Golden v. Lerch Bros., 32640, 32648.
| Decision Date | 01 August 1941 |
| Docket Number | No. 32640, 32648.,32640, 32648. |
| Citation | 211 Minn. 30,300 N.W. 207 |
| Parties | GOLDEN v. LERCH BROS. Inc., et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; Martin Hughes, Judge.
Action by Lucy Golden, special administratrix of the estate of James F. Golden deceased, against Lerch Brothers, Inc., and others, to recover damages for injuries caused by failure on the part of the defendants to comply with the requirements imposed by statute requiring employers to maintain proper and sufficient ventilation. Lucy Golden, as special administratrix of the estate of James F. Golden, deceased, obtained two judgments against Lerch Brothers, a copartnership, which she subsequently assigned to Lerch Brothers, Inc. Lerch Brothers, Inc., prosecuting garnishment proceedings in name of plaintiff in the original case, sought to hold the Globe Indemnity Company and the Travelers Insurance Company liable as insurers. From an order denying their alternative motions for amended findings or a new trial, the Globe Indemnity Company and the Travelers Insurance Company appeal.
Order reversed with direction that judgment be entered for the garnishees.
Holmes, Mayall, Reavill & Neimeyer, of Duluth, for appellant Travelers Ins. Co.
Faegre, Benson & Krause, Paul J. McGough, and Wright W. Brooks, all of Minneapolis, for appellant Globe Indemnity Co.
Sexton, Mordaunt, Kennedy & Carroll, of Minneapolis, for respondent Lerch Bros., Inc.
Thos. H. Strizich, of Hibbing, for respondents Abigail S. Lerch, Fred Lerch, and Lerch Brothers, a copartnership.
In Golden v. Lerch Bros., Inc., 203 Minn. 211, 281 N.W. 249, the plaintiff got judgment for damages suffered by her husband (who died after the verdict) as result of the negligence of Lerch Brothers, a copartnership. From 1915 to 1929, Mr. Golden was their employe. That negligence was the failure to provide him with a safe place to work. In consequence, he contracted the disease (from which he died January 29, 1935) of pneumoconiosis or silicosis with an end and fatal result of superimposed tuberculosis. He had quit his employment by Lerch Bros. Inc., in January, 1930.
Lucy Golden, as special administratrix and substituted plaintiff in the original case, has assigned her judgments (there are two of them, one in the district court and one here for costs and disbursements) to Lerch Bros. Inc.1 That corporation by garnishment now seeks to hold the garnishees, Globe Indemnity and Travelers Insurance Companies, liable as insurers of Lerch Brothers. The decisions below going against them, the garnishees severally appeal from the order denying their alternative motions for amended findings or a new trial.
The theory of recovery in Golden v. Lerch Bros., Inc., was narrow. The negligence charged was the violation of 1 Mason Minn.St.1927, § 4174. That statute required proper ventilation of the laboratory wherein Golden was employed so that dust arising therein from the crushing and treatment of ore samples would not become harmful to those employed.
Neither by pleadings nor evidence was there advanced on behalf of plaintiff in the original case the theory of accidental injury. That negative is not controlling, but it is enlightening. Recovery was based upon a finding of fact, implicit in the verdict, that because of defendants' negligence Golden had become the victim of an insidious and slowly developing disease rather than accident.
The policies issued by the two insurers were identical in coverage. They are labeled "Standard Workmen's Compensation and Employers' Liability Policy." They insured the employer against loss by reason of "personal injuries sustained by employees, including death at any time resulting therefrom." After that initial statement, the coverage falls into two classes. The first insures generally against liability of the insured under any workmen's compensation law. That is the workmen's compensation side of the contract.
The other side has to do with the employers' liability coverage. In that respect, the insurer's promise is "to indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America." That promise of indemnity is subject to this limitation (paragraph VII of the policy): "This agreement shall apply only to such injuries so sustained by reason of accidents occurring during the policy period limited and defined as such in Item 2 of said Declarations," which are a part of the policy. Item 2, so referred to, makes no mention of accidents or other cause of damage but is confined to limitations by terminal dates of "the period during which the Policy shall remain in force, unless cancelled." (Italics supplied.)
A condition of the policy, F, is that "This Employer, upon the occurrence of an accident, shall give immediate written notice thereof to the Company [insurer] with the fullest information obtainable." Another condition, D, makes an injured employe a beneficiary of the contract.2 It declares that the contract, in respect to injured employes, "shall not be affected by the failure of this Employer to do or refrain from doing any act required by the Policy; nor by any default of this Employer after the accident in the payment of premiums or in the giving of any notice required."
The insurers are liable, if at all, only if they insured the employer against damages to employes arising from chronic disease as well as those arising from accident. Since January 15, 1919, the Travelers have been off the risk, whatever it was.
The record in the Golden case is again before us. We do not repeat much of its facts. If Golden had quit the employ of Lerch Brothers January 15, 1919, concurrently with expiration of the last Travelers policy, there is no evidence that, as of that date or earlier, he had become afflicted with any disease. He may have been exposed, but to so slight an extent that, if the exposure had not been continued, there probably would have been no resulting disease.
As matter of law, the record, as against the Travelers, falls far short of showing damage arising from an insured risk incurred before January 15, 1919. At best, a finding against the Travelers on that issue would rest on conjecture rather than inference.
The Globe policies covered the risk continuously from January 15, 1919, to January 1, 1931. We hold that, inasmuch as Golden died of chronic disease which did not result from accident, the Globe company is not liable. That is because the insurance, other than that against liability for workmen's compensation, did not cover disability or death resulting from disease, but rather and only, "injuries * * * sustained by reason of accidents." Even the workmen's compensation insurance would have been confined to cases of accident except for its inclusion of all liability under the compensation law. That necessarily includes liability for any disease classed as occupational by the statute. Mason Minn.St.1927 and 1940 Supp. § 4327. Silicosis and pneumoconiosis, with or without superimposed tuberculosis, are not so included.
The cases are in hopeless conflict.3 Were we to follow those from Nebraska and Alabama,4 our conclusion would be otherwise than it is. In accord with our view are cases from New York, New Jersey, Pennsylvania, Illinois, and the federal courts.5
Because of the conflict and resulting state of authority, we have given the whole problem the most thoroughgoing re-examination of which we are capable.
The recovery of Golden against his employers was not under the compensation law. It was exclusively on their common-law liability for negligence. That tort functioned harmfully, not through or because of accident, but rather and exclusively by insidious and chronic disease, in the causation of which there was no accident. So, under paragraph VII of the policies, there is no liability on the insurer. That paragraph makes the policies apply "only" to injuries "sustained by reason of accidents." The language is too plain for reasonable debate. With or without application to its subject matter, there is no ambiguity. One of the least justifiable errors of the judicial process is its occasional creation of ambiguities in contracts where none really exist. It is not for judges to set up, or permit counsel to stuff for them, mere dummies whereon to demonstrate skill with the dialectical bayonet.
Before proceeding, it is well to go to the factual roots of the issue by examining again and somewhat in detail the nature of Golden's fatal ailment. The medical testimony supporting recovery in the Golden case is illustrated by that of Dr. E. L. Cheney, whose diagnosis, based on personal examination and X-rays, was that Golden had "pneumoconiosis,6 superimposed by a tubercular trouble, tuberculosis infection, involving both lungs." He said pneumoconiosis was not a germ disease. His opinion was that He added that the onset and progress of pneumoconiosis "is usually very slow." The victim "can continue with his work for a long time with a considerable degree of pneumoconiosis." The usual result is a greater susceptibility to tuberculosis infection. Pneumoconiosis "was the original foundation" of Golden's trouble. "He had the pneumoconiosis first, and he had this respiratory infection [influenza] second, and then later on the definite tubercular infection." Dr. Cheney's testimony was typical of all the medical opinion for the plaintiff. It showed a condition the beginning of which was not referable, within years, to any definite time or...
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