Foley v. Western Alloyed Steel Casting Co.
| Citation | 18 N.W.2d 541,219 Minn. 571 |
| Decision Date | 20 April 1945 |
| Docket Number | 34028. |
| Parties | FOLEY v. WESTERN ALLOYED STEEL CASTING CO. |
| Court | Supreme Court of Minnesota (US) |
Syllabus by the Court.
Where an employe, as a result of his employer's breach of statutory duty, contracted silicosis more than three years prior to the effective date of L.1943, c. 633, and died as a result thereof after said date, employe's personal representative may maintain an action for the wrongful death of the employe, because the statute is substitutionary of the rights of employes and their dependents at the time of its enactment and because the statute provides no substitutionary right in the case mentioned for the reason that it does not cover cases of death occurring after its effective date resulting from silicosis contracted more than three years prior thereto.
Appeal from District Court, Hennepin County; Vince A. Day Judge.
Faegre & Benson, Paul J. McGough, and John A. McEachron, Jr. all of Minneapolis, for appellant.
Robert J. McDonald, William H. DeParcq, and Donald T. Barbeau, all of Minneapolis, for respondent.
This case is here on appeal from an order overruling the demurrer to the complaint with the necessary certificate that the question decided is doubtful and important.
The gist of the complaint is that plaintiff's intestate, John C Foley, had been employed by the defendant from June 1, 1929, to June 30, 1943, 'as a swing grinder' in its foundry; that as a result of defendant's violation of statute, Minn.St.1941, s 183.10, Mason St.1927, s 4059, decedent was exposed to and inhaled smoke, steam, gases, dust, and small steel particles, with the result that in 1934 he contracted and acquired the disease known as silicosis; that as a result of the disease decedent was disabled for nine separate periods of varying duration, the last of which was from April 23, 1943, to May 2, 1943; that decedent worked at his employment from April 24, 1943, to June 29, 1943, when he retired from active service; and that he died on July 17, 1943, of silicosis and disability contracted prior to the last period of 51 days he worked. Apparently there is a mistake as to the dates of the last period of disability and the last period of employment, because the former is alleged to be from April 23, 1943, to May 2, 1943, and the latter from April 24, 1943, to June 29, 1943. If the employe was disabled as alleged, he could not have worked from April 24 to May 2. Since the parties have made no point of the discrepancy, we shall not do so. The demurrer was upon the grounds that the court has no jurisdiction of the subject matter; that plaintiff has no legal capacity to sue; and that the facts do not state a cause of action.
The arguments raise but one question, Viz.: Are plaintiff's rights and remedies solely and exclusively under L.1943, c. 633, the so-called occupational disease provisions of the workmen's compensation act? Defendant contends that plaintiff's sole and exclusive remedy is under L.1943, c. 633, for the reasons (1) that, since decedent died after the effective date of the statute, his dependents' rights and remedies are governed by its terms; (2) that c. 633 provides entirely new rights and remedies for cases of silicosis; and (3) that c. 633 covers the entire subject of silicosis and abrogates all other rights and remedies.
We agree with the first two propositions urged by defendant. The right of action for wrongful death is a new one created by statute. Cashman v. Hedberg, 215 Minn. 463, 10 N.W.2d 388. The acts or omissions constituting the wrong for which the action lies are the same as those for which the decedent might have maintained an action if the resulting injury had not been fatal. McLean v. Burbank, 12 Minn. 530 (Gil. 438). Aside from c. 633, the wrong to decedent alleged in the complaint was one for which he could have maintained an action for damages for breach of statutory duty by defendant, Golden v. Lerch Bros. Inc., 203 Minn. 211, 281 N.W. 249, and for which an action for wrongful death caused thereby will lie by his personal representative. Applequist v. Oliver Iron Mining Co., 209 Minn. 230, 296 N.W. 13. Likewise, the workmen's compensation act creates new rights and remedies, which so far as it applies are substitutionary and exclusive of others. Gehrke v. Weiss, 204 Minn. 445, 284 N.W. 434; Frederickson v. Burns Lumber Co., 175 Minn. 539, 221 N.W. 910. The provisions of the statute in force at the time of death govern as to the substantive rights of the parties concerning the right of the deceased employe's dependents to compensation and the employer's liability to pay the same. Ogren v. City of Duluth, 219 Minn. 555, 18 N.W.2d 535; State ex rel. Carlson v. District Court of Hennepin County, 131 Minn. 96, 154 N.W. 661. The situation here, then, is that the cause of action asserted is one that came into existence after decedent's death and after the effective date of c. 633, even though the wrong to decedent upon which the cause of action is based is one for which he might have maintained an action for personal injuries in his lifetime prior to the effective date of the statute. The question, then, is whether the statute abrogates the right of the representative to maintain the action for the benefit of the employe's dependents.
Because we do not agree with defendant's third proposition that c. 633 covers the entire field of silicosis and abrogates all rights other than those under the statute, the question posed should be answered in the negative. Chapter 633 is not retroactive as to either liabilities incurred or wrongs committed prior to its effective date, except in the single instance where the disablement occurs thereafter from an occupational disease contracted within 12 months prior thereto, which was compensable at the time it was contracted, or silicosis and asbestosis contracted within three years prior thereto. Ogren v. City of Duluth, Supra. Here, the statute has no application, because, while the employe's death occurred after the effective date of the statute, the silicosis from which he died was contracted more than three years (nine years in fact) prior thereto. Neither decedent during his lifetime nor his dependents after his death were entitled to compensation under the statute, because they were expressly excluded from its benefits by the three-year provision mentioned. The workmen's compensation act, including the provisions for compensation in cases of occupational disease, creates exclusive rights and remedies so far as it provides substitutes for those existing at the time of its enactment, but not as to those not covered by it. Where the act is inapplicable, the common-law and statutory remedies of the employe remain intact. Anderson v. Hegna, 212 Minn. 147, 2 N.W.2d 820; Applequist v. Oliver Iron Mining Co., 209 Minn. 230, 296 N.W. 13; Golden v. Lerch Bros. Inc., 203 Minn. 211, 281 N.W. 249; Rosenfield v. Matthews, 201 Minn. 113, 275 N.W. 698; Clark v. Banner Grain Co., 195 Minn. 44, 261 N.W. 596. In Donnelly v. Minneapolis Mfg. Co., 161 Minn. 240, 243, 201 N.W. 305, 306, holding that an employe could maintain an action to recover damages for chronic bronchitis contracted as a result of the employer's violation of statutory duty to ventilate, we said:
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