# Petition for Writ of Certiorari — United States Gypsum Co. v. Stornelli > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1572%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1943 - **Citation:** 319 U.S. 760 ## Text hs yaar 3 ) ene Supreme Court of the Gnited States October Term, 1942 v0 9 AS ANTONIO STORNELLI Qo, UNITED STATES GYPSUM COMPANY, ———— v8. 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. EeE————————————— Daily Record Company, Rochester, New York. ee ASR RUA APIO Ne ARTS Se LOR IA AA GSAS TS BANAT. SRE SS AADLAIOED NRSC nT aD i pA 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 a rrr r ere eer rarer. ye. Tr 8 f Z Argument i I Ca Uh eaknenctacdyen eed s hs ona a ene 12 : 2 SRS RR Na ter ales en Gee eae ae NUNC es 16 Ph MART Rak RISK Wan dag tee Veena eee 22 SN ise ot alia ds Sox <8 bia me teak Wee cw ale adeno 24 j 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 oe ee Oe! ee rrr err ere rer re ere ee 20 SD PRR LR il PRBS 1 hie Ba cheba = Title. Page SE , CE Os cs Ono vw kc cec sc tevacvess 15 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 RSH SR ES apes eee. . ; EEN BND BN SN NR nee anata iil Drinker & Hatch, Industrial Dust, McGraw-Hill Book ee Ne 8 eevee Freee OT TT ere ree 13 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 ee OM eee EES AUS Waka ae WK ga eowh se 2, 8, 16 Section 49, Subdivision 6 New York Civil Practice Act cee Na a SN ie ry ak ae Wat Vo Sian Me 3, 16, 25 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 EE Ae rei acess Gea ek RaW OL EEN Cece uws 14 Section 122 New York Labor Law of 1909 (Chap. 36 L. 1909) a NAMES LIEB ON LENIN LENORE IE. ATES, SNS PER TERS ENS REPRE Dipl was Ci SIE EST POSS ARE tS Sim RETR Eee DISET a A IE OSM RAE Ree LE IN ines Se ee : —— ‘ guises euwernceer ates ea Supreme Court of the Anited States Ocroser TERM, 1942 No. ANTONIO STORNELLI q v8. L Unirep Srates Gypsum Company, Petitioner. J 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. 1 2 HO RARE ae SE EMA OSARE GLEBE PELL LE DILE LOL TE Fy Sri ee 2 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. 3 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. SOAEAT RIN NE RES SPAS EERE RIS? =e NE OTERO ae FREE eee 4 : (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- PLETE POS BES woh Bias MN avr BC nie 5 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1572%3A1. Public record. Not legal advice.