dissenting.
I cannot subscribe to the meaning given by the majority to ORS 656.804. Practical application of the majority decision will deprive an employee of a rejecting employer, like plaintiff, of any relief at all. He cannot obtain compensation from the Industrial Accident Fund and, because of the defense of assumption of risk, it is virtually impossible to recover in an ordinary action at law. The legislature could not have intended such a result and the statute should not be so read.
In order to better attempt to find a legislative intent for ORS 656.804 it is helpful to read the statute in the form in which it was originally passed, not as it is now codified. Oregon Laws 1943, ch 442, § 1, p 662 reads:
“An occupational disease, as hereinafter defined, shall be considered an injury for employees of employers who have come under the provisions of chapter 17, title 102, O. C. L. A., except as otherwise provided for herein. The common law meaning of the term occupational disease for employees of employers who have rejected the act or who are engaged in nonhazardous occupations is not changed hereby nor shall the provisions of the Employers’ Liability Act be applicable thereto to actions arising out of occupational disease.”
The important language is: “The common law meaning of the term occupational disease for employees of employers who have rejected the act * *
*13If we attempt to find meaning to these words from the law as it existed elsewhere than in Oregon, then the statute becomes meaningless. This is for the simple reason that there literally was no common law action for occupational diseases, as those words were then generally defined. Bohlen, Eight of Action for Occupational Disease, 1914, 63 Pa L E 183; Note, 22 Minn L E 78 (1938). What is important and what must be the subject of our concentration is the law of Oregon in this respect as it existed in 1943. The people who proposed this legislation, and those who opposed it and the legislators who weighed it were concerned with Oregon law and its then denial of any benefit to a workman afflicted with an occupational disease as it was then defined.
To glean the 1943 legislative intent we are not concerned with the statute as it was later codified nor are we concerned at all with later legislative definitions of occupational disease. It is worth particular emphasis to reiterate that to find the meaning of this statute we are only concerned with the rights of an employee of a rejecting employer as they existed in 1943. Whatever happened later by way of definition or otherwise, is not significant to the legislative preservation of that ldnd of an employee’s rights as they existed in 1943. Therefore, the statute in question must be examined from the point of view of the reasons why the enactment of Chapter 442 of Oregon Laws 1943 was necessary and what purpose it was intended to serve. These considerations must be examined against the historical backdrop of the Workmen’s Compensation Act, its design to benefit employees of both complying and rejecting employers and most importantly, perhaps, of the decisions of this court in respect to the Act as they applied to disease.
*14To start at the. beginning, the 1913 enactment provided two forms of. relief for the employee in a hazardous employment who was injured by accident in his employment. The favored relief was, of course, compensation benefits. But the employees of the rejecting employer were also benefited by Section 15 of Chapter 112 of Oregon Laws 1913 which removed all of the defenses to an action based on negligence. That policy of granting superior rights of action to the employee of the rejecting employer was, at the time of the 1943 Act, firmly entrenched in the then compensation law of this state. Camenzind v. Freeland Furniture Co., 1918, 89 Or 158, 174 P 139; Eckhardt v. Jones’ Market, 1922, 105 Or 204, 209 P 470; Hoffman v. Broadway Hazelwood, 1932, 139 Or 519, 10 P2d 349, 11 P2d 814, 83 ALR 1008. It could not be satisfactorily claimed that the 1943 legislators were unaware of this policy.
Another significant, relevant policy relative to the Workmen’s Compensation Act had been developed by this court prior to 1943. That policy was first expressed in Iwanicki v. State Industrial Acc. Com., 1922, 104 Or 650 at p 664, 205 P 990, at p 994, in the following statement:
“No one disputes that if an accident happens within the true meaning of the term, which brings on a subsequent disease, the ailment may be counted as part of the injury, but the initiative must be found in the suddenness and unexpectedness of what is termed ‘accident.’ It does not allude to the steady and imperceptible advance of disease in the human system. It would be competent, of course, for the legislature in the exercise of its police power and the usual care for those who toil, to provide compensation for occupational diseases, but it has not done so and we cannot read into the statute compensation for ailments which do not *15come within the scope of an accident caused by violent or external means.”
This was followed by many similar decisions, some holding that the complained of disease was caused by accident, others holding that the disease, as in Iwanieki, was occupational and not compensable or actionable as in Nixon v. Hawley P. & P. Co., 1935, 149 Or 526, 41 P2d 807. For a comprehensive review of all of the cases see Lafky, Occupational Disease, 1962, 2 Will L J 16, and Lent, Non-Occupational Disease, 1962, 2 Will L J 24. It seems clear that by 1943 the meaning of the words “common law meaning of occupational disease” in Oregon referred to diseases that were developed only by imperceptible degrees over a long period of time for which no rights of compensation existed in any form. It did not refer to disease caused by accident. As later appears it was only the truly occupational form of disease that the legislature excluded from the benefits of the Employer’s Liability Act.
It must be apparent that the purpose of the 1943 legislature was to bring into the Workmen’s Compensation Act the ever-increasing number of employees who were seriously harmed by disease which this court had termed occupational. That is, the diseases which insidiously developed by extended exposure. In providing relief, the legislature was confronted with the sharp distinction between complying employers and by rejecting employers. To grant relief only to employees of complying employers would have only partially solved the problem. On the other hand, to have opened the benefits of the Employer’s Liability Act to every kind of disease that might be activated at the place of employment would have created too great a *16burden on the rejecting employer. The legislative committees studying the Act could have believed that the additional duties imposed by the Employer’s Liability Act would have permitted actions far beyond any benefits they intended to grant to employees covered by compensation benefits.
The language used by the legislature to prevent this result was inept, almost meaningless and certainly confusing. However, when ORS 656.804 is .read, as above suggested, against the background of the fixed policies of the compensation act, a sensible intent and meaning can be found. That intent was, to give to non-covered employees a cause of action, either within or without the Employer’s Liability Act as the hazards of the work may dictate, for disease resulting from accident. Restated in reference to the statutory language, “the common law meaning of the term occupational disease is not changed # # is to say that the common law the legislature had in mind was the law developed by this court. A disease caused by accident was actionable, as in Nixon v. Hawley P. & P. Co., supra, or was compensable in respect to covered employment, Robertson v. State Industrial Acc. Com., 1925, 114 Or 394, 235 P 684, and the many other cases cited by Lafky and Lent, supra. A disease not caused by accident had been neither actionable or compensable. In respect to non-covered employees the legislature intended to continue that distinction.
It follows that when the legislature said that the Employer’s Liability Act shall not apply to actions arising out of occupational disease that was the meaning intended.
I also dissent from the majority determination withdrawing the question of common law negligence from the jury.