Grutzius v. Armour & Co. of Delaware, Inc.
Decision Date | 17 September 1941 |
Docket Number | No. 26239.,26239. |
Citation | 36 N.E.2d 707,377 Ill. 447 |
Court | Illinois Supreme Court |
Parties | GRUTZIUS v. ARMOUR & CO. OF DELAWARE, Inc. |
OPINION TEXT STARTS HERE
Action by John Grutzius against Armour & Company of Delaware, Inc., to recover damages for permanent injury to his health. From an adverse judgment, the plaintiff appeals.
Cause transferred to the Appellate Court for the First District.Appeal from Superior Court, Cook County; E. I. Frankhauser, judge.
H. A. Barnhardt, of Chicago, for appellant.
Charles J. Faulkner, Jr., Walter C. Kirk, and John P. Doyle, all of Chicago, for appellee.
The sole question which requires consideration on this appeal is whether the validity or merely the construction of section 3 of the Workmen's Occupational Diseases act is involved in the litigation, within the contemplation of section 75 of the Civil Practice act, Ill.Rev.Stat.1939, c. 110, § 199. So far as relevant, section 3 ( ) provides: ‘Where an employee in this State sustains injury to health or death by reason of a disease contracted or sustained in the course of the employment and proximately caused by the negligence of the employer, unless such employer shall have elected to provide and pay compensation as provided in Section 4 of this Act, a right of action shall accrue to the employee whose health has been so injured for any damages sustained thereby; * * * provided, that violation by any employer of any effective rule or rules made by the Industrial Commission pursuant to the Health and Safety Act, enacted by the Fifty-ninth General Assembly at the third special session, or violation by the employer of any statute of this State, intended for the protection of the health of employees, shall be and constitute negligence of the employer within the meaning of this section.’
The plaintiff, John Grutzius, filed a second amended complaint in the superior court of Cook county against the defendant, Armour and Company of Delaware, Inc., to recover damages in the amount of $50,000 for permanent injury to his health. By his complaint, plaintiff charged that on, and many years prior to September 1, 1937, he was employed by defendant at its fertilizer plant in the city of Chicago Heights; that his employment required him to work in each of the three principal divisions, rooms and buildings of the plant, and that while so engaged he was exposed to the inhalation of deleterious gases, dusts and fumes. Plaintiff alleged that since November 1, 1936, the effective date of the Workmen's Occupational Diseases act, a statutory duty has rested upon defendant to use due and reasonable care for the safety of the health of its employees, including himself; that, instead, defendant, from November 1, 1936, to and including September 28, 1938, negligently failed to prevent the appearance and diffusion of noxious gases, fumes and dusts, and to provide adequate ventilation and other mechanical means for the purpose of exhausting the substances named; that as the direct result of being required to work under the conditions described he contracted diseases of a progressive nature, namely, silicosis, pneumoconiosis and tuberculosis, and that his condition eventually so disabled him he was compelled to quit his employment on September 28, 1938. It was further alleged that defendant did not at any time mentioned in the complaint, elect to avail itself of the compensation provisions of the statute. Concluding allegations are that prior to September 28, 1938, the Industrial Commission had neither made nor published any rules pursuant to the Health and Safety Act, Ill.Rev.Stat.1939, c. 48, § 137.1 et seq., as contemplated by the Workmen's Occupational Diseases act, and, further, that no statute had been enacted for the protection of the health or safety of employees between the date of the enactment of the statute and September 28, 1938. Defendant filed a motion to dismiss the complaint. The gist of the first four specifications is that the complaint did not state a cause of action under section 3 of the applicable statute since it affirmatively appeared from plaintiff's allegations that defendant did not violate any statute ‘intended for the protection of the health of employees' or ‘any effective rule or rules made by the industrial commission pursuant to the Health and Safety Act,’ a violation of which statute or rule, section 3 of the Workmen's Occupational Disease act ordains, ‘shall be and constitute negligence of the employer within the meaning of this section.’ Defendant's motion avers, further, that if its alleged negligence be treated as common law rather than statutory negligence, the complaint likewise fails to state a cause of action. The sixth and last ground of defense is that section 3 is so vague, indefinite, uncertain and incomplete, it is impossible to give it precise and intelligible application to conditions of plaintiff's employment by the defendant and that, in consequence, the application of section 3 to the complaint would contravene section 2 of article 2, and article 3 of our constitution and the fourteenth amendment to the Federal constitution. Defendant's motion was sustained, plaintiff abided by his pleading, and judgment for costs was rendered against him and in favor of the defendant. Plaintiff appeals directly to this court, apparently on the assumption that the validity of a statute is...
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