1. Except as to syllabus 2, I concur in the majority opinion as a restatement of the views expressed in the original opinion filed in this matter. The original opinion received favorable comment in 21 Minn. L.Rev. 616, and 25 Calif. L.Rev. 443. See Dean Wigmore's article in 17 Ill. L.Rev. 458, reprinted in 9 Va. L. Reg. (N.S.) 154.
2. I dissent from the views expressed in syllabus 2, because in my judgment it was a fact question whether the acts of the corporation caused or contributed to plaintiff's injuries. The facts were resolved against the defendants by the verdict of the jury in favor of plaintiff.
Plaintiff's argument that judgment should be rendered only against the partnership individuals and not against the corporation is not now in the case because that argument was withdrawn upon the reargument. This argument was properly resolved against both the plaintiff and the defendants in the original opinion upon the grounds that the defendant contended that such a judgment could not be rendered and that judgment had to be rendered against all or none of the defendants. The basis of the defendants' argument was that inasmuch as plaintiff's condition was caused by the acts of all the defendants, no one or more of the defendants could be held solely liable for the acts of all the others on appeal after verdict in favor of the plaintiff based on the jury's finding that the acts of *Page 223 all the defendants contributed to the injury. The theory of the plaintiff, sustained by abundant evidence, is that he sustained a single injury not assignable in parts to the respective wrongdoers, for which they were liable because their acts concurred in result even though they were successive in point of time. It appeared that plaintiff worked for the partnership and the individual defendants from 1917 to August, 1929, and for the corporation from August, 1929, to January, 1930. During that time plaintiff was continuously exposed to silica dust which he inhaled during all of that period. The corporation continued the operation of the partnership business and plaintiff's employment so that the employment and the conditions thereof were continued by the corporation without any change or break of any kind, except the substitution of masters, of which plaintiff knew nothing until long after the corporation had taken over the business. The acts of the partnership and the corporation consisted of a continued violation of the statute which exposed plaintiff to continued inhalation of silica dust resulting in the one injury, silicosis. The silica was implanted on plaintiff, particle by particle, over a period of many years. It is not known when it became active and when damage was first done. Plaintiff became sick in March, 1933, with the influenza, and shortly thereafter it was discovered that he had silicosis. There is medical testimony to show that the silica may have been spread over the lung tissue by influenza so as to cause the fibrosis which is the cumulative effect of successive inhalations of silica and which results in destruction and loss of function of the lung tissue.
It is not feasible to set out in detail the testimony to sustain the jury's finding that plaintiff was exposed to silica dust which he inhaled during the time he was employed by the corporation, to such an extent as to cause or aggravate his condition. The evidence shows that during the time plaintiff was employed by the corporation his exposure to silica dust was substantially identical with that of any previous period of employment by the partnership, and that it was so substantial in character as to justify the jury in finding that it was a contributing cause of plaintiff's injury. Defendants, *Page 224 in a memorandum filed with the court, well stated the evidence as follows:
"What has been claimed in respondents' [defendants'] brief and on the oral argument was that the exposure to dust of which plaintiff complains was substantially the same during the last six months of his employment by defendant corporation as it was during any corresponding period of time during the preceding years, and that in view of the fact that plaintiff's own testimony and that of his medical expert, Dr. Tuohy, demonstrates that as late as 1926 and 1927 he showed no symptoms of silicosis, it cannot be said as a matter of law that the exposure to which he was subjected during the last six months of his employment by defendant corporation did not contribute to some extent to cause or to aggravate any trouble with which he might have been suffering due to his previous exposure, conceding for the sake of the argument that the affliction of which lie complained was caused or contributed to by exposure to dust.
"That plaintiff's exposure during the last six months of his employment was substantially identical with that of any similar previous period is abundantly established by the following: [References to the record to sustain the statements in the above quotation.] * * *
"It is clear that what the plaintiff meant by the foregoing statement is that he was not 'in the crusher house much after' he moved from the Bennett laboratory to Nashwauk, which occurred the latter part of November, 1929. His testimony is clear that as long as he was at the Bennett laboratory he was subjected to the same general condition. In that connection he testified: [References to the record.]"
As to the effect of said evidence, defendants stated in their memorandum:
"It is generally conceded that after Mr. Golden's transfer in the latter part of November, 1929, from Bennett to Nashwauk he was not subjected to as much dust there as at the Bennett laboratory. Yet, the record contains considerable amount of testimony that the *Page 225 jury could, if they wished, find that he was subjected to a considerable amount of dust while employed at the Nashwauk laboratory. [References to the record.]"
The finding of the jury is supported by the evidence, and the verdict should stand as to all defendants.