Thomas v. Parker Rust Proof Co.

I do not agree with the opinion of the majority herein.

The title to the workmen's compensation act is one "providing compensation for the accidental injury to or death of employees," et cetera. Part 2, § 1, of the act (2 Comp. Laws 1929, § 8417 [Stat. Ann. § 17.151]) covers personal injuries to an employee arising out of and in the course of his employment. It is clear that part 2, § 1, of the act is much broader than the title thereof. When the constitutionality of the act came before the court, it confined the operation of part 2, § 1, of the act to the scope of the title by exercising the legislative power of interlineation by inserting the word "accidental" as a matter of construction before the word "personal" in part 2, § 1, of the act. So that the act was construed to read "accidental personal injury arising out of and in the course of his employment."

It seems to have been settled by this court that there was no such thing at common law as liability for a purely occupational disease. There is no doubt but that at common law an occupational disease contracted by reason of the employer's negligent failure to furnish a safe place to work was actionable.

(a) An employer is liable for injuries caused to an employee by reason of the employer's negligent failure to furnish a safe place to work. Swoboda v. Ward, 40 Mich. 420 (15 Am. Neg. Cas. 752, 16 Am. Neg. Cas. 1); Huizega v. Cutler Savidge LumberCo., 51 Mich. 272; Smith v. Peninsular Car Works, 60 Mich. 501 (1 Am. St. Rep. 542, 16 Am. Neg. Cas. 42).

(b) If latent risks unknown to the employee exist, it is the duty of the employer to warn the employee of such dangers.Chicago Northwestern R. Co. v. Bayfield, 37 Mich. 205 (16 Am. Neg. Cas. 87); Michigan Central R. Co. v. Smithson, 45 Mich. 212; Hathaway v. Railroad Co., 51 Mich. 253 (47 Am. Rep. 569);Ribich v. Lake Superior Smelting Co., 123 Mich. 401 (48 L.R.A. 649, 81 Am. St. Rep. 215, 7 Am. Neg. Rep. 534).

(c) These rules apply to injuries occasioned by occupational disease as well as to other injuries. Fox v. Peninsular WhiteLead Color Works, 84 Mich. 676, involved personal injuries resulting from exposure to Paris green in process of manufacture. In that case, it was said:

"It was the duty of the defendant not only to inform the plaintiff that it was a poison, but of the effect it might produce to one working in its manufacture without taking due precaution; and the precaution necessary to be taken should have been pointed out, if known to the defendant, and all proper and reasonable appliances and facilities provided to guard against the dangers to be encountered in the employment."

Such disease so contracted was not accidental in character. There was nothing fortuitous or sudden about its acquisition. It was not such an accidental personal injury as entitled the injured employee to compensation under the workmen's compensation act. The workmen's compensation act is the sole basis of recovery only when "compensation is recoverable under this act." Part 1, § 4 (2 Comp. Laws 1929, § 8410 [Stat. Ann. § 17.144]). This position is strengthened by part 1, § 5, subd. 2, of the act (2 Comp. Laws 1929, § 8411 [Stat. Ann. § 17.145]) which covers employers who "have elected to become subject to the provisions of this act," and by every other section of the act itself.

It was not the intent and purpose of the workmen's compensation act to take away from injured employees rights which they had at common law without substituting a new remedy in the place of their right of recovery. Therefore, the common-law liability of an employer for injuries to the employee arising out of the negligent failure of the employer to furnish a safe place to work, — occupational diseases, not accidental injuries, — remains subject to the rule of the common law. No remedy therefor was furnished by the workmen's compensation act. Liondale Bleach, Dye Paint Works v. Riker,85 N.J. Law, 426 (89 A. 929); Jellico Coal Co. v. Adkins,197 Ky. 684 (247 S.W. 972); Berkeley Granite Corp. v.Covington, 183 Ga. 801 (190 S.E. 8); Smith v. InternationalHigh Speed Steel Co., 98 N.J. Law, 574 (120 A. 188); Donnelly v. Minneapolis Manfg. Co., 161 Minn. 240 (201 N.W. 305);Barrencotto v. Cocker Saw Co., 266 N.Y. 139 (194 N.E. 61); Zajkowski v. American Steel Wire Co., 169 C.C.A. 147 (258 Fed. 9, 6 A.L.R. 348).

The declaration of plaintiff sets up such an injury, — that is, an injury arising out of occupational disease contracted by reason of the negligent failure of the employer to furnish a safe place to work. The common-law liability of the employer remains and plaintiff may be entitled to recover if he can establish he did not knowingly assume the risk of the employment, was not guilty of contributory negligence, and his injuries did not result from accident or from the negligence of a fellow servant or employee.

McALLISTER, J., concurred with POTTER, J. BUTZEL, and CHANDLER, JJ., did not sit.