Summer v. Victor Chemical Works
| Decision Date | 30 November 1961 |
| Docket Number | No. 17258.,17258. |
| Citation | 298 F.2d 66 |
| Parties | Arthur L. SUMMER, Appellant, v. VICTOR CHEMICAL WORKS, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John C. Hoyt, Great Falls, Mont., and Ralph J. Anderson and Stanley P. Sorenson, Helena, Mont., for appellant.
James A. Robischon and Kendrick Smith, Butte, Mont., for appellee.
Before BARNES, JERTBERG and MERRILL, Circuit Judges.
This is an action for personal injuries instituted in the state court and transferred to the federal court upon ground of diversity of citizenship. There existed below allegations of the requisite diversity and an amount exceeding the jurisdictional minimum in issue. 28 U.S.C. § 1332. This court has jurisdiction on appeal from the granting of a motion to dismiss the action. 28 U.S.C. § 1291.
In the complaint on file, it is alleged that during all relevant times, appellant was an employee in appellee's chemical manufacturing plant in Butte, Montana. Appellee used phosphorus1 in its manufacturing business.
In April of 1959, appellant was working on the fourth floor of one of appellee's buildings when he, appellant, was exposed to fumes emitted from phosphorus which was being processed in the furnace room of said building.
On January 14, 1960, appellant was again exposed to phosphorous fumes while in the employ of appellee.
Each exposure to phosphorous fumes was alleged as a separate cause of action by appellant; each with an ad damnum prayer for $305,000 and costs. Appellant alleged the injury was within the purview of the Occupational Disease Act of Montana,2 and that appellee had not elected to be covered by this Act nor by any of its compensation plans.
Appellee appeared in the district court and moved to dismiss the complaint. The district court granted the motion upon the ground that appellant's disability was a result of an industrial accident, and his exclusive remedy was under the Workmen's Compensation Act of Montana.3
The appellant prosecutes this appeal from the district court's order dismissing the action and assigns four points as errors.
The controlling question before this court is stated by appellant in his third specification of error, viz.:
(Br. p. 6.)
If the district court was correct, it would necessarily follow that: (a) appelllant's exclusive remedy (if he had one) was under the Workmen's Compensation Act;4 (b) the Occupational Disease Act was not before the district court, and therefore whether or not said Act impliedly repealed conflicting sections of the Workmen's Compensation Act of Montana was moot;5 and (c) the district court correctly dismissed appellant's complaint as failing to state a cause of action.6 To the contrary, if appellant's alleged injuries did constitute an occupational disease within the meaning of the Occupational Disease Act of Montana, then the district court committed error and the cause must be remanded so that it may proceed on the merits.
Is the appellant entitled to the remedy afforded by the Montana Occupational Disease Act?7
Section 92-1304 of the Act reads, in material part:
We first consider the meaning of "poisoning." There is no reason to go beyond the usual, commonly understood meaning of the word; the legislature has given no special definition for this word when used within this Act. The accepted and usual definition8 of either the verb or the noun does not indicate that it precludes a result of a sudden act. Nor is there reason to believe that one cannot be accidentally poisoned. Though poisoning can be a gradual process (when it would not have been deemed an accident within some workmen's compensation acts) it can also be a sudden and complete impregnation (when the incident may also constitute an accident within most workmen's compensation acts).
Both parties cite cases wherein courts have set forth the usual rules of statutory construction and interpretation. Generally such cases represent good law, and they generally accord with the cases of this circuit — when such rules must be resorted to for the interpretation of ambiguous legislation. But "when a statute is unambiguous, the courts may not look elsewhere for the legislative intent." Easson v. C. I. R., 9 Cir., 1961, 294 F.2d 653, 656. See, also, 62 Cases More or Less, etc., of Jam v. United States, 1951, 340 U.S. 593, 596, 71 S.Ct. 515, 95 L.Ed. 566; Department and Specialty Store Emp. Union, Local 1265, R.C.I.A. AFL-CIO v. Brown, 9 Cir., 1960, 284 F.2d 619; N. L. R. B. v. Lewis, 9 Cir., 1957, 249 F. 2d 832. And here the statute seems to us to be unambiguous.
The legislature has commanded that poisoning by phosphorus or its compounds shall be (i. e., is) termed (i. e., deemed) an occupational disease. The legislature has also commanded the court to construe this Act liberally.9 Counsel for both parties concede — and the district court so held — that the Act is humanitarian and for the benefit of the working man. It follows, therefore, that the Act is to be liberally construed for the benefit of employees. Appellant is such an employee; this court must do for him as it has been told to do by the legislature. The Act contained a repealing clause10 which repealed all acts "or parts of acts" in conflict with the Act. This is to be kept in mind by this court.
The cases cited by appellee11 to support his argument that the disability alleged by appellant is not an occupational disease within the meaning of the Act do not carry conviction. None of these cases define the term as used in an occupational disease act; indeed, all the cases were decided before such an act was adopted within their respective jurisdictions. They are not in point.
Appellee urges and the district court held that allowing appellant to come within the Act in this case would narrow or limit the Workmen's Compensation Act, and that because of the humanitarian purpose of the Occupational Disease Act, it would be absurd to say that in passing the Act the legislature intended such a result. Putting aside for the moment the fact that the Act contained an express repealing clause (§ 69), such an argument carries weight until we examine the Act. We find that § 92-1307 of the Act provides, in part:
"This act shall apply to, and only to, all employers and employees who now are or hereafter will be subject to the provisions of the workmen\'s compensation act of the state of Montana. * * *"
Section 92-1309 gives the employee the right to reject the provisions of the Act; but the employer has no such right, without severe penalty. Employers have the choice of any one of three plans: (1) To be self-insured and make direct payments required by the Act; (2) to insure his liability; or (3) to participate in a state occupational disease compensation fund by payment of assessments (§ 92-1334). The employer who does not adopt any one of the three plans cannot avail himself of the provisions of the Act, and loses his common law defenses of (a) contributory negligence, (b) negligence of a fellow employee, (c) assumption of risk doctrine. (§ 92-1339.)
On the other hand, the employee receives compensation payment for total disability, whether temporary or permanent; and his beneficiaries or dependents in the event of his death receive death benefits in the same amounts, respectively, as they would under the Workmen's Compensation Act. (§ 92-1321.) No compensation is payable for partial disability from an occupational disease (§ 92-1322), although certain medical and hospital benefits are paid during partial disability (§ 92-1325).
Further, if the employer elects to be bound by it, then unless the employee has himself rejected the Act, it shall be the employee's exclusive remedy against the employer bound by the Act.
Turning from the Act to the pleadings, it is alleged (para. 4, Count I, Complaint) "Defendant did not elect to come under nor was it covered by any of the plans as set forth in the Occupational Disease Act of Montana." Under this circumstance, is appellant required to find his remedy under the provisions of the Workmen's Compensation Act? We think not.
Section 92-1331 provides:
"There shall be no common law right of action for damage from occupational disease against an employer who elects to come under the provisions of this act, excepting for those employees not eligible for compensation under the terms of this act, or who reject coverage of this act."
Appellant claims to be and, by the allegations of his complaint, is eligible. He has not rejected the Act, nor could he, because it is alleged the employer did not elect to come within it, and has selected none of the three plans mentioned above. The allegations of the complaint must be considered as true. Thus, § 92-1331 recognizes the existence of a common law cause of action in appellant under such circumstances. Further, § 92-1339, subd. A impliedly recognizes that a common law cause of action exists in appellant if appellee has failed to comply with the choice of one of three compensation plans specified in § 92-1334, because it denies to the employer, subject to the Act but who fails to comply, the "usual defenses" in a common-law action, ordinarily denied an employer under state compensation acts and specifically denied to him here under the Montana Workmen's Compensation Act, 1947 Revenue Code of Montana, Ann. Vol. VI, Title 92-201.
Again, we note that § 92-203 of the Montana Workmen's Compensation Act, provides that "except as specifically provided in this act, all...
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Greger v. United Prestress, Inc., 14195
...disease despite the claimant's assertion that he was suffering from an allergy or a personal sensitivity. In Summer v. Victor Chemical Works (9th Cir. 1961), 298 F.2d 66, the claimant was employed by a chemical plant. On two separate occasions he was exposed to a phosphorous fume. The circu......
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Adams v. Morton
...a strained interpretation, words thereof may not be extended or distorted beyond their plain popular meaning. Summer v. Victor Chemical Works, 298 F.2d 66, 68 (CA9 1961); Lindstrom v. Commissioner of Internal Revenue, 149 F.2d 344, 346 (CA9 1945). The court's first duty in construing the st......
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Ridenour v. Equity Supply Co., 82-320
...law action against his employer. Appellants cite three cases in support of their position. The earliest case is Summer v. Victor Chemical Works (9th Cir.1961), 298 F.2d 66. In Summer the employee instituted an action for personal injuries in state court which was later transferred to federa......
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Dayton v. Boeing Company, Civ. No. 3198.
...occupational diseases, and Dayton does suffer from an industrial disease as distinguished from an accident.1 See Summer v. Victor Chemical Works, 298 F.2d 66 (9th Cir. 1961). It is Dayton's position that, since he was only partially disabled, no compensation was payable to him under R.C.M.1......