Michalek v. United States Gypsum Co.

AUGUSTUS N. HAND, Circuit Judge

(dissenting in part).

Whether the causes of action arose when the plaintiff inhaled silica dust particles, during the term of his employment by the defendant, or only when the disease of silicosis developed as the result of inhaling, is not an easy question to answer. But I believe that we are justified in following the decision of the Appellate Division of the New York Supreme Court in Conklin v. Draper, 229 App. Div. 227, 241 N. Y. S. 529, affirmed in 254 N. Y. 620; 173 N. E. 892, and regarding the last date of inhaling the silica dust as the time from which the statute runs for those causes of action that are founded on negligence. Accordingly, I agree that the judgment should stand so far as it dismissed the complaint as to the causes of action other than the fifth.

In the fifth cause of action it is alleged that defendant’s workroom in which the plaintiff inhaled the silica dust was a “factory,” as defined by the Labor Law of the state of New York (section 2), and that a New York statute required the defendant to equip machinery, creating dust and impurities, with proper hoods and pipes connected with an exhaust fan of sufficient capacity to remove such dust and impurities and to provide its factory with proper and sufficient means of ventilation. It was further alleged that the plaintiff during the term of his employment received injuries and suffered damage by reason of the violation of the statute by the defendant.

Under the foregoing allegations, the fifth cause of action is one “to recover upon a liability created by statute,” for which the New York Civil Practice Act sets a period of limitation of six years. N. Y. Civil Practice Act, § 48 (2). Six years had not elapsed between the time when the plaintiff last worked for the defendant and the time of the commencement of the present action —in other words, the statute of limitations applicable to the fifth cause of action had not then run, and that cause of action could properly only be disposed of after answer and a trial of the issues on the merits.

In the opinion of the majority of the court, the failure to comply with the statutory provisions embodied in section 299 of the New York Labor Law did not create a liability per se, and was only evidence of negligence; that is to say, even the fifth cause of action was to recover damages for negligence and not for violation of a statute.

But in Amberg v. Kinley, 214 N. Y. 531, 108 N. E. 830, L. R. A. 1915E, 519, the New York Court of Appeals held that neglect to-provide fire escapes on a factory, as required by the Labor Law, whereby plaintiff’s testator lost his life, gave rise to a cause of action under that law irrespective of negligence. Cuddeback, J., said (at page 535 of 214 N. Y., 108 N. E. 830, 831): “In a suit upon a cause of action thus given by statute, it is not necessary for the plaintiff to prove negligence on the part of the defendant, because the failure to observe the statute creates a liability per se, or, as is otherwise and with less accuracy sometimes, said, is conclusive evidence of negligence.”'

Similarly the New York Court of Appeals has held that the provision of the Labor Law prohibiting children under 16 from operating elevators creates a statutory liability in favor of a child injured through a disregard of the prohibition in spite of any contributory negligence. Karpeles v. Heine, 227 N. Y. 74, 124 N. E. 101. See, *119also, Willy v. Mulledy, 78 N. Y. 310, 34 Am. Rep. 536; Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458, 466, 154 N. E. 309; Pine Grove Poultry Farm v. Newton By-Products Mfg. Co., 248 N. Y. 293, 297, 162 N. E. 84; Saxton v. Delaware & Hudson Co., 256 N. Y. 363, 176 N. E. 425; Chicago, B. & Q. Ry. Co. v. United States, 220 U. S. 559, 574, 31 S. Ct. 612, 55 L. Ed. 582.

If a statute is for thé benefit of a particular class, and one of that class is injured because of its violation, under the New York decisions, the statute furnishes the foundation for recovery irrespective of negligence. If, on the other hand, a statute is enacted for the benefit of the public generally, a neglect to observe its terms, which results in personal injury, may be considered by the jury as evidence of negligence. Di Caprio v. N. Y. C. R. R. Co., 231 N. Y. 94, 97, 131 N. E. 746, 16 A. L. R. 940. The fifth cause of action seems to fall within the first of these categories, and the liability asserted in it is based upon the- statute and not on negligence.

Legally I can see no difference between a cause of action founded on a neglect to observe the provisions of the New York Labor Law which require fire escapes in factories or on a disregard of the provisions of the same law prohibiting children under 16 from operating elevators and one based on a neglect to install equipment to prevent the dispersion of dust in factories. Each is to recover damages caused by a failure to obey requirements of the New York Labor Law designed to protect workmen from injuries. Accordingly, the six-year period of limitation should be applied rather than the three-year period provided in case of personal .injuries resulting from negligence. The second period has expired and the first has not.

Detmar v. Nussbaum, 149 Misc. 469, 267 N. Y. S. 732, affirmed 241 App. Div. 720, 269 N. Y. S. 1006, and Nichols v. Chesapeake & Ohio Railway Co., 195 F. 913 (C. C. A. 6), are persuasive authorities in support of the view that such a cause of action as is created by section 299 (2) and (3) of the Labor Law is governed by section 48 (2) of the New York Civil Practice Act barring actions to recover upon a liability created by statute rather than by section 49 (6) barring actions to recover damages for personal injuries resulting from negligence. ■. I think that the judgment in so far as it dismissed the fifth cause of action should be reversed, but otherwise affirmed.