The opinion of the court was delivered by: KNIGHT
Two motions are before the Court for its decision. One is a motion by the defendant for a summary judgment. The other is by the plaintiff for leave to amend his complaint.
Plaintiff worked for the defendant at its Niagara Falls, New York, plant for a period commencing in June, 1933, and ending in April, 1941. This is an action to recover damages for personal injuries allegedly caused by the harmful dust and vapors in the atmosphere of the plant. It was begun by the service of a summons and complaint on July 28, 1941. The complaint pleads a single cause of action. Among other things, it is alleged that the injuries were not accidental in nature and were "not such injuries or diseases as were at the time of the Workmen's Compensation Act of the State of New York."
Defendant moves for summary judgment on the grounds: (1) that the Court lacks jurisdiction of the subject matter; (2) that the action is barred by the six-year Statute of Limitations applicable to an action at common law and by the ninetyday limitation created by Chapter 548 of the Laws of 1940, amending Section 66 of the Workmen's Compensation Law, Consol.Laws, N.Y. c. 67.
The motion to amend should first be considered. This was made subsequent to the submission of the motion for summary judgment. The material parts of the amendment are the allegation that the plaintiff was exposed to "no hazard of any nature after July, 1935", and the allegation that Section 66 of the Workmen's Compensation Law, as amended by Chapter 548 of the Laws of 1940 (N.Y.) is unconstitutional. While the Court might have ground for denying the motion to amend, the new allegations are so closely allied with the questions raised on the motion for summary judgment and all may well be considered together.
Prior to September 1, 1935, the Workmen's Compensation Law of the State of New York made no provision for compensation for those suffering from silicosis and other dust diseases. Barrencotto v. Cocker Saw Co., Inc., 266 N.Y. 139, 194 N.E. 61; Del Busto v. E. I. Dupont De Nemours & Co., 167 Misc. 920, 5 N.Y.S.2d 174, affirmed 259 App.Div. 1070, 21 N.Y.S. 2d 417. By the Laws of 1933, Chapter 254, section 3, subdiv. 2, was amended by adding subsection 28, as follows:
"Any and all occupational diseases. Any and all employments enumerated in subdivision 1 of section 3 of this chapter. Nothing in group twenty-eight of this subdivision shall be construed to apply to any case of occupational disease in which the last injurious exposure to the hazards of the disease occurred prior to September first, nineteen hundred thirty-five. * * * This act shall take effect September first, nineteen hundred thirty-five."
By Chapter 887 of the Laws of 1936, in effect June 6, 1936, this same section and subdivision were further amended by adding the following: "Nor to any disability or death due to any disease described, in article four-a of this chapter."
By the same Chapter, Article 4-A, providing for relief for silicosis and other dust diseases, was added to the law. By the Laws of 1940, Chapter 548, section 66, Workmen's Compensation Law, was amended by adding the following:
"Liability in damages for disability or death due to any disease described in article four-a of this chapter, in any case in which there was injurious exposure to the hazards of the disease prior to, and any exposure to such hazards subsequent to, September first, nineteen hundred thirty-five, shall be forever barred unless action therefor be begun within ninety days from the effective date of this act."
By the same Chapter of the Laws of 1940, section 67 was amended by the addition of the following: "Any exposure to the hazards of harmful dust in this state for a period of sixty days after September first, nineteen hundred thirty-five shall be presumed, in the absence of substantial evidence to the contrary, to be an injurious exposure."
Thus prior to September 1, 1935, sufferers from silicosis and other dust diseases had only their common law remedy. Subsequent to September 1, 1935, the Workmen's Compensation Law provided for compensation, except in cases where the last injurious exposure occurred prior to that date, thus in these latter cases preserving the common law remedy. Mapes v. Massey-Harris Co., Inc., 19 F.Supp. 667. This compensation relief was afforded under Section 3, subdivision 2, until the addition of Article 4-A. Even after the addition of Article 4-A, the common law remedy remained as to cases where the last injurious exposure occurred prior to September 1, 1935. However, by the amendment to Section 66, by Chapter 548 of the Laws of 1940, the time to commence these common law actions was limited to ninety days from April 16, 1940. Section 66 bears the heading: "Compensation payable for disability or death," and until the amendment by Chapter 548 was added, the benefits payable thereunder are in each instance therein referred to as compensation. The amendment, however, specifically states: "liability in damages" and "unless action therefor be begun," thus excluding the provisions of the Workmen's Compensation Law. The amendment limits the time to begin an action "in any case in which there was injurious exposure to the hazards of the disease prior to, and any exposure to such hazards subsequent to, September first, nineteen hundred thirty-five." The generation of harmful dust and vapors creates a hazard present in this industry not common to all other industries. The use of effective means of removal of these dusts and vapors may remove the risk of injury from them to a large extent, but, since the generation of the dusts and vapors continues, the hazards remain. The amendment to Section 66, therefore, is directed to cases where effective means of removal of dusts and vapors or prevention of injury therefrom are alleged to have been employed prior to or by September 1, 1935. Further support to this view is drawn from the fact that the Workmen's Compensation Law provides compensation for injury which occurred subsequent to September 1, 1935.
If, as is contended by plaintiff, the words "any exposure" in the 1940 amendment to Section 66 is meant injurious exposure, then the amendment by the same Chapter (548 of the Laws of 1940 to Section 67) was unnecessary. This latter amendment can have reference only to cases arising under Section 3 subdiv. 2 between September 1, 1935, and June 6, 1936, the effective date of Article 4-A, in which cases time to apply for compensation is also limited by Section 66 as originally enacted to 180 days from June 6, 1936. The amendment to Section 66 by Chapter 548 of the Laws of 1940 was not in existence at the time of the decision of this court in Mapes v. Massey-Harris Co., Inc., 19 F.Supp. 667, and Sandonato v. Carborundum Co., 19 F.Supp. 655, cited by the plaintiff, and those decisions are not at variance with the view held herein.
Since plaintiff alleges merely that subsequent to September 1, 1935, effective means of removal of harmful dust and vapors were employed by defendant and not that the generation of the dusts and vapors was eliminated, he, in effect, pleads at length that the hazard is still present, and his proposed amendment, "that ...