Document 4a0wDMB85jyGxQnNrynrmGgQN

FILE NAME: Early Asbestos Damage Suits (EADS) DATE: 1934 DOC#: EADS035 DOCUMENT DESCRIPTION: Documents from Case of Frank Brown COUNTY OF COOK J 5S } IN THli UNITED STA'I'FS DISTRICT COURT FOR TNr. NOitTI'.lSHW DIVISION EJASTi-uti DIVISION FRANK HKO./N vs JOHNS-MANVILLK CORPORATION A CONPO 'ATION " ) . ) MO.43653 ) ) ) BRIEF IN ANS'fKR TO DlFENDAllT'S s m itrstrpR) i?r~oy w i o 'trTO ITEgBCTTnilff IPI^ SSCTIOU--- Received o copy ol the within brief this a 3*^L &ay October, 1934 st //./J"' 0Clock K. ATTORNEYS FOi DEFENDANT COUNTY OP COOK ) ss } IN T1IK UNITED STATES DISTRICT COURT POX 'flip NORTHERN DISTRICT OP ILLINOIS EASTERN DIVISION FRAN" BR0;VW ) ) v 3 . ) ) JOHNS MAWVILLE COMPANY ) _ ) a corpora tion ) BRIEF IN ANSWER TO DEPENDANT'S m o t i o n t o . - im}iris..r.TE.niPi,i,pr,5Tc,ri13"M'-- I. . CONSTRUCT 1^ OF SbCTIOH 2 m ^ n i ^ i s u u u P A n o i u i DiagASg b u r n s 'vs s s b t t u t b u s------------------ Koi3ey v* St. Lonl3 Smelting Co. 397 H I . 567, spooks for itself and It is quite in accord with the 1st Kational Bank w.ffedron Silica Co., in the 350 111. psge 560. AmelJt v. Superior Mirror Co.a 210 111. App. 486 seems to be contra to the Burns decision, and spparent-- ly, oven though not mentioned in the B u m s decision has extended by the letter which is reposted in 356, 111. 6C2. While it la true that the subject matter or the Arnell case would fall apparently within/ the scope of the Burns case, the rule of 3s w laid down in the A m e l l Case has not been overruled so much as it has been extended. First notional Bonk v. V/edron Silica Co., 351 111. page 560 was decided while the B u m s ease was pentffc* in# on appeal before the Supreme Court of Illinois, and 1 Utftt case tin Supreme Court expressly rood Section 2 of the Occupational Disease Act, so thet throe class ox1 cases were created in exactly the saiae way, that they described the sumr in tho Burns case; yet the Supra Court of Illinois or> in *_h let Hott.*nel Bank cti-jo and e x p r e s s l y s t a t e d t h o t s i l i c o s i s c&rno under S**ct. i*>ri I of thn Oc.cnpa r.Iona 1 D1i oh so Ac.t. A The ^urns ccso was not o 3llicoisIs esse, but ono v/l^ru tho proof tended to bring ou4 e nitric Acid and murlatric poisoning. If the Burno decision hod Intendod ^ hod Intendod to overrule the Wedron co3e, it would seem logical that the Court /ould at least have mentlonod the latter in it's opinion In tie Burns cose* It would also seom logical that before th Wcdron caoo was decided, the * Court having also had the Burns case before it for con- v' . *.t' aiders tion, would hove laid down o different ruld than it had* Certdnly t'-o most logical interpretation of those two cases Is ono of recono 11ation. Plaintiff claims that the two cases aro rocorcillble in that the IVcdron case !i had to do with silicosis and the Burns case with an Acid poisoning. With respects to defendants argument that s arsenic poisoning brings the plaintiff*3 declaration under 1 Section 2, wo cmj dismiss that with a gesture, by calling the Court's attention to tho fact thot arsenic poisoning .X su vos not alleged in the declaration; and that that may be a matter of defense to be brought out In evidence, rather than a question of Im w . ^ ; In the Burns decision the court attempted to es tablish the meaning of approximately thirty-one words of' Section 2 of the Act by supplying the word "or* at such a place so as to create a third else -t-floot ion of cases, to wJt: poisonous ch. mien Is, minerals or other substances. We havo at this point two interprettIons to choose from. One, that; the word poisonous refers only to tho word, chemicals; that minerals or o t W r aubstoncos ore not modified by tiio word, poisonous. Or second, that the word poisonous mod ifies oil throe words, to wit; chemical, miperol end other substances. Now to follow the logical argument that fcfce Intention of the Court in the B u m s decision was to give >/. J \ 4 | I ;_jty,~ >',1 r< :..- te. o!i,*i`1 'u u < u '>* n? .v^Ul.tii 1:i L t 'JLM.'IU:, i\ ;ould hrt'*`n :f ** '"'nsis tent to r.r!:o tho third classified Liu In Section 2 so brood (bt- intorpretating the wur<J, pois onous to modify oniy the word chemical) that it would meko inoperative tho whole of Soction 1 and oil of Sec tion 15 a, without declaring both Section 1 end oil of Soction 15m either unconstitutional or uninfcolliglblo. . t A,y .Ve should then bo faced with" proposition that one-third A or less of none Section is to be sovod from being meaning- loss at tho expense of the whole of Section 15a. Y/o* can hardly impute such nonaonsc to our Supreme Court. V/o ore then forced to the conclusion that tho word, poisonous, won meant to modify all of the substances mentioned in^third classification of Section 2, or wheth er it is a non-extra haze *dous disease within tho pur view of Section 1 and 15a, and that, in the plaintiff's opinion is a question of fact. As a matter of construct ion of thf? Hnr.liah language, it would be redundant to insert the word poisonous before each of the words which it modifies, ond for that reason the statute bo be con strued properly must refer the word poisonous chemicals , minerals, ether substances. It would seom from reading the Act that exposure to the more toxic substances refer red to in Section 2 was recognised by tlio legislature in framing the Occupational Disease Act 8 3 requiring Immediate attention. We need only to refer to the law of the Supreme Court in the Co so of Madison v. Wcdron Silica Co., in tho 552nd 111. which stated that silicosis doveloped over a long period of time and creeps upon its victim uhawares. In counsel's brief are arguments that ore really questions or facts ond not questions of low. './hat medical authorities agree upon or disagree upon, can not be orguod as matters of law. Counsel cites authority to the effect that silicosis being harmful^ then necess arily must be poisonous. 'Jibethe r or not silica intoled Into thtt lungs In perticlew of various 1*0* A* poiaonou* L-v '' rnm*ttvaK) is yet only a theory unsubstantiated by any proof; oil mccUcnl nuthoritl&s or ogreed that silico token into tho alimentary canal is probnbly hnralosn and ce-'talnly not N. poisonous, ,whor^aa tho mechanical irritation of silica or any dust la a proven fact. In support of tl o poison theory, defendant quotes 'ouviera Low Dictionary to the effect that any substance taken into tho living organisms is capable of causing impairment or cessation of function, is a poison"*. If v/o were to give os brood a moaning to the term poison os the word implios, we should be facod with the proposition that drowning Is a poison since It to coiamon knowledge that water when taken in to the (living Orgnnisr-o) lungs causes a cessation of function resulting in death. Or, perhaps did the expression "when taken into tho living organisms" refer to introduction of substances into tho alimentary canal. The very word poison comes from the leitin word, meaning "to drink" or Mpotlon" ond to the ordinary layman moans something token Into the system througl the alimentary conel or injected into the blood system. 3ince pnoum^coniosis or silicosis is not & - ? contracted through Injections or through the alimentary cnnol, we are forced to the conclusion that it Is not a > poison ond does nbt cause a poisoning of the human body and with apologies to the Court, plaintiff again submits, Is this not a question of fact rather than a question of lew. We must, In view of the persistency of the defendant** counsel to confound the word "injurious1* frftth the word "poisonous", cell once more to the attention of the Court that injurious Is not a synonym for poisonous. Jn view o i the foregoing, plaintiff submits that tho dofamltmt's motion to dismiss should he denied and that tho defendant be required to nlead further* liespecl:ively submitted, JL .J? A*-:- v & . * * " *" *1--- ir-i-nr-.'.uu_i.i.... 4 . ; I>LI***i-> J ) ilG c o 'j;ty oy e o o : ) XK T ! f i ! I 5iCJT COtr' T OF COCK COUNTY FRANK BIiO'.VN i JO!U H M AKVIl u : c o r p o r a t i o u , a coipo:atio*t K. 3*VC 265 CO?!PLM!rr AT T.A*/ COUNT I The p la i n t i f f , FRAKK Hncrx, by hlo attorney, SOL AT^DU: 'fO, coupl/.'.iua of the defendant, JOHNS AKVILLS COnrOHATlO?:, a corporation, end uayn: 1. That e n or *\Nnit the :T*th day of Juno, A, P. 19^2, the cefeiidant, `'AHYILIT' COhPOTUTlOS, a cor poration, ira3 a duly orfani od and author! seel corporation, doin^ bucinoca in the Sto to of Illinois, County of hr.e, and City of tfouhegan, t nhich tic a n d place, it otmed, operated, and maintaiaod a factory, will, or establish ment for the purpo32 cf aanufactaring anbonto in ito var ious fame. 2* That tfea o&id defendant, in its fnotory, oimod and opera13d a certain de-part;*ia:it h i o m ao the construct ion aitg in which sand was shoveled into pilea and ecnsni was dunned out of trucks; that th*j said defendant also earned and operated another departennt knovm as the recei ving L*;uiy;, In which rubenton, fibre, nn*3 cogent wore abo ve led into trucks; that during the course of work in both the aforesaid denart ants, a r^eat deni of sand dust, co- oust, asbeot'n? dart, and fibre duet oro caused to and did i^ro^nato th* air in ouoh /;rcat quantities an to be greatly deleterious to the health of human beings. 3* That on the aforesaid day and at the tine end plaoo aforesaid, he was in the employ of tho oaid defendant imd worked in tho construction gang, shovel ing nand into piles and dumping cement out of truoks; that he also worked in tho receiving gang, shoveling asbestos, fibre, and cement into trucks; that during the course of hie deployment by said defendant, he wae exponed and subjected to a greo.t deal of the atoxoBal* duntc circulating in and about tho said deportments. k* That in tho carrying on of the aid busi ness by the defendant as tho earns was being conducted and for many years prior thereto had boon carried on, the defendant kne^ ami by the exercise of due care and caution should hove l o o m that the suc*o was apt to and di produce tho illn-jse and dlaoaso in the plaintiff, of which the plaintiff now complains, which iliacsc and dicoaoe 1b peculiar to ouch work ana process of carrying on oaid business, to which employee were and are not or-- . dinarlly exposed in other linos of employment. 5- That the plaintiff waa caused to and did, during tho period aforesaid, necessarily breaths in large quantities of asbestos duet, fibre dust, sand dust, and cement dust through hie nose and mouth and Bald dusts be came lodged in hie throat and lungs, causing the illnessee hereinafter complained of, while the plaintiff was la the exorcise of due care and caution for his own personal health uud oafsty* 6. That the plaintiff wnc In entire ignorance of the dangerous character of th~* various dusts to vhich ho was exposed, and to the snooific nature of the disease or diseases that would or could result from the inhalation of WP^T-trsCssr'. iv,-/,,*>*** **rf*JW*< tho afwroeaid duct, and waa nava;-, at any Lime, inrormod by uny r*jor.t or tho defendant of thi fact that ouch danger did or could nosnibly sxiat. 7* That nt and during tho aforesaid timo ixid plnco, the defendant did ono or othor of the.fol lowing uota, thereby cn-oing the -plaintiff to contract and sucoucih to tho occupational dloenoeo known ao pnou- moccnlocic and tuberculosis, ao a rooult whereof, he has loot considerable weight; he has been incapacitated and weakened eo that ho has been prevented iron attain ing to M o usual occupation and business, and he haw suffered great Mental nnd physical pain and anguish and will continue co to ouffor for the rcct of bio life; ho has become -liable for and expended large dumb of money in and about endeavoring to bo cured of his illnesses as afore- ooidj ho hoc been prevented and hindered from attending to hi usual occupation and businoos whereby ho hao lost di- viire great gainc and ^refits and will continue to lose di vers groat fraino and profits. (a) wilfully failed to provide reasonable and ap proved devicon, methods, or nemie for the prevention Of, said dleases, contrary to the provisions oi Sootlon 1 of and Act entitled, * An Act to Promote the Publio Health'by Protecting Certain Employees in this Stato from the Dangers of Occupational Diseases*, and providing for the enforcement thereof, in this that there wore, In and about the eaid p r J ^ > i v jaiseo, no propor auction fans or other apparatus provided ; * /V for collecting the injurious dusts in the air in and about j% thj said preniceu vhcrc plaintiff worked; that the deXondan^ ^ failed to provide masks or respirators or other apparatus tof \ bo used or worn by said plaintiff which would effectively j * prevent him from inhaling the said dusts caused to impregnate and float in tho air in and about tho said premises ao pro- vided by tho said otatuto, anti which would offoativuly pre vent him froai contracting thJ dieonnon h.jroin oomplnined of. (b) nofjllj-jntly failed to renova ae far us prac- ticable, by either ventilating or oxhauot devices, tho afore said Injurious du^ts from tha premisoo in which tht* plaintiff w r k e d , oontrary to Section 12 of Tin Act oonoornlng tho health and aafoty of employees in faotorioo, mercantile establish ments, wills, and workshops in the State of Illinois* (c) negligently oauasd and permitted the prenleea to be swept so as to raise asbestos dust, fibre dust, sand dust, and cement dunt, contrary to ruction 13 of an Act con cerning the health end safety of employees in factories, mercantile 'establishments, mills, and workshops* Plaintiff anks judgment for Fifty Thousand Dollars U u 0,000). I; PL& m TFT