Wagner v. LaSalle Foundry Co. , 345 Mich. 185 ( 1956 )

Smith, J.

(dissenting). We have here a case in which a workman 68 years of age, who has been employed in foundries as a molder for the greater part of 40 years, has contracted silicosis and is totally disabled by the disease. I agree with the commission’s finding of fact that “there is no question but that plaintiffs employment as a molder, including his employment by the defendant foundry, exposed him to sand and dust and the hazard and danger of dust disease.”

There is a question, however, of who shall pay the bill. Plaintiff has had foundry employment in Michigan for some 16 years and he makes his claim against his last Michigan employer, defendant here. The Michigan employer, however, would send him to Ohio for recovery, if any, and my Brother Kelly, observing that “defendant established the fact that plaintiff * * * was entitled to benefits under the 'Ohio workmen’s compensation act” (a conclusion which is far from indisputable to me), denies him recovery in Michigan upon an interpretation of the act with which I cannot agree.

The statute (CL 1948, § 417.9 [Stat Ann 1950 Rev § 17.228]) says that total compensation for occupational diseases “shall be recoverable.” There is not much doubt at this point what our people have done. They have granted a recovery. But a theoretical right to recover is a far cry from cash in hand, as our legislators well know. Accordingly, the law does not stop here. It goes on to tell us from whom the total recovery is to he had: Compensation “shall be recoverable from the employer who last employed the employee” in the hazardous occupation. (Often there has been more than one employer. In such case the act provides for apportionment of the financial burden among the others.)

Now for the issue: Do the words “shall be recoverable” mean recoverable from the last employer in point of time (no matter where located, Ohio, Canada, or Timbuktu) or does it mean the last employer in the State of Michigan?

Let us examine the alternatives: If it means the last employer in point of time, no matter where he is, we have to conclude that the legislature has done a vain and useless thing, that it has offered an illusion of hope to these sufferers, well knowing, as we know, and as our people know, that it has no shred of authority over employers in Ohio (or elsewhere) to say that money “shall be recoverable” from them. If it means merely that the workman may travel to the foreign jurisdiction and take his chances on the law there, should he so desire, I take it that no act of the legislature was needed to give him his right. I accordingly reject this alternative urged upon us by appellant. I cannot believe that our legislators have gone through the cruel formality of offering a silicosis sufferer the compensation he so desperately requires and at the same time providing that it “shall be recoverable” from persons over whom our legislators have no conceivable jurisdiction.

I conclude, then, that the act means that the total compensation due shall be recoverable from the Michigan employer who last employed the claimant in the hazardous occupation.

But at this point my Brother Kelly introduces a new requirement in the right to compensation, on the basis of which recovery is here denied: That compensation shall be paid by the last employer in the chain of employers, provided, that that last employer is in Michigan. In his own words:

“From an examination of the various sections of the act, as above referred to, this Court comes to the conclusion that the legislature intended that the commission would have jurisdiction and should exercise jurisdiction in a case of this nature under part 7, § 9, upon the last employer, provided, that such last employer was a Michigan employer; and where, as in this case, the last employer was an employer without the State of Michigan, said commission lacked jurisdiction to make an award.”

The difficulties with the interpretation are manifest: It reads into the act a wholly extraneous requirement. It makes a disabled workman’s right to compensation depend upon a fortuitous and arbitrary incident, unrelated to risk or exposure, i. e., the geographical location of the last employer. It means, moreover, that a workman with long years of exposure in Michigan loses all right to Michigan compensation for silicosis if economic conditions in this area have forced him over the State line into nearby employment for a short time, for in such case “the last employer was an employer without the State of Michigan.” This course of action, it may be noted, is one that has been warmly commended to our people, namely, of seeking out the work where the work is, even though it means a temporary absence from one’s usual home and surroundings. The wisdom, or lack of wisdom, of writing such considerations into a workman’s compensation act, however, are for the legislators, after a full consideration of competing considerations, not for judicial determination under the guise of interpretation. The act under consideration is a Michigan act, it deals with Michigan workmen, and Michigan working conditions, and Michigan problems. To me the words “last employer” mean, prima facie, the “last Michigan employer.” To add, however, a proviso, as my Brother has done, that such last employment shall have been in a given area, is beyond our competence and involves the legislative considerations above described.

The commission’s interpretation of the act avoids such judicial legislation and is clearly correct: The compensation due shall be recoverable from the last Michigan employer. The result, it may be noted, is in keeping with both the letter and the spirit of the act. In the ease before us we have a workman who was totally disabled by silicosis after a prolonged and substantial exposure in Michigan. There is a reasonable relation between efficient cause, final result, and ultimate responsibility. - The requirements of compensability are satisfied.

The award should be affirmed. Costs to appellee.

BLACK, J., concurred with Smith, J.