McElwain v. Wickwire Spencer Steel Co., 188.

• Decision Date: 21 February 1942
• Docket Number: No. 188.,188.
• Parties: McELWAIN v. WICKWIRE SPENCER STEEL CO.
• Court: U.S. Court of Appeals — Second Circuit

126 F.2d 210 (1942)

McELWAIN v. WICKWIRE SPENCER STEEL CO.

No. 188.

Circuit Court of Appeals, Second Circuit.

February 21, 1942.

William L. Clay, of Rochester, N.Y., for appellant.

Dudley, Stowe & Sawyer, of Buffalo, N.Y. (Roy P. Ohlin and Alden B. Gomez, both of Buffalo, N. Y., of counsel), for appellee.

Before L. HAND, CHASE, and C. E. CLARK, Circuit Judges.

CHASE, Circuit Judge.

In this action, which was originally brought in the Supreme Court of New York for Niagara County to recover for permanent partial disability from an occupational disease and was removed to the District Court for the Western District of New York on the ground of diversity, a summary judgment for the defendant was entered upon its motion supported by affidavits and opposed with counter affidavits filed by the plaintiff. From that judgment under Rule 56 Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the plaintiff has taken an appeal.

It appears from the record that the appellant was in the employ of the appellee at times between 1918 and 1936. He was last so employed from September 1934 to November 1936 when he worked at various jobs in and about appellee's dolomite limestone quarry and its grinding mills located near Gasport, New York. In so doing, the appellant had at times to work in air more or less laden with dust and other impurities and the appellee was required under the provisions of the New York Labor Law Consol.Laws N.Y. c. 31, to take steps to minimize the resulting danger that the appellant might contract an occupational disease, in this instance silicosis. Whether the appellee did perform this duty was one contested issue.

Another such issue was whether the appellant's alleged condition was due solely to such exposure before September 1, 1935, the effective date of the applicable provisions of the New York Workmen's Compensation Law, Consol.Laws N.Y. c. 67, as amended by Chap. 254 of the Laws of 1935 and Chap. 887 of the Laws of 1936 to the effect that the exclusive remedy of any employee for occupational injury due to dust shall be under the last named statute when the last exposure to such hazards occurred after September 1, 1935.

The third issue, which would arise only after a determination that the appellant's last exposure to such hazards was after September 1, 1935, was whether, in that event, the limitation of his remedy for injuries, both prior and subsequent to the named date, to the provisions of the New York Workmen's Compensation Act was constitutional.

The appellant alleged that he was suffering from an occupational disease wholly contracted when working for the appellee before September 1, 1935 and that in his subsequent work for the appellee he was not so exposed to the hazards complained of as to make the New York Workmen's Compensation Act applicable; and, in the alternative, that if that statute did apply to his cause of action in respect to injuries received before September 1, 1935 it was unconstitutional under the Fourteenth Amendment as well as under §§ 3, 5, and 6 of Art. I of the New York constitution.

We think the issue of fact as to whether or not the appellant was exposed to the hazard after September 1, 1935, was so in dispute on the affidavits filed by both parties that a contested material issue of fact was presented which could not be resolved on motion before trial. The facts so shown in behalf of the appellant were that the character of his work changed substantially during August 1935; that he then stopped working in the dusty atmosphere of the silos where the pulverized stone was stored and from which it was put into bags for shipment; and that thereafter he worked out of doors in the quarry...