Some further facts, which I think control decision, should be stated. The Boote hatchery and defendant were engaged in the common enterprise of repairing the floor to which the construction and use of the catwalk was an incident. Defendant furnished the materials and part of the labor. Boote furnished part of the labor. Their employes worked side by side in tearing up the old floor, putting the reinforcing steel in place preparatory to pouring concrete, and in all the operations. Boote and defendant had two general purposes in view, viz.: (1) To save expense by using Boote's labor as far as possible, because it was cheaper than defendant's; and (2) to get the work done efficiently without interrupting the operation of Boote's business. To accomplish these purposes, some of Boote's employes worked part time picking chickens and part time on the repair work, and the catwalk was installed to enable Boote's employes to get across the new floor to be poured without coming in contact with it.
1. The instant case is ruled by Olson v. Thiede, 177 Minn. 410,225 N.W. 391, holding that the owner of property and a contractor *Page 512 engaged by him to make repairs thereon are engaged in the furtherance of a common enterprise or in the accomplishment of related purposes within the meaning of the statute where one contributes labor and the other materials for such repairs. The only difference between the Thiede and the instant case is that in the Thiede case the owner supplied material to the contractor to use in making repairs on his property, while in the instant case the owner supplied part of the labor. But in both cases the owner made a direct contribution to the accomplishment of the purpose he and the contractor were seeking to achieve, viz., the repair of the owner's buildings. In both, the repairs were a joint and concerted enterprise. See Anderson v. Interstate Power Co. 195 Minn. 528, 263 N.W. 612.
2. While the majority opinion entirely ignores the case of Olson v. Thiede, 177 Minn. 410, 225 N.W. 391, it cannot escape the impact of its rule upon the instant case. Although there was no request therefor and the point was not raised, and although plaintiff has submitted her case under the statute as construed in our prior decisions, the court on its own motion and without argument has in effect adopted an additional test of liability not found in the language of the statute. To the statutory test of the common activities of the third party and the injured employe's employer, under which the third party is not liable to the employe under the general law where the third party and the employer are engaged in the furtherance of a common enterprise or in the accomplishment of the same or related purposes, the court has added a further test, which is not found in the language of the statute, namely, the common activities of the employes of the third party and of theemployes of the injured employe's employer, under which the third party is liable, unless in addition to such common activity between him (the third party) and the injured employe's employer the employes of both the third party and of such employer are exposed by the work being done to common risks of injury. *Page 513
The court reaches its decision by the process of construction. This process is that the language of the statute is of doubtful meaning; that construction must be invoked to discover the true meaning; that, although the statute in terms provides that an employe shall not have a right of action against a third party subject to the act, who is engaged with the injured employe's employer in furtherance of a common enterprise or in the accomplishment of the same or related purposes, the real intention was not to deprive an injured employe of such right of action unless in addition the employes of the third party and of the injured employe's employer were exposed by the work being done to the same or similar risks, for the reason that the statute is one to restore employe's rights of action against third persons, and that, if not for other reasons, such a result is compelled in order to avoid unconstitutionality resulting from distinguishing between injured employes and others in their right to sue others than their employers. To make such a construction possible, all our cases inconsistent with the results announced are overruled. I cannot assent to the methods of construction employed or to the reasons given to justify them.
(a) The language of the statute is not of doubtful meaning. The expression "common enterprise" was used to define the work in which a servant was engaged under the fellow-servant rule. Mr. Justice O'Brien, who was counsel for the commission which drafted the workmen's compensation act and who was its draftsman, speaking for the court in Schoen v. C. St. P. M. O. Ry. Co. 112 Minn. 38, 42, 127. N.W. 433, 435, 45 L.R.A.(N.S.) 811, said of the fellow-servant rule that "it can only be invoked as to servants engaged in prosecution of acommon enterprise." (Italics supplied.) In Kelly v. Tyra,103 Minn. 176, 114 N.W. 750, 751, 115 N.W. 636,17 L.R.A.(N.S.) 334, we spoke of servants employed by different contractors engaged in erecting a building as being engaged "in a common employment" to make possible by their cooperation "common objects." It is said that fellow servants must be engaged "in the same general business." 4 Dunnell, Dig. *Page 514 § 5947, where our cases are collected. In Jemming v. G. N. Ry. Co. 96 Minn. 302, 314, 104 N.W. 1079, 1 L.R.A.(N.S.) 696, the words "common employment" to accomplish the same "ultimate object" were used. In the texts, equivalent expressions are used to define the relationship among employes. For example, in 35 Am. Jur., Master and Servant, p. 803, § 380, the text states that fellow servants must be "engaged in performing duties and services for the same general purpose." (Italics supplied.)
Heretofore, we have experienced no difficulty in determining what rule to apply. All the cases cited in the majority opinion and others2 have uniformly applied and adhered to the language of the statute. In every one of them the test of liability has been not the common activities of the employes of the third party and of the employes of the injured employe's employer, but the common activities of the third party and of the employer. In Olson v. Thiede, 177 Minn. 414, 225 N.W. 391,supra, we said that the facts "clearly" showed a common enterprise or a related purpose. Not until Gentle v. Northern States Power Co. 213 Minn. 231, 237, 6 N.W.2d 361, 363, was there any suggestion — and this by a single member of the court — that the common activities of the employes should be considered determinative. The suggestion was there inferentially rejected.
The statute but uses terms long deemed by this and other courts and by text writers clearly to define similar concepts under analogous circumstances. It is doubtful, to say the least, whether or not the court's efforts to redefine terms which are themselves definitions — for that is what it is doing — makes for increased clarity. A thing may be overdone, as, for example, "painting the lily." By stirring, clear water may be made muddy.
(b) True, while the statutory rule is plain enough, its application to a given set of facts may involve difficulty, as the large number of cases involving the construction and application of the statute plainly demonstrates. It must be remembered also that it is *Page 515 equally impossible to formulate a precise rule definingwhen employes are exposed to common hazards of their employment.
"All the decisions that have been rendered and all the textbooks that have been written have not succeeded in giving a definition of who are fellow servants which is plain and broad and comprehensive enough to be universally applicable or to be universally accepted. * * * The reason for all which arises from the fact that the relations between the two persons employed by the same master vary in almost every case. Fellow servant is therefore a relative term, which must be applied to the special conditions presented in each case." Glover v. Kansas City B. N. Co. 153 Mo. 327, 342, 55 S.W. 88, 92.
Likewise, what is in furtherance of a "common enterprise" or in the "accomplishment of the same or related purposes" depends on the facts in each case. Note, 15 Minn. L.Rev. pp. 257, 258.
However desirable it may be to have a definitepattern for deciding cases, in the very nature of things no such result is attainable. What is the pattern sought? If it is a rule of law, the statute in question answers the quest. If it is a formula to be applied mechanically in resolving fact situations, the answer must be that the facts must be found and the rule applied in cases arising under the statute the same as in other cases. Because determinative facts vary, the process of decision is not, and cannot be, a matter of mere mechanics. Judgment and skill are needed to adapt the applicable rule to a given case. Certainty is attainable in large degree by strict adherence to established rules of decision. We may avoid uncertainty by adhering to the statute and our prior construction of it.
"Where the call is for individuality in product of the legal mill, we resort to standards. And the sacrifice of certainty in so doing is more apparent than actual. For the certainty attained by mechanical application of fixed rules to human conduct has always been illusory." Pound, "An Introduction to the Philosophy of Law," pp. 142-143. *Page 516
(c) The plain language of the statute in effect prohibits the court — a caution born perhaps out of experience and to guard against what is being done in the instant case — from engrafting on the statutory test of liability, namely, the common activities of the third party and the injured employe's employer, any additional tests, which of course includes that of the common activity of the employes of the parties mentioned. The language of the statute, omitting parts not here material, is that an employe shall have a cause of action for personal injuries against the third party "only where theemployer liable for compensation and the other party * * * legally liable for damages * * * were engaged * * * (a) in furtherance of a common enterprise, or (b) the accomplishment of the same or related purposes * * * and not otherwise." (Italics supplied.) Whether or not we like it, the statutory rule is the one which it is our duty to administer. We have no right to change it in any way. "Judicial erosion of a statute * * * is as much forbidden as outright judicial disobedience. Evasion, under the guise of construction, is barred." Scott v. Prudential Ins. Co. 207 Minn. 131, 134, 290 N.W. 431, 433.
The intention and meaning of the legislature should be determined primarily from the language of the statute itself. Resort to conjecture is not permissible. Where, as here, the words of the act are plain and the legislative purpose manifest, it is not permissible to seek a hidden meaning at variance with the language used and to engraft such meaning on the statute. Such construction leads to amendment of the statute rather than ascertainment of the legislative intent. Mellen Lbr. Co. v. Industrial Comm. 154 Wis. 114,142 N.W. 187, L.R.A. 1916A, 374, Ann. Cas. 1915B, 997. The legitimate scope of statutory construction being limited to ascertainment of legislative intent, judicial addition to a statute under the guise of construction transcends judicial power and trenches on that of the legislature.
"It is not, however, in the power of courts to avoid legislation because it may seem drastic or inexpedient. It is not their function to supervise what the legislature sees fit to do, or to enforce *Page 517 only such session laws as appear to be wise. It is not within their power to alter them because of hardship involved in their application to particular circumstances. When the legislature has the constitutional power to enact a given law, and it properly frames an act clearly expressing a legal intent, it is the duty of the courts to construe that act so as to effectuate it. The argument based on the inconvenience of the result is then out of place." State v. Rat Portage Lbr. Co. 106 Minn. 1,5, 115 N.W. 162, 164, 117 N.W. 922.
A court is not justified in overhauling a statute into a form which it may think best for all concerned. State ex rel. Murane v. Jack, 52 Wyo. 173, 70 P.2d 888, 71 P.2d 917,112 A.L.R. 161; II Lewis' Sutherland, Stat. Const. (2 ed.) pp. 699-700.
(d) The purpose of the statute was not merely to restore to injured employes the right of action against third parties. If that was all that was intended, it is reasonable to assume that the restoration would have been made without the qualifications enumerated in the statute. The legislature was also dealing with the liabilities of third parties subject to the act. We cannot say that that question is of such unimportance as not to deserve legislative consideration. The legislature chose to deal with the matter not exclusively in terms of an injured employe's right of action or in terms of the third party's liability, but in both.
The history of the act shows that in its original form it divided third parties roughly into those subject and those not subject to the act. In cases of negligence, the former were liable only to the same extent and in the same way as the injured employe's employer; the latter were liable under the general law. Mathison v. Minneapolis St. Ry. Co. 126 Minn. 286,148 N.W. 71, L.R.A. 1916D, 412. Subsequent amendments made third parties subject to the act liable under the general law, except where the third party and the injured employe's employer were engaged in common activities mentioned therein. The legislative purpose was both to restore in part an injured employe's right of action against third parties and to enlarge in part the third party's liability to *Page 518 injured employes; but that purpose was strictly limited by the terms of the statute only to the cases mentioned therein andnot otherwise. The fact that the statute is unique to this state has been no obstacle to ascertaining its real purpose. Uotila v. Oliver I. Min. Co. 165 Minn. 475, 206 N.W. 937. In Rasmussen v. George Benz Sons, 168 Minn. 319, 325,210 N.W. 75, 77, 212 N.W. 20, decided in 1926, we said:
"All the parties were under the compensation law. Had Rasmussen received the same injury without the negligence of defendant he would have received an award from the Industrial Commission against his employer. Defendant meets the requirements of the act toward its own employes. This employe of the ice company had, prior to the 1923 law, the option to pursue the employer or the third party, but not both. The change in the law evidences the fact that the legislature concluded that if the third party bore a certain relation to the employer, and was itself under the compensation act, then the employe should be confined to his remedy under the compensation act. From a civic, economical and sociological point of view this position is sound. This reasoning rests upon the fact that the employe should get from the third party the same award that he would get from his own employer if it alone were responsible for the acts proximately causing his injury. Being engaged in a 'common enterprise' or in the 'accomplishment of the same' or 'related purposes' in operation on the premises puts all the employers so engaged in the relative, if not actual, position of an employer of any such employe. The third party being guilty of actual negligence, which is essential to its liability, should carry the burden in preference to the employer but the community of interest in accomplishment and purpose should under such circumstances, protect the third party from a greater award than would be imposed upon the employer; and the employe, under such conditions, should not be required to take less than the award which would come to him if the responsibility rested with his employer. In short the community of interest gives the third *Page 519 party, who is subject to the compensation act, under this statute the status of an employer toward the employe. The argument that the employe cannot be deprived of his common law action is sufficiently answered by the case of Mathison v. M. St. Ry. Co. 126 Minn. 286, 148 N.W. 71, L.R.A. 1916D, 412. We hold that plaintiff's exclusive remedy is under the compensation act."
We have never had any doubt concerning that purpose, although some other reasons for the act were suggested in Smith v. Kedney Warehouse Co. Inc. 197 Minn. 558, 267 N.W. 478,269 N.W. 633.
(e) Mason St. 1927, § 4291, was uniformly construed, as I have indicated, from the time of its enactment until its repeal in 1937, when, coincident with its repeal, the legislature reinacted it as L. 1937, c. 64, § 5. The reftacted section appears in Minn. St. 1941 as § 176.06, and in Mason St. 1940 Supp. as § 4272-5. Absent other manifestation of legislative intention, the reënactment of a statute after its construction by this court adopts the prior judicial construction as part of the new statute. Christgau v. Woodlawn Cemetery Assn. 208 Minn. 263, 273, 293 N.W. 619. Cf. Enger v. Holm, 213 Minn. 154, 164, 6 N.W.2d 101, 105. The legislature by statute has adopted this rule of construction for ascertaining its intent. L. 1941, c. 492, § 17(4), reads:
"When a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language."
We cannot repudiate the prior construction of the act in question from the date of its original enactment to the time of its repeal and reënactment without setting at naught the adoption by the legislature of such construction of the act as part of the new statute. That alone is an insuperable obstacle to overruling our prior decisions construing the act. If defendant here was not liable under the rule of Olson v. Thiede, 177 Minn. 410, 225 N.W. 391, as we there construed the act, the court has no power now to overrule that decision by holding to the contrary. The rule of that case is part of the present statute and governs the instant case. *Page 520
(f) Finally, the answer, if one is needed, to the argument that the construction adopted by the court is necessary to avoid unconstitutionality is found in our decisions in Mathison v. Minneapolis St. Ry. Co. 126 Minn. 286, 148 N.W. 71, L.R.A. 1916D, 412, and Rasmussen v. George Benz Sons, 168 Minn. 319,210 N.W. 75, 212 N.W. 20, where we held that denial to an injured employe of all right of action under the general law against a third party subject to the act, except that of recovering damages equivalent to workmen's compensation, violated no constitutional rights of an employe. The enlargement of that right of action by amendments of the act certainly cannot be less constitutional.
CONCLUSION I object to any change of the act in question by judicial construction, not because I think that the legislature has adopted the best or wisest rule, or even that the one it has adopted is better or wiser than that announced by the majority of the court, but because it is for the legislature in any event to adopt whatever rule it may choose. It is not for the courts to amend a statute by construction. Arneson v. W. H. Barber Co. 210 Minn. 42, 297 N.W. 335; Rice v. City of St. Paul, 208 Minn. 509, 295 N.W. 529.
At the time of plaintiff's injuries, in August 1940, the test for determining liability was, as the statute provides, the common activities of the third party and the injured employe's employer. It is not seriously disputed that under the rule (applied just previously in June 1940 in Smith v. Ostrov,208 Minn. 77, 292 N.W. 745, and subsequently in November 1942, in the Gentle case, 213 Minn. 231, 6 N.W. [2d] 361,supra) defendant and Boote, plaintiff's employer, were engaged in a common enterprise in repairing Boote's building, and that defendant is not liable. Defendant is held liable only by changing the rule, applicable when liability attached, by engrafting on the statute and its prior construction a further test of liability, viz., the common activities of the employes involved. Under the rule, thus changed, defendant is held liable upon the ground that plaintiff, one of Boote's employes, *Page 521 was not engaged in a common activity with defendant's employes in repairing the building. The change of rule in the instant case is unjust to defendant. It is discriminatory as denying to him the benefit of the applicable rule, accorded to others when his liability attached, of having his liability determined by his and the employer's common activities. So far as he is concerned, the change of rule governing his case has the same operation and effect as an ex post facto law.
Therefore I think that there should be an affirmance.
2 Over 25 cases decided by this court and the federal courts supporting this view are collected in the notes to 6 Dunnell, Dig. Supp. § 10407.