Opinion
No. 6196.
November 30, 1937.
Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; James H. Wilkerson, Judge.
Action by Beulah Andris and another against the Du Pont Cellophane Company, Inc. From an order for defendant, plaintiffs appeal. Defendant's motion to dismiss the appeal was denied, without prejudice to its renewal at the time of the hearing on the merits.
Appeal dismissed.
Francis Heisler, of Chicago, Ill., for appellants.
Thomas C. Angerstein, George W. Angerstein, Russell F. Locke, Mitchell D. Follansbee, Clyde E. Shorey, and Louis W. Becker, Jr., all of Chicago, Ill., and Abel Klaw, of Wilmington, Del., for appellee.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
This appeal is from a decree dismissing plaintiffs' complaint predicated upon a common law action for injury through contraction of an occupational disease.
The plaintiff, Beulah Andris, worked in defendant's manufactory wherein cellophane was handled, and it is alleged that the inhalation of cellophane dust caused serious lung disorders culminating in tuberculosis. Suit was originally begun in the Illinois state court and was removed to the Federal court where a motion to dismiss was granted. Thereafter, plaintiffs were given leave to file an amended complaint, which carried two counts, one alleging the father's cause of action, and the other, the daughter's — the employee's. Defendant filed a motion to dismiss on the ground that there was no cause of action in Illinois for occupational diseases. The court overruled the motion to dismiss, and defendant moved to vacate the order and renewed its motion to dismiss the complaint on the ground that in Illinois no common law right of action existed against an employer in whose service an occupational disease is contracted. It cited and relied on Illinois Supreme Court decisions. The court, on September 23, 1936, in a short memorandum, concluded that it was bound to follow the Illinois decisions and granted the motion to dismiss. This appeal resulted.
On October 22, plaintiffs moved the District Court to vacate the order of September 23 which dismissed their action. On November 10, the District Court denied this motion to vacate the order of dismissal, and the appeal is from this order.
Defendant has moved this court to dismiss the appeal because the order appealed from is not appealable. This motion was denied without prejudice to its renewal at the time of the hearing on the merits.
The notice of appeal mentions only the order of November 10, which simply denied plaintiffs' motion to vacate the order of September 23. The assignments of error, however, allege as error the entry of the order of September 23 dismissing the bill of complaint.
The order from which this appeal is taken is not reviewable on appeal. It is not appealable. Glinski v. United States (C.C.A.) 93 F.2d 418, decided November 9, 1937; Smith v. U.S. ex rel. Gorlo (C.C.A.) 52 F.2d 848.
Aside from this procedural difficulty, it is impossible to sustain plaintiffs' contentions relative to their right to maintain a common law cause of action in Illinois for the contraction of an occupational disease in Illinois. The reasons which impelled the decisions of this court in McGuire v. Sherwin-Williams Co., 87 F.2d 112; Gestauts v. American Manganese Steel Co., 87 F.2d 1005, are equally applicable in the instant case. The Supreme Court of the State of Illinois has spoken on this question, and we are bound by its interpretation of the law. McCreery v. Libby-Owens-Ford Glass Co., 363 Ill. 321, 2 N.E.2d 290, 105 A.L.R. 75; Vogel v. Johns-Manville Prod. Corp., 363 Ill. 473, 2 N.E.2d 716; Boshuizen v. Thompson Taylor Co., 360 Ill. 160, 195 N.E. 625.
The appeal is dismissed.