Masich v. United States Smelting, Refining & Mining Co.

• Decision Date: 25 March 1948
• Docket Number: 7048
• Parties: MASICH v. UNITED STATES SMELTING, REFINING & MINING CO et al
• Court: Utah Supreme Court

191 P.2d 612

113 Utah 101

MASICH v. UNITED STATES SMELTING, REFINING & MINING CO et al

No. 7048

Supreme Court of Utah

March 25, 1948

Rehearing Denied June 29, 1948.

Appeal From District Court, Third District, Salt Lake County; Roald A Hogenson, Judge

Action by Nick Masich against United States Smelting, Refining &amp Mining Company and F. S. Mulock for a declaratory judgment to have determined plaintiff's right to institute a common law action for disability from silicosis contracted by him while in the employment of corporate defendant. Judgment for defendant and plaintiff appeals.

Affirmed.

Clarence M. Beck and Elias Hansen, both of Salt Lake City, for appellant.

Cheney Jensen, Marr & Wilkins and Ray Quinney & Nebeker, all of Salt Lake City, for respondents.

Latimer Justice. McDonough, C. J., and Pratt, J., concur. Wolfe, Justice (concurring). Wade, Justice (dissenting).

OPINION

Latimer, Justice.

Appellant plaintiff in the court below, commenced an action for a declaratory judgment seeking to have the court determine his rights to institute a common law action for disability from silicosis contracted by him while in the employment of the defendant, United States Smelting, Refining & Mining Company. Plaintiff, in alleging his injuries states, in substance, that he is suffering from an occupational disease known as silicosis, which he alleges not to be complicated with active pulmonary tuberculosis. It is not necessary to set forth in detail the particular acts of negligence alleged, as they, in substance and effect, charge the defendants with failure to furnish the plaintiff a safe place to work, and the specific acts are unimportant to this decision. Plaintiff further alleges that since 1935 the defendant, F. S. Mulock, has been Vice President of the corporate defendant, and the manager of the mine where plaintiff worked and that he has been in control and direction of the policy of the company and the personnel who were employed to work in the mine. Plaintiff further alleges that he is not totally disabled by the disease, and therefore disputes the defendants contention that his sole and exclusive remedy is under and pursuant to Chapter 42-1a and particularly Section 42-1a-3, U. C. A. 1943, and the amendments thereto, and defendant's further contention that the personal defendant is not liable for the action complained of. Plaintiff alleges further facts in support of his reasons for seeking a declaratory judgment. However, in view of the fact that we have elected to determine plaintiff's rights, these other allegations are not set forth.

Defendants, in answer, deny that they were guilty of any of the alleged acts of negligence and for the most part deny the other allegations of plaintiff's complaint. They affirmatively allege that at the time suit was instituted and at the present time, Section 42-1a-3 provided an exclusive remedy against an employer for disease or injuries to health sustained by an employee and arising out of the course of his employment, and that this act precludes plaintiff from suing on his common law right. That prior to instituting this action in the district court, the plaintiff filed with the Industrial Commission of the State of Utah, his claim for compensation under the provisions of Chapter 1a of Title 42, U. C. A. 1943. That in the claim filed, plaintiff alleged he had contracted silicosis while employed by the defendants and that said claim is now pending before that commission.

The case was submitted to the trial court on the issues as raised by the pleadings and pursuant to a stipulation which provided that the only issues to be presented to the district court and to this court on appeal were as follows: (1) Does the Utah Occupational Disease Disability Law, Chapter 1a, Title 42, U.C.A. 1943, as amended, furnish the exclusive remedy of the plaintiff against the defendant, United States Smelting, Refining & Mining Company, and bar the maintenance of a personal injury suit in the district court? (2) Does the same law bar the maintenance of a personal injury action in the district court as to the defendant F. S. Mulock? We believe our holding on the first issue makes a discussion of the second question unnecessary. Because of such stipulation and because, for the purposes of this suit alone, we assume the facts alleged in the pleadings to be true, we will treat only the questions of law involved.

While many of the sections of Chapter 42-1a, U.C.A. 1943, have some bearing on the interpretation that should be given this act, it is deemed necessary to set forth only those which are of controlling importance. Section 42-1a-3 is as follows:

"Exclusive Remedy Against Employer.

"The right to recover compensation pursuant to the provisions of this act for diseases or injuries to health sustained by an employee and arising out of or in the course of his employment, whether resulting in death or not, shall be the exclusive remedy against the employer."

Section 42-1a-13 provides as follows:

"Employer Liability for Compensation -- Conditions When No Payment to Be Paid.

"(a) There is imposed upon every employer a liability for the payment of compensation to every employee who becomes totally disabled by reason of an occupational disease subject to the following conditions:

* * * * *

"(2) No compensation shall be paid for a disease other than silicosis unless total disability results within one hundred twenty days from the last day upon which the employee actually worked for the employer against whom compensation is claimed.

"(3) No compensation shall be paid in case of silicosis unless during the ten years immediately preceding the disablement the injured employee shall have been exposed to harmful quantities of silicon dioxide (SiO[2]) dust for a total period of not less than five years in this state and unless total disability results within two years from the last day upon which the employee actually worked for the employer against whom compensation is claimed."

Section 42-1a-28 provides as follows:

"Occupational Diseases -- Listed.

"For the purposes of this act only the diseases enumerated in this section shall be deemed to be occupational diseases:

* * * * *

(27) Silicosis."

Section 42-1a-29 provides as follows:

"Silicosis -- Defined.

"For the purpose of this act 'silicosis' is defined as a chronic disease of the lungs caused by theprolonged inhalation of silicon dioxide dust (SiO[2]) characterized by small discrete nodules of fibrous tissue similarly disseminated throughout both lungs, causing a characteristic X-ray pattern, and by variable clinical manifestations."

Section 42-1a-30 provides as follows:

"ID. When Complicated with Other Diseases -- Payments.

"In case of disability or death from silicosis complicated with tuberculosis of the lungs, compensation shall be payable as for disability or death from uncomplicated silicosis. In case of disability or death from silicosis when complicated with any disease other than pulmonary tuberculosis, compensation shall be reduced as provided in Section 51."

Section 42-1a-49 provides as follows:

"(a) If the claim is made by an employee and based upon silicosis it must be filed within one year after the cause of action arises. * * *"

If we hurriedly scan the history and development of the law of compensation in this country, we first find the legislatures and courts dealing with accidental injuries arising out of or in the course of employment. These acts covered the employee who was accidentally injured in the course of his employment, but failed to cover an employee who was rendered ill because of an occupational disease. Some jurisdictions extended the coverage of the act to include occupational diseases, but for the most part the employee suffering from an occupational disease was left to his common law right of action.

In this state the Workmen's Compensation Act, Utah Code 1943, 42-1-1 et seq., was construed to involve only accidental injuries, so that when an employee suffered an occupational disease, he was confronted with the necessity of establishing actual negligence on the part of the employer and was confronted by the common law defenses then available to the employer. This court recognized that the legislature had not occupied the field of occupational diseases when the Workmen's Compensation Act was passed; and so the employee suffering from disease was limited to his common law right of action. See Young v. Salt Lake City, 97 Utah 123, 90 P. 2d 174. The situation thus was that industry was required to share the cost of insuring the class of employees injured by accidents, while not being required to carry the burden of insuring those employees that were rendered ill because of diseases incidental to the business.

Shortly after this court decided the Young v. Salt Lake City case, supra, the legislature enacted the Occupational Disease Statute. Much of the wording of this act was taken from the Workmen's Compensation Act, and the first part of Section 42-1a-3, dealing with the exclusive remedy provision under the Disease Statute, is in all respects similar to the exclusive remedy provision under the Workmen's Compensation Act (Section 42-1-57).

The parties have exhaustively treated the interpretation of Section 42-1a-3, and each has, by transposition, made the act appear to sustain their respective contentions. We need not belabor this opinion with the respective claims, all we need do is to point out that a careful reading of the section convinces the members of this court that the wording is ambiguous and susceptible of being interpreted in the manner contended for by both parties. Such being the case, the duty of this court is to arrive at the legislative...