Zajkowski v. American Steel & Wire Co.

• Decision Date: 05 December 1918
• Docket Number: 3195.
• Citation: 258 F. 9
• Parties: Zajkowski v. AMERICAN STEEL & WIRE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

258 F. 9

Zajkowski v. AMERICAN STEEL & WIRE CO.

No. 3195.

United States Court of Appeals, Sixth Circuit.

December 5, 1918

Louis H. Winch, of Cleveland, Ohio, for plaintiff in error.

Wm. L Day, of Cleveland, Ohio, for defendant in error.

Before WARRINGTON and KNAPPEN, Circuit Judges, and McCALL, District judge.

WARRINGTON Circuit Judge (after stating the facts as above).

In the view of the learned trial judge, the Workmen's Compensation Act (102 Ohio Laws, p. 524) gave to defendant immunity from any right of action that might otherwise have accrued to plaintiff under the facts alleged in his petition. Laying that act to one side for the present, we think the petition states facts constituting a cause of action for damages due to an occupational disease which was incident to the work plaintiff was performing. Diseases of occupation have been the subjects of much concern and investigation both abroad and in our own country. Such diseases, of course, signify causes and conditions, whether natural or artificial, which attend the performance of work and injuriously affect the persons exposed. They have been variously defined, such as, for instance, 'the poor health which results from working under improper conditions'; again, 'disease due to the employment'; and Dr. Thompson, in his recent work on Occupational Diseases, says that such diseases--

'may be defined as maladies due to specific poisons, mechanical irritants, physical and mental strain, or faulty environment resulting from specific conditions of labor. * * * They arise from a great variety of poisons, irritating substances, and exposure to unusual physical conditions.'

The occupation described in the petition extended over a period of more than two years, and the disease complained of developed and progressed by gradual process until it culminated at last in the loss of plaintiff's eyesight and health alike. Plaintiff's trouble was not due to causes outside of the environment of his work, nor was it one of accident or of traumatism in the sense of violence; it was due to causes incident to his service whose effects upon his eyesight and health are alleged to have been unknown to him though within knowledge reasonably imputable to defendant. The instant case is broadly distinguishable from that of Industrial Commission v. Roth, 120 N.E. 172, 16 Ohio Law Rep. 251, 252, 254, to be reported in 98 Ohio St. 34 where Roth, though not a painter, was directed temporarily to do some painting, and died from inhaling poisonous fumes and vapors arising from a bucket of hot paint; and his death was held to be the result of an 'accidental and unforeseen inhaling' of a 'specific, volatile poison or gas,' and not the result of an 'occupational disease'; indeed it was said by Judge Donohue in the course of the opinion:

'In this case it is admitted that the deceased was a common laborer, and that the disease of lead poisoning is not incident to his regular occupation, but, on the contrary, is incident to the work in which he was employed for the two days preceding his illness.'

The case set out in the petition falls well within principles of the common law. The general rule is that where an employer places and continues an employe for a substantial length of time in the regular performance of work and under conditions which, in the absence of preventive means and precautions, are calculated to engender in the employe a disorder of serious and injurious character, regardless of the name by which the disease is known, it is the duty of the employer to warn and instruct the employe as to the dangers and to furnish him with reasonably effective means to avoid them, and where as the direct result of failure to perform this duty an employe in the exercise of reasonable care suffers injury through a disorder so contracted, he is entitled to recover. Wiseman v. Carter White Lead Co., 100 Neb. 584, 587, 589, 160 N.W. 985; Thompson v. United Laboratories Co., 221 Mass. 276, 280, 108 N.E. 1042; Fox v. Peninsular, etc., Works, 84 Mich. 676, 682, 48 N.W. 203; Wagner v. Jayne Chemical Co., 147 Pa. 475, 479, 23 A. 772, 30 Am.St.Rep. 745; Meany v. Standard Oil Co. (N.J. Sup.) 55 A. 653; Pigeon v. Fuller, 156 Cal. 691, 698, 701, 105 P. 976.

Furthermore, recognition of the right of recovery upon facts such as are stated in the instant case is found in both constitutional and statutory provisions of Ohio. By amendment of September 3, 1912, to article 2 of the Ohio Constitution (Page's Annotated Constitution (Ed. 1913) pp. 171 to 217, Sec. 35), provision was made looking to the compensation of 'workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment,' through laws to be passed by the General Assembly; section 35 providing however that--

'No right of action shall be taken away from any employe when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes.'

On May 6, 1913, the General Assembly of Ohio passed a statute entitled 'An act for the prevention of occupational diseases with special reference to lead poisoning.' 103 Ohio Laws, 819 to 824. Section 1 of the act (section 6330--1, Page & A. Gen. Code Supp. Ohio) provides:

'Every employer shall, without cost to the employes, provide reasonably effective devices, means and methods to prevent the contraction by his employes of illness or disease incident to the work or process in which such employes are engaged.'

In distinct sections of the same act the manufacture of certain named products of lead is declared to be 'especially dangerous,' and employers engaged in the manufacture of these products are required to furnish devices and means of specific kinds to avoid the dangers of lead poisoning. Section 9 imposes penalties upon employers for violation of certain sections of the act, including section 1, which are applicable to the particular business in which the offending employer is engaged. Argument is not necessary to show that the purpose of this legislation was to impose upon employers duties designed for the protection of their employes. The effect of the first section, 6330-- 1, is to charge the employer with the duty to protect employes from the contraction of disease which is incident to the work they are required to perform. The intent plainly is to require the employer, where necessary, to ascertain what 'devices, means and methods' are 'reasonably effective' to prevent contraction of an occupational disease; and certainly in most instances the employer rather than the lawmaker is qualified rightly to understand what measures are necessary. The class of business occupations thus dealt with manifestly differs from the class of manufactures contemplated by the sections relating to lead products; since the first class would seem to concern work and processes involving dangers not so well known as those attending the manufacture of lead products.

The purpose to impose duties upon employers embraced in the first class as well as the second is accentuated by the imposition of penalties upon both classes alike; and while there might be greater difficulty in proving an offense under the first class than under the second, the duty is none the less positive in character in the one than in the other. These features derive emphasis in the instant case from the allegations that defendant provided no measures whatever for the protection of plaintiff's eyesight and health. It hardly is necessary to add that the legal consequence of violating section 6330-- 1 is not limited to the penalty prescribed in section 9 of the act; for the rule is that where a statute, although penal in character, plainly imposes a duty for the benefit of a class of individuals a right of action accrues to a person of that class who is injured through breach of the duty. Variety Iron Co. v. Poak, 89 Ohio St. 297, 303, 307, 106 N.E. 24; N.Y., C. & St. L.R.R. Co. v. Lambright, 5 Ohio Cir.Ct.R. 433, 434; Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 F. 298, 300, 37 C.C.A. 499, 48 L.R.A. 68 (C.C.A. 6); 2 Cooley on Torts (3d Ed.) pp. 1400, 1408, and citations.

We thus come to the ruling below. In considering the petition the District Judge said:

'If it does not state a cause of action under the Workmen's Compensation Law and within the exception of the Workmen's Compensation Law, it does not seem to me that the petition states any kind of cause of action.'

We are however, convinced that this act has no bearing upon the instant case. The act, as the name usually given to it indicates, provides for the collection of a state insurance fund and its disbursement among employes. According to the title of the act, the fund is designed 'for the benefit of injured, and the dependents of killed employes' (103 Ohio Laws, 72, approved March 14, 1913). Section 13 defines employers to whom the act is...