ZAJKOWSKI v. AMERICAN STEEL & WIRE CO., 258 F. 9

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 pi-ogressed 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 o„f 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 tills case it is admitted tliat tbe 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 employé 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 Atl. 772, 30 Am. St. Rep. 745; Meany v. Standard Oil Co. (N. J. Sup.) 55 Atl. 653; Pigeon v. Fuller, 156 Cal. 691, 698, 701, 105 Pac. 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, § 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 employés.” 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

Section 1 of the act (section 6330 — 1, Page & A. Gen. Code Supp. Ohio) provides: “Every employer shall, without cost to the employés, 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 employés 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 óf 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 employés. The effect of the first section, 6330 — 1, is to charge the employer with the duty to protect employés 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 Fed. 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 employés.

According to the title of the act, the fund is designed “for the benefit of injured, and the dependents of killed em-ployés” (103 Ohio Daws, 72, approved March 14, 1913).

Section 13 defines employers to whom the act is applicable.

Section 22 provides for employers’ payments of premiums.

Section 23 is in part as follows: “Kmployers who comply with the provisions of the last preceding

section shall not be liable to respond in damages at common law or by statute, save as hereinafter provided, for injury or death of any employé, wherever occurring, during the period covered by such premium so paid into the state insurance fund. * * * ” The saving clause so referred to is found in

section 29, which in substance provides that “where a personal injury is suffered by any employé or where death results to an employé from personal injury * * * while in the course of employment,” an employer who has paid his premiums shall not he liable unless such injury or death shall have arisen from the “willful act” of the employer or from the employer’s failure to comply with any “lawful requirement for the protection of the lives and safety of employés,” but in either of the latter events “nothing in this act contained shall affect the civil liability of such employer.” It is to be observed that the act is limited to compensation for “injury” or “death” of employés; it makes no provision in that behalf for disease.

We have seen that the Constitution permits the passage of laws providing compensation for employés or their dependents in cases of “death, injuries or occupational disease.” Industrial Commission v. Brown, 92 Ohio St. 309, 110 N. E. 744, presented the question whether Brown, an employé who had contracted lead poisoning in the course of his employment, was entitled to participate in the fund designed for the compensation of employés under the original Workmen’s Compensation Act of May 31,1911 (102 Ohio Laws, 524), which, of course, was before adoption of the constitutional amendment.

Brown applied to the proper official board for compensation and his claim was disallowed; he appealed to the Hamilton common pleas, where he recovered judgment, which necessarily entitled him to be paid out of the insurance fund (section 36, Id. p. 531), and this action was affirmed by the Court of Appeals of the same county, though reversed by the Ohio Supreme Court. The Compensation Act then under consideration, like the present one, provided only for “injuries or death.”

Section 20 — 1, 21 — 2, Id. 528, 529. In the course of the opinion Chief Justice Nichols said (92 Ohio St. 314, 110 N. E. 746): “It is to be observed that the constitutional amendment differentiates between injuries and occupational disease. It clearly recognizes three distinct classes for which provision may be made:

(1) Injuries resulting in death; (2) nonfatal injuries; and (3) occupational diseases — and all are to be limited to such as might be occasioned in due course of employment. The present law specifically provides for compensation for two of these classes only and significantly omits' any provision for compensation for the third class. Were this claim one that had accrued under the new law, the court could only construe the passage in dispute, in the light of the Constitution, as wholly excluding any compensation for injury by disease, whether occupational or otherwise.

The Legislature would have been within its constitutional rights had it included the third class, and its failure to do so, under the circumstances, makes of it a case of designed omission.” This ruling was approved in Industrial Commission v. Roth, supra, 16 Ohio Law Rep. 253. The case of Roth, like that of Brown, grew out of an application to the proper board for compensation to be paid out of the insurance fund.

The claim was disallowed by the board on the theory that Roth had died of -an occupational disease, and this denial was in effect affirmed on appeal to the Jefferson common pleas, but was reversed in the court of appeals of that county, and the reversal was affirmed in the Supreme Court on the ground, as we have already pointed out, that Roth had met his death through an “accidental and unforeseen inhaling” of a “specific volatile poison or gas” and not from an “occupational disease”; but the implication is clear that if the death had resulted from that disease the right to participate in the insurance fund would have been denied; indeed it is declared both in the first paragraph of the syllabus and in the opinion (16 Ohio Law Rep. 251, 254) that an occupational disease is “not within the contemplation of the Workmen’s Compensation Law.” The impelling feature of. these decisions, when considered together, is that Brown’s claim failed because he was affected by an occupational disease, while Roth’s succeeded because his death was not the result of occupational disease, but of an accident.

It results, in view of the controlling authority of these decisions, that the Compensation Act is inapplicable, and, it need not be said, that the exemption from liability given by

section 23 of the Compensation Act to employers who comply with the provisions of

section 22, and the exceptions contained in

section 29 in relation to employers who are open to the charge of willful acts or failure to perform any lawful requirement within the meaning of that section, are not of present importance. It cannot be that the Compensation Act was designed to take away any right of action as respects a claim, like the one here involved, which the act does not purport to include or to allow to-be paid out of the insurance fund. Any view to the contrary must ascribe to the General Assembly at once a purpose to frustrate the power vested by the Constitution in respect of occupational disease and a lack of purpose through

section 6330 — 1 to grant relief of any character to employés contracting such disease. That statute was passed after the Compensation Act, and, as already shown, was intended to create and preserve rights of action where the duty it imposes is violated. For similar reasons the case of Woodenware Co. v. Schorling, 96 Ohio St. 305, 117 N. E. 366, Ann. Cas. 1918D, 318, relied on by the company, is not on its facts relevant. Schorling sustained injuries through the fall of lumber from a car, which clearly brought his case within the Compensation Act; and although his employer had complied with the act Schorling sought recovery by an ordinary action at law. Among the grounds urged was that under

section 35, art. 2, of the Constitution, and

section 29 of the Compensation Act, sections 15 and 16 of the Industrial Commission Act constitute “lawful requirements” for the violation of which the action could be maintained; but it was in effect held that those sections are not self-executing and must be supplemented by special orders of the Industrial Board. Id. 96 Ohio St. 320, 321, 117 N. E. 366, Ann. Cas. 1918D, 318. Thus the decision in that case, like the scope of the statutes it construed, does not reach the question involved in the instant case. In fact, Judge Johnson said (at page 317 of 96 Ohio St., at page 370 of 117 N. E. [Ann.

Cas. 1918D, 318]): “There is nothing in the Industrial Commission Act which indicates an intention of the Legislature to enlarge or diminish the rights of employes and employers under the Compensation Act, which had then recently been passed.” The Industrial Commission Act was approved March 18, 1913 (103 Ohio Laws, 95, 110), while, as we have said before,

section 6330 — 1 was approved the following Miay 6th (Id. 819, 824), and no reference was made in the last .statute either to the Compensation Act or the Industrial Commission Act.

Section 6330 — 1 stands alone as the latest expression of the legislative will; it is -in terms both complete and imperative; it should be given effect. When it is remembered that plaintiff’s action is based upon alleged negligence of defendant and freedom from fault of his own, the conclusion must follow that it was error to deny a right of recovery both under the common law and

section 6330 — 1. Accordingly the judgment is reversed, with costs, and the case is remanded for further proceedings not inconsistent with this opinion.