First Nat. Bank of Ottawa v. Wedron Silica Co.

• Decision Date: 05 April 1933
• Docket Number: No. 21510.,21510.
• Citation: 351 Ill. 560,184 N.E. 897
• Court: Illinois Supreme Court
• Parties: FIRST NAT. BANK OF OTTAWA v. WEDRON SILICA CO.

351 Ill. 560

184 N.E. 897

FIRST NAT. BANK OF OTTAWA

v.WEDRON SILICA CO.

No. 21510.

Supreme Court of Illinois.

Feb. 23, 1933.

Rehearing Denied April 5, 1933.

Suit by Charles Krause against the Wedron Silica Company. Judgment for plaintiff and defendant appeals. The First National Bank of Ottawa, administrator, being substituted appellee.

Affirmed.

See, also, 184 N. E. 901.

DUNN and DE YOUNG, JJ., dissenting.

Appeal from Circuit Court, La Salle County; Frank H. Hayes, 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.

Follett & Follett and M. D. Morahn, all of Ottawa, for appellee.

ORR, Justice.

Appellant, the Wedron Silica Company, seeks by this appeal to reverse a judgment for $10,000 rendered against it after a jury trial in the circuit court of LaSalle county in favor of Charles Clouse, a former employee. The suit was brought under the Occupational Disease Act for permanent injury to Clouse's health, arising out of and in the course of his employment and resulting in his total disability on March 12, 1931.

For many years prior to March 12, 1931, the appellant had been engaged in the business of mining and processing silica at Wedron. The silica, after being quarried or surface-mined, was washed, cleansed, and ground at appellant's factory and shipped to its customers, usually in box cars. For more than five years prior to March 12, 1931, Clouse had worked in many places in the factory and in the loading of box cars and was exposed to the inhalation of silica dust. Silica of a degree of fineness as to float in the air was sold by appellant, and this particular grade was collected by air-suction apparatus to an amount, on occasions, of ten tons per day. The very nature of appellant's business required that some phases of it be conducted in heavy concentrations of the finest particles of silica dust. Some of this dust, in certain operations, did not float around in the air as dry dust but was suspended in the air in a mist of water vapor. The four counts of the declaration charged, in substance, that appellant had violated the Occupational Disease Act of 1911 (Laws 1911, p. 330) by failing to provide reasonable and approved respirators and devices required by the act; by failing to wet down the dust and prevent its circulation; by not providing suction fans and other divices to effectively prevent employees from inhaling dust, gases, fumes, and other mineral substances in the buildings and box cars, and that as a result Clouse contracted silicosis and tuberculosis and became totally disabled. Issue was joined, and the various disputed points raised by voluminous pleadings will, so far as they are material, receive consideration in this opinion.

It is first contended by appellant that section 15 of the Occupational Disease Act, as amended by Laws 1923, p. 351 (Smith-Hurd Rev. St. 1931, c. 48, § 87), is repugnant to the provisions of the state and Federal Constitutions which inhibit the legislative branch from making arbitrary and unreasonable discriminations against persons in the same class. Section 1 of the act (Smith-Hurd Rev. St. 1931, c. 48, § 73) provides, in substance, that every employer engaged in any work or process which may produce illness or disease peculiar to such work or subjects employees to illness or disease incident to such work to which employees are not ordinarily exposed in other lines of employment, shall for the protection of such employees adopt and provide reasonable and approved devices, means, or methods for prevention of such industrial or occupational diseases. Section 2 of the act (Smith-Hurd Rev. St. 1931, c. 48, § 74) provides that any employer engaged in any process or labor in which sugar of lead, white lead, lead chromate, litharge, red lead, arsenate of lead, or Paris green are used or handled, or the manufactureof brass or the smelting of lead or zinc, or in any process in which poisonous chemicals, minerals, or other substances are used or handled by the employees therein in harmful quantities or under harmful conditions shall provide proper working clothing, and in case of noxious or poisonous dust shall provide adequate and approved respirators and maintain them in good condition for such employees. Subdivision (a) of section 15 as amended in 1923 provides that for any injury to the health of any employee proximately caused by willful violation of section 1 or willful failure to comply with its provisions, a right of action shall accrue to the party whose health has been so injured, for any direct damages sustained thereby, etc., not to exceed the sum of $10,000. Subdivision (b) of section 15 provides for recovery by an employee engaged in one or more of the occupations referred to in section 2 of the act in the same manner and subject to the same conditions and limitations as are provided by the Workmen's Compensation Act for accidental injuries. The Industrial Commission is given jurisdiction over the operation and administration of subdivision (b) of section 15, and it is further provided that ‘subdivision (b) of this section shall apply automatically and without election to all employees and employers engaged in the occupations referred to in section 2 of this Act.’

Appellant contends that the construction placed by the trial court upon section 15 of the Occupational Disease Act as amended in 1923 is unconstitutional and violative of those sections of the state and Federal Constitutions which provide against the taking of property without due process of law (Const. Ill. art. 2, § 2; Const. U. S. Amend. 14). It is thus argued that to permit employers enumerated in section 2 of the act to receive the benefit of a limited liability under the Workmen's Compensation Act (Smith-Hurd Rev. St. 1931, c. 48, § 138 et seq.) and at the same time impose a different liability upon those employers engaged in processes of manufacture other than those described in section 2 creates a class out of a previouslyestablished class, and subjects those classified under section 1 to greater burdens than those enumerated under section 2.

An amendment to section 15 of the Occupational Disease Act was first made in 1921 (Laws 1921, p. 444). Its effect was to declare that occupational diseases contracted in those industries enumerated as especially dangerous in section 2 of the act should be treated as a happening of an accidental injury within the meaning of the Workmen's Compensation Act. At the same time there was taken away from the employee in the industries under section 2 his statutory or common-law right to damages and in lieu thereof he was given the right to compensation. This whole amendment dealt with situations arising exclusively in those industries especially dangerous to health which the Legislature placed in section 2. No change was made in section 1 and none in respect to those industries placed within the purview of that section. Except for the noted amendment the original act of 1911 remained in full force and effect. This amendment of 1921 was held unconstitutional by this court (Kelley v. St. Louis Smelting & Ref. Co., 307 Ill. 367, 138 N. E. 618), but not upon any of the grounds advanced by appellant in this case. In 1923 section 15 as it now stands was again amended, and this amendment was declared not to embrace more than one subject, and was held constitutional by this court in Zurich General Accident & Liability Ins. Co. v. Industrial Comm., 331 Ill. 576, 163 N. E. 466. It is significant to note that in its 1923 amendment the Legislature again failed to disturb section 1 or make any of its amended provisions apply to those industries grouped under that section-i. e., those industries which are not declared especially dangerous to the health of the employees working therein. The right remained, as it had from 1911, for an employee in any industry under section 1 to recover for an occupational disease by bringing an action at law for damages. In fact, the 1923 amendment went even further, and by item 5 of subdivision (b) of section 15 expressly reserved the right of an employee under section 1 to recover damages by an action at law.

The Legislature in 1911 passed both the Occupational Disease Act and the original Workmen's Compensation Act (Laws 1911, pp. 314, 330). These acts, while passed at the same session, were distinct and unrelated. The Legislature thus plainly recognized that there was, according to its understanding, a distinct difference in the field of employment between an occupational disease and an accidental injury. One employer may be liable under both acts, depending upon the varied nature of manufacturing processes and their results upon the different employees. Under the Occupational Disease Act of 1911 the Legislature directed the diseased employee to seek his remedy through an action at law; in the case of accidental injury the employee was directed to seek his remedy through the industrial board. By these different remedies and methods of recovery the diseased employee obtained damages; the accidentally injured employee received compensation.

In the Occupational Disease Act of 1911 the Legislature saw fit to further classify. It did not treat all occupational diseases, or the industries giving rise to them, in the same manner. It very clearly set forth its conclusions that the liability of persons contracting occupational diseases was variable, according to the work engaged in. Section 1 of the act stated, in effect, that the Legislature considered that there were certain industries where the character of the work was not especially dangerous to the health of the employees. This section included industries in general, and also stated in general terms what protective or precautionary measures should be taken by the employer falling within its terms. Section 2 gives very clear expression to the legislative...