I concur in part in the result reached by Chief Justice BUSHNELL, but I am not able to concur in the particular hereinafter noted.
Plaintiff's disablement was due to silicosis. The department so found in these words: "pneumoconiosis, more specifically, silicosis." Plaintiff's right to compensation accrued December 12, 1943, and was governed by part 7 of the workmen's compensation law, as amended by Act No. 245, Pub. Acts 1943.* He could not have been awarded compensation under part 7 of the act as added to the compensation law in 1937 (Act No. 61, Pub. Acts 1937) for two reasons. (1) Disability caused by silicosis was not compensable prior to the 1943 amendment except the disease was contracted incident to mining, and plaintiff herein was not engaged in mining. Sutter v. Kalamazoo Stove FurnaceCo., 297 Mich. 226. And (2) the otherwise pertinent portions of part 7 enacted in 1937 were repealed approximately four months before plaintiff's disablement developed. "In determining benefits under the act that law controls which is in effect when the cause of action accrues." Gerlesits v. Lakey Foundry Machine Co., 319 Mich. 229, 238, citing numerous cases. But by Act No. 245, Pub. Acts 1943, which controls in the instant case, right of compensation for disability resulting from silicosis was materially broadened, and justifies granting compensation to plaintiff under the record before us. Act No. 10, part 7, § 4, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937 and amended by Act No. 245, Pub. Acts 1943, in part reads:
"In the event of temporary or permanent total disability or death from silicosis or other dust disease, *Page 549 notwithstanding any other provisions of this act, compensation shall be payable under this part to employees or to their dependents in the following manner and amounts."
But it seems clear that the department was in error in its method of determining the aggregate amount of compensation awarded to plaintiff. This error resulted from the department having assumed that prior to the 1943 amendment silicosis was included in the term "pneumoconiosis;" and therefore regardless of the limitation of granting compensation for disablement resulting from "silicosis caused by mining" as provided in the 1937 act, still disablement from silicosis might be made compensable by reasoning that it was included in "pneumoconiosis" in the 1937 act. By so reasoning the department was able to fix the aggregate of plaintiff's compensation at the maximum of $4,000, whereas otherwise it would have been limited to $750, as determined by the deputy commissioner. The cases cited in my Brother's opinion, wherein like reasoning has been used as to silicosis being included in pneumoconiosis, arose since the 1943 amendment of part 7; and since that amendment that type of reasoning is entirely permissible; but prior thereto such reasoning would have defeated the clear intent of the 1937 act as applied to silicosis. As hereinbefore noted our holdings in cases which arose prior to the effective date of the 1943 amendment were that: "Silicosis is only compensable * * * when it is caused by mining." Sutter v. Kalamazoo Stove Furnace Co., supra. It would seem quite impossible to reach any other conclusion if fair consideration is to be given Act No. 61, Pub. Acts 1937, which added part 7 to the workmen's compensation law. In listing silicosis under item 30 of the schedule, included in part 7, as an occupational disease, the legislature *Page 550 limited it to silicosis "caused by mining." Certainly it would have been meaningless to have embodied silicosis in that limited sense in item 30 if, as the department reasoned in the instant case, silicosis in general was to be considered as included in pneumoconiosis which was item 31 in the schedule. To so construe the statute is to say that the legislature did a senseless thing when it specifically listed silicosis in a limited sense as item 30 of the schedule, but by item 31 intended silicosis should also be included in its broader unlimited sense in pneumoconiosis. As above noted, since the repeal of the 1937 schedule by the 1943 act, silicosis as an occupational disease may be considered as a type of pneumoconiosis as was done in the cases cited in the Chief Justice's opinion; but that was not permissible prior to the 1943 amendment. It follows that the department was in error in fixing the aggregate of compensation to plaintiff on the assumption that silicosis prior to the 1943 amendment could be considered as an occupational disease included in pneumoconiosis and if total disablement resulted therefrom gave rise to right of compensation. In determining plaintiff's aggregate or possible total compensation the department should have been governed by the effective date of Act No. 245, Pub. Acts 1943 (July 30, 1943), instead of the effective date of Act No. 61, Pub. Acts 1937 (October 29, 1937). This conclusion is necessitated by the proviso in section 4, part 7, of the 1943 amendment to the statute which reads:
"Provided, That where silicosis or other dust diseases not theretofore compensable, are first made compensable by any amendment to the workmen's compensation law, then in such instances the graduated benefit provision of this section shall begin to apply to disability or death resulting from such *Page 551 diseases as of the effective date of such amendment." Act No. 10, pt. 7, § 4, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937, and amended by Act No. 245, Pub. Acts 1943.
As to plaintiff's right to receive compensation the holding of the department should be affirmed; but the award should be modified wherein it provides that the possible total amount of plaintiff's compensation is "not to exceed the aggregate sum of $4,000," and in lieu thereof provide that the possible aggregate sum of plaintiff's compensation shall not exceed $750, which is the correct amount when computed by the method provided in section 4, part 7 of the act, as embodied in Act No. 245, Pub. Acts 1943, effective July 30, 1943.
The case should be remanded to the department for entry of an award in accordance herewith. Neither party having fully prevailed on this appeal, no costs are awarded.
BOYLES, and DETHMERS, JJ., concurred with NORTH, J.
* Comp. Laws Supp. 1940, 1945, § 8485-1 et seq., Stat. Ann. 1947 Cum. Supp. § 17.220 et seq. — REPORTER. *Page 552