286 N.Y. 531 | NY | 1941
Lead Opinion
The suit is against an employer by a workman who alleges that while working in the employer's plant, plaintiff "sustained injuries to his health and aggravation thereof," that these injuries were not accidental in character, and that they were caused by the employer's negligence and by his violation of various statutes in failing *534 to keep the plant free of smoke, noxious gases and other impurities. The complaint further alleges that section 3, subdivision 2, of the Workmen's Compensation Law (Cons. Laws, ch. 67), as amended by chapter 254 of the Laws of 1935, and article 4-A of that act, as added by chapter 887 of the Laws of 1936, or "either or both" of those enactments, are unconstitutional and void, as leaving without any remedy workmen who suffer injuries from impure air conditions through an employer's fault, unless permanent and total disability results therefrom. The courts below have granted defendant's motion under Rules of Civil Practice, 107, subdivision 2, for a dismissal of the complaint on the ground that the court has not jurisdiction of the subject of the action because the alleged cause of action comes exclusively within the coverage of the Workmen's Compensation Law. While the complaint says nothing as to the dates of plaintiff's employment by defendant, the dates, as supplied by defendant's affidavit, and not disputed, are from November 5, 1936, to February 28, 1938. Nowhere in the complaint or affidavits is there any allegation that plaintiff has been disabled, partially or totally. In the absence of such an allegation, we of course cannot pass on the validity of provisions of article 4-A of the Workmen's Compensation Law that there shall be no compensation for partial disability due to dust diseases (§ 66), and that the liability of an employer prescribed by that article shall be exclusive and in place of any other liability whatsoever (§ 72).
Furthermore, even if the papers on this motion sufficiently alleged that plaintiff had been partly disabled by a dust disease through defendant's fault, we would not be in a position to pass on plaintiff's contention that sections
The judgment should be affirmed, with costs.
Dissenting Opinion
Plaintiff brought this action to recover damages for injuries alleged to have been caused by defendant's violation of various statutes designed to protect workmen from injury and disease due to the inhalation of gases, fumes and dust. The complaint alleges that the injuries suffered by plaintiff were not within the purview of the Workmen's Compensation Law and that the Workmen's Compensation Law is unconstitutional in so far as it attempts to deprive of any remedy a person who suffers injuries to his lungs through his employer's negligence and violation of statute unless that person is totally disabled.
Defendant's motion to dismiss the complaint on the ground that the court did not have jurisdiction of the subject-matter of the action (Rules Civ. Prac. rule 107, subd. 2) was granted at Special Term. The Appellate Division, fourth department, has unanimously affirmed the judgment of dismissal without opinion on the authority of del Busto v. Du Pont deNemours Co.
(
Three problems are presented: (1) Whether sections
Article 1, section 18, of the New York Constitution (formerly article 1, section 19) provides: "Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment * * * of compensation for injuries to employees or for death of employees resulting from such injuries * * *; or to provide that the right of such compensation, and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries * * *."
The Workmen's Compensation Law as it existed prior to 1935 made no provision for compensation for silicosis or other dust disease. Section 10 provided generally for liability of the employer for compensation. Section 11 provided that "the liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee * * * *537
or any one otherwise entitled to recover damages, at common law or otherwise on account of such injury or death * * *." That provision was construed to mean that the liability of the employer prescribed in the act was exclusive only in so far as liability was asserted for an injury or disease covered by the act (Barrencotto v. Cocker Saw Co.,
In 1936 silicosis and other dust diseases were excepted from the general provisions of the act and a new article (4-A) was added to the Workmen's Compensation Law dealing with dust diseases as a special problem (L. 1936, ch. 887). It was therein provided that "compensation shall not be payable for partial disability due to silicosis or other dust disease" (§ 66) and "the liability of an employer prescribed by this article shall be exclusive and in place of any other liability whatsoever, at common law or otherwise, to such employee * * * on account of any injury, disability, or death, caused by the inhalation of harmful dust * * *," (§ 72). The two provisions last above quoted are the ones attacked on this appeal.
Were we to construe these sections as denying any remedy whatever to workmen suffering partial disability from silicosis caused by the employer's negligence, their invalidity would seem clear. The authority granted the Legislature was to enact laws for the payment of compensation for injuries and to make "theright of such compensation, and the remedy therefor * * *exclusive" (N.Y. Const. art. 1, § 18). The plan envisioned in the Constitution was one of give and take on the part of both employer and employee (Matter of Jensen v. Southern PacificCo., *538
In construing a statute, every presumption must be indulged in favor of its constitutionality and the courts will so interpret the language of the act that it may stand without conflict with the fundamental law, if it is possible to do so without offending the intention of the Legislature (People ex rel. Bridgeport Sav.Bank v. Feitner,
In this era of enlightened social legislation it would be absurd to say that the Legislature has designed to create in this State a legion of industrial derelicts. Yet, this must of necessity result from construing article 4-A of the Workmen's Compensation Law as barring all those suffering partial disability due to silicosis from any remedy. By section 65 of the act it is declared to be the policy of the Legislature to prohibit through every lawful means available any requirement compelling an applicant for employment in harmful dust-generating industries to undergo a medical examination. Section 67 makes the employer liable in whose employment the employee was last injuriously exposed. Section 69 provides that no compensation shall be payable to an employee who falsely represents in writing that he has not previously been disabled from the disease which is the cause of disability or death. Thus, according to defendant's contentions, the employer may rid himself and all industry of liability by the simple expedient of discharging any employee who evidences any of the first symptoms of partial disability from the disease. Subsequent employers are relieved of liability by procuring from the applicant a written statement that he has not previously suffered the disability which caused his discharge, and, of course, he must so state if he is to be employed.
We are not here concerned with the wisdom of the legislation, but only with the intent of the Legislature in enacting the statute. The total absence of equity and justice in a statute as construed one way may very well compel a *540
different interpretation. No other provision of the Workmen's Compensation Law can be pointed to which takes away the remedy of a person partially disabled through either accidental injury or occupational disease. To construe article 4-A as defendant maintains would do violence to the fundamental and primary idea behind such statutes — to establish a system of insurance to protect society from the burden of disabled workmen, the employees' share in the cost being reflected in wages and the employers' share being carried as an operating expense (New YorkCentral R.R. Co. v. White,
We hold that article 4-A is constitutional. It does not provide, however, for compensation for partial disability for injury. As to such disability the Legislature has not made that act the exclusive remedy for the person injured. As we held in the Barrencotto case (supra), the common law remedy for such an injury still remains. By the amendment, article 4-A, so far as the subject treated was concerned, all remedies under the Workmen's Compensation Law as it previously existed were abolished. To hold the amendment constitutional it must be found that the Legislature intended to preserve for the injured workman his common law action if partial disability only resulted from injury. If the law is to be changed, that is the concern of the Legislature and no concern of the courts. With the opinion in theBarrencotto case before it the Legislature expressed its intent in language that is not only clear and understandable but in language that is not open to construction when it provided (§ 66) that "compensation shall not be payable for partial disability due to silicosis or other dust disease." It intended as a necessary consequence of that language that the common law right of action for injuries for partial disability should still exist. The intent so apparent cannot possibly be changed by any quibble over the meaning of the wording of section 72. *541
Article 4-A excludes from section
It is difficult to find any warrant or authority for disposing of the appeal on a technical defect in pleading. Defendant's motion to dismiss the complaint is on the specific ground that the court does not have jurisdiction of the subject-matter of the action (Rules Civ. Prac., rule 107, subd. 2). That was the only ground that was considered or could be considered in the lower courts. Plaintiff alleges that his injuries were such as were not within the purview of the Workmen's Compensation Law and that article 4-A of the Workmen's Compensation Law is unconstitutional in so far as it prohibits the commencement of an action for negligence by, and, at the same time, fails to make provision for compensation for, "persons who were employed subsequent to September 1st, 1935, and who suffered injuries to the lungs through the employer's negligence or through the employer's violation of statutory laws unless said person is permanentlyand totally disabled, and therefore, amounts to a deprivation of substantial rights of this plaintiff without due process of law * * *." The complaint contains allegations of injury and damage. On this motion, *542
all facts alleged and all facts that can reasonably be implied must be considered as pleaded (Sage v. Culver,
Unless barred by constitutional or statutory limitations upon our jurisdiction, I believe the constitutional question raised by the record here should be decided on the merits. In November, 1940, the limitations upon our jurisdiction compelled us to deny the motion to appeal to this court in the Del Busto case. Immediately thereafter litigants sought to have the question of the constitutionality of article 4-A determined on a direct appeal under section 588, subdivision 3, of the Civil Practice Act from a Special Term order dismissing a complaint. In spite of the fact *543
that the parties sought by stipulation to eliminate every question except that of the constitutionality of the act, we were constrained to dismiss the appeal on the ground that the constitutional question was not the only question involved and jurisdiction was not conferred by that stipulation (Powers v.Porcelain Insulator Corp.,
The judgment appealed from should be reversed, with costs, and the motion denied.
LEHMAN, Ch. J., LOUGHRAN, CONWAY and DESMOND, JJ., concur in opinion Per Curiam; FINCH and LEWIS, JJ., concur in result; RIPPEY, J., dissents in opinion.
Judgment affirmed. *544