Thomas v. Parker Rust Proof Co.

• Decision Date: 04 May 1938
• Docket Number: Nos. 127-134.,s. 127-134.
• Citation: 284 Mich. 260,279 N.W. 504
• Parties: THOMAS v. PARKER RUST PROOF CO., and seven other cases.
• Court: Michigan Supreme Court

284 Mich. 260

279 N.W. 504

THOMAS

v.PARKER RUST PROOF CO., and seven other cases.

Nos. 127-134.

Supreme Court of Michigan.

May 4, 1938.

Separate actions by Catherine Thomas, administratrix of the estate of Brit Thomas, deceased, by Frances Forth, administratrix of the estate of John Forth, deceased, by Lovey Blake, administratrix of the estate of Yancey Blake, deceased, by Maggie Hughes, administratrix of the estate of Silas Hughes, deceased, by Rosa Burns, administratrix of the estate of Alexander Burns, deceased, by Anna Smith, administratrix of the estate of Robert Smith, deceased, by Leota Elizabeth Gray, administratrix of the estate of Frank Gray, deceased, and by Mack McClenen, against the Parker Rust Proof Company, for death of the administratrices' intestates and for personal injury sustained by the last-named plaintiff resulting from silicosis. From adverse judgments, the plaintiffs appeal.

Affirmed.

POTTER and McALLISTER, JJ., dissenting.Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, judge.

Argued before the Entire Bench, except BUTZEL and CHANDLER, JJ.

Dann & Atlas, of Detroit, for appellants.

Fred C. Culver, of Hudson, and Vandeveer, Vandeveer & Haggerty, of Detroit, for appellee.

Butzel, Eaman, Long, Gust & Bills, of Detroit (David A. Howell, of Detroit, of counsel), amicus curiae.

WIEST, Chief Justice.

The above eight cases involve the same issues of law and have been heard together upon the record in Thomas, Administratrix, v. Parker Rust Proof Company, and this opinion in that case applies as well to all the others.

Catherine Thomas, administratrix of the estate of Brit Thomas, deceased, brought this action at law, claiming that decedent, while in the employ of defendant company, suffered a diseased condition of the lungs, due to the inhalation of dust and fumes during a course of years and known as silicosis or pneumoconiosis, causing his death. The Workmen's Compensation Act, Comp.Laws 1929, § 8407 et seq., at the time affording no remedy against the employer for an occupational disease, this claimed right of action at common law was brought to recover damages under allegations that defendant, as employer, negligently and willfully failed to provide preventative means and measures which would have saved the employee from injury.

Upon motion of defendant, it appearing that defendant and plaintiff's decedent were at all times subject, in their relation of employer and employee, to the provisions of the Workmen's Compensation Act, the court dismissed the suit under the authority of Cell v. Yale & Towne Manufacturing Co., 281 Mich. 564, 275 N.W. 250, 251.

Plaintiff prosecutes review, presenting the principal question of whether, under the rule of employer and employee operating under the provisions of the Workmen's Compensation Act, damages for an injury to the employee, not compensable under that act, may be recovered in an action at law.

Counsel for plaintiff herein also appeared as counsel for plaintiff in the Cell Case. In the Cell Case we said:

‘Plaintiff contends that he has not met with an accident, neither is he suffering from an occupational disease, but that he has been injured by the negligence of the defendant, and inasmuch as the Compensation Act affords no remedy, except for accidental injuries, and none for occupational diseases, it has not abrogated the common-law remedy here invoked. * * *

‘Upon review plaintiff admits there is no remedy at law for an occupational disease, strictly as such, but claims that for injuries sustained, without accident, but by reason of the failure of the employer to protect him as an employee, he may maintain this suit.’

We there held:

‘The relation of master and servant existed. The declaration avers a duty upon the master to provide a vent for the fumes and culpable neglect to do so.

‘Plaintiff averred an action governed by the law of master and servant. Such an action cannot be maintained against an employer operating under the Workmen's Compensation Act.’

Notwithstanding the opinion in that case the same counsel present a like question in the instant case.

No rehearing was asked in the Cell Case, and we might well limit opinion herein to a statement that the instant case is controlled by the opinion in that case.

The provisions of the Compensation Act clearly bar prosecution of the instant case.

Section 1 of part 1 of the act, Comp.Laws 1929, § 8407, provides:

‘In an action to recover damages for personal injury sustained by an employe in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:

‘(a) That the employe was negligent, unless and except it shall appear that such negligence was wilful;

‘(b) That the injury was caused by the negligence of a fellow employe;

‘(c) That the employe had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.’

Comp.Laws 1929, § 8409, provides: ‘The provisions of section one (1) shall not apply to actions to recover damages for the death of, or for personal injuries sustained by employes of any employer who has elected, with the approval of the industrial accident board hereinafter created, to pay compensation in the manner and to the extent hereinafter provided.’

And section 8410, Comp.Laws 1929, provides: ‘Any employer who has elected, with the approval of the industrial accident board hereinafter created, to pay compensation as hereinafter provided, shall not be subject to the provisions of section one (1); nor shall such employer be subject to any other liability whatsoever, save as herein provided for the death of or personal injury to any employe, for which death or injury compensation is recoverable under this act, except as to employes who have elected in the manner hereinafter provided not to become subject to the provisions of this act.’

It will be noted that the mentioned section 8407 takes away from the employer, not operating under the act, certain common-law defenses, while section 8409 constitutes the provisions of section 8407 wholly inapplicable to an employer operating under the Compensation Act, and section 8410 expressly limits the employer's liability, where both the employer and employee are operating under the provisions of the act, by providing that the employer shall not be subject to any other liability whatsoever.

Operation under the Compensation Act is not mandatory but elective; an employer may elect to operate under its provisions; if not so operating certain common-law defenses are abrogated. An employee, by written notice at the time of hiring, may elect not to be subject to the provisions of the act. Comp.Laws 1929, § 8414.

Where the employer elets to operate under the provisions of the act, and the employee fails to exercise the right of rejection, the provisions of the act enter the contract relation between them and both are bound by the provisions of the act and neither can complain that the act takes away any common-law rights relative to actions or defenses.

‘We have repeatedly held the rights of the respective parties under the Workmen's Compensation Law are fundamentally based upon the contract of employment.’ Boshaw v. J. J. Newberry Co., 259 Mich. 333, 243 N.W. 46, 48, 83 A.L.R. 412.

The provisions of the Workmen's Compensation Act are, in effect, read into the contract of employment between the employer and the employee. City of Grand Rapids v. Crocker, 219 Mich. 178, 189 N.W. 221.Being matter of contract the provisions of the act are binding upon the parties to the contract.

The Compensation Act imposes upon the employer certain duties and liabilities theretofore unknown to the law and, in some instances, brings a surrender of rights on the part of the employee.

An employee had no right of action at common law against an employer for injury or death due to an occupational disease. Adams v. Acme White Lead & Color Works, 182 Mich. 157-159-162,148 N.W. 485, 486, L.R.A.1916A, 283, Ann.Cas.,1916D, 689. So, no such right of action was taken away by failure of the Compensation Act to constitute an occupational disease a compensable injury. An occupational disease was not an accidental injury at common law and its inclusion in the Compensation Act would have been an added liability of the employer and, as such, require specific mention or designation as has since been accomplished in specified instances by Act No. 61, Public Acts 1937.

The Legislature framed the Compensation Act to take the place of all common-law remedies and, as such remedies arose from accidental injuries occasioned by negligence of the employer, the term ‘accidental injuries' was employed advisedly.

If plaintiff's disease was occupational then the alleged negligence of defendant did not make it an accidental injury. If such alleged failure on the part of the employer to warn of the danger and provide protective means and measures constituted actionable negligence, previous to adoption of the act, then this action cannot be maintained.

The declaration alleged: ‘That in the year 1929 the deceased commendced working for the defendant in the aforesaid plant in the presence of the aforesaid machinery and more especially in the sand blasting department, where dust, sand, chemicals, smoke, gas, fumes, silica, and silica bearing compounds were readily generated and diffused in the air.’ That by reason of so working plaintiff's decedent contracted silicosis which caused his death on March 4, 1935. There is no allegation that the silicosis came suddenly, by reason of negligence on the part of defendant and was the result of one contact or event and, therefore, accidental.

We said in Adams v. Acme White Lead...