Cason v. American Brake Shoe & Foundry Co.

• Decision Date: 26 April 1940
• Docket Number: No. 132.,132.
• Parties: CASON v. AMERICAN BRAKE SHOE & FOUNDRY CO.
• Court: U.S. District Court — District of Colorado

32 F. Supp. 680

CASON v. AMERICAN BRAKE SHOE & FOUNDRY CO.

No. 132.

District Court, D. Colorado.

April 26, 1940.

Charles R. Enos, Henry S. Sherman, Vance R. Dittman, Jr., and Joseph L. Morrato, all of Denver, Colo., for plaintiff.

Wood & Fuller, of Denver, Colo., and Edward L. Wood, of Denver, Colo. for defendant.

SYMES, District Judge.

The charge is that: Defendant operates a foundry for the manufacture of brake shoes, etc., in Denver and employed plaintiff as a laborer from 1923 to 1925, inclusive, and from 1926 to October 8, 1936, inclusive, as a moulder in the foundry. At various times plaintiff also operated the mill or rattlers for the cleaning of brake shoes; he was also engaged in chipping and grinding brake shoes. The plaintiff worked in a closed room where large quantities of sand, silica and special powders were used in moulding, grinding, etc., and a great deal of gas, vapor, dust and other impurities were generated and present in the air. The defendant negligently and carelessly, in violation of its duty to the plaintiff, thus permitted the air in its factory to be unsanitary, injurious, etc., to the health of the employees including the plaintiff, and as a result he inhaled large quantities of silica dust and other impurities, contracted pneumoconiosis, including silicosis, suffered a breakdown and became permanently and totally disabled on or about October 8, 1936. All due to the negligence of defendant in failing to provide plaintiff a reasonably safe place to work, or to install and maintain adequate ventilation, etc.; in spite of the fact it knew, or by the exercise of reasonable care should have known, the effects thereof on plaintiff's health. All to his damage in the sum of $50,000.

Defendant (by motion to dismiss), says relief cannot be granted on this state of facts.

First: Counsel say plaintiff and defendant have accepted the provisions of the Colorado Workmen's Compensation Act (Ch. 97, Art. 7, § 280 et seq., '35 C.S.A.), which by its terms excludes all causes of action for any injuries whether compensable under the Act or not.

"§ 292 § 13 of the Act. Liability of employer complying with article.—Any employer who has elected to and has complied with the provisions of this article, including the provisions relating to insurance, shall not be subject to the provisions of the last preceding section; nor shall such employer be subject to any other liability whatsoever for the death of or personal injury to any employee, except as in this article provided; and all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and common law rights and remedies for and on account of such death of, or personal injury to any such employee and accruing to any and all persons whomsoever, are hereby abolished except as in this article provided."

Let us see. The facts indicate the plaintiff did not sustain a personal accidental injury, his disability, if any, being due to "pneumoconiosis, including * * * silicosis," recognized as an occupational disease, the cumulative effects of unsanitary working conditions over a long period of years, and which unlike an accidental injury, cannot be traced to a definite time, place, and cause. This distinction is recognized in Colorado. Prouse v. Industrial Commission, 69 Colo. 382, 194 P. 625; Carroll v. Industrial Commission, 69 Colo. 473, 195 P. 1097, 19 A. L.R. 107; Columbine Laundry Co. v. Industrial Commission, 73 Colo. 397, 215 P. 870; United States F. & G. Co. v. Industrial Commission, 76 Colo. 241, 230 P. 624; Central Surety & Insurance Corp. v. Industrial Commission, 84 Colo. 481, 271 P. 617; Peer v. Industrial Commission, 94 Colo. 227, 29 P.2d 636; Industrial Commission v. Ule, 97 Colo. 253, 48 P.2d 803; Hallenbeck v. Butler, 101 Colo. 486, 74 P.2d 708.

In the Ule case, supra 97 Colo. 253, 48 P.2d 804, Chief Justice Butler says an occupational disease is one "`contracted in the usual and ordinary course of events, which from the common experience of humanity is known to be incident to a particular employment.'" "It is one `normally peculiar to and gradually caused by the occupation.'"

In the Columbine Laundry Co. case, supra, the deceased, an automobile mechanic, was often subject to fumes from exhausts of motor trucks. It was held, however, an accidental injury was the proximate cause of the death, because the findings showed that on the day in question the weather was cool, the garage door closed and the employee inhaled "an extra large amount of auto gas." 73 Colo. 397, 215 P. 871. It was therefore traceable to a definite time, place, and cause.

We accept the Colorado authorities as the law of the case. It is not necessary to consider authorities in other jurisdictions. Sec. 292 (supra), says the employer shall not be subject to any other liability whatsoever "for the death of or personal injury to any employee," except as provided in the Act, and then, without the interposition of a period it proceeds to abolish all statutory and common law rights and remedies "for and on account of such death of, or personal injury to any such employee." This, counsel contends, abolishes a right of action for occupational diseases, if one ever existed. For reasons presently stated, we think the quotation is necessarily limited by what has gone before.

Sec. 294 says the right to the compensation provided for in the Act shall apply in all cases where certain conditions enumerated obtain, again indicating the Legislature was only dealing with accidental injuries, and that as to such only was compensation the exclusive remedy. Furthermore § 298 refers to "personal injuries" only, so does not conflict with this view.

And § 293, giving the employer the benefit of common law defenses under certain conditions, seems to contemplate other forms of actions.

Clearly the Legislature in enacting the Workmen's Compensation Law dealt solely with accidental injuries sustained by an employee in the course of his employment and granted an exclusive remedy therefor. As we have seen the state's highest court distinguishes occupational diseases from accidental injuries and says the Act does not apply to them. So, in the absence of more clear and precise language, we cannot rationalize defendant's contention that the Legislature went out of its way to deprive an employee of a right of action based on an occupational disease without giving him the benefits of the Act.

Authorities are cited to the proposition that no recovery was allowed at common law for occupational or industrial diseases. That is not entirely correct. True, until comparatively recent times they were unknown to medical science or law, but in the rapid development of sanitary and health engineering were recognized as an economic and legal problem.

The common law, as Roscoe Pound points out (The Spirit of the Common Law, 1921), delights to find a remedy for every wrong, combines certainty with power of growth, and "develops a principle for the cause before it, according to a known technique." That is, by the application of rules and doctrines over a series of years. That growth is thus insured, and that limits of the principle of the authority are not fixed once for all, but are...