Illinois Steel Co. v. Fuller

• Citation: 23 N.E.2d 259,216 Ind. 180
• Decision Date: 06 November 1939
• Docket Number: No. 27253.,27253.
• Parties: ILLINOIS STEEL CO. v. FULLER.
• Court: Supreme Court of Indiana

216 Ind. 180
23 N.E.2d 259

ILLINOIS STEEL CO.
v.
FULLER.

No. 27253.

Supreme Court of Indiana.

Nov. 6, 1939.

Action by Zack W. Fuller against the Illinois Steel Company, etc., for damages for an alleged occupational disease contracted by the plaintiff through the defendant's negligence. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

[23 N.E.2d 260]

Appeal from Jasper Circuit Court; Moses Leopold, Judge.
Hanley & Hanley, of Rensselaer, Knapp, Allen & Cushing, of Chicago, Ill., and Bomberger, Peters & Morthland, of Hammond, for appellant.

Gavit & Richardson, of Gary, for appellee.

SHAKE, Judge.

This is an appeal from a judgment in damages in favor of appellee for an alleged occupational disease contracted by him through appellant's negligence. The errors assigned are, that the trial court erred in overruling the demurrer to the complaint and in ‘refusing to grant’ appellant's motion for a new trial.

Liability was asserted under the Indiana Employers' Liability Law, § 40-1101, Burns' 1933, Sec. 10100-1, Baldwin's 1934. Negligence was predicated upon the alleged failure of the appellant to supply appellee with serviceable gas masks, as required by Section 40-1011, Burns' 1933, Sec. 10085, Baldwin's 1934, and in failing to provide appellee's work place with sufficient means of ventilation, as required by Section 40-1013, Burns' 1933, Sec. 10072, Baldwin's 1934.

The issues of law were: (1) whether an action for occupational disease may be maintained under our Employers' Liability

[23 N.E.2d 261]

Law, and (2) whether the statutes requiring an employer to supply serviceable gas masks and to provide sufficient means of ventilation are so vague and indefinite as to deny due process, under the 14th Amendment to the Federal Constitution, U.S.C.A. or constitute a delegation of legislative power, in violation of Article 3, Section 1, of the Constitution of Indiana. The issues of fact were: (1) whether appellee was suffering from benzol poisoning or its results, and (2) if so, whether such poisoning was proximately caused by the negligence of the appellant.

Appellee has suggested that the assignment that the court below erred in ‘refusing to grant’ appellant's motion for a new trial does not present anything for review, because, under Rule 18 of this court and the established practice of this state, such an assignment must be based upon the ‘overruling’ of the motion for a new trial. In the case of Board of Commissioners of Harrison County v. Byrne, 1879, 67 Ind. 21, this court held sufficient an assignment that ‘the court below erred in not granting a new trial.’ We regard appellee's contention as highly technical and hold that the assignment under consideration is not improper.

We shall first consider whether an action on account of occupational disease occurring prior to the enactment of the Indiana Workmen's Occupational Diseases Act, Acts 1937, Ch. 69, p. 334, § 40-2201 et seq., Burns' 1939 Pocket Supp., Sec. 16499 et seq., Baldwin's May 1937 Supp., could be maintained under the Employers' Liability Law. The paramount purpose of the Employers' Liability Law seems to have been to restrict the use of the defenses of contributory negligence, assumption of risk, and negligence of a fellow servant. As to the duties imposed upon those coming within its terms, it has been said that the act is declaratory of the common law. Emerson Brantingham Co. v. Growe, 1922, 191 Ind. 564, 572, 133 N.E. 919. While it has been disputed, the weight of authority sustains the view that an action for negligence resulting in damages from an occupational disease was known to the common law. The cases bearing on that subject have been carefully collected and annotated in 105 A.L.R. 80. In the case of In re Jefferies, 1938, 105 Ind.App. 349, 352, 14 N.E.2d 751, 753, our Appellate Court said that, ‘in the enactment of the Workmen's Occupational Diseases Act, the Legislature created new rights and remedies not theretofore existing under the common law or statutes of this state.’ But, it may be observed that the Jefferies case was an appeal from the Industrial Board of Indiana, in which class of cases no right of transfer to this court is recognized under the prevailing practice. To the extent that the Workmen's Occupational Diseases Act authorizes compensation for occupational diseases not caused by the employer's negligence, it is true that said act created new rights not theretofore existing under the common law or statutes of this state, and it does, of course, create distinctly new remedies. We do not recognize In re Jefferies, supra, as authority for the conclusion, however, that a common law action for the negligence of an employer, resulting in an occupational disease, could not have been maintained in this state prior to the compensation act of 1937.

As a corollary to what we have said, it must follow that the Employers' Liability Law embraces injuries from occupational diseases unless these are excluded by its terms. The title and body of the act purport to make it applicable to liability for injuries, rather than to accidental injuries. The word ‘injury’ is a generic term of broad designation. As applied to the human body, it may result from other...