Sutter v. Kalamazoo Stove & Furnace Co.

• Citation: 297 Mich. 226,297 N.W. 475
• Decision Date: 08 April 1941
• Docket Number: No. 61.,61.
• Court: Supreme Court of Michigan
• Parties: SUTTER v. KALAMAZOO STOVE & FURNACE CO.

297 Mich. 226

297 N.W. 475

SUTTER

v.KALAMAZOO STOVE & FURNACE CO.

No. 61.

Supreme Court of Michigan.

April 8, 1941.

Proceeding under the Workmen's Compensation Law by Essie Sutter, claimant, opposed by the Kalamazoo Stove and Furnace Company, employer, for compensation for the death of Jacob Sutter, employee, allegedly resulting from an occupational disease. From a decision of the Department of Labor and Industry denying compensation, claimant appeals in the nature of certiorari.

Affirmed.

Appeal from Department of Labor and Industry.

Argued before the Entire Bench.

Edward J. Ryan, of Kalamazoo, for appellant.

Alexander, McCaslin & Cholette, of Grand Rapids, for appellee.

BUTZEL, Justice.

Plaintiff, as sole dependent of Jacob Sutter, deceased, sought compensation under the occupational disease amendment to the Workmen's Compensation Law, Act No. 61, Pub.Acts 1937. Stat.Ann. § 17.220, et seq. Decedent had worked as a molder in the foundry of the Kalamazoo Stove & Furnace Company, defendant, for approximately 12 years. The testimony of the doctor who attended him in his last illness and the autopsy showed that he had suffered from a bilateral diffused pneumoconiosis and silicosis and active proliferated tuberculosis with cavitation; that he contracted the disease some eight years prior to his death. Decedent's fellow-employees had noticed his frequent coughing in 1932 or 1933. Plaintiff testified that in the two years preceding decedent's death, she had noticed that he was weak, suffered loss of appetite and had pains in his chest and lungs; that theretofore he had been strong and healthy.

Defendant's records showed that decedent first entered its employ on August 10, 1927; that on December 9, 1937, he was laid off and rehired on April 4, 1938, an interval of almost four months; he was again laid off on December 27, 1938, and was not again rehired until October 3, 1939, a period of over nine months. The laying off of the molders as a rule was due to lack of work. The employees, however, were free to work for others and were rehired as occasions arose. In 1928 or 1929, decedent worked for another company in Owosso, Michigan, for two months while defendant was shut down but then returned to the employ of defendant. Both the deputy commissioner and the board on appeal denied plaintiff compensation. The board based its decision on § 5 of the act, No. 61, Pub.Acts 1927 (Stat.Ann. § 17.224), which reads:

‘Neither the employe nor his dependents shall be entitled to compensation for disability or death resulting from such occupational disease, unless such occupational disease is due to the nature of his employment and was contracted therein, or in a continuous employment similar to the one in which he was engaged at the time of disablement, within twelve months previous to the date of disablement, whether under one or more employers. The time limit for contraction of the occupational disease prescribed by this section shall not bar compensation in the case of an employee who contracted such occupational disease in the same employment with the same employer by whom he was employed at the time of his disablement and who had continued in the same employment with the same employer from the time of contracting such occupational disease up to the time of his disablement thereby.’

The board held: ‘The work record showed that he was not continuously employed. That statute expressly limits compensation in cases where a workman has worked for one or more employers within twelve months to diseases contracted within the twelve months. In cases of continued employment, where the disease was contracted in the same employment, he must have continued to work. During the periods of his lay-offs he was free to work elsewhere if he choose (chose). He was not an employee of the defendant during those periods.’

Plaintiff contends that the use of the words ‘continuous' and ‘continued’ in § 5 of the act shows that the legislature meant to give different meanings to the words, and that inasmuch as decedent did not work for any one else during this period he had continued in defendant's employ. Appellant claims that any employer who foresaw the faintest indication that an employee might be afflicted with an occupationaldisease might purposely lay him off so as to avoid payment of compensation, and thus defeat the very purpose of the act. On the other hand, appellee states that if the lay-off or discharge was not bona fide, the court would give the employee relief. He points to a somewhat analogous situation in Smith v. Pontiac Motor Car Co., 277 Mich. 652, 270 N.W. 172, and contends that the court would hold that it was not a bona fide termination of the contract of hire, but that the employment, as a matter of fact, continued.

It is unnecessary to pass upon this question in the present case inasmuch as compensation must be denied on another ground. Attention is called, however, to the claims of ambiguity so that, if any ambiguity exists, it may be removed if the law is amended.

The testimony leaves no doubt that the room in which decedent was working was continually dusty. The sand used in the molding process was damp, so that the atmosphere was humid, and the air was filled with dust from the powders used by molders. There was no ventilation except from windows; it was difficult to reach and open them, and during the winter months they were usually closed up by being frozen. Another witness stated that the dust was so thick in the foundry room that one could hardly breathe at times. Adjoining the foundry room is the mounting room where emery wheel grinders are used at times in order to fit the parts together. There is a door connecting the two rooms. One witness testified that while there is quite a bit of dust around or close to the grinding machines, it did not bother one over in the molding room. In the mounting room, they also used sand blasting to clean the larger castings, while the smaller ones were put in a ‘rattler,’ a machine similar to a rotating barrel. The purpose of these machines is to remove the excess sand from the castings and the process has no effect on the metal. Quite a bit of dust emanates from the sand blast operation and some of it enters the foundry.

Tuberculosis is not compensable under the act. Silicosis is only compensable under § 2 when it is caused by mining. Pneumoconiosis is the only possible disease for which plaintiff can recover. The commission did not make any finding of fact as to what part, if any, pneumoconiosis played in decedent's death. Pneumoconiosis is compensable under the act when it is caused by ‘quarrying, cutting, crushing, grinding or polishing...