
and that her illness was due to beryllium poisoning. It
would appear, though some matters are still in doubt, that
there are two forms of illness which may arise from contact
with compounds of beryllium, one being an acute disease
resembling pneumonia, and the other a chronic disease
which may occur one month to five years after exposure
51
to the compounds, The acute disease may follow exposure
to high concentrations, and the chronic disease may follow
exposure to minute concentrations. Some people would
appear to be immune, and some particularly sensitive, so
that it has been suggested that there may possibly be some
condition of the blood which determines whether the person
working with the compounds is immune or not.
From this bare recital of some of the main facts of this
appeal, it will be seen that the task of the learned Judge,
and of this Court, was by no means an easy one. Mitcham
Works Limited was a subsidiary company of a great organ-
isation. The Plaintiff was a young married woman whose
life had been irretrievably ruined because of her work in
the laboratory of the Defendants. It was almost inevitable
that the contrast between the Plaintiff coming to the Court
under the provisions of the Legal Aid and Advice Act of
1949, and the powerful Defendants, who could no doubt
pay compensation without feeling it, should spring to the
mind. But considerations such as these could not assist in
the proper determination of the legal question the learned
Judge propounded: Did the Defendants know, or ought
they to have known that the beryllium compounds were of
high toxicity to human beings, the use of which involved
danger to health?
The only question argued in this Court was whether
the Defendants ought to have known and whether they
were in breach of their duty to the Plaintiff in not knowing,
for Mr. Tristam Beresford made it plain that he could not
argue that the Defendants did in fact know. The conelu-
sions to be drawn from the evidence given before the
learned Judge are, therefore, of supreme importance. One
of the witnesses called for the Defendants was a Dr. Sieg-
fried Rothschild, a research chemist, who had personal
knowledge of beryllium compounds from 1937 onwards. It
would appear that the year 1937 was the year when Beryl-
52
lium compounds were first used in industry and Dr. Roth-
schild was concerned with their use in Germany. The firm
for which he worked was a subsidiary of Osram the makers
of fluorescent lamps, and he stated that large numbers of
people were brought into contact with the beryllium com-
pounds, beryllium oxide and zine beryllium silicate. He
said that he had no knowledge that these compounds were
dangerous to human beings until the 15th of December,
1947, when he received a copy of a report made by a medi-
cal officer employed in one of the branches of the Defendant
company. That report made quotations from ‘‘Chemical
and Engineering News’’, dated October 13th, 1947, and
from ‘‘Occupational Medicine’’, dated July, 1947. When
Dr. Rothschild came to England in September, 1938, he
was employed by Messrs. Thomas Tryer, a subsidiary of
Albright and Wilson and stayed with them until 1940 and
made the beryllium compound powders for his employers.
From August, 1941 to December, 1944, he was employed
by the Pye Electrical Company of Cambridge, and these
powders were also used by that company. Only a very few
people were brought into contact with them at Tryers and
Pyes, but Dr. Rothschild had never known a case of illness
of one of the workers engaged in handling these powders
either in Germany or in England. In 1944, Dr. Rothschild
was employed by the Defendants. He first worked for a
subsidiary company called Stella Lamps Limited who were
making zinc beryllium silicate for use in the manufacture
of fluorescent lamps. When the Defendants erected the
laboratory in which the Plaintiff worked, Dr. Rothschild
also worked in the laboratory and began actually to make
some of the beryllium compounds there. But before Dr.
Rothschild began the making of the powders, the Defend-
ants had been buying the powders from the General Elee-
tric Company and the British Thomson Houston Company,
and that practice continued after the Company began to
53
make the powders, for never at any time did the Company
make enough for its purposes, and Dr. Rothschild said the
quantity made was a small fraction of the total amout
used.
It is a circumstance of great weight in considering the
liabilities of the Defendants that no word of warning as
to the nature of these powders was ever given to the De-
fendants by either of these well-known companies, who
continued to supply the powders to the Defendants during
the months the Plaintiff was employed by the Defendants,
ie., from July to October, 1947. Dr. Sutherland, an indus-
trial chemist and a scientist of some distinction, employed
by the Defendants for many years, said that he first heard
of beryllium compounds being said to be toxic in December,
1947, and he spoke of the steps he took in consequence of
what he had heard. The Defendant had been using beryl-
lium oxide for making radio valves since 1942 or 1943 by
a process they obtained from the United States of America
and they operated that process without making any en-
quiries and were still doing so at the date of the trial of
this action. Dr. Sutherland had never known of a ease of
beryllium poisoning, and nobody had ever drawn his atten-
tion to any possible danger until December, 1947. Dr.
Strange who had been working with beryllium oxide and
zine beryllium silicate from 1936 to 1941 whilst in the em-
ployment of Electrical and Musical Industries Limited,
and from 1943 to 1948 whilst employed by Thorn Electrical
Industries Limited said that he had suffered no ill effects
himself, and knew of none affecting the persons who were
working with the compounds. In 1947 a man had died but
that was not thought to be in any way connected with the
use of the beryllium compounds, and Dr. Strange first heard
of the possible danger from these compounds from an
American visitor in December, 1947. Other evidence was
called for the Defendants to support their contention that
54
they had no knowledge of the dangers of beryllium com-
pounds at the time the Plaintiff was working for them in
1947, and to rebut the suggestion that on the facts they
ought to have known. The submission of Mr. Tristram
Beresford was that the Defendants ought to have instituted
what was called a ‘‘Literary Search’’ before starting to
use the beryllium compounds, and he said that if such a
search had been instituted the Defendants would have had
knowledge that beryllium compounds were at least under
grave suspicion of being dangerous, and they could have
warned their workpeople, or taken precautions, or aban-
doned the use of the compounds altogether. The question
of when such Literary search“ should have been instituted
is obviously a question of great importance. Should it have
been done before the Defendants began to use any of the
powders they purchased from the General Electrical Com-
pany of British Thomson-Houston?
Should it have been done in 1942 or 1943 when the De-
fendants began using beryllium oxide for making radio
valves having obtained the material from the United States
of America! Or should it have been done when the De-
fendants first began to make the powders themselves, which
would appear to be in 1945 or 19461
The growth of knowledge as to the nature of beryllium
compounds was not rapid, and it would seem that the paper
of Dr. Williams entitled: ‘‘Significant Aspects of Exposure
to Beryllium Compounds in Industry“, first really en-
lightened the industry as to the nature of the problem.
This Paper was published in the United States in July
1947 and when it became available in England is not known,
but it was in December, 1947 that Dr. Plum wrote his
memorandum based on Dr. Williams’ Paper which Dr.
Rothschild and Dr. Sutherland saw. By that time, of course,
the Plaintiff had left the employment of the Defendant, It
is significant that so late as July, 1947, Dr. Williams could
55
say: The case against beryllium is not clear-cut. There
are many voids and contradictions in the data. It is the
purpose of this paper to review briefly the evidence and
to indieate the need for further data to show the proper
status of beryllium as an industrial hygiene problem”’.
Mr. Beresford produced certain documents going back to
1938 and said that a literary search would have made the
Defendants acquainted with them. Many of these docu-
ments came from America and the learned Judge examined
them all with very great care. He subjected them all to
an analysis of what information they in fact disclosed, and
to an enquiry as to when the material was available in
this country, bearing in mind that from 1939 to 1945 this
country was at war. At the end of 1947, after the Plaintiff
had left the employment of the Defendants, the dangers of
Beryllium compounds was made quite plain in the memo-
randum of Dr. Plum which Dr. Rothschild and Dr. Suther-
land both saw. The learned Judge came to the conclusion
that the alleged breach of duty on the part of the Defend-
ants was not made out and in making known his decision
he said: I need not, of course, emphasize that I have
studied everything that has been brought here and brought
to my notice on the matter; but that is the clear view that
I have formed“
The learned Judge was obviously much impressed by
the evidence which showed that the beryllium compounds
had been in use in the Defendants factory for many years
with no reason to suspect any danger to the workers. He
had the evidenee of commercial use by firms such as the
General Electric Company and British Thomson Houston
Company with no evidence of warnings from those two
great firms. In considering the evidence of Dr. Frank it
must be remembered that he said that if the material had
been in commercial use for years before 1945 he would
not have thought it necessary to take the precaution of
— —
56
obtaining all the American literature on the subject. There
is no doubt that the Defendants had been using beryllium
compounds for many years. They obtained it from firms
of the highest possible standing. They received no warning
of danger from anybody until 1947, after the Plaintiff had
left their employment, and took action at once; and in
1948 abandoned the use of the compounds altogether. Al-
though they began to make small quantities of the com-
pounds in 1946, in no sense were they exploiting a new
process at the risk of their workers without a word to
them of the dangers which it entailed. They were not
starting a new process in any true sense of the words at
all. They still continued to use the powders they bought
for the bulk of the work, but they began to make some of
the powders themselves. But they were not making some-
thing new and hitherto unknown. They had no reason to
suspect the substances of any toxic dangers from their past
experience, and it would seem to be putting the duty on
the employer very high indeed to say that despite their
experience, they should have suspected the powders until
they were proved harmless.
It is to be observed that no argument was addressed to
the learned Judge, nor was any argument addressed to
this Court on the basis that the beryllium compounds were
dangerous in themselves, and were to be considered in the
light of the cases dealing with things dangerous in them-
selves. It ought to be said that Lord Justice Denning in
the course of the argument specifically raised the question
and mentioned one or two of the cases in brief but neither
Mr. Ryder Richardson nor Mr. Tristram Beresford argued
the matter at all. None of the cases on this branch of the
law were cited by Counsel at any stage of the appeal. From
the discussion by Professor Winfield in his chapter on
Dangerous Chattels in his book on the Law of Tort, the
fifth edition, and the cases there cited, it is plain that had
57
the Plaintiff ever raised the question, the Defendants might
have wished to argue that the law concerning dangerous
chattels had no application to the facts of this particular
case, and that before any higher standard of duty than the
standard of reasonable care came to be applied such as
“consummate care“ or “a guarantee of safety“ or ‘‘strict
liability’’, it would be necessary to show knowledge of the
dangerous thing on the part of the Defendants. Professor
Winfield says at page 548: It is true that the law expects
of a man a great deal more care in carrying a pound of
dynamite than a pound of butter, or in keeping a bottle of
poison than a bottle of lemonade. But this is only another
way of saying that what is a reasonable amount of care in
one set of circumstances is not so in another set of eireum-
stances, and reasonable care is the sole test of negligence.
And, passing to the decided cases of dangerous chattels,
we have been unable to trace anything in the reports that
is inconsistent with the view that the law of negligence
is all that is needed for the purpose.
In Dixon v. Bell, 1816, 5 Maule and Selwyn’s Reports,
Lord Ellenborough held the defendant liable when he had
sent a mulatto girl to the house of one Leman to fetch a
gun which he kept there, although he had told Leman to
draw ite priming before he gave it to her. Leman did draw
the priming and told the girl he had done so. Yet when
in play she pointed the gun at a child of eight and pulled
the trigger so that the gun went off and injured the child,
the Defendant was held liable because his duty was to
render the gun ‘‘safe and innocuous’” either by discharg-
ing it or withdrawing its contents. Mr. Justice Bayley
said the gun ought to have been so left as (to be out of all
reach of doing harm’’. The duty on the Defendant it
would seem was to use reasonable care, and by want of
care he had left the gun capable of doing injury, although
he mistakenly thought he had made it safe. But in Donoghue
.
58
v. Stevenson, 1932 Appeal Cases at page 562, Lord Mac-
millan said at pages 611-612: ‘‘The exceptional case of
things dangerous in themselves, or known to be in a dan-
gerous condition has been regarded as constituting a pecu-
liar category outside the ordinary law both of contract and
of tort ...I rather regard this type of case as a special
instance of negligence where the law exacts a degree of
diligence so stringent as to amount practically to a guar-
antee of safety“. This conjunction of words by Lord
Macmillan, The exceptional case of things dangerous in
themselves, or known to be in a dangerous condition“ seems
to point to knowledge before liability.
Poison, explosives, loaded guns are things dangerous in
themselves, and persons dealing with such things must
show that degree of diligence so stringent as to amount
practically to a guarantee of safety. A similar rule ap-
plies to things known to be in a dangerous condition. If
the law relating to dangerous things is to be invoked against
the Defendants so that they are under a ‘‘strict liability”
as compared with the ordinary duty to take reasonable
care, and in order to exonerate themselves they must prove
what Sir Frederick Pollock called ‘‘consummate care“
towards other persons, then it would seem that the De-
fendants are entitled to the right of making their submis-
sions on the subject. Mr. Tristram Beresford never sug-
gested that the Defendants in fact knew that beryllium
compounds were dangerous; his case always was that they
ought to have known. He never suggested that the liability
of the Defendants approximated to an absolute liability,
or that the degree of care should amount practically to
a guarantee of safety so that to excuse themselves the De-
fendants must show ‘‘consummate care’’; he suggested
that the Defendants had failed in their duty to take
reasonable care in that reasonable care would have given
them the means of knowledge which he admitted they did
59
not possess, In Bamfield v. Goole, 1910, 2 King’s Bench,
at page 94, the case turned on the delivery to a common
carrier of some casks of a chemical called ferro-silicon.
It is clear from the Judgment of Lord Justice Vaughan
Williams in the Court of Appeal that the Defendants were
held liable because of their neglect of duty in describing
the goods as general cargo“ and not as ‘‘ferro-silicon’’:
and by Lord Justice Moulton and Lord Justice Farwell
because the defendants impliedly warranted that the goods
were fit for carriage in the ordinary way and not dan-
gerous. In Anglo-Celtic Shipping Company v. Elliott, 1926,
42 Times Law Reports, at page 297, the owner of a steam-
ship sent it for the cleaning of a cast iron condensor to
the first defendants and told them to use a particular
cleansing fluid manufactured by the second defendants.
This fluid unknown to the plaintiffs and the first defendants
gave off hydrogen which made an explosive mixture in the
air. An explosion in fact took place and the second defend-
ants were held liable because the cleansing fluid was dan-
gerous in itself and no warning had been given with the
instructions sent out by the second defendants. But in
my opinion, these cases do not assist in the determination
of the question the learned Judge had before him. At the
same time, I cannot think that the Defendants were under
a duty of care so stringent as to amount practically to a
guarantee of safety when they had no knowledge of the
dangerous thing and when all their experience was to the
contrary. I think the learned Judge applied the right test
to the facts before him, and that was whether in all the
circumstances of the case, when they had no knowledge
of the danger, when they had had many years experience
in the use of the beryllium compounds without being put
on enquiry because of illness or disease happening to the
workers in the industry, when they had for many years
been purchasing the compounds from firms of the highest
60
repute without any warning of danger being given to them,
ought they reasonably to have known of the danger by
making the ‘‘literary search’’ referred to in the evidence
or instructing their medical officers to investigate the pos-
sibility of danger.
I think the learned Judge answered the question cor-
rectly and I would, therefore, dismiss this appeal.
Lorp Justice Parker: During the year 1947 the Defend-
ants were making, in a new laboratory at Salfords, Redhill,
a powder consisting of Zinc Beryllium silicate for use in
the manufacture of fluorescent lights. From July to Oeto-
ber of that year the Plaintiff was working in that labora-
tory and came in contact with two compounds of beryllium,
namely, the finished article, Zine beryllium silicate and an
ingredient used in its preparation, Beryllium oxide, also
a powder. In December, 1947, after she had left the De-
fendants’ employment she developed a cough and breath-
lessness, and was found to be suffering from chronic beryl-
lium poisoning, which it is admitted was due to her contact
with one or other of these beryllium compounds, Little is
as yet known about the disease save that it is of a delayed
action type, symptoms not occurring until 3 months to 5
years after exposure. It is also known that the intensity
of the disease bears no direct relation to the concentration
of the exposure and while most people are unaffected there
are those in whom the inhalation of but one speck of the
powder will set up the disease. Indeed, it is thought that
there must be some further element involved, possibly the
condition of the blood of the patient.
So far as the alleged breach of duty is concerned the
issue for the decision of the learned Judge was stated in
these terms: ‘‘Did the Defendants or their servants or
agents know, or ought they to have known that these two
beryllium compounds were of high toxicity to human beings,
the use of which involved danger to health in particular
61
if the same were inhaled in any form?’’. Before this Court
it was conceded, in the light of the evidence, that the De-
fendants their servants or agents in fact did not know of
this toxicity until after the Plaintiff left their employment,
and accordingly the question now is whether they ought
to have known.
Shortly stated, the Plaintiff’s case is as follows. Before
you, the Defendants, began using these berylliam com-
pounds for the purposes of gain it was your duty to make
an exhaustive search of all the literature on the subject.
In particular this became your duty when at the end of 1946
or the beginning of 1947 you began making Zine beryllium
silicate in the new laboratory. If you had done so, the
contention runs, you would have discovered that beryllium,
the element, and some at any rate of its compounds were
known to be toxic, and that then you should have taken
proper precautions to avoid inhalation of dust, or have
discontinued the use of the powders, as you in fact did in
1948,
I will deal first with the question of duty. Would a
reasonable and prudent employer mindful of the necessity.
of conducting his operations so as not to expose his em-
Ployees to unnecessary risk have made such a search? The
answer to this question must necessarily depend on all the
circumstances of the case. If, for instance, there is any
reason to believe that a substance is likely to be toxic and
inherently dangerous, then, no doubt, a reasonable and pru-
dent employer should make such a search particularly if the
substance is one which has not been used or manufactured
before on a commercial scale. On the other hand, if there
is no reason to suppose that the substance is toxic, and it
has been for some time used and manufactured commer-
cially by others in this country and without ill effects there
would appear to be no reason why an employer should do
62
otherwise than act in accordance with the general principle
of hygiene observed where a dusty process is involved.
It is important, therefore, to consider the exact circum-
stances here. In 1943, the Defendants began using Beryl-
lium oxide to manufacture getters for radio valves. The
process was obtained from America and the instructions
for its use disclosed no necessity for special precautions.
Some time before the Ist January, 1945, they had com-
menced using Zine Beryllium silicate in the manufacture
of fluorescent lamps. The Beryllium oxide and the Zine
beryllium silicate were obtained from the General Electric
Company Limited and the British Thomson Houston Com-
pany Limited, and it is clear that no warning as to their
use was ever given by these well-known companies. On
the Ist January, 1945, a Dr. Rochschild began working for
Stella Lamps, an associate company, making Zinc beryl-
lium silicate for use in the manufacture of fluorescent lamps.
He continued making the substance and at the end of 1946
or the beginning of 1947 he went to the Defendants’ labora-
tory at Redhill and continued making the substance there.
The Zinc beryllium silicate made in the laboratory was only
a fraction of that needed by the Defendants in the manv-
facture of fluorescent lamps and throughout the period the
Defendants continued to purchase it from the companies
referred to above. Dr. Rothschild had had considerable
experience of Zinc beryllium silicate. The earliest patent
was in 1935. In 1937 he was making the substance in Brus-
sels with a company Auer Gesellschaft. From September,
1938, on his arrival in England, until May, 1940, he made
the substance with a subsidiary of Allbright & Wilson.
After a short period of internment he had gone to the Pye
Electrical Company of Cambridge, and again made the
substance. Both Dr. Rothschild and Dr, Sutherland stated,
and the learned Judge accepted their evidence, that until
December 1947, they had no reason whatsoever to suspetl
63
that either Beryllium oxide or Zine beryllium silicate were
in any way toxic. Numbers of persons had been in contact
with these substances with apparently no ill effect, and
there was nothing to put them upon inquiry. Dr. Strange,
another experienced chemist, and quite an independent wit-
ness, gave evidence from his exverience. He had worked
with Beryllium oxide and Zine Beryllium silicate with Elec-
trical and Musical Industries Limited, from 1936 to 1941,
and with Thorn Electrical Industries Limited from 1943
to 1948. He also said that he had, until 1948, no reason
to suspect either of these substances. Numbers of people
in these two companies had been in contact with these sub-
stances without any ill effect until in 1947, he thinks the
latter part of the year, an employee died. Even then it
was not suspected that beryllium poisoning was the cause—
it was thought to be a form of cancer. Further, Factory
Inspectors had no reason to suspect the substances.
At the end of 1947, however, it was suddenly brought
home to the trade in this country that these two substances
might be dangerous to some people causing this chronic
poisoning. No doubt this knowledge resulted from an article
by an American doctor, Dr. Williams, entitled Significant
Aspects of Exposure to Beryllium Compounds in Indus-
try“, which was published in America in July, 1947, in a
copy of Occupational Medicine“. When knowledge of
this article reached this country is not clear. Dr. Suther-
land said that it was not available here in July, 1947. Dr.
Frank did not see it till January or February, 1948, but
in December, 1947, a Dr. Plum, a doctor working for the
Defendants or one of the associated companies knew of it
and warned Dr. Rothschild and ‘Dr. Sutherland of the
contents of the article. About the same time a visiting
American warned Dr. Strange and suggested that the
‘spected cancer in the employee who had died might be
beryllium poisoning. Even then, as the suggested precau-
64
tions in that article show, the danger of inhaling even a
speck of dust was not as yet appreciated. Indeed, on present
knowledge, the only safe course appears to be to abandon
using the substance which the Defendants have in fact done,
Mr. Tristram Beresford for the Appellant stressed the
fact that no one had been called by the Defendants from
the General Electric Company Limited, the British Thom-
son Houston Company Limited, E.M.I. Limited, or Derbys
Limited of London, all of whom had made or used these
substances, to speak as to their knowledge at the relevant
time; as to the precautions, if any, adopted by them; or,
indeed, as to whether at the relevant time they were still
using or making the substances. It is, perhaps, unfortunate
that no such person was called, but this at any rate is
known, that throughout 1947 all but a fraction of the Zine
beryllium silicate used by the Defendants was supplied by
the General Electric Company Limited and the British
Thomson Houston Company Limited and supplied without
any warning as to its dangerous qualities. During 1947,
the use in this country of these two substances was becom-
ing more and more extensive, and I find it impossible to
believe that if any of these companies were aware of the
danger their knowledge would not have been available in
the trade generally. In any event, it is for the Appellant
to prove her case, and one of the simplest methods would
have been to show, if she could, that other employers had
discontinued its use, or taken some special precautions.
The learned Judge came to the conclusion in all the cir-
cumstances of the case that the Appellant had not proved
any breach of duty in failing to make an exhaustive seared
for any literature concerned with these substances, and I
agree with hirn.
That is enough to dispose of this case, but even if I am
wrong, I should have great difficulty in holding that the
Appellant’s illness was caused by that breach of duty.
65
Assuming that the Defendants had discovered the contents
of the various articles on the subject within a short time
of their publication, it does not follow that as reasonable
and prudent employers they would have adopted the only
safe course, namely, to discontinue the use of the sub-
stances before the Plaintiff came in contact with them. I
need not go through all the articles in detail. It is enough
to say that the earlier articles were all concerned with
possible dangers in the extraction of the element Beryllium
from its ore, and any danger was thought to arise from
the beryllium itself, or from beryllium fluoride or oxy-
fluoride. Later, articles showed that there was a danger
due to the inhalation of dust from other beryllium com-
pounds, the danger being the result of massive exposure
causing an immediate acute pulmonary reaction. That was
not the disease contracted by the Appellant, and, indeed,
the evidence on behalf of the Respondents, which was ac-
cepted by the learned Judge, was that the laboratory had
to be, and was, clean and reasonably free from dust. The
Chemical Abstracts published in America in November,
1946, referred, however, to an article in the Journal of
Industrial Hygiene of September, 1946, by Hardy and
Tabershaw dealing, for the first time, with the discovery of
anew disease of the delayed onset type—that which affected
the Appellant, and then, in J uly, 1947, Dr. William's article
to which I have referred, was published mentioning specifi-
eally beryllium oxide and Zinc beryllium silicate. As I
have said, the significance of Dr. William’s article only
burst on the trade in this country at the end of 1947, which
was after the Appellant had left the Respondents’ employ-
ment.
I should add that neither before the trial Judge nor
before this Court was any point taken by Counsel that these
substances were dangerous per &. There seems little doubt
that in the light of present dax knowledge they are, and,
*
66
accordingly, that in regard to their use ‘‘the law exacts
a degree of diligence so stringent as to amount to prac-
tically a guaranty of safety“. See Lord Macmillan in
Donoghue v. Stevenson, 1932 Appeal Cases, at page 612,
approved by Lord Simonds in Read v. Lyons, 1947 Appeal
Cases at page 182. The question, however, still remains
as to whether the Respondents can be said to be in breach
of that stringent duty when they did not know of the
danger. The matter, as I have said, has not been argued
before us but as at present advised I find it difficult to sec
how it could be contended that they should have done some-
thing—that is, make an exhaustive literature survey, take
stringent precaution or warn—on the basis that the sub-
stances were dangerous per se when they had no reason
to expect any danger. A person does not use an article
dangerous per se at his peril. He is, however, under a
specially stringent duty in regard to its use, but this duty
arises in all the circumstances of the case, one of which is
his knowledge. It is true that knowledge is not necessary
when one is considering an occupier’s liability in a Rylands
v. Fletcher case. He is liable whether he knows or not that
the article in question is likely to do damage if it escapes
from his land e. f. Rainham Chemical Works Limited v.
Belvedere Fish Guano Company, 1921, 2 Appeal Cases,
page 465 at page 471, and West. v. Bristol Tramways Com-
pany, 1908, 2 King’s Bench, at page 14. In such a case,
however, the liability is absolute and does not depend on
breach of duty. Nor, as at present advised, can any help
be obtained from a consideration of the law applicable to
animals. There, it is a defense that the animal in question
belongs to a class which, according to the experience of
mankind, is not dangerous, and not likely to do mischief
unless its keeper knows that the particular animal is likely
to do mischief e. f. Tilburn v. People’s Palace & Aquarium
Company, 1890, 25 Queen's Bench Division, at page 258
67
In other words, once a particular animal turns out to be
dangerous the onus is on the defendant to show that it
belonged to a class which the common experience of man-
kind had proved not to be dangerous and that he did not
know it was dangerous. The law in regard to animals has,
however, always formed a special and peculiar branch of
its own. Beasts have travelled in a compartment of their
own’’, said Lord Simonds in Read v. Lyons vide supra at
page 182. I do not think that any similar onus can be put
on the Respondents in the present case.
Accordingly, in my judgment, this Appeal fails, and
should be dismissed.
Mn. Ryper Ricuarpson: I ask that the appeal be dis-
missed with costs. It is a Legal Aid case and in this ease
our clients do not ask for costs.
Lorv Justice Dennine: Ver well.
Mr. Tristram Beresrorp: I have to apply, firstly, for
taxation under the Legal Aid Act as between solicitor and
client.
Lorp Justice Dxxxixd: You may have that.
Mr. Tristram Beresrorp: Secondly, might we have leave
from this Court to go to the House of Lords? As your
Lordships readily appreciate, if we go there we have to go
in forma peuperis, and if your Lordships thought right,
whilst considering that matter, to grant leave, if we thought
it worth-while pressing on when we have had an oppor-
tunity of considering your Lordships’ judgment, it would
save an application to the House of Lords.
Lorp Justice Denninc: What do you say, Mr. Ryder
Richardson?
Mr. Ryper Ricuarpson: It is entirely a matter for your
Lordships to consider.
(Their Lordships conferred). -
Lorp Justice Denninc: Yes, Mr. Beresford, you may
have leave.
a
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