Fisher Body Ohio Co. v. Smolinsky , 2 Ohio Law. Abs. 578 ( 1923 )

Action commenced in Cuyahoga Common Pleas by Stanley Smolinsky against the Fisher Ohio Body Co. The parties are hereinafter referred to as plaintiff and defendant as they appeared in the trial court.

Plaintiff filed an original petition seeking recovery of damages alleged to have resulted from an occupational disease contracted while in the employ of the defendant. A demurrer to thi^ petition was sustained by the. Court of Common Pleas. Thereafter the plaintiff filed two amended /petitions and /in .ithe second amended petition alleged that he was employed by the defendant and engaged in applying lead to unfinished automobile bodies and smoothing the same by the use of sandpaper, which process set in motion lead dust, fumes and vapors which caused the plaintiff to contract a lead| pbisoning.

The defendant was charged with negligence in failing to provide reasonably effective devices to prevent the contraction by the plaintiff of the disease in violation of Section 871-15 and 871-16 and Section 66 of Ordinance 4618-A of Cleveland, and in failing and neglecting to warn the plaintiff of the dangerous character of his work.

The defendant answered setting up two defenses, the first consisting of a general denial of the negligence alleged, and the second alleging that at the time • of the plaintic’s injury defendant had complied with the Compensation Act, and that the plaintiff consequently could not maintain an action at law for occupational disease. No reply having been filed to the second defense, the defendant moved for a judgment upon the pleadings and the trial court granted such motion. The case was taken on error to the Court of Appeals, and it’ reversed the judgment of the Common Pleas upon the ground that the motion for judgment should not have been granted.

' The defendant claims, that its motion for judgment on the pleadings was well taken, and that the Court of Appeals erred in overruling the judgment of the trial court which -sustained such motion. In support of its motion, the judgment of the trial court, the defendant submits the following propositions:

1. That lead poisoning is an occupational disease.

2. That there is no right of action at common law in this state for injuries resulting from an occupational disease.

3. That if there were such a right of action, the Workmen’s Compensation Act destroys such right (Zajachuch v. Storage Bat. Co. 106 OS. 538), and even though the 1921 amendment gives certain parties suffering from occupational diseases, the right to sue, plaintiff, in failing to allege that he was disabled within 12 months after his employment by defendant, failed to allege facts which would entitle him to the benefits of such amendment.

Attorneys — Tolies, Hogsett. Ginn & Morley, for Fisher Body; Day & Day, for Smolinsky; all of Cleveland.

4. That defendant, having alleged compliance with the Compensation Act, plaintiff’s action will not lie because having failed to allege that some safety device could have been provided and the same would not have interfered with the work (see Kinzler v. Knox, 109 OS. 196), did not sufficiently allege breach of a lawful requirement.