Petitioners Brief — United States Gypsum Co. v. Stornelli

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SUPREME COURT OF THE UNITED STATES

Octoser TERM, 1942

No.

AnTONIO STORNELLI

v8.

Unirep States Gypsum CoMPANY

Petitioner.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

The decision of the United States Circuit Court of Appeals,

Second Circuit, in this action has not yet been reported. A

copy of the decision is annexed to this brief.

This is a petition for a writ of certiorari to review the de-

cision of the United States Circuit Court of Appeals, Second

Circuit, affirming a judgment of the United States District

Court, Western District of New York, in favor of the plaintiff

in the sum of $5,154.52.

The questions presented in this brief are:

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

this case since it omits any reference to dust.

(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” which is barred by the New York statute

of limitations.

(3) Was there substantial evidence that the plaintiff was

exposed to free silica dust.

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Statutes Involved.

(See p. 2 of Petition)

Statement of Case

The plaintiff was employed in the gypsum mine of the de-

fendant near the Village of Oakfield, New York from about

1914 (p. 133) to about April 1930, (P. 52.) The action was

commenced in April 1935, which, by the Court’s application

of the New York six year statute of limitations (Sec. 48, Subd.

2, New York Civil Practice Act, set forth at p. 2 of the

petition herein) limits the employment for which the defendant

could be held responsible to the one year period from April

1929 (six years prior to the commencement of the action) to

April 1930 (the last day of employment, p. 494). The plain-

tiff testified that during this time he was employed as a loader

and sometimes as a driller using an electric auger drill; that

during his employment there was much dust created by the

various drilling operations (p. 135) which was not dispersed

or carried away because the defendant shut off its ventilating

fan each day for a time and failed to maintain proper circu-

lation in other respects. (Pp. 152; 150.) Briefly, the testi-

mony of the defendant was that the mine was ventilated by a

huge fan of constant speed (pp. 390-391) which pushed ap-

proximately 100,000 cubic feet of air per minute into the

mine. (P. 391.) This air was driven through the working

places in the mine, went through the entire mine and out the

entrance shaft, there being no other way for the air to get out.

(Pp. 391-392.) The fan was located in a housing on the sur-

face. (Photograph, defendant’s Exhibit I, p. 535.) The de-

fendant conceded that there was some dust created by the

various drilling operations and introduced photographs show-

ing the various drills, stationary and in operation. Exhibit C

(p. 527) shows the electric drill in operation. (P. 393.)

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Exhibit B (p. 525) shows the same drill not being operated.

Exhibits T and U (pp. 548, 545) show the same electric drill

again in operation at different heights in the face of the

gypsum. (Pp. 453, 455.) During a period in 1931 for the

purpose of reducing the overhead, the defendant experimented

with a type of air drill. (Pp. 394, 395.) It did not work out

and was abandoned in a few months. (See reasons—not dust,

pp. 399; 400.) Exhibit D (p. 529) shows such a drill operat-

ing. (P. 395.) The exhaust from the drill can be seen coming

out in the form of vapor from a hole on the front end of the

machine. (Pp. 395, 397.)

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The only other type of drill was a “jackhammer” operated

by compressed air and used solely for an operation known

as brushing roof rock. (Pp. 397, 398.) This drill is shown in

operation in Exhibit L. (P. 541.) It is undisputed that plain-

tiff never used either of the air drills. (P. 399.) The brushing

operation was done only to make more head room along the

motor roads. It was never used for the drilling of gypsum in

the rooms themselves, so that the amount of roof rock drilled

was relatively minor. (P. 402.) The roof rock which was

brushed was limestone containing not more than 3.6% free

silica. (P. 188.) The defendant conceded that the two air

drills made dust (pp. 397, 399) but also testified that it

rapidly settled to the floor because it was wet, heavy and

coarse. (P. 397.) The mine was wet (Pp. 400, 401.) Four

pump rooms were maintained with a capacity of 28 million

gallons a day. (P. 401.) In the wet season about 16 to 20

million gallons per day. (P. 401.)

After the gypsum was removed from the working faces it

was loaded onto small cars, shown on Exhibits K and E (pp.

539, 531) and taken down the main haulageway and hoisted

to the surface. A typical abandoned room is shown in Ex-

hibit A (p. 523) and in Exhibit 14. (Pp. 519; 89; 92.)

EWN eR

10

In 1928—two years before plaintiff left the employment of

the defendant, he opened a grocery store in Oakfield. His

wife ran it while he continued to work at the mine. (P. 53.)

From April 1930, when he left defendant’s employ, he con-

tinued to operate the store until the present time. (P. 164.)

About nine months prior to the trial he also took a job in the

nearby mine of the Phoenix Gypsum Company where he was

still working at the time of the trial averaging over $40.00

per week. (P. 161; Exhibit J, p. 537.) This was $5.00 more

per week than he had made at the United States Gypsum

Company. He claimed he did light work in the Phoenix mine.

(P. 155.)

Plaintiff had been employed by the defendant for sixteen

years (pp. 1383; 52) but his exposure in issue was limited to

one year at the end of his employment—from April 1929 to

April 1930. (P. 314.) He claimed a pre-existing condition

of silicosis had been aggravated by his employment during

that one year. His only medical witness (Dr. Carnivale) saw

him for the first time almost 12 years after the employment

ceased. (P. 250.)

This expert medical witness for the plaintiff, in answer to a

hypothetical question, stated that plaintiff's employment for

the one year was a competent producing cause of the condi-

tions she found (p. 273) and that plaintiff had pneumo-

coniosis due to the inhalation of dust. (P. 278.) She later

stated upon persistent questioning by the trial judge that she

couldn’t be sure of the type, but finally made a diagnosis of

silicosis (p. 311) and “moderate industrial fibrosis.” (P. 314.)

Concededly, silicosis can come only from the inhalation of free

silica dust. (P. 278.)

The term “moderate industrial fibrosis” was coined by her

and she knew of no other medical person who used it. (Pp. 302,

303.)

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Between the date the employment ceased in 1930 and the

time of the trial in 1942, the plaintiff’s only medical attention

was by “a man and woman” whose names he could not recall

(p. 171) whom he saw three times, including his visit to Dr.

Carnivale whom he first saw January 19, 1942. (P. 250.)

A chemist called by the plaintiff to prove that he was

exposed to free silica testified he had gone into the mine to

find samples with free silica in them (p. 192); that some

samples from one point were obtained which contained from

3B% to 3.6% of free silica. This, however, was only approxi-

mate. (P. 203.) He could not recall whether he took the

samples from a main haulageway or from a room, or it might

have been a cross cut or maybe even at the entranceway going

into a room, or it might have been a motor road. (P. 203.)

He admitted that samples taken at one point would not neces-

sarily show the same chemical analysis as samples taken as

little as 200 feet away, and that the free silica content might

vary 2 or 8% (p. 203); that in the air of any busy city he

would expect to find free silica to the extent of 12%. (P. 201.)

No proof was offered concerning the amount of free silica

dust in the air which could be breathed by the plaintiff, nor

that the plaintiff was working at or anywhere near the place

from which the chemist took his samples. Nor was there any

testimony that even the small amount of free silica found in

the samples (the largest one was in roof rock) would have

been suspended in the air so that it could be breathed. Nor

was there any proof whatsoever that the dust which the plain-

tiff’s witness described was not composed entirely of gypsum

particles. The uncontradicted testimony of the defendant is

that pure gypsum dust is harmless. (Pp. 337; 340; 315.)

a Sd eae

12

POINT I

Section 417 of the Labor Law does not apply since it

makes no reference to the removal of dust.

The pleading in this case—as submitted to the jury—was

based wholly upon a liability created by Sec. 417 of the Labor

Law. That section provides as follows:

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. 417 makes no mention of dust. The first portion of

the statute refers only to “An air current sufficient to remove

smoke and noxious gases.” There is no claim in this case that

plaintiff’s condition was due to smoke or nowious gases. If he

had any condition, it was caused by dust and could not have

been caused by anything else.

Unless we are to assume that “smoke and noxious gases”

includes dust, the sole duty of defendant was to maintain an

air current sufficient “to insure the safety of every employee”

along every passageway and working place. But such an

admonition does not create a “statutory” cause of action. It

is general in character. It has specifically been held by the

New York Court of Appeals to merely “supplement the com-

mon law rules * * *.” (Mautsewich vs. United States Gyp-

sum Co., 217 N. Y. 593, 598.) Thus no cause of action,

other than in common law negligence could have been based

upon it.

The Court below has read the word “dust” into the statute

and has stated its reasons as follows:

Air, filled with the dust of powdered rock, is within

this language; to deny to it the name of ‘noxious gas’

would disregard the plain purpose of the Act; and in-

deed, even if we were disposed to be literal, air is a gas,

and air filled with finely comminuted particles of rock

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is a noxious gas, just as air filled with finely comminuted

particles of partly burned wood is smoke. (Opinion,

p. 867.)

But air is not commonly understood to be a gas, and the

addition of dust docs not make it one. Webster’s New Inter-

national Dictionary, 2d. Ed. 1934, among the definitions of

gas states:

2. In popular usage, any gas, or gaseous mix-

ture, with the exception of atmospheric air; specif.:

a Any gas used to produce anesthesia, as laughing gas

(nitrous oxide) or ethylene. b Any combustible gase-

ous mixture used for illuminating or as a fuel; as, natur-

al gas, coal gas, etc.

The definition of dust in the same authority is:

1. Fine dry pulverized particles of earth or other

matter; that which is crumbled to minute portions; fine

powder ; as, clouds of dust; bone dust.

The inherent properties of gases and dusts are so different

that the legislature could not have intended to include dust in

the statute. Commonly encountered gases are lighter than

air and tend to rise. Dust is heavier than air and falls to the

ground unless stirred up by an air current. This is particu-

larly true of free silica (quartz). (Spec. grav. 2.66, Drinker

& Hatch “Industrial Dust”, (McGraw-Hill Book Co., 1936,

pp. 43; 60.) The legislature never intended that the air

current required was to remove or disperse dust. It was aimed

directly at the matters mentioned—smoke and gases.

Sec. 417 has its origin in the Labor Law of 1890. (Chap.

394, Sec. 4.)

Sec. 4 provides:

The inspector shall examine into the manner of the

ventilation of all mines, and shall see that the ventilat-

ing current shall be conducted and circulated to and

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along the face of vach and every working place through-

out the entire mine in sufficient quantities to insure the

removal of powder, smoke and other noxious gases, to

such an extent that all working places and traveling

roads shall be in a safe and fit state to work and travel

therein.

In 1897 (Chap. 415, Laws of 1897, Sec. 122) the word

“powder” was dropped and the materials to be removed by the

air current limited to “smoke and noxious gases.” This

phrascology was continued through the amendments of 1907

(Chap. 399, Sec. 122) and 1909. (Chap. 36, Sec. 122.) In

1921 the present See. 417 was enacted as part of the new

Labor Law of New York. (Chap. 31, Consolidated Laws, L.

1921, chap. 50.)

It seems obvious that the word “powder”

was dropped from

the statute in 1897 as being unnecessary since it could refer

only to powder smoke from blasting which was covered by the

phrase “smoke and other noxious gases” anyway. But no-

where throughout the long history of Sec. 417 does the word

“dust” appear. This is not strange for two reasons—first,

possible dangers from certain types of dust were not recog-

nized generally until about ten years ago and therefore could

not have been in the minds of the legislature. Second, the

true purpose of an air current is not to remove dust from the

mine anyway, since no practical volume of air would do so.

Moreover, a statute must be strictly construed. Obviously,

an air current sufficient to remove smoke and novious gases

might not be sufficient to remove dust. And in construing a

statute which so changes the common law rule as to “create” a

new cause of action and which also increases the common law

liability, the Court should not give it broader scope than its

plain meaning imports.

If a statute creates a liability where otherwise none

would exist, or increases a common-law liability, it will

15

be strictly construed. A statute, even when it is reme-

dial. must be followed with strictness, where it gives a

remedy against a party who would not otherwise be

liable. The courts will not extend or enlarge the lia-

bility by construction; they will not go beyond the

clearly expressed provisions of the act.

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

240, 242, affd. 268 N. Y. 578.

Sutherland Statutory Construction, Sec. 371.

Leppard vs. O’Brien, 225 N. Y. App. Div. 162, 164,

affd. 252 N. Y. 563.

A similar rule of statuory construction is that

Rules of the common Jaw are to be no further abro-

gated than the clear import of the language used in the

statute absolutely requires.

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

345, 355.

Bertles vs. Nunan, 92 N. Y. 152, 158.

In Pieczonka vs. Pullman Co., 89 Fed. 2d. 353, 356, the

Court was considering Sec. 299 of the Labor Law which pro-

vides for the elimination and removal of harmful substances

including dust from the air in factories. There, it was claimed

that the statute should be construed so as to include a cabinet.

The Court said:

* * * the meaning should be plain, and though we

ought to construe it favorably, we are not warranted in

adding features not specified. A hood and fan is not a

hood and fan and a cabinet; * * *.

Likewise, an air current sufficient to remove smoke and

noxious gases is not an air current sufficient to remove smoke

and noxious gases and dust.

16.

POINT Il

Section 417 of the Labor Law does not create a statu-

tory cause of action separate and distinct from a com-

mon law action for negligence. If any cause of action

is alleged, it is barred by the statute of limitations.

The statute of limitations applicable to a negligence cause

of action is three years from the last employment. (Michalek

vs. United States Gypsum Co., 76 Fed. 2d. 115; modified 298

U. S. 639; Schmidt vs. Merchants Despatch Trans portation

Co., 270 N. Y. 287; New York Civil Practice Act, Sec. 49,

subd. 6.)

The plaintiff was last employed in April 1980 and the

action was commenced in April 1935.

The statute of limitations applicable to a statutory cause

of action is six years from the last employment. (Michalek

vs. U. S. Gypsum Co., 76 Fed. 2d. 115; modified 298 U. 8.

639; Schmidt vs. M. D. T’. Co., 270 N. Y. 287; New York

Civil Practice Act. Sec. 48, Subd. 2.)

If the action here is one to recover damages at common law

for “a personal injury, resulting from negligence” it is barred.

(New York Civil Practice Act. Sec. 49, Subd. 6.) If it is one

“to recover upon a liability created by statute” it is not

barred. (New York Civil Practice Act, Sec. 48, Subd. 2.)

The statutes are set forth herein at p. 2 of petition.

It is the contention of the petitioner that Sec. 417—the sole

basis of liability—is merely declaratory of the common law

and does not create any liability which did not exist at com-

mon law in New York at the time the statute was enacted.

Long prior to that time the employer was under a duty to

furnish a reasonably safe place to work and was liable in neg-

ligence for an injury to his employee caused by breach of this

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17

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

31.) This included the duty to furnish reasonably safe appli-

ances. (Burke vs. Witherbee, 98 N. Y. 562, 565.) The plain-

tiff now contends that a new or statutory cause of action has

been created which was unknown to the common law.

No Appellate Court, either Federal or State, has passed

upon this question as applied to Sec. 417, other than in the

vase at bar. The Michalek and Schmidt cases (supra) dealt

with motions based upon complaints which alleged Sec. 299 of

the Labor Law as a basis of liability. Sec. 299 after stating

the general duty of an employer to provide factory work

rooms with

* * * proper and sufficient means of ventilation, na-

tural or mechanical or both, as may be necessary, * * *

and proper and sufficient ventilation and proper de-

grees of temperature and humidity * * * (Subd. 1.)

sets forth specific and detailed duties concerning what shall be

done about machinery creating dust or impurities. Subd. 2

of the statute states as follows:

All machinery creating dust or impurities shall be

equipped with proper hoods and pipes connected to an

exhaust fan of sufficient capacity and power to remove

such dust or impurities; such fan shall be kept running

constantly while such machinery is in use * * *.

Subd. 3 is even more specific and detailed. It provides:

If dust, gases, fumes, vapors, fibers or other impuri-

ties are generated or released in the course of the busi-

ness carried on in any work room of a factory in quan-

tities tending to injure the health of the employees,

suction devices shall be provided which shall remove

such impurities from the work room, at their point of

origin where practicable, by means of proper hoods

connected to conduits and exhaust fans. Such fans

shall be kept running constantly while the impurities

are being generated or released.

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‘These last subdivisions—2 and 3—the New York Court of

Appeals held created a statutory cause of action “which would

not exist but for the statute.” (Schmidt vs. M. D. 7: (4,

supra, p. 305.)

In the Michalek case (supra) the Circuit Court of Appeals

split, the majority holding that Sec. 299 did not create a

statutory cause of action. The dissenting opinion, which held

that a statutory cause was created, points out that the plead-

ing was based upon Subdivision 2, (p. 118, Michalek case)

and it was apparently assumed in both cases that Subdivision

1 added nothing to the general common law duty of the em-

ployer to provide a safe place to work. The Michalek case |

was later modified by this Court to conform with the holding

of the New York Court of Appeals in the Schmidt case. (298

U. S. 639.) Sec. 299 applies only to a factory and does not

apply to a mine. Therefore, it does not bear upon this case

except as a measure of comparison.

Sec. 417, unlike Subdivisions 2 and 3 of Sec. 299, merely

restates the common law duty of a mine operator to provide

ventilation in a mine. It is, therefore, similar to Subdivision 1

of Sec. 299 which restates the common law duty to provide

ventilation in a factory.

Nor did the legislature intend something greater than the

common law duty to provide a safe place to work when the

word “insure” was used in Sec. 417. This word could not have

been used in the sense that an employer was the insurer of

every employee from all the hazards accompanying mine ven-

tilation regardless of the facts—as would seem to be indicated

by the opinion below. (Opinion, p. 868.) In Mautsewich vs.

United States Gypsum Company, 217 N. Y. 593 (the cause of

action arose prior to the passage of Sec. 417 in its present

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form, but was practically identical so far as the use of the

word “insure” was concerned) the Court stated: (P. 598.)

The legislature, by directing the commissioner of

labor to see that every necessary precaution is taken to

insure the safety and health of employees employed in

the mines and quarries and in the construction of tun-

nels of the state and to prescribe rules and regulations

therefor, intended to supplement the common-law rules

relating thereto and thereby further to insure the safety

of those employed in such dangerous employments.

Other statutes quite similar to Sec. 417 have been held by

New York courts not to create a statutory cause of action,

but to be merely declaratory of, or to supplement the common

law. For instance, Sec. 200 of the Labor Law provides that

all working places

* * * shall be constructed, equipped, arranged, oper-

ated and conducted as to provide reasonable and ade-

quate protection to the lives, health and safety of all

persons employed therein.

In the late New York App. Div. case of Dittiger vs. Isal

Realty Co., 264 A. D. 279, the Court, speaking of Sec. 200,

stated: (P. 281.)

It is evident, therefore, that the rule of the statute is

merely declaratory of the common law to the extent that

it imposes on the employer the use of reasonable care.

* * * This section is general in character and does not

impose the duty of providing any specific safeguard.

In this respect it differs from statutes such as section

299 of the Labor Law, violation of which may consti-

tute a cause of action, irrespective of negligence. (See

Schmidt vs. Merchants Despatch Trans. Co., 270 N. Y.

287, 304.)

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20

In Bellows vs. Merchants Despatch Transportation Co., 257

N. Y. App. Div. 15—a silicosis action—the Court stated:

(P. 16.)

Section 200 of the Labor Law provides in effect that

the employer must provide his employees with a safe

place to work and with adequate tools and appliances.

It cannot be claimed that this provision is indefinite be-

cause that was the common law duty of an employer.

Mautsewich v. United States Gypsum Co., iT B. 2.

598, 597 * * °.

In a late case involving the “window cleaning statute” (Sec.

202, New York Labor Law) a complaint was held to be de-

fective where the cause of action was based solely upon the

violation by the defendant of its duty to carry out “the pro-

visions of the Labor Law of the State of New York, the In-

dustrial Code and the Rules of the Industrial Board of the

State of New York, to provide anchors attached to the side

frames of the windows.” Sec. 202 in part states the person in

charge of a building must provide “approved safety devices

on all windows of such building.” But the Court dismissed

the complaint, pointing out that the specific allegation of vio-

lation of duty was limited to the failure to provide anchors,

and that since this is not specifically required by the statute,

but only by one of the rules of the Industrial Board “the com-

plaint cannot be so construed as to permit the cause of action

to depend upon the statute alone.” (Teller vs. Prospect

Heights Hospital, 280 N. Y. 456, 459.) It was also pointed

out that there was no allegation of negligence in the com-

plaint, but “Had the cause of action been based on negligence,

violation of a statute might constitute negligence as a matter

of law. (Amberg vs. Kinley, 214 N. Y. 531, 535; Martin vs.

Herzog, 228 N. Y. 164; Schmidt vs. M. D. T. Co., supra.)”

In the later case of Homin vs. Cleveland & Whitehill Co.,

281 N. Y. 484, the Court again stated that a complaint simi-

PESOS ARI RNONER aS Ar NOY ER

21

lar to the one in the Teller case was defective (although dis-

missed on a different ground) pointing out that “Violation

of a statute, without other evidence, constitutes evidence of

negligence * * *.”

Unlike Subdivisions 2 and 3 of Sec. 299, Sec. 417 does not

provide for the installation of any specific devices and, in fact,

as shown in the preceding point, does not even mention “dust.”

A controlling test in determining whether a_ statute

“creates” a liability is whether the liability is one “which

would not exist but for the statute.” In Shepard vs. Taylor

Publishing Co., 234 N. Y. 465, 468, it is stated:

A statute ‘creates’ no liability unless it discloses an

intention express or implied that from disregard of a

statutory command a liability for resultant damages

shall arise ‘which would not exist but for the statute.’

An employer, long before the advent of Sec. 417 was under a

common law duty to provide a safe place to work which in-

cluded ventilation in a mine. The general rule is laid down

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

Servant, p. 58 as follows:

A master who is engaged in the business of mining is

bound to use reasonable care to make the place of work

reasonable safe. He must, therefore, use reasonable

care to ventilate the mine in order to prevent the accu-

mulation of poisons and explosive gases.

And in 39 Corpus Juris, Master & Servant, Sec. 488, p.

71:

It is the common law duty of the operator to use

ordinary care to furnish sufficient ventilation in the

mine for the safety of his employees.

22

POINT III

There is no substantial evidence that the plaintiff was

exposed to free silica dust.

The plaintiff claimed he was injured by the inhalation of

free silica dust in the mine of the defendant. To lay a basis

for such a claim he had to prove that such dust was present

where he would breathe it. The plaintiff testified that at certain

times there was much dust in the air at or near the places where

the plaintiff worked. (P. 135.) The plaintiff’s chemist—re-

tained to find such samples of rock in the mine as would be

highest in free silica content (p. 192)—testified that he ob-

tained samples and after pounding them with a hammer into

some smaller form found upon analysis that they contained

from .8% to 3.6% free silica, which was only approximate

(p. 203) ; that he could not recall whether he took the samples

from the main haulageway or from a room, or from a cross

cut or maybe even at the entranceway going into a room, or

it might even have been a motor road (p. 203) ; that samples

taken at one point in the mine would not necessarily be the

same as samples taken as little as 200 feet away, and that the

free silica contents of such samples might vary as much as 2

or 3%. (P. 203.) There was utterly no testimony that the

plaintiff worked at, or anywhere near the indefinite place from

which the samples were taken nor that he worked between that

place and the fan so that dust might be borne to him along

the air current. Nor was there any testimony as to the type

of dust contained in that described by the plaintiff.

It was conceded by the plaintiff’s physician that silicosis

can come only from the inhalation of free silica. (P. 278.) The

dust described by plaintiff may have been composed entirely

of gypsum dust which is considered harmless by the great

weight of medical authority. (P. 315.)

23

The time in issue here is the last year of the plaintiff’s em-

ployment— April 1929 to April 1930. (P. 314.) He claimed

an aggravation during that period of a pre-existing condition.

To recover for that aggravation he had to show that he was

in a place where he would breathe this dust during that period.

This he utterly failed to do.

‘To say that there was a small amount of free silica in the

rock at one point in the mine and that the plaintiff worked

somewhere in the same mine—which may have been a mile away

(p. 227)—is not proof that there was free silica dust in the

air where the plaintiff could breathe it. Nowhere is there any

testimony that the rocks in the mine in general contained any

amount-——however small—of free silica. We respectfully con-

tend that this gap should not be bridged—as was done by the

Court below—by concluding that since there was some “un-

impressive” medical testimony that the plaintiff had silicosis

and that at some place in the mine silica formed a “small part”

of the rock, the “conclusion was almost inevitable” that he

acquired his silicosis because of his work in the mine. (Opinion,

p. 869.) Certainly, the plaintiff could not establish that he

contracted his condition in the defendant’s mine simply by

showing that he had worked there and that he had the condi-

tion, unless he showed conclusively that he had never been

exposed at any other place to free silica dust. Not only did

he fail to do this, but it was affirmatively shown that after he

left the employment of this defendant, he worked for five

months in a nearby gypsum mine (p. 158) before his medical

witness saw him for the first time on January 19, 1942 (p.

250) and that she based her diagnosis of his condition and

the aggravation sustained in the last year of his employment,

not only upon his entire employment with the defendant, but

24

all of his history up to the time she first examined him. Plain-

tiff’s chemist testified that in the air of any busy city he would

expect to find free silica to the extent of 12%. (P. 201.)

It has been claimed that the case of Galeota vs. United States

Gypsum Co., 123 Fed. 2d. 947, 2d. Circuit, 1941, cert. den.

315 U. S. 813, is authority for a holding that the plaintiff

need not show that the plaintiff was definitely exposed to free

silica dust. All that the Galeota case held was that where it was

shown that the plaintiff drilled in concentrations of rock con-

taining free silica he need not further show by an analysis of

the air borne dust that there was actually free silica dust in the

air. However, although the samples were the same in the Gale-

ota case, the proof was quite different. The Court there pointed

out that “there was proof that he was drilling in formations

which contained substantial amounts of silica. * * *” But in

the case at bar there was no proof that he was drilling in such

formations or was anywhere near formations containing any

amount of free silica. But here, the Court in the case at bar,

has gone much further. It holds that under New York law all

the plaintiff need show is that he worked in a mine where at

one indefinite point there was a small amount of free silica;

that many years after leaving his employment he was found

to have a “condition” caused by silicosis and “repeated respira-

tory infections” without negativing exposure elsewhere and

where the “repeated respiratory infections” were not linked up

to his employment.

Conclusion

It is, therefore, submitted: (1) that the statute upon which

liability was predicated (Sec. 417 of New York Labor Law)

was improperly applied to this case; (2) that if it was prop-

Pe rrrencorrrrreerereeengrcnsy sme negemene

25

erly applied, the liability created was one in common law neg-

ligence and was barred by the three year statute of limitations

(Sec. 49, Subd. 6), and (3) that the plaintiff wholly failed to

connect the condition complained of to his employment with

the defendant, and that for those reasons no cause of action

was made out against this defendant.

The questions here presented are fundamental in this case

and are also present in numerous other cases of a like nature

pending not only the United States District Court for the

Western District of New York, but also in several cases now

pending in the New York Supreme Court. A careful consid-

eration of them by this Court is therefore warranted. The

proof required to establish a case is also of considerable im-

portance not only in cases pending against this defendant, but

also in numerous dust cases pending against other employers

in various courts in New York State. Moreover, it is likely

that the courts of other States will follow the decision in

this case. Thus petitioner respectfully contends that this Court

should review the decision of the United States Circuit Court

of Appeals in order that it may be reversed.

Dated April 19, 1943.

Respectfully submitted,

T. CARL NIXON,

Attorney for Petitioner,

31 Exchange Street,

Rochester, New York.

Casper V. Batrensrercer, Rochester, N. Y.

Wenpe tt J. Brown, Chicago, Il.

Counsel.

Ba ee oN Sa tS Sab noi AIRS IM TA tins tain me we

Opinion of United States Circuit Court of Appeals for the

Second Circuit

UNITED STATES CIRCUIT COURT OF APPEALS

For THE SECOND CIRCUIT

No. 165—October Term, 1942

(Argued February 5, 1943 Decided March 16, 1943.)

AnTONIO STORNELLI,

Appellee,

—IU.—

Unirep Sratres GypsuM CoMPANY,

Appellant.

Appeal from a judgment of the District Court for the

Western District of New York in an action to recover for

injuries suffered by the plaintiff through the defendant’s

violation of (417 of the New York Labor Law.

Before:

L. Hanp, Swan and CuaseE,

Circuit Judges.

Casper V. BatrensperceEr, for the appellant.

Wim L. Cray, for the appellee.

865

Pe ey |

PELLET IE OST

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Fis Se bekk Seah

L. Hanp, Circuit Judge:

The defendant appeals from a judgment in an action to

recover for injuries suffered by the plaintiff while in its

employ. Its liability, if any, must be confined to the viola-

tion of (417 of the New York Labor Law because that was

all that the judge left to the jury. The plaintiff had worked

in the defendant’s gypsum mine from some time in 1914

until April 1930, as a “loader” or “driller.” His own testi-

mony, confirmed by that of two fellow workmen, was that

during this time, the drifts and headings where he worked

were constantly filled with clouds of dust caused by the

pulverization of rock by drills and other machinery; and

that, being forced to breathe such atmospheres, he suffered a

disease of the lungs, known as pneumoconiosis, which was

the injury for which he sued. The defendant had set up a

large fan at the mouth of the mine, designed to blow the

dust out of the galleries and headings, but according to the

testimony of the plaintiffs witnesses, it did not do so for

various reasons not necessary to detail. Although the de-

fendant denied that dust in any serious amount was left in

the mine, upon that issue the verdict is conclusive in the

plaintiff’s favor. The action was brought in April 1935, five

years after the plaintiff left the defendant’s employment.

Sub. 6 of §49 of the New York Practice Act makes three

years the period of limitation for “an action to recover dam-

ages for * * * a personal in jury, resulting from negligence” ;

and sub. 2 of §48 makes six years the period for “an action

to recover upon a liability created by statute, except a penalty

or forfeiture.” The first question is which of these periods is

the right one; the second question, and the only other one

of any consequence, is whether the plaintiff proved that he

was injured by breathing dust during the only year for

which at most he could recover—from April 1929 to April

1930.

866

—

Section 417 of the New York Labor Law, which is ap-

plicable to mines, provides that “an air current sufficient to

remove smoke and noxious gases and to insure the safety of

every employee shall be conducted along every passageway

and working place.” Air, filled with the dust of powdered

rock, is within this language: to deny to it the name of

“noxious gas” would disregard the plain purpose of the Act;

and indeed, even if we were disposed to be literal, air is a

gas, and air filled with finely comminuted particles of rock

is a noxious gas, just as air filled with finely comminuted

particles of partly burned wood is smoke. That being as-

sumed, we may take Schmidt v. Merchants Despatch Trans.

Co., 270 N. Y. 287, as an authoritative exposition of the ap-

plicable period of limitation. That decision turned upon the

meaning of sub. 2 and sub. 3 of (299 of the New York Labor

Law: of which the first required “all machinery creating

dust or impurities” to “be equipped with proper hoods and

pipes connected to an exhaust fan of sufficient * * * power

to remove such dust”; and the second required that “suction

devices shall be provided which shall remove * * * impurities

* * * by means of proper hoods connected to conduits and

exhaust fans.” The court held that these enactments were

for the benefit of those employees who might be exposed to

the danger of breathing dust, and that they “created” a

“liability” within sub. 2 of $48 of the Civil Practice Act, as

distinguished from giving support to a finding that the

employer had failed to exercise the care that he should have:

i.c., been guilty of “negligence.”

> and a “fan”

We sce no difference between “hoods,” “pipes?

“of sufficient power” (or “hoods,” “conduits” and “exhaust

fans,” which “shall remove”), and ‘an air current sufficient

to remove smoke and noxious gases,” except that in the first

the means of producing the “air current” is prescribed, and

in the second it is left to the employer. In each case the

critical consideration is that the statute has prescribed pre-

867

cautions for the benefit of the employees, which the employer

fails to observe at his peril. However careful he may have

been, he is liable for any injury resulting from not conform-

ing his behavior to that enjoined; he is made an insurer

pro tanto, That creates a different liability from failing to

provide employees with a safe place to work: the two may

overlap; they may in a given instance coalesce; but they

are quite different commands. It is true that we think of

that common-law duty as though it were imposed before the

event, because it demands only “reasonable” care; but that

does not specify the conduct required and creates a duty

incapable of being known in advance, and it is ascertained

and imposed only retroactively. Our excuse is that it is

fair to exact conformity to such a standard because it should

be the inherited portion of the actor; although never formu-

lated before—being measured by a unique occasion—he will

divine it by intuition. Nor is it derived alone from fore-

casting the probable course of events, though that enters

into it. It involves a matching of human interests: it is

“legislation” in parvo. That is not true of duties such as

that before us; the conflict of interest has already been

resolved; the employer must provide the “air current,” cost

what it may; the current’s power is measured only by what

it will do; if it prove not enough to remove the “noxious

gases,” the employer must pay.

The distinction is well illustrated by Teller v. Prospect

Heights Hospital, 280 N. Y. 456, in which the court dis-

missed the complaint as insufficient in law on its face. It

had alleged that the employee had been injured through the

employer’s failure “to provide anchors” on the frames of

windows which he had to clean; but it did not allege that

“reasonable care” required these to be installed. Hence it

was bad as a declaration at common-law, just because it did

not invoke a standard measured by balancing the cost of

prevention against the risk to the sufferer. On the other

868

A Ei EAI LE ET NS

hand the pleader could point to no unconditional and

peremptory command that the employers should install

anchors. We need not decide whether a statute, which im-

posed a duty upon employers measured in the same terms

that the common-law measures their duty, would “create”

a “liability” under sub. 2 of ‘48 of the New York Civil

Practice Act, or whether the action would remain one “to

recover damages * * * for a personal injury resulting from

negligence” under sub. 6 of $49. Section 417 of the Labor

Law has nothing to do with “negligence” in the sense that

that word is used in sub. 6 of §49 of the Practice Act.

There remains only the question whether there was evi-

dence to support a verdict that the plaintiff had suffered any

injury from inhaling “dust or noxious gases” between April

1929 and April 1930. The defendant’s argument as to this

‘s that the ailment of which he complained could only be

produced by silica dust, and there was no evidence that his

lungs had been in the least silicified. There was however

ample evidence that he had constantly inhaled dust, that

this dust was made of powdered rock, and that, certainly

at some places in the mine, silica formed a part of the rock,

though only a small part. It was possible for the jury to

conclude that constant breathing of the powdered rock, no

matter how small a percentage of the dust was composed of

silica would result in’ partially silicifying the lungs; and

if there was evidence that it had done so, the conclusion was

almost inevitable that this had happened while the plaintiff

was in the defendant’s employ. That his lungs had been to

any extent silicified four doctors and one skiagrapher denied ;

and they were all well qualified. Against them the plaintiff

called only a single doctor, a woman who had _ however

specialized in diseases of the chest. Read in print, her

testimony is not indeed impressive, but after a long and

thorough cross examination, she persisted in standing her

ground that, taking the history of the plaintiff's illness, the

869

SpA ce SN REN LER O SRL CROLL LL SE

X-ray films, the conditions to which he. was exposed, and. his

state of health when she examined him, he was suffering

from the dust which he had inhaled, and that he had some

silicosis. And, she added, he had more than silicosis. Final-

ly, this condition was aggravated by the dust which he in-

haled during the last year of his employment.

But even were there no sufficient basis for the conclusion

that the plaintiff had silicosis at all, and were we to throw

out the testimony of his doctor altogether, a jury had support

in finding that he had a disease of the lungs. How far that

disease was caused by breathing dust for sixteen years and

how much of the damage was done in the last year, were

indeed debatable, but no one could say that reasonable

people must deny all connection between them. The jury

was clearly entitled to find that during the year in question

he had suffered some injury and the amount of the verdict

is not reviewable by us at all. Fairmount Glass Works v.

Cub Fork Coal Co., 287 U.S. 474, 483-485.

Judgment affirmed.

870

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