I dissent.
The facts and issues are largely as stated in the prevailing opinion. However, I call attention to the fact that there is no contention that under the facts alleged plaintiff could not recover his damages for defendants' negligence in a common law action if he is not precluded therefrom under the exclusive remedy provision of the occupational disease act, nor is there any claim that he is entitled to recover compensation under that act. The parties agree that if plaintiff were entitled to recover under the occupational disease act that would be his exclusive remedy. Thus the only question presented as far as the corporate defendant is concerned is: Does the occupational disease act preclude plaintiff from recovering damages in a common law action under the facts alleged where no compensation is provided therein for the injuries which he has sustained?
The overwhelming weight of authority in occupational disease and workmen's compensation cases is that the remedy provided in such acts is the exclusive remedy only in cases where compensation is provided for thereunder. Such acts *Page 130 do not preclude an employee from recovering damages caused by the negligence of his employer in a common law action in cases where no compensation is provided for the injury sustained by the employee under the act. Mably Co. v. Lee, 1934, 129 Ohio St. 69,193 N.E. 745, 100 A.L.R. 511, and annotation at page 519;Jones v. Rinehart, 1933, 113 W. Va. 414, 168 S.E. 482;Triff v. National B. A.F. Co., 1939, 135 Ohio St. 191,20 N.E.2d 232, 121 A.L.R. 1131, annotation at page 1143. The first Ohio case above cited held contrary to the weight of authority but was reversed in the second one. In accord with the weight of authority as to the workmen's compensation act is Young v.Salt Lake City, 1939, 97 Utah 123, 90 P.2d 174. This case will be discussed later.
The fact that the weight of authority is that way is not conclusive on that question. The law of each state is based on a different statute, and some states have constitutional provisions thereon. While these statutes of the various states, in a general sense, were enacted to accomplish the same purpose and cover about the same subject matter there is little uniformity in their wording. So the decision of one state under its statutory and constitutional provisions may have little bearing on this question under the different provisions in another state. In some states the provisions of the workmen's compensation act are so different from those of the occupational disease act that a different result may be required. The legislative intent as expressed by the constitutional and statutory provisions and the surrounding facts and circumstances must always be the determining factor on this question. In determining such intent courts must take into consideration the purpose of the act and the public policy as expressed by the statutory and constitutional provisions and the surrounding facts and circumstances. See Annotation in 100 A.L.R. 519, and cases therein cited.
In construing the statute it must be kept in mind that under the common law system there is firmly established a strong public policy based on justice and equal rights to all, *Page 131 that there shall be no wrong without a remedy therefor. That such policy is not satisfied by granting compensation to a larger class of persons who could not recover for injuries sustained under the common law, but depriving others who could have recovered at common law of both compenssation and their right to recover at common law. Such policy is so firmly entrenched in our system that the courts will not construe a statute as being contrary thereto unless required to do so by the clear and unambiguous provisions thereof and that in determining the public policy of the state as established by a legislative enactment the courts will keep in mind this just and equitable policy and will not construe a statute as establishing a contrary one unless the legislative enactment so provides in unmistakable terms. So under the workmen's compensation and occupational disease statutes the courts have universally refused to construe a statute so as to deprive an employee, who is injured through the negligence of his employer, of his common law right to recover damages in cases where no compensation for his injuries are provided except where the statute is clear and unmistakable that such was the policy and intention of the legislature.
In Downing v. Oxweld Acetylene Co., 1933, 112 N.J.L. 25,169 A. 709, at page 712 affirmed 113 N.J.L. 399, 174 A. 900, the court said:
"* * * It is not to be presumed that the Legislature intended to deprive the injured workman of his common-law remedy, in the event that he suffered, as a result of the negligence of his employer, an occupational disease not specified in the Compensation Act. Such an intention must be expressed in clear and unequivocal language. The term `compensation' should not be construed to embrace damages recoverable for breach of a common-law duty, unless that legislative purpose is indubitably expressed."
In Jones v. Rinehart, 1933, 113 W. Va. 414, 168 S.E. 482, in 113 W. Va. at page 425, page 487 of 168 S.E. it was said:
"* * * It must not be deemed that such right of action is taken from employees unless the statutory language is clear and concise *Page 132 and not subject to any other reasonable construction. It is difficult to perceive a satisfactory and reasonable basis for exemption of employers from liability for disease caused by their negligence, such disease being non-compensable under the compensation statute."
In Gentry v. Swann Chemical Co., 234 Ala. 313,174 So. 530, at page 534 speaking of this subject the court said:
"However, in the light of the provisions of section 13 of the Constitution of 1901, `That all courts shall be open; that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law' it cannot be said that for an injury done a person, not within the provisions of the Workmen's Compensation Act, that it was the legislative intent by the enactment of said law, to deny such person a remedy, * * *."
Section 11, Article I, of the Constitution of Utah, is similar to that quoted by the Alabama court and therefore should be taken into consideration in determining the legislative intention.
In Rosenfield v. Matthews, 102 Minn. 113, 275 N.W. 698, on page 699, the court said:
"* * * The general rule is that: `Where an injury does not fall within the workmen's compensation act, the common-law remedy is not affected by it. * * *' 71 C.J. page 1484, § 1493. Our own cases are in accord and so hold. In Donnelly v. MinneapolisMfg. Co., 161 Minn. 240, 243, 245, 201 N.W. 305, 306, the court said: `The statute is a substitute for the common law on the subject which it covers and so far as it goes. But it does not affect rights and wrongs not within its purview or which by implication or express negation are excluded. * * * Courts are not permitted by construction to carry a statute, particularly one in derogation of the common law, beyond its clearly defined scope. It is for the Legislature to limit or extend the operation of its enactments, and even though there are no self-contained limitations, it would be judicial legislation to extend a statute beyond its subject-matter. That is a general rule which would be violated if we were to hold otherwise than we do. But there is a more particular rule equally applicable. It is `that an existing common-law remedy is not to be taken away by a statute, unless by direct enactment or necessary implication.' King v. ViscoloidCo., 219 Mass. 420, 106 N.E. 988, Ann. Cas. 1916D, 1170." *Page 133
In Triff v. National Bronze Aluminum Foundry Co., 135 Ohio St. 191,20 N.E.2d 232, 238, 121 A.L.R. 1131, the court said:
"The controlling principles of construction may be summarized thus: At the time workmen's compensation was first adopted in Ohio an action for occupational disease or for wrongful death therefrom could be maintained against the employer guilty of actionable negligence. There has never been any statutory or constitutional provision expressly denying the right to maintain an action growing out of a non-compensable occupational disease. The language to be construed is general in character; and the letter should not prevail over the spirit for the polestar of interpretation is the intent of the provisions.
"Since the underlying purpose of compensation is to make industry bear the burden of human wreckage by paying stated awards for injury and loss of life in the course of employment, the court should avoid a strained construction which would leave many employees, who are blameless victims of their employer's torts without either damage or compensation and absolutely remediless. It is an obvious injustice to allow some employees who contract occupational disease compensation and others nothing — not even damages tortiously inflicted.
"The true objective of compensation could hardly be attained by giving the language a meaning that would work injustice when another course lies open consistent with the spirit manifested in all the constitutional and statutory provisions when considered together. By giving the words of the organic and statutory law their ordinary meaning and keeping in mind the purpose sought, the conclusion is inevitable that the right of action growing out of a non-compensable occupational disease still subsists."
In view of Section 88-2-2 of our statutes we do not adhere to the common law rule suggested by the Minneapolis court as a ground for the rule which it laid down, that statutes in derogation of the common law are to be strictly construed. But the rule of construction announced in the above cases is equally as applicable to our statute under the rule of construction required by the above section as it would be under the common law rule. That section requires that our statutory provisions
"are to be liberally construed with a view to effect the objects of the statutes and to promote justice." *Page 134
Before we can liberally construe a statute to effect its objects we must first determine what its objects are, in any event, we are enjoined to construe the statute so as to promote justice. In the above quotation the Ohio court said:
"* * * the underlying purpose of compensation is to make industry bear the burden of human wreckage by paying stated awards for injury and loss of life in the course of employment, the court should avoid a strained construction which would leave many employees, who are blameless victims of their employer's torts, without either damage or compensation and absolutely remediless."
It would be an obvious injustice to those who are left remediless to so construe the statute. Section 88-2-2 requires us to construe the statute so as to promote justice unless the statute clearly expresses an intention to the contrary. On this question the comment of the Kentucky court in Jellico Coal Co. v. Adkins, 197 Ky. 684, 247 S.W. 972, 974, is of interest where it is said:
"The next question is: Is the act exclusive as to diseases not covered by it, or as to these has the injured party a remedy at common law? Much has been written in eulogy of these acts. We have been reminded of the difficulties that the employee encountered at common law in a suit to recover damages for negligence. It has been said that he first had to show negligence on the part of the employer. If he succeeded in that he was handicapped by the doctrine of assumed risk, fellow servants, and contributory negligence, and in the majority of cases was barred of recovery; that under the benevolent influence of these acts he surrendered his claim for pain and suffering and disfigurement, and in return the old common-law doctrine of assumed risk, fellow servants, negligence, and contributory negligence were all abolished, and the employee is now insured a safe, certain, and speedy compensation. It is further claimed that they relieved the employer from the expense and uncertainty of long and vexatious litigation, fix the compensation of the injured one as an item in the expense of the business to be borne in the same way as is the replacement of damaged machinery.
"In other words, by the act the subtle refinements and distinctions of the common law are swept aside, and a remedy is found for all the ills incidental to industrial casualties. We are not dissenting from this, nor are we assenting to it, but we venture to suggest, that if such was the humane purpose of the Legislature, it could hardly have intended as a part of the same act to deny all remedy and all recovery *Page 135 to the employees of this commonwealth who contracted diseases through the negligence of their employers, except as to such as have received traumatic injuries * * *"
This rule, that the court will not construe the statute so as to cut off all common law remedy in cases where no compensation is provided under the statute, except in cases where it is clear that such was the intention of the legislature, is the rule which runs through all the cases. In the cases where it is held that the common law remedy is not available to the employee even though he has suffered a non-compensable injury accept the above rule but conclude that it is clear that such was the legislative intention. It is true that different courts might reach a different result if they were construing the same statute, but they would all use about the same tests in reaching the result. The question of whether the intention of the legislature is clearly shown is largely a question of opinion. Different courts have different opinions.
I will examine our statutes to determine what the legislative intention was:
References to statutes unless otherwise stated are to U.C.A. 1943.
Section 42-1a-3 provides:
"The right to recover compensation pursuant to the provisions of this act for diseases or injuries to health sustained by an employee and arising out of or in the course of his employment, whether resulting in death or not, shall be the exclusive remedy against the employer."
Section 42-1a-12 provides:
"The following terms as used in this act shall be construed as follows:
"(a) `Disablement' means that the event of becoming physically incapacitated by reason of an occupational disease as defined in this act from performing any work for remuneration or profit. Silicosis, as defined in this act, when complicated by active pulmonary tuberculosis, shall be presumed to be total disablement. `Disability,' `disabled,' `total disability' or `totally disabled' shall be synonymous with `disablement.' *Page 136
"(b) `Compensation' shall mean the payments and benefits provided for in this act."
Section 42-1a-29 provides:
"For the purpose of this act `silicosis' is defined as a chronic disease of the lungs caused by the prolonged inhalation of silicon dioxide dust (SiO[2]) characterized by small discrete nodules of fibrous tissue similarly disseminated throughout both lungs, causing a characteristic X-ray pattern, and by variable clinical manifestations."
Section 42-1a-13 provides:
"(a) There is imposed upon every employer a liability for the payment of compensation to every employee who becomes totally disabled by reason of an occupational disease subject to the following conditions:
* * * * * "(2) No compensation shall be paid for a disease other than silicosis unless total disability results within one hundred twenty days from the last day upon which the employee actually worked for the employer against whom compensation is claimed.
"(3) No compensation shall be paid in case of silicosis unless during the ten years immediately preceding the disablement the injured employee shall have been exposed to harmful quantities of silicon dioxide (SiO[2]) dust for a total period of not less than five years in this state and unless total disability results within two years from the last day upon which the employee actually worked for the employer against whom compensation is claimed.
* * * * * "(b) There is imposed upon every employer a liability for the payment of compensation to the dependents of every employee in cases where death results from an occupational disease, subject to the following conditions:
* * * * * "(2) No compensation shall be paid for death from silicosis unless during the ten years immediately preceding the disablement the deceased employee shall have been exposed to harmful quantities of silicon dioxide (SiO[2]) dust for a total period of not less than five years in this state.
"(3) No compensation shall be paid for death from silicosis unless the death results within two years from the last day upon which the employee actually worked for the employer against whom compensation is claimed, except in those cases where death results during a period of continuous total disability from silicosis for which compensation has been paid or awarded, and in such cases compensation shall be *Page 137 paid if such death results within five years from the last day upon which the employee actually worked for the employer against whom compensation is claimed.
"(4) No compensation shall be paid for death from an occupational disease other than silicosis unless death results within one year from the last day upon which the employee actually worked for the employer against whom compensation is claimed, except in those cases where death results during a period of continuous total disability from an occupational disease other than silicosis for which compensation has been paid or awarded, and in such cases compensation shall be paid if such death results within three years from the last day upon which the employee actually worked for the employer against whom compensation is claimed."
The prevailing opinion does not even attempt to analyze or notice the wording of Section 42-1a-3, the exclusive remedy provision although counsel for plaintiff argued that question at length. In my opinion that section throws great light on the question of the legislative intention and I shall review the argument of the parties and analyze its meaning.
Counsel for plaintiff argue that in construing that section, the use of the term "pursuant to the provisions of this act" indicates that it is only in cases where the right to recover compensation is provided for pursuant to the provisions of this act that such right shall be the exclusive remedy against the employer, and that in all other cases the employee may pursue his common law remedy the same as though this section had not been enacted. They urge that there could be no other purpose in placing that provision in this section of the statute because otherwise it adds nothing whatever to the meaning of that section. If the purpose of that provision was merely to make certain that the "right to recover compensation" means the right to recover such compensation as is provided for pursuant to the provisions of this act, then it is perfectly clear that such was the meaning of that term without adding the term "pursuant to the provisions of this act"; this is particularly true since Section 42-1a-12, expressly provides that the term "compensation" as used in this act shall be construed *Page 138 to mean "the payments and benefits provided for in this act." They argue that since in construing a statute, where possible, meaning should be given to every word, phrase and part thereof, we should not construe this section so that this provision adds nothing to the meaning of the statute. This argument would have considerable weight were it not for the fact that if we give to that term the meaning plaintiff's counsel would give it, the next provision,
"for diseases [and] injuries to health sustained by an employee and arising out of or in the course of his employment,"
adds nothing to the meaning of this section because if the first provision makes the right to recover compensation the exclusive remedy only in cases where compensation is provided for pursuant to the provisions of this act, then such right is limited by Sections 42-1a-13 and 14 to the full extent of and far beyond requirements of the last quoted provision and such provision would add nothing to the meaning of this section.
On the other hand defendants' counsel rather ingeniously argue that in Section 42-1a-3,
"the words `the exclusive remedy against the employer,' `for diseases or injuries to health' * * * `shall be pursuant to the provisions of this act,' are so clear in their meaning that this court must refrain from indulging in any construction thereof."
While objecting to the court indulging in any construction of this statute they do find it necessary to point out their construction that the word "diseases" plainly means "all diseases," and apparently they found it necessary to rearrange and slightly misquote the provisions of the statute in order to make sure that the court would understand their construction thereof. If the statute were as clear in its meaning as they contend, this would not be necessary. If the statute were arranged and said what they purport to quote it as saying, there would be much force to their argument but the last purported quotation therefrom, "shall be pursuant to the provisions of this Act" is not in the statute. *Page 139 The words "shall be the exclusive remedy against the employer" are there and the words "the right to recover compensationpursuant to the provisions of this act" are in another part thereof but the italicized words which constitute the purported quotation, are not placed together and do not give the same meaning as they do in the purported quotation.
The legislature said:
"The right to recover compensation pursuant to the provisions of this act for diseases or injuries to health * * * shall be the exclusive remedy against the employer."
Counsel would have it say:
"The exclusive remedy against the employer for diseases or injuries to health * * * shall be pursuant to the provisions of this act."
These two versions do not say the same thing. In the first place the term "pursuant to the provisions of this act" merely modifies, explains or limits the conditions under which the right to recover compensation shall be the exclusive remedy. In the second case the term "the right to recover compensation" which is the subject of the sentence in the statute is entirely omitted, and it is provided that the exclusive remedy shall be pursuant to the provisions of this act. There would have been little difference in the meaning had they merely reversed the order of these two provisions and instead of saying as the statute does:
"The right to recover compensation * * * shall be the exclusive remedy * * *"
they had said:
"The exclusive remedy shall be the right to recover compensation."
But counsel in their construction do not merely do that, they entirely omit the term
"the right to recover compensation" *Page 140 which was the subject of the sentence as the legislature enacted it, reverse its order and substitute for the omitted term the words
"pursuant to the provisions of this act"
which in the statute were not the subject of the sentence but merely a modifier thereof, that is, they explained or limited the meaning of the subject of the sentence. In so doing they try to make the statute say in effect:
"The exclusive remedy shall be pursuant to the provisions of this act."
If we were again to reverse the provisions of this sentence and still omit the subject of the sentence we would get:
"Pursuant to the provisions of this act shall be the exclusive remedy."
Which would mean nothing. This illustrates what can be done by rearranging and omitting words as counsel have done with this sentence.
In this statute the words
"the right to recover compensation pursuant to the provisions of this act"
are placed at the beginning of the sentence and in that order. The term
"the right to recover compensation"
is the subject of the sentence and is followed immediately by
"pursuant to the provisions of this act"
which clearly indicates that the second provision was intended to modify, that is, explain or limit the meaning or the application of the first provision. As enacted the statute does not completely spell out or make clear the exact meaning or purpose of the term *Page 141
"pursuant to the provisions of this act"
it may signify either one of two different meanings or both of them. The purpose and meaning of the provision may have been to merely identify and limit
"the right to recover compensation"
to such compensation as may be recovered under that act. Or the purpose and meaning of that provision may have been to limit the application of
"the right to recover compensation"
to cases where compensation is provided for under this act.
If the object and meaning was to merely identfy
"the right to recover compensation"
as the compensation recoverable under the act, while the meaning would be slightly different from that placed thereon by defendants, it would sustain their position. The statute under that construction if its full meaning were clearly spelled out would read:
"The right to recover the compensation which is providedfor pursuant to the provisions of this act for all diseases or injuries to health sustained by an employee and arising out of or in the course of his employment, whether resulting in death or not, shall be the exclusive remedy against the employer."
As previously pointed out under such construction the words
"pursuant to the provisions of this act"
adds no meaning whatever to this statute. Because it is clear without those words that the word "compensation" could mean only the compensation which could be recovered under this act. Any possible doubt on this question is removed by Section 42-1a-12, which defines the word "compensation" as used in this act to mean
"the payments and benefits provided for in this act." *Page 142
This argument has some weight notwithstanding the fact that under the other construction the next provision of the statute adds nothing to its meaning.
As above noted defendants found it necessary to point out their construction that the word "diseases" clearly means "all diseases." However, it would have been much more clear that such was the legislative intention had the word "all" been placed in the statute so that it would read:
"The right to recover compensation for all diseases and injuries to health sustained by an employee and arising out of or in the course of his employment shall be the exclusive remedy against the employer."
Had the statute so read it would have rather definitely indicated the legislative intention to make the right to recover compensation the exclusive remedy against the employer in all such cases. The fact that this word was omitted very materially weakens defendants' contention that the statute is clear and not subject to construction, and harmonizes it with plaintiff's contention.
If the meaning and purpose of the words
"pursuant to the provisions of this act"
was to limit the application of the exclusive remedy provision to cases where compensation is provided for under the act this statute if its full meaning were clearly spelled out would read:
"The right to recover compensation where compensation isprovided for pursuant to the provisions of this act for diseases or injuries to health sustained by an employee and arising out of or in the course of his employment, whether resulting in death or not, shall be the exclusive remedy against the employer."
Under this construction the right to recover compensation is made the exclusive remedy only in cases where compensation is provided for under the act, in all other cases the employee may pursue his remedy at common law the same as though this law had not been enacted. The term "exclusive remedy" indicates that the party has been given a *Page 143 remedy which precludes him from all other remedies. It negatives the idea that there are cases where no compensation is provided for but the employee is still precluded from pursuing his common law remedy which he would have had were it not for this act. If we speak of a court as having "exclusive jurisdiction" in a case we mean not only that other courts do not have jurisdiction of the case but also that the court in question does have jurisdiction thereof. So when the legislature used the term "exclusive remedy" it indicated thereby an intention to preclude an employee from his common law remedy only in cases where the right to recover compensation is granted pursuant to the provisions of the act.
The exclusive remedy provision of the California statute which ours was probably patterned after, makes it clear that the words "exclusive remedy" were intended to have the meaning above suggested, as do the codes of other western states. California Labor Code, Section 3601; Idaho Code, Section 43-1003; Iowa Code 1939, section 1380.
The prevailing opinion, contrary to defendants' contention, admits that the statute is ambiguous and requires construction. It, however, holds as defendants' counsel contends, that the bench and bar of this state have for many years assumed that an employee has no common law right of action for accidental injuries suffered in the course of his employment against his employer, even though no compensation was provided for such accident under the act. How any one knows what has been assumed by the bench and bar does not appear either from the briefs or the prevailing opinion. No case has been decided in this court which has passed on that question except possibly Young v.Salt Lake City, supra, which decided it the other way. If it were true, is this court bound by such an assumption on the part of the bench and bar? In the case of Gray Realty Co. v.Robinson, 111 Utah 521, 184 P. 237, the majority of this court did not think so.
It is further asserted in the prevailing opinion that this court has repeatedly construed the Workmen's Compensation *Page 144 Act in accordance with the claimed assumption, and that since the provisions of the Occupational Disease Compensation Act uses wording similar to the previous act it must be construed to have the same meaning. Of course the answer to that is that this court has never, except in the Young, case, supra, had this question presented to it and has never passed on that question under either of those acts. It is true that this court has repeatedly held that where compensation is provided for an accidental injury under the act, the recovery of such compensation is the exclusive remedy of the employee against the employer. But there is no case decided by this court which has gone farther than that. That is the holding in all the cases cited and quoted from in the prevailing opinion which were decided by this court, and none of them are in point nor do they throw any light on the problem presented here. Only three Utah cases require our consideration.
In Murray v. Wasatch Grading Co., 73 Utah 430, 274 P. 940, the plaintiff was awarded damages in a common law action for injuries sustained as the result of defendant's negligence. He claimed that at the time of the accident he was not an employee of the defendant. On appeal we held from the evidence that he was an employee of the defendant at that time and that he suffered accidental injury in the course of such employment and was entitled to recover compensation therefor, and that the right to recover such compensation was his exclusive remedy, and he could not maintain his action for damages. This case comes squarely within the construction of this statute which I contend for.
AEtna Life Insurance Co. v. Industrial Commission, 64 Utah 415,231 P. 442, was a contest between AEtna Life Insurance Company and Travelers Insurance Company, as to which one was liable to pay the compensation which had been awarded to an employe of Westinghouse Electric Manufacturing Company. In May, 1923, the employee suffered pain from a strain in the course of his employment. At that time AEtna was furnishing the employer's compensation liability. In February of 1924, the employee again *Page 145 strained himself in the course of his employment from which a hernia developed and he was awarded compensation therefor. At that time Travelers was furnishing the employer's compensation liability. We held that the strain suffered in May did not cause the hernia or any disability and therefore was not compensable, but that the hernia and disability for which compensation was awarded was caused by the strain in February and therefore Travelers and not AEtna was liable to pay the award. While in the course of the opinion it was said that pain without disability was not compensable, the employee did not ask for damages in a common law action, and we did not discuss or pass on whether he was entitled to recover such damages.
The prevailing opinion cites Hyett v. NorthwesternHospital, 147 Minn. 413, 180 N.W. 552, claiming that it holds that an employee
"could not maintain an action for injuries for which no compensation was provided."
In that case the injured employee received compensation for the accident which caused the injury. Then he brought a common law action to recover additional damages because the accident caused him to become impotent which was an element of damages not covered by the compensation act, because it did not cause any disability. The court merely held that where compensation for the accident in question was provided, it was the exclusive remedy even though it did not provide compensation for all the elements of damages which he suffered. In Alaska Packers Assn. v. Ind.Acc. Com., 200 Cal. 579, 253 P. 926, the employee applied for and recovered compensation for his injuries, the case does not remotely suggest the problem here presented.
The only case where this court has passed on the question of whether an employee may recover in a common law action for negligence of his employer in a case where compensation is not recoverable under the Workmen's Compensation Act is Young v.Salt Lake City, supra. In that case Bailey was employed by the city to paint trucks with a *Page 146 spray gun, from which he contracted lead poisoning which caused his death. His mother, a Mrs. Young who was his heir and only dependent, after being denied compensation by the Industrial Commission, brought an action to recover damages for his death which she alleged was caused by the negligence of the city. The trial court sustained a demurrer to her complaint on the grounds that such action was barred by Section 42-1-57, which contains the exclusive remedy provisions of the Workmen's Compensation Act. We held that his death was caused by an occupational disease which is not an accidental injury, and since plaintiff was not entitled to recover compensation under that act, her common law action to recover damages caused by the employer's negligence was not barred. While the court quoted the exclusive remedy section of that act in full, it does not analyze it or discuss its meaning. It apparently assumed that its meaning is clear and in accord with plaintiff's contentions here. The wording of the exclusive remedy sections of the Workmen's Compensation Act and the Occupational Disease Act which was later enacted are quite similar. Since the legislature enacted the occupational disease act, after the decision in the Young case was rendered, the legislature must have thereby adopted the construction placed on the similar provision of the Workmen's Compensation Act by this court.
Section 42-1-57 which contains the exclusive remedy provision of the Workmen's Compensation Act provides:
"The right to recover compensation pursuant to the provisions of this title for injuries sustained by an employee, whether resulting in death or not, shall be the exclusive remedy against the employer, * * *." (Emphasis ours.)
Under defendants' contention this must be construed to mean:
"The exclusive remedy against the employer for all injuries sustained by an employee shall be pursuant to the provisions of this act." *Page 147
Or, as previously pointed out, what would be more tenable:
"The right to recover compensation for all injuries sustained by an employee shall be the exclusive remedy against the employer."
I have added the italicized word "all" because defendants insist that the similar phrase in the occupational disease act plainly means
"all disease or injuries to health sustained by an employee."
If this statute had been thus construed in the Young case, the court would have been compelled to reach the opposite conclusion. For if the right to recover compensation is the only remedy against the employer for all injuries sustained by anemployee, then the plaintiff in that case would have been precluded from maintaining her common law action against the city. Clearly the employee's death caused by lead poisoning was an injury sustained by him. Not an accidental injury it is true, but this section does not say "for accidental injuries," it merely says "for injuries sustained by an employee." Section 42-1-43, expressly limits the right to recover compensation to an employee who is injured
"by accident arising out of or in the course of his employment."
But Section 42-1-57 placed no such limitation on this phrase in making the right to recover compensation the exclusive remedy against the employer "for injuries sustained by an employee." And neither by statutory definition nor by judicial construction has such limitation ever been placed on that provision. So to be consistent with plaintiff's contentions here we would have to construe that statute as meaning that for all injuries sustained by an employee the right to receive compensation shall be the exclusive remedy against the employer. Such construction is contrary to our decision in the Young case and cannot be harmonized therewith.
The decision in the Young case can only be sustained by construing the exclusive remedy provision of Section 42-1-57 *Page 148 to mean that the right to recover compensation only where compensation is provided for under that act shall be the exclusive remedy against the employer. By our holding in that case that plaintiff was not barred from her common law remedy since no compensation was provided for occupational diseases, we of necessity must have so construed that statute. The fact that the opinion contains no discussion of the meaning of the statute indicates that the court considered it clear that such was its meaning. Since Section 42-1-57 was so construed prior to the enactment of Section 42-1a-3, the legislature in using practically the same language must be presumed to have adopted the construction which this court had previously placed thereon.
The prevailing opinion cites Del Busto v. E.L. DupontdeNemours Co., 167 Misc. 920, 5 N.Y.S.2d 174, affirmed259 A.D. 1070, 21 N.Y.S.2d 417, appeal denied 284 N.Y. 817,29 N.E.2d 975; and Moffett v. Harbison-Walker Refractories Co.,339 Pa. 112, 14 A.2d 111, claiming that they support its position. The statutes involved in those cases are so clear that there is hardly room for any argument on the question. The New York statute expressly provided that:
"The liability of the employer prescribed by this article shall be exclusive and in the place of any other liabilitywhatsoever, at common law or otherwise, to such employee * * * on account of any injury disability, or death, caused by theinhalation of harmful dust * * *." (Emphasis added.) Workmen's Compensation Law, Consol. Laws, c. 67, § 72.
In the face of that statute which is clear and concise and definite on the point here in question there does not seem to be any ground for any argument whatsoever on the legislative intent. The Pennsylvania statute although not quite so clear when taken with the surrounding circumstances is ample to justify the conclusion reached. These cases are distinguishable from our case on that ground.
In the following cases, all of them, in my opinion, construing statutes much stronger in favor of the employer, the courts have reached the same conclusion that I have *Page 149 reached in this case. Donnelly v. Minneapolis Mfg. Co.,161 Minn. 240, 201 N.W. 305; Downing v. Oxweld Acetylene Co.,112 N.J.L. 25, 169 A. 709, affirmed 113 N.J.L. 339, 174 A. 900;Szalkowski v. Osborne Co., 9 N.J. Misc. 538, 154 A. 611;Triff v. National Bronze Aluminum Foundry Co., 135 Ohio St. 191,20 N.E.2d 232, 121 A.L.R. 1131.
The case of Triff v. National Bronze Aluminum FoundryCo., supra, cannot be distinguished in principle from the case at bar. In many respects it indicates much more strongly an intention to abrogate the employee's right to maintain a common law action for damages than does our act. Yet it holds squarely that neither the Ohio statute nor its constitutional provisions deprives the employee of his common law right of action growing out of occupational disease in cases in which the disease or sickness which he contracts was not made compensable. The legislature in that state first adopted its Workmen's Compensation Laws in 1911, and a constitutional provision thereon in 1912. In 1921, occupational diseases were first made compensable and a constitutional amendment was adopted thereon in 1923, but silicosis was not included in the schedule of such diseases until 1937. The action in question arose under the 1921 statute and the 1923 constitutional provision after occupational diseases had been made compensable but before silicosis had been included within the occupational disease schedule and about the same limitations on the right to recover compensation for silicosis were contained in their statute as is contained in our statute. In a dissenting opinion the difficulties in administrating such a law on which the majority of this court so strongly relies in our case was pointed out but even in the face of such argument the majority of the court refused to hold that such difficulties coupled with the other facts and circumstances were sufficient to indicate an intention to deprive the employee of his common law right of action in cases where no compensation was provided for under the circumstances in which it was contracted. *Page 150
The wording of the Ohio statute and the constitutional provision indicate much more clearly an intention to abrogate the employee's common law right of action than does our statute. Those provisions are as follows [135 Ohio St. 191,20 N.E.2d 236]:
"Section 35, Article II of the Constitution of Ohio, as amended in 1923 and still in force, contains this provision: `For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease * * *'
* * * * * "In Ohio there is in addition to the constitutional provision a statute, Section 1465-70, General Code, which reads as follows: `Employers who comply with the provisions of the last preceding section (§ 1465-69 General Code) shall not be liable to respond in damages at common law or by statute, save as hereinafter provided, for injury or death of any employe, wherever occurring, during the period covered by such premium so paid into the state insurance fund, or during the interval of time in which such employer is permitted to pay such compensation direct to his injured or the dependents of his killed employes as herein provided."
In reaching this decision the Ohio court expressly overruled two previous decisions, Zajachuck v. Willard Storage BatteryCo., 106 Ohio St. 538, 140 N.E. 405, which was very similar to our case of Young v. Salt Lake City, supra, in which that court had held contrary to our holding in the Young case, that their Workmen's Compensation Act, before occupational diseases had been included therein, had abrogated the employee's common law right to recover for lead poisoning contracted in the course of his employment as the result of his employer's negligence; andMabley v. Lee, 129 Ohio St. 69, 193 N.E. 745, 100 A.L.R. 511, wherein under the very acts which the court was then construing *Page 151 that court had previously held the other way. In addition thereto when the Ohio constitutional provision was adopted, in presenting it to the voters, a statement of a joint committee of employers and employees was issued wherein it was stated that the amendment
"wipes out the `open liability' — giving recourse only to the compensation law for injuries or death arising out of and in the course of the employment."
And yet the court in the Triff case held that those provisions only wiped out open liability in cases where compensation had been provided for the very disease which the employee contracted.
If the majority of this court has by this decision adopted the construction which is often repeated in the prevailing opinion, that since the legislature has occupied the field of occupational diseases it thereby indicated an intention to abrogate the employees' common law right to recover from his employer damages for all occupational diseases, then the Triff case squarely holds contrary thereto, because the Ohio statute expressly provided compensation for occupational diseases. But if the holding of this court is, as the prevailing opinion sometimes indicates, that compensation shall be the exclusive remedy only in case the disease contracted is included within the schedule of diseases adopted by the legislature, then that question was not presented to the court in the Triff case, because silicosis was not included in the Ohio schedule. But that case does hold that the common law remedy is excluded only in case where the very disease contracted is contracted in such a manner as to become compensable under the statute. Under such a construction of the statute it would make no difference whether silicosis was included in the schedule or not, unless the employee contracted a disease which was compensable, in a manner which was compensable then his common law right of recovery against his employer for negligence was not abrogated. That such was the holding in that case is clearly shown by the fact that the dissenting opinion, as above *Page 152 mentioned, pointed out the administrative difficulties under the new statute, which only provided compensation for silicosis, as our statute does, in a very limited type of silicosis case which must be contracted within the time and under the conditions prescribed by the statute. Under the statute and the constitutional provision there involved and the surrounding facts and circumstances the court might well have decided the case the other way without giving any support to the position taken here in the prevailing opinion, but it could not hold as it did without supporting the position contended for in this opinion.
In this connection attention is again called to the fact that under the language of the exclusive remedy provision of our occupational disease statutes, the employee's common law remedy against his employer has been abrogated, either in all cases involving an occupational disease, or it has only been abrogated in cases where the employee contracts a disease under such circumstances that the statute provides compensation therefor. There is nothing in the wording of the exclusive remedy provision of our statute that would justify a construction that the recovery of compensation is the exclusive remedy in all cases where a disease is contracted which is included within the schedule of occupational diseases, but is not the exclusive remedy in the case of occupational diseases which are not so scheduled. To so construe our statute would be to entirely disregard the language of our statute, and would not be construing the same but would amount to judicial legislation. The statute either says that the right to recover compensation is the exclusive remedy of the employee against his employer in all cases of disease or injury to health, or it says the right to recover compensation is the exclusive remedy only in cases of disease or injury to health where compensation has been provided therefor.
The prevailing opinion strongly urges and the concurring opinion of Mr. Justice Wolfe is based almost entirely on the grounds that under my construction of this statute there will be great practical difficulties in administering the law. *Page 153 Such matters can only be properly considered to the extent that they tend to show the legislative intention. Otherwise we are not construing what the legislature has enacted but are in the field of judicial legislation. There is nothing before this court which shows that the legislature had such supposed difficulties in mind when it enacted this statute and therefore such difficulties, if they exist, have very little tendency to show the legislative intention. There are many cases, including most of the cases cited herein, where the construction of the statute involved the same practical difficulties which would be encountered here, yet in not one of them did the prevailing opinion ever consider such difficulties as showing a legislative intention.
Most of the supposed difficulties are eliminated by the fact that under this construction it is only in cases where no compensation is provided for the injury in question that an action at common law can be maintained. Thus where an employee will become totally disabled within two years after his last employment with the employer against whom he claims, he cannot recover for the period during which he is only partially disabled either by common law action or under the compensation act because compensation has been provided for the disease he suffered although not for all the elements of his damage. In other words, where he comes within the class of injuries for which compensation is provided, the recovery of such compensation becames his exclusive remedy even though he suffers damages for which no compensation is provided. See AEtna Life Ins. Co. v.Ind. Com., supra, and Hyatt v. Northwestern Hospital, supra.
I do not agree that there will be the great difficulty pictured in the prevailing opinion to determine liability between several employers. Before an employee can recover damages from any of his previous employers he must, the same as he has always had to, establish that such employer proximately caused his injuries. The fact that over a period of years an employee has worked for many employers may in some cases prevent him from establishing a claim against any of them but that does not indicate an intention on the *Page 154 part of the legislature to take away the right to recover even from such employees who can establish their claims against one or more of their previous employers. I feel sure that no case can be found where a court has taken such matters into consideration in determining the legislative intention.
Many undesirable results will flow from the construction which the prevailing opinion has placed on this statute. Under this statute the only persons who can recover compensation are such employees who contract silicosis and become totally disabled therefrom within two years from the last day on which they worked for the employers against whom they claim the right to recover. In view of the normally long period between the time when the disease becomes first discernible by a medical examination and the time when an employee becomes totally disabled, it is probable that many employees who contract silicosis as a result of their employment will not become totally disabled within two years of their last harmful employment. This will be especially true in the future because under this act periodic medical examinations are required, and when it is discovered that an employee has contracted that disease he will not be able to retain employment in that kind of work when it is probable that he will become totally disabled therefrom within two years. Although there may be many cases in the future where injury and death from silicosis will be caused by the negligence of the employer, under this decision none of them will ever be able to recover damages therefor, even though no compensation is provided for such cases. I cannot convince myself that the legislature ever intended to create such a situation. I therefore conclude that this case should be reversed. *Page 155