Document RJEXZjYEOma80DVyD7EYqp8GB

FILE NAME Insurance Industry INS DATE 1936 DOC INS040 DOCUMENT DESCRIPTION Legal - Case Report in the North Eastern Reporter NORTH EASTERN EASTERN REPORTER REPORTER : SECOND SERIES CASES ARGUED AND DETERMINED IN THE COURTS OF ILLINOIS INDIANA MASSACHUSETTS - NEW YORK OHIO WITH KEY NUMBER ANNOTATIONS VOLUME 2 2d JUNE 1936 ST PAUL MINN WEST PUBLISHING CO 1936 Wem nore Hoe Ane seven  Ill 2 NORTII EASTERN REPORTER REPORTER 24 SERIES 716 vested unnecessary as the trustee became with the title by operation of law The de- cree a drawn would permit the codefendants to abrogate the provisions of the Bankruptcy Act with reference to liquidation of the assets of the bankrupt estate The codefendants would be able to obtain the as- Appeal from Circuit Court ty Ralph J. Dady Judge Action by Anton Vogel Manville Products From an adverse judgment Lake Coun- against the Corporation the plaintiff appeals Affirmed sets involved in this action without an ap- praisal notice of sale and sale This por tion of the decree was a nullity and did not purport to take away any rights but sought to confer added rights The decree is reversed and the cause is remanded with directions to the circuit court modify its decree as to tract 1 in accordance with the views expressed in this opinion and to order the conveyance of tract 2 set aside and the title declared to be in the trustee in bankruptcy subject to the lien of the receiver's judgment in like manner as tract 1 : directions Reversed and remanded with directions . Leo M. Tarpey and Drake H. Berg both of Chicago Charles C. Roe and Lloyd T. Bailey both of Chicago of counsel for appellant Ileth & Lister of Chicago Lloyd D. Heth of Chicago of counsel for appel- lee WILSON Justice Anton Vogel appellant here amended complaint consisting filed an of six counts in the circuit court of Lake county against the Manville Products Cor- poration to recover damages in the amount of 2,950 for permanent injury to his health The plaintiff alleged that for nine > he had been employed in the appel- rs yleeaerdsefendant's factory in the city of Wau- . kegan and that while so employed he was exposed to the inhalation of deleterious dusts By four counts the plaintiff charg- ed that the defendant failed to perform cer- 363 III 473 tain duties imposed upon it by the com- ; mon law namely warning him of the in- v VOGEL MANVILLE PROD UCTS CORPORATION No. 23207 Supreme Court of Illinois . jurious character of the dust providing a reasonably safe place in which to work furnishing proper masks or respirators and moistening the dusty materials used The other two counts charged willful violations May 12 1936 Rehearing Denied June 11 1936 of section 1 of an act entitled An Act to compel the using of blowers upon metal machinery Smith Ann polishing St. c 48 47 These counts alleged that 1. Master and servant 96 | the plaintiff in the pursuit of his duties held to have no common Employee laborer in the employ of the defend- cause of action for occupational disease re- as a and surfaced vari- containing sulting gradually from employee's work with ant polished gbrorua ndke man- machinery which was not ous forms of metal polishing iron steel wire silica with blower for protection of em- ganese asbestos and and in that substances provided and other metal ployee process used driven grinding ma- chines the revolving surfaces of which 2. Master and servant 96 coated with carborundum silica em- Act making the use of metal polishing blowers for were and other forms of abrasives and that ery machinery without providing protection of employees a misdemeanor held the defendant willfully failed to provide suction devices or other reason- to create no cause of action in favor of em- blowers or the inhalation of for occupational discase resulting able apparatus to prevent ployee work with metal the noxious dusts Each of the six counts gradually from employee's which was not provided concluded with the allegation that as a polishing machinery of the defendant's will- with blower Smith Ann.St. c 45 38 direct consequence contracted an - ful misconduct the plaintiff 47 52 and KEY NUMBER in all Key Number Digests and Indexes For other cases see same topic we we NOTE earn nT gy aw one o psarniges 2 ae nETE: aN aI Seba # Ae ewe anenal a In TT PRODUCTS CORPORATION VOGEL VOGEL JOHNS MANVILLE MANVILLE CORPORATION CORPORATION Ill 717 siderosi PRODUCTS incurable incurable disca e described siderosis N.E. apparatus which shall be belts siderosis siderosis sitnilar apparatus pulmonary under under such wheels placed pneumoconiosis berculosis pneumoconiosis and various pulmonary pulmonary tu- over , beside pulmonary such manner manner to protect wheels belts person berculosis other and and complications defend- defend- persons persons using same from par- complaint ant ant moved to dismiss produced and ticles of the dust produced complaint sustained sustained and carry away away dust caused its its motion pleading plaintiff thrown elected elected to abide by dpismilssineg atdhineg suit and plaintiff thereby , order from or such wheels aris- directly directly the was was dismissing against against belts while while operationo operationr some recep ment ment for costs rendered against outside outside the building building confine and and in favor of defendant prosecutes tacle placed so receive and ma- judgment prosecutes Provided Provided that grinding grinding plaintiff that judgment such dust water used at the appeal - point chines upon which contact shall be ex- and contends To obtain reversal reversal plaintiff maintain point of the grinding act from the provisions provisions this con{1t}ends contends that he has right right provided act shall apply apply small small common common against against defend- shops employing more more than one in a ant suit ant, health arising employer injuries injuries to occupational dis- such employing employing Section of the same same stat- ute Smith pro- ease This arising out of asserted asserted predi- cated the right it employer vides that any person company 52 mandirectors person any company man- ease. negligence of employer the the respects charged agers or any company company cor- complaint charged in counts counts the poration directors charge in the factories factories or specified the amended adversely contention has workshops shall been decided to plaintiff plaintiff fail to comply with section who provisions of an opinion rendered adverstely his court court the term which em shall be deemed provisions provisions the law and subject to punishment_by mis- an present held that that has term common common demeanor than 25 punishment_by punishment_by punishment_by ployee common right to re- fine of not less cover damages damages against employer for an 100 occupational occupational disease sult employment contracted McCreery v re- v Lib- does not charge that suf- suf- The plaintiff 2s accidental injury Ill.Sup sult by Owens Glass 2 N.E. Glass Co. Ill.Sup fered an accidernetsulotr of alleged as the proximate viola- viola- 290 (2d) 2 tions of section 1 of the Blower that the pulmonary disease defendant defendant motion and the does he allege attributable an afl judgment judgment the Blower maintains that which he contracted was attributable plaintiff's of section due proces process provisions provisions the Federal the Const.U.S Const.U.S Federal and On the other complaint his claim claim that complaint is predicated trace- State Const.Ill Constitutions Const.Ill and Amend it able disease ocupational occupational not tcraauces-e cause some definite time place contravencscontravencs section section 13 of article article of The statute does not purport provide provide plaintiff Constitution of this state The plaintif plaintiff that right action action shall accrue an an vulnerable contends that statute statute not employee employee right sustained the the contends objections objections interposed result for damages incep- incep- The constitutional constitutional objections since to The Blower been tion the occupation illness which ually from the occupation develops its develops grad- in fourteen fourteen years years before the employee employee character the work in General Assembly the ex- which engaged engaged plain- plain- istence istence Assembly first recognized however however employee by en- familiar familiar rule acting occupational occupational diDsieseaasseess Act Act Nat Occupational 351 that where character imposes imposes invokes statute although in in bencfit bencfit of First Silica 184 Wedron class individuals a for the II Hurd Section of the Blower Smith Smith 1 ., Blower Ann.St. person individuals right of action ac- ac- crues to that class who Beau- in- in- Ill Rev. Stat Hurd par , jured jured through through breach the duty Beau- Beau- That 1579 declares com- champ champ Sturges Burn 250 250 operating persons persons N.E. 204 Strafford Strafford Co. corporations panies panies tory workshop where operating wheels fac- description wheels or 303 Co. 238 Strafford Repub- Repub- Iron & Steel 128 Am.St.Rep Am.St.Rep N.E. N.E. 876 emery belts any used 358 , L.R.A. L.R.A. N.S. last Am.St.Rep either solid emery leather leather covered This This court case cited cited, canvas linen paper cotton wheels that liability liability damages damages resulting felt coated wheels belts rolled or used buffs buffs resulting from willful violation violation the emplCoyment hemplioymentledmployment Labor corundum corundum cotton wheels Act which which prohibited the of provide provide same with blowers blowers shall with blowers blowers or children under age fourteen years ander the age fourteen years years corundum, or cotton with blowers, OF children shall provide the same ne e = 7 TS PR ro FE i roy athe CET PTRSpers en orale Mans eri tm Bs: s ed Et REPORTER 2d SERIES I ).2 NORTH EASTERN 718 the plaintiff was not entitled to his in a hazardous business is created idrercelsapreec-d prSoisneccuete an action for damages to tive of whether it is expressly so the judgment health caused by the occupational diseaasneds in the statute and affirmed The designated in the amended complaint rendered in favor of the plaintiff disclose that the plain- resulting from alleged violations of the it becomes unnecessary for us facts of tiff was that case a boy thirteen years of age emwork in its Blower to consider the question of whether section the constitu- ployed by the defendant to 1 of that statute transcends steel mill or manufacturing establishment limitations invoked by the defend- While feeding angle irons into a straight- tional . ening machine he received accidental per- ant of the circuit court is sonal injuries which resulted in the loss The judgment affirmed of his left arm and one finger of the right right and it is therefore hand : Lo Judgment affirmed The plaintiff relies upon Greene v Fish 2/2 Ill 148 111 N.E. 725 FARTHING and SHAW Justices speconcurring Furniture Co. In that case the administrators of the es- cially reached in this of a deceased employee sued the de- We concur in the result is said there- tate to recover damages for . opinion but not in all that fendant employer opinion the employee's death caused by the al- in .. of the employer The leged negligence based on willful ae ait NUMBER negligence charged was violations of section 14 of the Factory Act approved June 4 1909 in force January , - 1910 Laws 1909 p 202 and othnatthiendaalyl-all- of the accident which provided mills < 863 III 478 factories mercantile establishments and reasonable RESCHKE et al v VILLAGE OF or workshops sufficient in case of fire shall be WINNETKA means of escape of provided by more than one means at Nos 23227 23228 and such means of escape shall egress times be kept free from any obstruc- . - Supreme Court of Illinois atlilon and shall be kept in good repair and May 12 1938 for use and shall be plainly marked ready the Greene Case Rehearing Denied June 12 1936 as such The action in ; Municipal was for accidental injuries resulting diisn- 4. corporations 601 can adopt zoning death and not for an occupational Streeter Cities and villages Reliance is also placed upon " e vasWeestern Wheeled Scraper Co. 254 III ordinances 244 98 N.E. 541 41 L.R.A. 028 2. Municipal corporations 63 204. This decision does Where restrictions imposed by zoning Ann.Cas.1913C aid the plaintiff as the action was _ordinance are doubtful or fairly debatable not accidental inju- substitute their judgment for courts cannot for damages suffered for resulting in the loss of legislative body of municipality ries by an employee his left hand that The of three fingers on 601 authorities invoked by the plaintiff do not of ac- 3. Municipal corporations Zoning ordinance which places new bur- sustain his contention that a right disease occurring dens and restrictions on rights of citizens tion for an occupational must have direct an extended period of time accrued to in use of their property safety over of violations of the relation to public health comfort him as a consequence Even if it morals or general welfare . Blower Act by his employer be conceded that an employee has a right 4. Municipal corporations 63 of action against an employer for accident- ~ In determining whether invasion of al personal inj^"ries or from a disease at- rights under purported police pow- injury resulting property and confiscatory extent tributable to an accidental er is unreasonable statute such as diminished from violations of a penal to which property values are the Blower Act it does not follow that action for an occu- by provisions in zoning ordinance must be he has a like right of , given consideration pational disease For other cases s^'usume topic and KEY NUMBER to all Key Number Digests and Indexes