Madison v. Wedron Silica Co.

• Decision Date: 05 April 1933
• Docket Number: No. 21466.,21466.
• Citation: 352 Ill. 60,184 N.E. 901
• Parties: MADISON v. WEDRON SILICA CO.
• Court: Illinois Supreme Court

352 Ill. 60

184 N.E. 901

MADISON

v.WEDRON SILICA CO.

No. 21466.

Supreme Court of Illinois.

Feb. 23, 1933.

Rehearing Denied April 5, 1933.

Suit by Oscar Madison against the Wedron Silica Company. Judgment for plaintiff, and defendant appeals, Elizabeth Madison as administratrix, having been substituted as appellee after death of plaintiff.

Affirmed.

DUNN and DE YOUNG, JJ., dissenting.

Appeal from Circuit Court, LaSalle County; Edgar Eldrege, Judge.

Winston, Strawn & Shaw and George A. Schneider, all of Chicago (Silas H. Strawn, Charles J. McFadden, and John D. Black, all of Chicago, of counsel), for appellant.

Morahn & Zwanzig, of Ottawa, and Robert E. Larkin, of Streator, for appellee.

JONES, Justice.

This is an appeal by the Wedron Silica Company (herein called the defendant) from a judgment upon a verdict in the circuit court of LaSalle county in favor of Oscar Madison, the defendant's employee (herein called the plaintiff). Oscar afterwards died, and his widow, Elizabeth Madison, as administratrix, has been substituted in his stead.

The plaintiff's declaration contained counts based upon a willful violation of sections 1 and 13 of the Occupational Disease Act (Smith-Hurd Rev. St. 1931, c. 48, §§ 73, 85). One other count was based upon ‘An Act in relation to employments creating poisonous fumes or dust in harmful quantities, and to provide for the enforcement thereof’ (Smith-Hurd Rev. St. 1931, c. 48, § 134 et seq.; Cahill's Rev. St. 1929, c. 48, par. 139 et seq.), and another count was predicated upon the Health, Safety and Comfort Act, as re-enacted in 1915 (Smith-Hurd Rev. St. 1931, c. 48, § 103 et seq.). Specific errors have been assigned because the trial court overruled demurrers of the defendant to the various counts of the declaration. Inasmuch as there were counts based upon a willful violation of section 1 of the Occupational Disease Act sufficient to sustain the judgment, no comment is necessary concerning the sufficiency of the other counts.

The plaintiff started working for the defendant in 1924 and continued in such employment until in 1930, when he contracted silicosis and was forced to quit work because of his physical condition. After being a patient in two tuberculosis sanitariums he died in April, 1932.

The facts and law involved in this case are so similar to those in First Nat. Bank v. Wedron Silica Co. (Ill.) 184 N. E. 897, that what is said there is controlling here. In the two cases identical errors have been assigned and argued, and additional errors have been assigned here because of a difference in the pleadings.

The defendant contends that the statute of limitations (Smith-Hurd Rev. St. 1931, c. 83, § 1 et seq.) bars recovery, inasmuch as the first inhalation or breach of duty was the damage and required the commencement of an action for damages for an injury within two years after the cause of action accrued. This court has recognized that an occupational disease is of slow development; an insidious illness that creeps unnoticed upon its victim. Peru Plow & Wheel Co. v. Industrial Comm., 311 Ill. 216, 142 N. E. 546, and cases cited. The Workmen's Compensation Act (Smith-Hurd Rev. St. 1929, c. 48, § 138 et seq.) declares that the right to compensation arises when the accident happens. The Legislature in the passage of the Occupational Disease Act recognized the existence of occupational diseases, and at the same time classified such diseases into those not especially dangerous to the health and those especially dangerous to the health. Recognizing the difficulty of determining the time of disablement from an occupational...