Parks v. Libbey-Owens-Ford Glass Co.

• Decision Date: 17 April 1935
• Docket Number: No. 22899.,22899.
• Citation: 360 Ill. 130,195 N.E. 616
• Parties: PARKS v. LIBBEY-OWENS-FORD GLASS CO.
• Court: Illinois Supreme Court

360 Ill. 130

195 N.E. 616

PARKS

v.LIBBEY-OWENS-FORD GLASS CO.

No. 22899.

Supreme Court of Illinois.

April 17, 1935.

Action by James Parks against the Libbey-Owens-Ford Glass Company. From a judgment dismissing his complaint, plaintiff appeals.

Affirmed.Appeal from Superior Court, Cook County; David M. Brothers, judge.

Sol Andrews, of Chicago, for appellant.

Ashcraft & Ashcraft, of Chicago, Duncan & O'Conor, of Ottawa, and Angerstein, Piggott & Angerstein, of Chicago (Russell F. Locke, Carroll J. Lord, and Alan E. Ashcraft, Jr., all of Chicago, Andrew J. O'Conor, of Ottawa, and Thomas C. Angerstein, of Chicago, of counsel), for appellee.

FARTHING, Justice.

James Parks (hereinafter called the plaintiff) filed a complaint in the superior court of Cook county against the Libbey-Owens-Ford Glass Company (hereinafter called the defendant) to recover damages for permanent injury to his health by alleged willful violations of section 1 of the Occupational Diseases Act (Smith-Hurd Ann. St. c. 48, § 73) and sections 12 and 13 of the Health, Safety and Comfort Act (Smith-Hurd Ann. St. c. 48, §§ 114, 115). The defendant moved to dismiss the complaint and later filed two amendments to its written motion. The motion to dismiss, as amended, was sustained on each of the points specified. The plaintiff elected to abide by his pleading, an order was entered that he take nothing by his suit, and judgment for costs was rendered against him and in favor of the defendant. From that judgment the plaintiff prosecutes this appeal.

For many years prior to January 1, 1934, the defendant was manufacturing glass in the city of Ottawa. In operating its factory such work was done as cleaning, sweeping, and scraping floors. Vacuum lifters were used around the lay-gang and mixing tables and buckets carried materials to the mixers. Hot air was blown on the tables where the glass was made. During these operations sand dust, glass dust, and other dusts floated in the air to such an extent as to be deleterious to the health of the employees. For several years prior to January 1, 1934, the plaintiff had worked in several departments of the factory and had been exposed to the inhalation of the dusts mentioned. By his complaint he charged that the defendant had violated section 1 of the Occupational Diseases Act by its willful failure to provide proper suction fans, masks, respirators, or other devices to effectively prevent him from inhaling the dusts; section 12 of the Health, Safety and Comfort Act by its negligent failure to remove as far as practicable, by either ventilating or exhaust devices, the injurious dusts from the premises where he worked, and section 13 of this latter act by negligently causing and permitting the premises to be swept so as to raise these dusts, and that as a result of such violations he contracted pneumoconiosis and became totally disabled.

In support of its motion and the judgment defendant contends: (1) That the trial court was without jurisdiction to hear and determine the cause because the occupation in which the plaintiff was engaged was not within the provisions of section 1 of the Occupational Diseases Act; (2) that section 1 of this act and sections 12 and 13 of the Health, Safety and Comfort Act violate the due process provisions of the Federal and State Constitutions; and (3) that they contravene article 3 of the Constitution of this state.

To obtain a reversal of the judgment the plaintiff contends that the court had jurisdiction of the particular cause and that the respective statutes are not open to the constitutional objections interposed. The determination of these contentions necessitates a review of the pertinent provisions of the Occupational Diseases Act.

Section 1 of that act (Smith-Hurd Ann. St. c. 48, § 73, Cahill's Rev. St. 1933, c. 48, par. 185, p. 1375) reads: ‘That every employer of labor in this State, engaged in carrying on any work or process which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employees to the danger of illness or disease incident to such work or process, to which employees are not ordinarily exposed in other lines of employment, shall, for the protection of all employees engaged in such work or process, adopt and provide reasonable and approved devices, means or methodsfor the prevention of such industrial or occupational diseases as are incident to such work or process.’ Section 2 (section 74) provides that every employer engaged in the carrying on of any process of manufacture or labor in which lead derivatives or paris green is employed, used, or handled, or the manufacture of brass or the smelting of lead or zinc, or in any process of manufacture or labor 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 clothing for the use of such employees while so engaged and shall maintain the clothing furnished in good condition, and in case of noxious or poisonous dusts shall provide adequate and approved respirators and maintain them in good condition for such employees. The succeeding eight sections, 3 to 10 (sections 75 to 82), inclusive, relate solely to employments within the provisions of section 2, and specifically prescribe not only the protective devices to be furnished by, but also the duties required of, such employers. Section 3 (section 75) commands that every employer engaged in any process or manufacture referred to in the second section shall provide monthly medical examinations for the purpose of ascertaining the existence of industrial or occupational diseases. Sections 4 and 5 (sections 76 and 77) provide that the examining physician shall make immediate reports to the State Board of Health, which is directed to transmit copies to the Department of Factory Inspection. The sixth section (section 78) prescribes that every employer under section 2 shall provide separate dressing rooms and lavatories for the use of employees who are exposed to poisonous or injurious dusts, fumes and gases. These lavatories are required to be maintained in a clean and wholesome manner and provided with adequate washing facilities. The dressing rooms, it is further provided, shall be furnished with clothes presses or compartments, to the end that the ordinary street apparel of such employees shall be kept separate from their working clothes. Section 7 (section 79) requires that special eating places and drinking-water facilities shall be provided by employers engaged in any process or manufacture designated in the second section. By the eighth section (section 80) such employers are required to maintain adequate devices for carrying off poisonous or injurious fumes and injurious dust. It further provides that the floors be kept in a smooth and hard condition, and that sweeping shall be permitted during working hours only where the floors are dampened to prevent the circulation of dust. The ninth section (section 81) declares that employers shall provide specified means for the cleaning of flues in any process of manufacture within section 2; that all floors shall be washed or scrubbed at least once every working day; that work attended by poisonous fumes, dusts, and gases shall, where practicable, be carried on in separate rooms and under cover of some suitable device to remove the danger to the health of the employees so far as may be reasonably consistent with the manufacturing process; and that the fixtures and tools employed shall be thoroughly washed and cleaned at reasonable intervals. The tenth section (section 82) provides, among other things, that all hoppers or chutes or like devices used in the course of any process of manufacture referred to in section 2 shall, where practicable, be provided with hoods or coverings and an apparatus for drawing away from the employees noxious, poisonous or injurious dusts. Section 11 (section 83) provides that in the enforcement of the provisions of the act ‘the Department of Factory Inspection shall give proper notice in regard to any violation of this act to any employer of labor in violating it, and directing the installment of any approved device, means or methods reasonably necessary, in his judgment, to protect the health of the employees therein.’ It is also provided that ‘upon receipt of such notice calling the attention of the employer to such violation, he shall immediately comply with all the provisions of this act.’ The twelfth section (section 84) provides that under certain circumstances it shall be the duty of the Departmentof Factory Inspection to notify the employer to ‘install adequate and approved appliances, devices, means or methods to prevent the contracting and continuance of any such disease or illness and to comply with all the provisions of this act.’ Section 13 (section 85) provides for the posting of notices of known dangers from occupations. Section 14 (section 86) prescribes penalties for the violation of any of the provisions of the statute.

Subdivision (a) of section 15 (section 87 (a) provides that for any injury to the health of any employee proximately caused by any willful violation of or failure to comply with section 1 a right of action shall accrue to the injured employee for the direct damages sustained. In case death ensues, the right of action shall accrue to the widow, the decedent's lineal heirs or adopted children, or to any other persons who were before the employee's death dependent upon him for support. The damages which may be recovered shall not exceed $10,000, and the action must be instituted within one year after the employee's death. By subdivision (b) 1 of section 15 (section 87(b) 1) it is provided that if an employee's disability or death is caused by an occupational disease arising out of and in the course of his employment in one or more of the occupations referred to in section 2 of ...