(dissenting). The simplest approach to the problem posed by this appeal is to say that in a prior case this Court, including the author of this opinion, reached the right result for the wrong reasons. See Benton Harbor Malleable Industries v. General Motors Corporation, 358 Mich 684. In this appeal we are being asked to extend those same wrong reasons to reach a wrong result. The error in the first instance is simple to correct now since it did no damage to the parties in the first case. If perpetuated in this case, it will do enormous damage. The question which we must answer again, and this time hopefully with better briefing and more knowledge, is whether or not the apportionment provisions of the Michigan workmen’s compensation act offend the due process provisions of the United States and Michigan State Constitutions. The section attacked is CL 1948, § 417.9 (Stat Ann 1960 Bev § 17.228), which follows:
“The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If, however, such disease was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation as provided by this section may appeal to said board for an apportionment of such compensation among the several employers who since *220the contraction of snch disease shall have employed such employee in the employment to the nature of which the disease was due. Such apportionment shall be proportioned to the time such employee was employed in the service of such employers, and shall be determined only after a hearing, notice of the time and place of which shall have been given to every employer alleged to be liable for any portion of such compensation. If the board finds that any portion of such compensation is payable by an employer prior to the employer who is made liable for the total compensation as provided by this section, it shall make an award accordingly in favor of the last employer, and such award may be enforced in the same manner as an award for compensation.”
This section clearly contemplates 2 hearings. The first hearing is the hearing concerning the claim against the employer made primarily liable by the first sentence of the quoted section:
“The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted.”
Specific provision for notice to this employer is provided in section 10 (CL 1948, § 417.10 [Stat Ann 1960 Rev § 17.229]). It is clear to us now that the statute contemplates a final adjudication of the right the claimant has to compensation in this action against the last employer. The statute places on him (the last employer) the full burden of mustering such defenses as he may have to claimant’s assertions. In this regard, some investigation by him of the nature of claimant’s relationship with prior employers, if any, may well be the better part of wisdom on the part of the last employer, but it is not made mandatory by the statute.
■ The second hearing is a hearing on the question of apportionment against prior employers of part of *221the liability found at the first hearing to exist as to the last employer.
Notice as to such second hearing is provided for in section 9 (CL 1948, § 417.9 [Stat Ann 1960 Rev § 17.228]):
“Such apportionment shall be proportioned to the time such employee was employed in the service of such employers, and shall be determined only after a hearing, notice of the time and place of which shall have been given to every employer alleged to be liable for any portion of such compensation.”
Thus it is clear that, before any party made secondarily liable by this statute can have an order entered against him allocating to him a portion of the basic liability, such prior employer has a right to a hearing on the question of such apportionment. The statute plainly provides both for this hearing and for proper notice of it.
To meet any due process problems applicable to such prior employers, the only other requirement would be that the second hearing be one at which the prior employers could advance any and all defenses available to them.
Nothing in the statute argues against their ability to do so. The statutory language quoted which provides for notice to “every employer alleged to be liable” suggests to us that his basic liability is at issue.
Further, there is closely parallel precedent in opinions of this Court holding that a hearing in relation to secondary liability offers an opportunity for presentation of any defenses available to the party made secondarily liable by statute. Grand Rapids Lumber Co. v. Blair, 190 Mich 518; Currier Lumber Co. v. Van Every, 312 Mich 375.
In Currier Lumber, plaintiff sued defendant in assumpsit to recover compensation paid by it to de*222'fendant’s employee. Plaintiff had contracted with defendant to do some work for it and while working one of defendant’s employees suffered a compensable injury. Plaintiff had elected to come under the provisions of the workmen’s compensation act, but defendant had not. Defendant’s employee filed a claim against plaintiff pursuant to CL 1929, § 8416 (Stat Ann § 17.150), which culminated in an award which plaintiff paid in part and redeemed in part. Plaintiff then sought indemnity from defendant pursuant to subsection (b) of said section, which provided:
“Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor or subcontractor as the case may be, but the employee shall not be entitled to recover at common law against the contractor or any other person* for any damages arising from such injury if he takes compensation from such principal. The principal, in case he pays compensation to the employee of such contractor, may recover the amount so paid in an action against such contractor.”
The circuit court entered a judgment for plaintiff on the assumption that the compensation award was binding upon the defendant. Defendant appealed, asserting that he should not be bound by the award as he was not a party to the award and that, since the portion of the statute requiring indemnity did not require notice of the compensation proceeding to be given to the defendant, it was unconstitutional.
This Court, in Currier Lumber, upheld the indemnity provision, rejecting defendant’s contention that he was denied due process, in the following language :
“The fact that Van Every was not given notice and an opportunity to defend his liability as indem- • *223nitor before tbe department of labor and industry did not deprive Van Every of his day in court, before his rights were adjudicated. He has not been deprived of his property, nor his day in court, without due process of law, and under a proper construction of the act the fact that he- was not given a day in court before the department does not render the indemnity provision unconstitutional on that ground, (p 385) * * *
“Fundamentally, this provision of the workmen’s compensation act has in the main the same objective sought by CL 1929, §8454 (Stat Ann §17.189), another section of the workmen’s compensation act, which provides that where a compensable injury is caused under circumstances creating a legal liability in some person other than the employer, and the employer pays compensation under the act, he may enforce the liability of such other person. The objective sought by both of these provisions is to afford a right in court to seek recovery by one who pays compensation under the act, from another, a third person who was not a party in the proceedings before the department. While there are essential differences between the form of action and the defenses under each of these 2 provisions of the act, both of them afford a day in court for one against whom ultimate liability is claimed. An indemnitor or a third party has his day in court in a judicial proceeding wherein the one who has paid the compensation must bring an action against the third party or against the indemnitor to determine his liability. The award of compensation by the department is not a final adjudication of that liability. For that reason it cannot be said that Van Every is being deprived of his property without due process of law in the ease now before us. (p 386) * * *
“Constitutional requirements relied on by appellant herein for reversal are met when he is allowed his day in court to contest his liability and defend *224himself against plaintiff’s claim for indemnification. In such an action all defenses which ivere available to plaintiff before the department and which would have been available to Van Every on plaintiff’s behalf had Van Every been a party in the compensation proceeding may be advanced by Van Every to defeat recovery against him. (p 388) (Emphasis supplied.) * * *
“He may claim as a defense in the suit against him for the indemnity that the amount is excessive; he may claim a complete want of liability on any of the grounds that might have been interposed by the principal in the proceeding before the department. Thus having his day in court, the fact that he was not a party or given notice of the proceedings in the department is not a bar to the suit in court.” (p 390)
A similar situation was passed on in Grand Rapids Lumber Co. v. Blair, supra. In that case the plaintiff brought an action to recover a compensation award under CL 1915, § 5468 (Stat Ann § 17.189), which provides that the employer may be subrogated to the rights of the injured employee against the negligent third party if the employee elects to take compensation from his employer. The same objections were raised to that statute as were raised in the Currier Lumber Case, supra, and are being raised in Trellsite, i.e., that defendant was denied due process by not having an opportunity to contest the award at the compensation hearing. Mr. Justice Steere (after making it clear that defendant had not had notice of the compensation hearing and had not been statutorily entitled thereto) held (p 526) :
“This case involves a relation of indemnitee and indemnitor, in which a liability over is placed upon the original tortfeasor whose negligence caused the *225injury, a relation which, may be created by contract or legislation for protection of the party who, though not actively guilty of the tort, may, by law, be liable therefor to the injured party. In such cases the weight of authority indicates that a former judgment against the indemnitee, in which notice of the litigation is not given to the party who may be liable over, is adequate to create a right of action against the latter, and admissible as prima facie proof of his liability, though the omission to give notice gives him the right to make any defense which he could have made in the former action, with the burden of proof shifted to him. Grant v. Maslen, 151 Mich 466, 470 (16 LRA NS 910); Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola, 144 NY 663 (39 NE 360), and cases there cited.”
So construed, the Court held the act constitutional.
Following a similar reasoning it seems apparent that the apportionment statute we deal with here is constitutional, for defendants in this case are denied no rights without due process. The apportionment statute does not provide for notice to prior employers of the hearing of the claim against the last employer because the prior employers are not proper parties to a claim which is directed solely against said last employer.
The first sentence of the statute we have quoted shows clearly what the legislature intended. ■ If intended that the liability for compensation should be imposed upon “the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted.” Thus the last employer, being primarily liable, is the only one who is properly before the department upon a claim filed by one who has contracted an occupational disease.
However, the legislature, apparently realizing that inequities would result in instances where the disease was actually contracted during employment *226with, a prior employer and the nature of the last employment only contributed to the final result, provided a right for the last employer to proceed against other employers who contributed to the disease for a fair apportionment of the award. But the prioremployers are not bound by the award in the apportionment hearing. They are free to raise any and all defenses available to them, including those that could have been raised in the proceeding before-the department had they then been parties. Currier Lumber Co. v. Van Every, supra; Grand Rapids Lumber Co. v. Blair, supra. There is nothing in the-questioned provision which could be construed as making the award conclusive against the prior employers.
It is obvious that this statute contains some deficiencies. But it is a standard rule of construction that wherever reasonable interpretation of legislative intent can conform a statute to constitutional requirements the courts will seek to save it. We-should do so in this instance.
It might be noted that the appeal board of the-workmen’s compensation department decided this instant case shortly after the opinion in Benton Harbor Malleable Industries v. General Motors Corporation, 358 Mich 684, came down, and before we-had noted in a memorandum denying a motion for a rehearing, “the preceding opinion may not be read as holding the apportionment statute unconstitutional except as to the application sought herein.” In Benton Harbor there was no evidence introduced, at the apportionment hearing which served to establish liability against the defendant corporation.. This should have been the extent of our holding in that case.
In the record of the apportionment hearing in the instant case there is ample proof of the exposure of' claimant to silicosis in defendant’s employment, as-*227well as ample proof of his contracting the disease o'f silicosis and his disability resulting therefrom.
The instant case should he reversed and remanded with instructions to enter an order affirming the apportionment order of the referee.
Souris, J., concurred with Edwards, J. Otis M. Smith, J., toot no part in the decision of this case.By PA 1954, No. 175, the phrase “or any other person” was deleted. See CLS 1956, § 411.10 (Stat Ann 1960 Rev § 17.150).