Gentle v. Northern States Power Co.

In speaking of Minn. St. 1941, § 176.06, subd. 1 (a, b), set out in the opinion of Mr. Justice Peterson, this court in Tevoght v. Polson, 205 Minn. 252, 254, 285 N.W. 893, said:

"The legislative history of [these subdivisions] throws no light whatever upon the purposes of the legislature or the extent to which it sought to restore to the employe his common-law right of action. It may be that it intended that his common-law right of action should only be eliminated in situations like those where contractors and subcontractors are engaged on the same project and their employes exposed to the hazards created by such mutual engagements. But our decisions have gone much further than that in depriving the employe of his common-law right of action."

Undoubtedly, it was the thought of the legislature that it was unjust that the rights and protection afforded several workmen of different employers under the workmen's compensation act should be different when these employes were working together on the same premises, on the same project, and subject to the same risks of injury. The subdivision under consideration sought to carry out that policy. Under the conditions therein stated, the injured workman can either assert his claim against his employer under the act or recover for common-law negligence from the third party whose employes were also there and protected by the act. But he cannot do both, and the act expressly limits the amount of recovery against the third person to that which the employe would have received had he asserted his claim against his own employer. The intent, purpose, and policy of the act thus manifested is served only when the employes of different employers are engaged in a common activity. Subdivision 1(b) sought to limit the scope of the subdivision to that situation.

Misled by the confusing language used in the subdivision, we have not proceeded from this point of view. We have examined not the common activities of the employes but rather the common purposes or enterprise of the employers. These tests have only an indirect relation to the policy sought to be effectuated, and, in consequence, endless and fruitless litigation has come before this court over their application. We have said that "No two cases are alike, and it would be futile to attempt to distinguish or liken the facts in this case to any we have heretofore decided." Smith v. Kedney Warehouse Co. Inc.197 Minn. 558, 563, 267 N.W. 478, 480, 269 N.W. 633.

It is my opinion that the approach we have previously adopted was a mistaken one and that it is our duty to correct it rather than wait for the legislature to do it for us. The statutory terms "common enterprise" and "same or related purposes" of the employers should be construed to mean that their employes were engaged in some common activity which brings them within the policy underlying the subsection. The recent cases cited in the opinion of Mr. Justice Peterson are in that direction. Since the present decision is in the same direction, I concur in the affirmance.