2 N.E.2d 716 | Ill. | 1936
Lead Opinion
Anton Vogel, appellant here, filed an amended complaint, consisting of six counts, in the circuit court of Lake county against the Johns-Manville Products Corporation to recover damages in the amount of $2950 for permanent injury to his health. The plaintiff alleged that for nine years he had been employed in the appellee defendant's factory in the city of Waukegan and that while so employed he was exposed to the inhalation of deleterious dusts. By *474 four counts the plaintiff charged that the defendant failed to perform certain duties imposed upon it by the common law, namely, warning him of the injurious 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 of section 1 of an act entitled, "An act to compel the using of blowers upon metal polishing machinery." These counts alleged that the plaintiff, in the pursuit of his duties as a laborer in the employ of the defendant, polished, ground, and surfaced various forms of brake-lock containing manganese, silica, asbestos, iron and steel wire, and other metal substances, and in that process used power-driven grinding machines, the revolving surfaces of which were coated with carborundum, silica, emery and other forms of abrasives, and that the defendant willfully failed to provide blowers or suction devices or other reasonable apparatus to prevent the inhalation of the noxious dusts. Each of the six counts concluded with the allegation that as a direct consequence of the defendant's willful misconduct the plaintiff contracted an incurable disease described as siderosis, pneumoconiosis, silicosis, pulmonary tuberculosis, and various other pulmonary and bronchial complications. The defendant moved to dismiss the complaint and its motion was sustained. The plaintiff elected to abide by his pleading, an order was entered dismissing the suit, and judgment for costs was rendered against him and in favor of the defendant. From that judgment the plaintiff prosecutes this appeal.
To obtain a reversal the plaintiff contends that he has a right to maintain a suit at common law against the defendant, his employer, for injuries to his health arising out of an occupational disease. This right, it is asserted, is predicated on the negligence of his employer in the respects charged in four counts of the amended complaint. The contention has been decided adversely to the plaintiff in an *475 opinion rendered by this court at the present term, in which we held that an employee has no common law right to recover damages against his employer for an occupational disease contracted as a result of his employment. McCreery v.Libby-Owens-Ford Glass Co. (ante, p. 321.)
In support of its motion, and the judgment, the defendant maintains that section 1 of the Blower act violates the due process provisions of the Federal and State constitutions, and also that it contravenes section 13 of article 4 of the constitution of this State. The plaintiff contends that the statute is not vulnerable to the constitutional objections interposed.
The Blower act has been in force since July 1, 1897, fourteen years before the General Assembly first recognized the existence of occupational diseases by enacting the Occupational Diseases act. (First Nat. Bank v. Wedron Silica Co.
The plaintiff does not charge that he suffered an accident or accidental injury as the proximate result of the alleged violations of section 1 of the Blower act. Nor does he allege that the pulmonary disease which he contracted was attributable to an accident. On the other hand, the plaintiff's complaint is predicated on his claim that the disease is occupational and not traceable to some definite time, place and cause. The statute does not purport to provide that a right of action shall accrue to an employee for damages sustained as the result of an illness which has its inception in the occupation and develops gradually from the character of the work in which an employee is engaged. The plaintiff, however, invokes the familiar rule that where a statute, although penal in character, 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. (Beauchamp v. Sturges Burn Co.
The plaintiff relies upon Greene v. Fish Furniture Co.
Since the plaintiff was not entitled to prosecute an action for damages to his health caused by the occupational diseases designated in the amended complaint and resulting from alleged violations of the Blower act it becomes unnecessary *478 for us to consider the question of whether section 1 of that statute transcends the constitutional limitations invoked by the defendant.
The judgment of the circuit court is right, and it is therefore affirmed.
Judgment affirmed.
Concurrence Opinion
We concur in the result reached in this opinion but not in all that is said therein.
