Petition for Writ of Certiorari — United States Gypsum Co. v. Stornelli

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Supreme Court of the Gnited States

October Term, 1942

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ANTONIO STORNELLI

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UNITED STATES GYPSUM COMPANY,

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Petition for Writ of Certiorari to the United States

Circuit Court of Appeals, Second Circuit, and Brief in

Support of Petition.

T. Cart Nexon,

Attorney for Petitioner,

31 Exchange Street,

Rochester, New York.

Dated, April 19, 1943.

Casper V. BaLTEensPERGER, Rochester, N. Y.

Wenve.u J. Brown, Chicago, II.

Counsel.

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Daily Record Company,

Rochester, New York.

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SUBJECT INDEX

SERA LSE:

Page .

Petition for writ of certiorari :

Summary and short statement of matter involved ..... 1 3

acs Wk tes. 6k oi oko lcscs eel icine 3 .

NE IE ooo wink heh d Cale ey Cee Wie 3 ‘

i sos a a ch ces eNaS PERE EEA OED 2, 3

Reasons relied on for the allowance of the writ ....... + f

IE Te UN i 6556 hie 9 he ees O's 8 6 5 :

Brief in support of petition for writ of certiorari

Opinion of court Gebow .. 02. ice k ects wes sewnees 865 :

ED EN inc ha aes ick ce pe ose eew eet 8

oe ee err reer ee ere ree ee ee 7 a

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Argument i

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2 SRS RR Na ter ales en Gee eae ae NUNC es 16

Ph MART Rak RISK Wan dag tee Veena eee 22

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TABLE OF DECISIONS AND CITATIONS

Title Page

Amberg vs. Kimley, 314.N. TY. G1 ow... cee cc sessces 20

Bellows vs. Merchants Despatch Transportation Co., 257

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Title. Page

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Burke vs. Witherbee, 98 N. Y. 562 ..................- a7

Dittiger vs. Isal Realty Corp., 264 N. Y. App. Div. 279.. 19

Galeota vs. United States Gypsum Co., 123 Fed. 2d. 947,

ee eee ery ee ee 24

Homin vs. Cleveland & Whitehill Co., 281 N. Y. 484 .... 20

Kirby vs. Montgomery Brothers & Co., 197 N. Y.27 ..... 17

Leppard vs. O’Brien, 225 N. Y. App. Div. 162, affd. 252

i I a Cee PERG as ks when en bee ean chee 15

evten ve. Bhernom, SOOM. FY. 266 .. ... 2... 2 eens 20

Mautsewich vs. United States Gypsum Co., 217 N. Y.

ESD eGR ES Ug Rate abe eee Pee 12, 18

Michalek vs. United States Gypsum Co., 76 Fed. 2d. 115,

EE MAMIE 6 oie cs aw cistern cede cccicns 16, 18

Miller vs. Town of Irondequoit, 243 N. Y. App. Div. 240,

“6 | Re er ee ee ee eee 15

Pieczonka vs. Pullman Co., 89 Fed. 2d. 353 ........... 15

Schmdit vs. Merchants Despatch Transportation Co.,

as onc ehh ene er eeerde pcan acess as 16, 18

Shepard vs. Taylor Publishing Co., 234 N. Y. 465 ..... 21

Teller vs. Prospect Heights Hospital, 280 N. Y. 456... 20

Transit Comm. vs. Long Island R. R. Co., 253 N. Y. 345 15

20 Amer. & Eng. Ency. of Law, 2d. Ed., 1902, Master &

EM cc Whsectdaws KOaNs LAS ees waa neawes 21

39 Corpus Juris, Master & Servant, Sec. 488, p. 371 ... 21

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Drinker & Hatch, Industrial Dust, McGraw-Hill Book

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Sutherland Statutory Construction, Sec. 371 .......... 15

Webster’s New International Dictionary, 2d. Ed., 1934.. 13

STATUTES CITED

Section 240 (a) Judicial Code ..............0 00 ce eee 3

Section 417 New York Labor Law ........... 2, 12, 14, 24

Section 299 New York Labor Law ................... 17

Section 200 New York Labor Law ................... 19

Section 202 New York Labor Law ...............000- 20

Section 48, Subdivision 2 New York Civil Practice Act

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Section 49, Subdivision 6 New York Civil Practice Act

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Section 4 New York Labor Law of 1890 (Chap. 394 L

RESCH ORES ee On le RES GE Dp mS EO td 13

Section 122 New York Labor Law of 1897 (Chap. 415 L

RU ai ks Cnn sia ake eevee sa bene ues 14

Section 122 New York Labor Law of 1907 (Chap. 399 L

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Section 122 New York Labor Law of 1909 (Chap. 36 L.

1909)

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Supreme Court of the Anited States

Ocroser TERM, 1942

No.

ANTONIO STORNELLI q

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Unirep Srates Gypsum Company,

Petitioner.

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Petition for Writ of Certiorari to the United States

Circuit Court of Appeals, Second Circuit.

To THE SuPREME Court oF THE UNITED STATEs:

The petition of the United States Gypsum Company for a

writ of certiorari to review the decision of the United States

Circuit Court of Appeals, Second Circuit, rendered March 16,

1943, affirming a judgment in favor of the plaintiff-appellee,

which judgment was entered in the United States District

Court for the Western District of New York on September 10,

1942 for $5,154.52 damages and costs, respectfully shows:

SUMMARY AND SHORT STATEMENT OF MATTER

INVOLVED

This is an action to recover damages for personal injuries

alleged to have been sustained by the plaintiff because of

breach of statute of the defendant during the plaintiff’s em-

ployment in the defendant’s gypsum mine in Genesee County,

New York. The plaintiff claims that a lung condition

described as silicosis or “industrial fibrosis” was aggravated

by his exposure to free silica dust during the last year of his

employment which was from April 1929 to April 1930.

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The cause of action is based solely upon alleged violations

of Sec. 417 of the Labor Law of the State of New York which

the piaintiff claims creates : “statutory” cause of action sep-

arate and distinct from a common law cause of action for

negligence. No issues involving common law negligence were

submitted to the jury.

The matters here involved are:

(1) Whether Sec. 417 of the New York Labor Law

applies to this case, where the injury is wholly based upon an

alleged inhalation of dust, since the statute refers only to the

removal of “smoke and noxious gases” and does not refer in

any way to the removal of dust.

(2) Whether the action was commenced within the time

limited by the New York statute of limitations as “an action

to recover upon a liability created by statute” (six years from

the accrual of the cause of action) or whether it was barred

by the New York statute of limitations as “an action to recover

damages for a personal injury, resulting from negligence”

(three years from the accrual of the cause of action).

The following statutes are involved:

Sec. 417 of the New York Labor Law:

Ventilation. An air current sufficient to remove

smoke and noxious gases and to insure the safety of

every employee shall be conducted along every passage-

way and working place.

Sec. 48 of the New York Civil Practice Act:

Actions to be commenced within six years. The fol-

lowing actions must be commenced within six years

after the cause of action has accrued:

* * * * * * *

2. An action to recover upon a liability created by

statute, except a penalty or forfeiture.

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Sec. 49 of the New York Civil Practice Act:

Actions to be commenced within three years. The

following actions must be commenced within three years

after the cause of action has accrued:

* * * * * * *

6. An action to recover damages for * * * a per-

sonal injury, resulting from negligence.

(3) Whether the plaintiff was entitled to succeed without

showing that he was actually exposed to free silica dust at the

places he worked in the mine, the proof being limited to the

statement that there was a small amount of free silica in the

rock at some indefinite point in the mine, which was not con-

nected up with any place the plaintiff worked.

BASIS OF JURISDICTION

This Court has jurisdiction of this petition by virtue of

Sec. 240 of the Judicial Code as amended (28 U.S. C. A. See.

347), which provides as follows:

Certiorari to circuit courts of appeals and United

States Court of Appeals for District of Columbia; ap-

peal to Supreme Court from circuit courts of appeals

in certain cases; other reviews not allowed. (a) In any

case, civil or criminal, in a circuit court of appeals, or

in the United States Court of Appeals for the District

of Columbia, it shall be competent for the Supreme

Court of the United States, upon the petition of any

party thereto, whether Government or other litigant, to

require by certiorari, either before or after a judgment

or decree by such lower court, that the cause be certified

to the Supreme Court for determination by it with the

same power and authority, and with like effect, as if the

cause had been brought there by unrestricted appeal.

QUESTIONS PRESENTED

(1) Does Sec. 417 of the New York Labor Law apply to

this case since it omits any reference to dust.

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(2) Is the cause of action herein an action “to recover

upon a liability created by statute” or is it a common law

action to recover damages for “a personal injury, resulting

from negligence.”

(3) Was there substantial evidence that the plaintiff was

exposed to free silica dust.

THE REASONS RELIED ON FOR THE ALLOWANCE

OF THE WRIT

(1) The Court erred in holding that Sec. 417 applied to

this case, since the statute makes no mention of dust and the

Court was not justified in reading dust into it.

(2) The Court in determining that the action was not

barred by the three year statute of limitations necessarily held

that Sec. 417 of the New York Labor Law created a “statu-

tory” cause of action which was separate and distinct from a

common law action to recover damages for a personai injury

resulting from negligence. Such a holding is in conflict with

decisions of the New York courts in respect to quite similar

provisions of the New York Labor Law.

(3) The Court erred in deciding that there was substan-

tial proof that the plaintiff was exposed to free silica dust.

Not only was there no testimony that there was free silica dust

in the air at any point in the mine, but there was utterly no

testimony that the plaintiff ever worked at any point in the

mine where there was free silica dust in the surrounding rock

which was being worked, nor that he worked at any point in

the mine where the air current could carry such dust to him.

This case may be followed by other courts in similar cases not

only in New York State but in other States.

The decision of the Circuit Court of Appeals has so far

departed from the accepted and usual course of judicial pro-

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cedure, and has sanctioned such departure by the District

Court, so as to require an exercise of this Court’s power of

supervision.

To accept the Circuit Court’s position is to say that plain-

tiffs in this type of action—wholly involving dust—may base

a cause of action upon a statute which makes no reference to

dust: avoid the three year statute of limitations which has

usually been accepted in personal injury actions, and hold an

employer as an insurer pro tanto without any substantial proof

that such plaintiffs were actually exposed to any harmful

dust at any time in issue.

Wuererore, your petitioner respectfully prays that a

writ of certiorari may be issued out of this Honorable Court

directed to the United States Circuit Court of Appeals, Sec-

ond Circuit, commanding such Court to certify and send to

the Supreme Court a transcript of the record of the proceed-

ings in the United States Circuit Court of Appeals, Second

Circuit in the above matter for its review and determination

pursuant to the provisions of law applicable thereto, to the

end that said decision of the Circuit Court of Appeals may be

reviewed by this Honorable Court, and that your petitioner

may have such other and further relief or remedy in the prem-

ises as to this Honorable Court may seem just.

Respectfully submitted,

T. CARL NIXON,

Attorney for Petitioner,

31 Exchange Street,

Rochester, New York.

Dated: April 19, 1943.

Casper V. BaLTENSPERGER, Rochester, N. Y.

Wenve.t J. Brown, Chicago, Il.

Counsel.