Dailey v. River Raised Paper Co.

• Decision Date: 10 December 1934
• Docket Number: No. 88.,88.
• Citation: 257 N.W. 857,269 Mich. 443
• Parties: DAILEY v. RIVER RAISED PAPER CO.
• Court: Michigan Supreme Court

269 Mich. 443

257 N.W. 857

DAILEY

v.RIVER RAISED PAPER CO.

No. 88.

Supreme Court of Michigan.

Dec. 10, 1934.

Action by Theodore Dailey against the River Raisin Paper Company. From an order dismissing the action, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Monroe County; Jesse H. Root, judge.

Argued before the Entire Bench.

A. Lewis Fineberg and Daniel P. O'Brien, both of Detroit, for appellant.

E. Dean Alexander, of Detroit, and Golden, Nadeau & Fallon, of Monroe, for appellee.

BUSHNELL, Justice.

This is an appeal from an order dismissing an action at law. The declaration states that plaintiff sustained injuries while in the employ of defendant because of failure to keep its machinery and equipment in a reasonably safe condition; that he was negligently ordered to work in a water tank, brazing or welding bronze or brass patches over holes on the interior of the tank, which, not being properly ventilated, caused poisonous fumes to penetrate a useless and damaged gas mask and enter plaintiff's lungs; and that plaintiff, ever since the date of the injury, March 29, 1932, has been totally and permanently injured. Both plaintiff and defendant were subject to the Workmen's Compensation Law of this state (Comp. Laws 1929, § 8407 et seq., as amended).

The record contains an order of the Department of Labor and Industry dated September 26, 1933, denying compensation and affirming an award of the deputy commissioner, who found on March 27, 1933, that plaintiff did not suffer an accident within the meaning of the Workmen's Compensation Law (Comp. Laws 1929, § 8407 et seq., as amended). No appeal was taken from the order of the commission, and the law action was begun on November 13, 1933.

The theory on which the law action is brought is that the plaintiff is either suffering from an occupational disease caused by the inhalation of poisonous fumes from which his employer negligently failed to protect him, or that he sustained an injury because of the negligence of defendant, and that, as the Workmen's Compensation Law provides no redress for such an injury or disease, an action at law will lie.

In other jurisdictions it is held that the Workmen's Compensation Law does not bar an injured employee from suing his employer at law for an injury for which no recovery is provided by the terms of the act. Smith v. International High Speed Steel Co., 98 N. J. Law, 574, 120 A. 188;Trout v. Wickwire Spencer Steel Corp. (Sup.) 195 N. Y. S. 528;Donnelly v. Minneapolis Mfg. Co., 161 Minn. 240, 201 N. W. 305, and Zajkowski v. American Steel & Wire Co. (C. C. A.) 258 F. 9, 6 A. L. R. 348 (based on an Ohio statute)-but all of these must be considered in the light of applicable statutes.

The Compensation Law of this state provides in section 8410, C. L. 1929, as to employers coming under the act: ‘Nor shall such employer be subject to any other liability whatsoever, save as herein provided for the death of or personal injury to any employee, for which death or injury compensation is recoverable under this act,’ etc.

And as to acts of employees, section 8478 reads: ‘If the employee, or his dependents, in case of his death, of any employer subject to the provisions of this act files any claim with, or accepts any payment from such employer, or any insurance company carrying such risks, or from the commissioner of insurance on account of personal injury, or makes any agreement, or submits any question to arbitration under this act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury.’

Whether, notwithstanding the language of the above sections, an employee can have recovery in a court of law for an occupational disease, after having unsuccessfully sought the aid of the commission, is a question which is unnecessary to determine on this appeal. In reviewing an order of dismissal, the statements of plaintiff's declaration are assumed to be true. In this case plaintiff's declaration definitely localizes the alleged injury as to time and place; the time being March 29, 1932, and the place, in the tank of the defendant where the particular work was to be performed. An injury which may be so localized hardly seems to fit the definition of an occupational disease as stated by the court in Adams v. Acme White Lead, etc., Works, 182 Mich. 157, 160, 148 N. W. 485, 486, L. R. A. 1916A, 283, Ann. Cas. 1916D, 689, as “A disease arising from causes incident to the patient's occupation, as lead poisoning among painters.' * * * ‘It is a matter of weeks or months or years.’ * * * ‘It is drop by drop, it is little by little,...