Ewers v. Buckeye Clay Pot. Co. , 29 Ohio App. 396 ( 1928 )

Plaintiff in error and defendant in error will be referred to as plaintiff and defendant, the relation held in the court below.

The defendant, the Buckeye Clay Pot Company, was engaged in the manufacture of tile, pots, and other burnt clay products. The plaintiff, Blanche Ewers, is the administratrix of the estate of Chauncy Ewers, who died on March 18, 1925, and who, for approximately 13 years prior thereto, had been an employee of defendant. Defendant was subject to and had complied with the Workmen's Compensation Law. During the decedent's employment he contracted nontubercular fibrosis of the lungs, caused by inhaling dust produced from the clay and other ingredients used in the manufacture of defendant's products. After his death, his widow, Blanche Ewers, filed a claim for compensation with the Industrial Commission of Ohio for injuries received by accident in the course of his employment, which caused his death, and, this being disallowed, she filed a claim with the commission for compensation on the ground that the death of Ewers was caused by an occupational disease, contracted by him while an employee of the defendant. This claim was also rejected by the Industrial Commission on the ground that the disease contracted by the decedent, and commonly known as "potter's consumption," was not among those mentioned in Section 1465-68a, General Code. An appeal from this finding was prosecuted to the court of common pleas, the trial of which resulted in a judgment for the plaintiff. This judgment was reversed by this Court of Appeals upon the ground that the death of Mr. Ewers resulted from an occupational disease not compensable under Section 1465-68a, General Code. Final judgment was entered in favor of the Industrial Commission, which the Supreme Court declined to review. Thereupon the plaintiff administratrix commenced an action against the defendant to recover damages for the benefit of the next of kin of decedent for his death, which it is alleged was caused by negligence of the defendant, in that the defendant, knowing of the danger to plaintiff of inhaling the dust created in the manufacture of its products, did not warn him thereof, and that defendant, by the use of certain enumerated appliances, might have avoided such danger; that the plaintiff did not know, and in the exercise of ordinary care would not have known, of the danger incident to his employment, and had not equal means with defendant of knowing thereof. The defendant filed an answer to this second amended petition of plaintiff, to which plaintiff filed no reply. Upon the trial and before any evidence was offered, the defendant moved the court for judgment on the pleadings, which motion was granted, and, plaintiff not desiring to plead further, her second amended petition was dismissed at her costs.

That the disease contracted by decedent was an occupational disease and not one included among those enumerated in Section 1465-68a, General Code, was finally adjudicated on the appeal from the finding of the Industrial Commission herein above referred to, and also clearly appears in plaintiff's second amended petition.

That no recovery could be had at common law for an injury to or death of an employee due to an occupational disease was decided by the Supreme Court of Ohio in Zajachuck v. Willard StorageBattery Co., 106 Ohio St. 538, 140 N.E. 405, and in IndustrialCommission v. Monroe, 111 Ohio St. 812, 146 N.E. 213.

Since Section 35, Article II, of the Constitution, and the legislation enacted conformably thereto, provide, with certain exceptions not here involved, that employers complying therewith shall not be held to respond in damages at common law, or be sued for injury or death of any employee, and since the death of Ewers resulted from an occupational disease, which although not one compensable under the Workmen's Compensation Law, is nevertheless not an injury for which an action at law can be maintained, it is obvious that the judgment of the court of common pleas must be and accordingly is affirmed.

Judgment affirmed.

RICHARDS and WILLIAMS, JJ., concur.