will, and this allowance is amply justified by the large increase of the income of the estate. It is the order of this court that this increased allowance take effect from the time of filing the petition, August 16, 1919. There remains a further question to be disposed of in this proceeding, and that is the construction to be given to paragraph 3 of Item 6, of this will. This paragraph reads as follows: "I direct, however, that my trustees shall sell and dispose of my stock in the American Tool Works Company, of Cincinnati, Ohio, within one year after my death, unless my trustees shall unanimously agree that it would be for the best interest of my estate to hold said stock and continue my interest in said the American Tool Works Company for a period of three years after my death, then in that event I direct that said stock be sold and disposed of at the end of the last mentioned period; when said stock is so sold the proceeds derived therefrom shall be reinvested by my said trustees as part of the principal of my estate." It appears from the testimony that the American Tool Works Company of Cincinnati, Ohio, was a corporation organized under the laws of West Virginia; that after the death of the testator a corporation was formed under the laws of the state of Ohio, and that all the stock and assets of the West Virginia corporation were transferred to the Ohio corporation. This branch of the case was not thoroughly presented to the consideration of this court, nor insistently pressed for a determination. The court will therefore pass this question for future determination, if presented by counsel representing both the plaintiffs and the defendants. The court further orders that this case be retained for future consideration and determination, as circumstances and conditions may suggest and require. The court has read and re-read the many authorities submitted to it by counsel on both sides, and desires to express its appreciation for the painstaking effort that counsel has made, both for the plaintiffs and the defendants, to enable the court. to come to what it believes to be a righteous conclusion in this matter. 1920.] Zajachuch v. Storage Battery Co. RISK OF OCCUPATIONAL DISEASE ASSUMED BY EMPLOYEE. Common Pleas Court of Cuyahoga County. JOSEPH ZAJACHUCK V. THE WILLARD STORAGE BATTERY Decided, May 20, 1920. Occupational Disease-Employer not an Insurer Against-An Action Not Maintainable Against Him for Injuries Suffered Thereby-Risk Assumed by the Employee. The usual and ordinary peril of occupational disease is such a peril as an employee should foresee as necessarily incidental in the ordinary course of affairs to the business in which he is about to engage; and hence it is a risk which must ordinarily be regarded as assumed by him, and one for which an action does not lie against his employer when injurious consequences have resulted. Payer, Winch, Minshall & Karch, attorneys for plaintiff. CULL, J. This is an action in which the plaintiff seeks to recover damages in the sum of $25,000 for occupational disease alleged to have been brought on while in the employ of the defendant, which, as its name indicates, is a company engaged in the manufacture of storage batteries. In the process of manufacturing storage batteries, the defendant uses lead, and employees, such as plaintiff, are required to work with such lead and in and about places and rooms in the manufacturing establishment, where such lead is used. The plaintiff entered the employ of the defendant in the month of January, 1916, and worked continuously for said defendant, as a laborer, until the month of June, 1917. It is alleged by the plaintiff that he was ignorant of the nature of lead and its liklihood to cause lead poisoning or plumbism. It is claimed by the plaintiff that he was required to work in Zajachuch v. Storage Battery Co. [Vol. 22 (N.S.) rooms and places where the atmosphere was continually laden with poisonous lead dust and fumes; that he was required to handle barrels, packages and appliances, which gave off dust and fumes which brought on the disease. Plaintiff alleges negligence on the part of the defendant in respect of a failure on defendant's part properly to apprise plaintiff of the dangers of lead poisoning, incident to the work of making storage batteries, and also claims that the defendant violated Sections 6330-1 of the General Code, and also certain ordinances of the city of Cleveland, relating to ventilation and noxious fumes and gases in workshops. The defendant files a motion to strike the petition from the files. Two prior motions, directed to certain portions of the petition, have been ruled upon and, in effect, the present motion is a demurrer. By consent of parties it is treated as a demurrer. The question presented on the motion to strike, involving, as it does, the right of plaintiff to proceed as if a cause of action were stated, is of interest and importance. I am surprised to find that the identical question does not seem heretofore to have been definitely ruled upon by this court, though Judge Foran practically decided it in the case of Vayto v. Terminal Ry. Co., reported in 18 N. P. (N.S.), pp. 348, et seq., in which case an attempt was made to state a cause of action for occupational disease, under the compensation act. In a former ruling in the case at bar, Judge Foran referred to the Vayto case, in a brief memorandum opinion, and sustained a motion such as I am now ruling upon, using the Vayto case as a precedent. In his memorandum opinion, the court said: "The question involved in the motion to strike was practically decided by this branch of the court in Vayto v. Terminal Ry. Co., 18 N.P.(N.S.), pp. 348 et seq. Occupational disease, as a basis of action, is purely statutory and, unless provided for by statute in express terms, no action lies."' Upon the original hearing of the motion now before the court, this ruling was followed, practically without study, but upon the re-hearing, because of later rulings of other courts-in one case, a contrary ruling the court has gone into the matter at con 1920.] Zajachuch v. Storage Battery Co. siderable length. Indeed, so far as opportunity afforded, the question has been gone into almost as if Judge Foran had not ruled as he did, though, as my opinion will prove, that ruling is amply vindicated by authority and what I believe to be good reasoning. It is claimed by plaintiff that the recently decided case of Leis v. Cleveland Ry. Co., to be reported in one of the forthcoming volumes of Ohio State reports, in which case this court and the court of appeals of this district are overruled in the matter of the application of certain ordinances, has an important bearing upon the question of giving effect, in actions of this kind, to Sec. 6330-1, General Code, and certain ordinances set forth in the petition. It is claimed that by applying the rule laid down in the Leis case, it can and should be held, under the statutes and ordinances referred to, that plaintiff is properly in court. But an even broader claim is made, and must be examined into, towit: that under the common law of Ohio, plaintiff is entitled to bring his action for occupational disease suffered by him. In support of this, plaintiff rests largely upon the authority of Zailkowski v. American Steel & Wire Co., 256 Fed. Rep., 9. These cases, and others cited by plaintiff, will be taken up and discussed as the necessities require. To begin with, it is perhaps proper to discuss briefly the subject of occupational disease in more than its strictly legal aspects, in order that we may know just how it is fast becoming a recognized subject of legislation, and more frequently than formerly finding its way into court. Down to the present, the subject seems to have occupied more attention from a social, economic and medical standpoint, than from that of the law, but with the development of modern humanitarian views, we are finding constitutional assemblies, legislatures and sometimes courts dealing with the subject. Judge Donahue, lately of the Ohio Supreme Court, in the case of Industrial Commission v. Roth et al, 98 O. S., 34, defined an occupational disease as "a disease not only incident to a particular occupation, but developed in the usual and ordinary course or manner, by reason of and because of the occupation in which Zajachuch v. Storage Battery Co. [Vol. 22 (N.8.) the person suffering therefrom is or was engaged." In leading up to a formulation of this definition, which is intended as a legal rather than a medical definition, the learned judge shows by his reasoning that he was attempting a definition for that case, rather than generally, though the definition seems well designed for general legal use. The victim in that case was a common laborer, but had been ordered to do some painting to which he was not accustomed. The paint, being cold, would not flow, and he was ordered to heat it. This he did, in a small, unventilated room. As a result of inhaling fumes from the hot paint, Roth after two days became sick, dying sixteen days later. It was held to be not a case of occupational disease, but of accident, and his dependents were allowed compensation under the workmen's compensation act. In other words, the illness of Roth did not respond to the legal test laid down by Judge Donahue, in that it did not develop by reason of and in the ordinary course of the regular occupation of Roth, which was that of common laborer. This case is in line with earlier cases, holding that claims for occupational disease, as such, do not come within the purview of the workmen's compensation act of Ohio, as it stands at present. Dr. Thompson, in his work, "The Occupational Diseases, their Causation, Symptoms, Treatment and Prevention," published in 1914, gives the following definition: "The occupational diseases may be defined as maladies due to specific poisons, mechanical irritants, physical and mental strain, or faulty environment, resulting from specific conditions of labor." They are not new diseases from the ultimate pathological standpoint, as Dr. Thompson says. For instance, the arteriosclerosis, or chronic nephritis, produced by lead poisoning, is not different from that due to alcoholism or other toxic cases. Nevertheless, as he states, in the grouping of their symptoms, in their mode of onset and progress as well as in their etiology, the diseases caused by industrial hazards may fairly be regarded as new to medical science, and hence there is justification for their independent classification and description. |