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January 29, 1947


The opinion of the court was delivered by: GIBSON

The above entitled case was tried before a jury and resulted in a disagreement. Counsel for the defendant, having moved for judgment at the trial, now renews his motion. It is asserted on behalf of the defendant that the plaintiff, by the pleading and proof in the action, can recover only in a proceeding under the Pennsylvania Occupational Disease Act, and not by the present common-law action.

By the complaint it is alleged that he contracted Pulmonary Fibrosis while inhaling dangerous chlorine fumes while employed by defendant as an operator of a wire tapping machine. It is further alleged that defendant failed to provide a reasonably safe place to work, in that it permitted excess quantities of poisonous fumes to escape around the machine when plaintiff was working without providing proper appliances to carry off said fumes and without warning plaintiff of the danger of breathing them. The complaint also asserts that in his employment he came in contact with halowax, a compound containing chlorine 'and which gave off poisonous fumes.'

 An examination of plaintiff's testimony will disclose that he claimed injury from no other source than the halowax fumes, nor is there any testimony as to any other cause for his tuberculosis.

 It is admitted on behalf of the defendant that the plaintiff was afflicted with tuberculosis in and after 1944. And it is admitted by the plaintiff, and as claimed by defendant, that halowax is a halogenated hydrocarbon, and that it is toxic, a poison.

 The issue raised by defendant's motion for judgment is whether the Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, 77 Purdon's Statutes § 1201 et seq., bars the instant common-law tort action. That Act, 77 P.S. § 1208, provides that the term 'occupational disease', as used therein, shall include inter alia: '(c) Poisoning by * * * halogenated hydro carbons, or any preparations containing these chemicals or any of them, in any occupation involving direct contact with, handling thereof, or exposure thereto.'

 Plaintiff, in his employment by defendant was engaged in an 'occupational disease' employment. The Act defining such disease has been accepted by both parties herein. See 77 P.S. §§ 1401, 1402. Section 1403, 77 P.S., is as follows:

 'Sec. 1403. Acceptance; persons bound

 'Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any disability or death resulting from occupational disease, or to any method of determination thereof, other than as provided in article three of this act. Such agreement shall bind the employer and his personal representatives, and the employe, his or her wife, or husband, widow or widower, next of kin, and other dependents.'

 An employee by accepting the provisions of the compensation acts surrenders his right to bring an action in tort to recover for any disability. His remedy is exclusively under the Workmen's Compensation Act of June 2, 1915, P.L. 736, 77 P.S. § 1 et seq., supplemented by the Occupational Disease Act of July 2, 1937, P.l. 2714, 77 P.S. § 1101 et seq. Moffett v. Harbison-Walker Refractories Co., 339 Pa. 112, 14 A.2d 111.

 The above was a silicosis case based upon partial disability.

 The plaintiff called to the stand four physicians. Each of them expressed the opinion that plaintiff, by his exposure to the fumes of halowax (a halogenated hydrocarbon), had made active an existing tuberculosis which theretofore had been in quiescent condition. None of them asserted that the tubercular condition had resulted directly from the exposure to the fumes, but to such exposure was attributed the injury which resulted to plaintiff. A number of witnesses were called by defendant, several of whom qualified as experts, who alleged that halowax had no effect in creating the lung condition of plaintiff, but in passing upon defendant's motion for judgment we have accepted, as required, the testimony of the plaintiff's witnesses. Dr. Alexander, for the plaintiff, testified:

 'Q. As I understand you, doctor, the tuberculosis was there and has been there for a long time in your opinion? A. Yes.'

 Dr. Paul H. Franklin testified also for plaintiff, as follows:

 'Q. As I understand it doctor, it is not your opinion that the tuberculosis was caused originally by the work which this man did, rather than it was activated or aggravated -- a pre-existing condition was caused to become active? Is that your opinion? A. Yes, that is my opinion. Tuberculosis is only really caused by the particular germ of tuberculosis; the tubercle bacilli can cause it. They were not inflicted, of ...

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