Vandenbark v. Owens-Illinois Glass Co.

• Decision Date: 13 March 1940
• Docket Number: No. 8151.,8151.
• Parties: VANDENBARK v. OWENS-ILLINOIS GLASS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

110 F.2d 310 (1940)

VANDENBARK v. OWENS-ILLINOIS GLASS CO.

No. 8151.

Circuit Court of Appeals, Sixth Circuit.

March 13, 1940.

Paul D. Smith and Thomas H. Sutherland, both of Marion, Ohio, for appellant.

Lawrence E. Broh-Kahn, of Toledo, Ohio (Williams, Eversman & Morgan, H. A. Middleton, and L. T. Williams, all of Toledo, Ohio, on the brief), for appellee.

Before SIMONS, ALLEN, and ARANT, Circuit Judges.

SIMONS, Circuit Judge.

The judgment assailed by the appeal is one dismissing a suit to recover for occupational diseases allegedly contracted by the appellant while employed in the glass factory of the appellee. The motion to dismiss was sustained on the ground that the petition failed to state a cause of action cognizable under Ohio law against an employer complying with the provisions of the Workmen's Compensation Act, Ohio General Code, Section 1465-70.

It was conceded at the outset that when the judgment was rendered, decisions of the courts of Ohio were contrary to the contentions of the plaintiff, but the appeal should be given consideration, it is urged, because of two changes in Ohio law since the entry of the challenged judgment, one a shift of judicial interpretation of the Workmen's Compensation Act by the Ohio Supreme Court, expressly overruling previous decisions as to compensability for occupational diseases, and the other an amendment to the Act to include a disease charged in the petition to have been contracted by the plaintiff while in the employ of the defendant. The problem being thus stated, the court, of its own motion, called attention to the then recently decided case of Peter J. Carpenter v. Wabash Ry. Co. et al., 60 S.Ct. 416, 84 L.Ed. ___, announced January 29, 1940, and requested the views of counsel as to whether it bore upon the present controversy, and if so, whether the cause should be remanded to the District Court for consideration of the changes in Ohio law in the light of the holding and reasoning of the Carpenter case. Counsel requested opportunity to file supplemental briefs dealing with questions suggested by the court. They have now been received and given consideration.

Article 2, Section 35 of the Constitution of Ohio, authorizes the passing of laws establishing a state fund out of which to pay compensation for death, injuries or occupational diseases, payment to be in lieu of all other rights to compensation or damages from any employer who pays the premium or compensation provided by law, the employer not to be liable to respond in damages at common law or by statute for such death, injuries or occupational disease. The original Workmen's Compensation Act, enacted in 1913 by virtue of this authority, included no provision for compensation due to occupational disease. By amendment, however, effective August 5, 1921, 109 Ohio Laws, p. 183, specific provision was made for compensation for 15 enumerated occupational diseases. By amendment effective July 21, 1929, 113 Ohio Laws, p. 257, the number of such occupational diseases was increased to 18, and by still another amendment effective July 18, 1931, 114 Ohio Laws, p. 28, the number was increased to 21. Up to the time of the judgment below, however, the schedule of compensable occupational diseases failed to include those complained of in the appellant's petition, or her amended petition. In the pleadings it was conceded that the defendant had complied with the Workmen's Compensation Act, both with respect to industrial accidents and occupational diseases.

For almost 25 years if had been the law of Ohio that the common law right to recover for occupational disease contracted in the employ of those complying with the terms of the Workmen's Compensation Act had been taken away by Section 1465-70 of the General Code, the leading cases announcing the rule being Zajachuck v. Willard Storage Battery Co., 106 Ohio St. 538, 140 N.E. 405; Mabley & Carew Co. v. Lee, 129 Ohio St. 69, 73, 193 N.E. 745, 747, 100 A.L.R. 511. It was said in the latter case, "It is readily apparent that the present amendment provides a new and comprehensive definition of the rights and liabilities of employers and employees. Under it certain new rights were created and some former ones were abolished. * * *"

Some months after the judgment below, and while appeal therefrom was pending, a divided Ohio Supreme Court in the consolidated case of Triff, Adm'x v. National Bronze & Aluminum Foundry Co. and Smith v. Lau, 135 Ohio St. 191, 20 N.E.2d 232, 121 A.L.R. 1131, abandoned its earlier view of the effect of the Ohio statute and expressly reversed the Zajachuck and Mabley & Carew Company cases. Likewise, after judgment below and effective July 31, 1937, Gen.Code Ohio, § 1465-68a, as amended 117 Ohio Laws, p. 268, the Ohio legislature again amended the Workmen's Compensation Act by adding silicosis to the schedule of occupational diseases therein made compensable, this disease being one charged in the plaintiff's petition to have been contracted by her while in the defendant's employ.

Save for alleged constitutional infirmity not vigorously pressed, it is conceded that when the court below dismissed the plaintiff's petition it correctly applied the state law under the mandate of Section 34 of the Judiciary Act, 28 U.S.C.A. § 725, as its rule of decision. This brings us to the question whether a judgment of a Federal Court, in a diversity of citizenship case, right when entered, must be set aside because of a new pronouncement by the court of last resort of the state in the construction of a state statute, or by a subsequent amendment to the statute.

It has long been settled law that the Federal Courts have an independent jurisdiction in the administration of State laws coordinate with, and not subordinate to, that of the State Courts, and are bound to exercise their own judgment as to the meaning and effect of those laws when interpretation has not been settled by definitive interpretation by the State Courts, and when rights have accrued under a particular state of the decisions they may adopt their own interpretation of the law applicable to the case, although a different application may be adopted by the State Courts after such rights have accrued. Burgess v. Seligman, 107 U.S. 20, 33, 2 S. Ct. 10, 27 L.Ed. 359. A decision of the highest court of the State construing a State Statute rendered after a judgment of a Federal District Court, cannot be given a retroactive effect so as to make that erroneous which was not so when the judgment of that court was given. Concordia Insurance Company of Milwaukee v. School District No. 98, 282 U.S. 545, 51 S.Ct. 275, 75 L.Ed. 528; Board v. Deposit Bank, 6 Cir., 124 F. 18.

The precise question that meets us here is whether a Federal District Court has correctly applied state law at the time decision was made, and must not be confused with situations calling for the application of the rule governing decision of a case involving state law at the time it first reaches a Federal reviewing court, or the rule governing decision of cases involving federal law by reviewing courts thus unfettered by Section 34 of the Judiciary Act. Michalek v. United States Gypsum Co., 298 U.S. 639, 56 S.Ct. 679, 80 L.Ed. 1372, doesn't reach it. Gulf, Colorado & Sante Fe R. Co. v. Dennis, 224 U.S. 503, 32 S.Ct. 542, 56 L.Ed. 860, is an appeal from the decision of the court of last resort of the state and not from a decision of a lower Federal Court, right when made. Crozier v. Fried et al., 224 U. S. 290, 32 S.Ct. 488, 56 L.Ed. 771, and Watts, Watts & Co., Ltd., v. Unione Austriaca, etc., 248 U.S. 9, 39 S.Ct. 1, 63 L.Ed. 100, 3 A.L.R. 323, are admiralty and patent cases decided upon the original record, and in such cases the court is required to dispose of the issues as justice may require, and as law then existing compels. If the District Court had decided the present case adversely to the appellee, it would have defied the mandate of the Judiciary Act. It would be anomalous to now hold the decision right because it was then wrong, or that a state court has power to compel reversal of a federal decision correctly applying existing state law. In any event, if the principle stated in Gulf, Colorado & Sante Fe v. Dennis, supra, is to be given general application regardless of the circumstances to which it applies, we must ignore the later cases of Concordia Ins. Co. v. School District, supra, and Edward Hines, Trustee v. Martin, 268 U. S. 458, 45 S.Ct. 543, 69 L.Ed. 1050, and consider as overruled the earlier decisions of Morgan v. Curtenius, 20 How. 1, 3, 15 L.Ed. 823; Pease v. Peck, 18 How. 595, 598, 15 L.Ed. 518; Roberts v. Bolles, 101 U.S. 119, 128, 129, 25 L.Ed. 880; Burgess v. Seligman, supra. It is not for us to hold these decisions overruled without some clear pronouncement by the Supreme Court.

In Carpenter v. Wabash Ry. Co., supra, the court considered the effect of an amendment to the Bankruptcy Act made subsequent to the entry of a judgment for personal injuries against an equity receiver, the filing of a claim based upon such judgment with an assertion of its priority, the denial to it of preferred status by the District Court, and affirmance of the judgment by the Court of Appeals. The amendment for the first time gave such claims the same priority against equity receiverships of railways as they had had previously against trustees in bankruptcy. Assuming that the determination by the Court of Appeals, as the law then stood, was correct upon the record, the court stated the controlling principle to be that announced by Chief Justice Marshall in United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49, as follows: "It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which...