*1 Corp. 1956] Ditch General Motors The Weaver Case established the fact that it was injured necessary party be receiving at the time of the wages injury, principles forth in set that case would apply equally per- just son who was about to start work person had who left just work.
The facts this case sustain a conclusion that the fatal accident in question arose out of and in the' course employment. affirmed,
Award costs to appellee. J., C. Dethmers, Sharpe, Smith, Reid, Boyles,, JJ., J. concurred with Carr, Kelly, J., took Black, decision оf this case. v. LaSALLE FOUNDRY WAGNER COMPANY. Compensation Occupational Workmen’s — 1. Disease —Personal. Injury. imposing of workmen’s act liability upon Provision working for whom when occupational an disability, employers resulted well as other .disease had him since the disease was contracted must be pertinent in connection with other provisions construed and the disablement be statute treated as a happening of a injury personal 417.1, 417.2, 417.9). §§ Occupational op 2. Same — Disease —Time Disablement. occupational Disablement disеase will as a considered injury personal occupational set forth disease amend- ment of the workmen’s act and will be established injury by as to time and date of provisions of the act specifically applicable (CL 1948, to such 412.1,. determination §§ 417.2). References for Points in Headnotes Jur, Am Compensation Workmen’s 409. 1] §§ Jur, Compensation Compensation Compensation seg[. Am58 Workmen’s Workmen’s Workmen’s 193 et 2] 3] Jur, Jur, 58 Am Am 58 282. 28. 5] §§ '6, Jur, 58 Am Compensation Workmen’s 342. Reports. op Liability. Occupational Disease —Determination Same —
3. occupational disabled, used the term is employee is An when of the workmen’s amendment disease he was last wages the work whieh full at earn he cannot *2 disability resulting in which is to subjected the conditions personal injury as of the happening of a be treated resulted and employment whieh so day of work last compensation due and the total contracted it in whieh was 412.1, 417.1, (CL 1948, last from the §§ is recoverable 417.2, 417.9). Compensa- Legislature—Supreme Court —Workmen’s 4. Same — Occupational Disease —Proximate Cause— tion Commission — Employment and Other States. This Supreme nor the compensation commission the workmen’s Neither establish legislative prerogatives and may exercise Court maximum time in this or a employment minimum time of by employee disabled from an employment outside this State proximately employment worked in occupational disease who has while he therein causing from disease contracted disablement well as elsewhere engaged in this State as had been so 1948, 417.9). § Derogation op Common Statutes 3. Same —‘Construction , n Law. ocсupational compensation disease act The workmen’s derogation of the common law amendment thereto are thereby may be extended relief afforded the measure of seq., (CL 1948, et et beyond express 417.1 terms seq.). Employer. ¡6. Same —Silicosis—Last compensation paying for burden of workmen’s by upon the last due to is east' the act silicosis employment to nature of the disease was due whieh (CL 1948, §417.9). contracted and in which was Employer op Out State. '7. Same —Silicosis—Last lacked commission The workmen’s compensation to a one- of workmen’s to make award foundry company, his time of defendant silicosis employer, who became afflicted with foundry worker, where of his as a result en- terminating defendant he was after with to 3 gaged in similar work out of the State for 2-1/2 417.9). (CL 1948, months dissenting. JJ., .Smith Black, Wagner LaSalle Appeal Compensation from Workmen’s Com- January (Docket mission. Submitted 1956. No. 46,518.) April No. Calendar Decided 1956. Henry Wagner presented against E. his claim La- Foundry Company Salle for when dis- following employment abled silicosis outside of compensation. appeals. State. Award Defendant Reversed. Ryan, plaintiff.
Edward J. Lacey, (Buell counsel), Jones Doelle, & Doelle for defendant. Defendant-appellant J. claims work- Kelly, finding
men’s commission erred plaintiff-appellee totally disabled of to because *3 pneumonoconiosis ordering in and defendant pay plaintiff per not week, $10,500. $24 but to exceed years age, a man Plaintiff, 68 of molder for 40 years, employed foundry was first in a New York subsequently State. He St. worked as a molder for a Joseph, Michigan, foundry from 1924to and foundry Michigan, at a at Harbor, located Benton from 1935 to 1944. Plaintiff then moved to Cleve- employed Ohio, and land, was at 2 Cleveland found- years. plaintiff for ries In 1948 returned to 3-1/2 Michigan employed and was for about 6 months at foundry. period approxi- a Benton Harbor A years elapsed mately plaintiff then when did 1-1/2 during period not work and per lived on his $75 pension. month veteran’s employed by
Plaintiff was then the defendant, Foundry Company, period for LaSalle than 5 of not more namely, weeks, 7,1950, June later July foundry 1950. Defendant’s than is located employs and Detroit, between and men. Michigan Reports. plaintiff left and slack became somewhat Work employed foundry a molder defendant’s foundry, where he had been a Cleveland, Ohio, at employed. working previously at this Cleve- After foundry thumb, he cut his to 3 months land 2-1/2 with and reside to return to and decided gov- his lived on He thereafter father-in-law. his sought pension father-in-law with his ernment employment. felt discomfort his that he first Plaintiff testified February, medical did not seek but chest advice February, 1952. until legisla- appeal for a determination calls This expressed 7, 9, work- tive intent as provides: which men’s be recoverable due shall “The total employee employed from the in employment nature of which the disease to the how If, contracted. in which it was was due ever, ployee the pensation while such em contracted such disease was employer, prior of a was in for the total com who is made liable may appeal provided this section compen apportionment for an' of such said board * employers among who since thе the several sation have such contraction of such disease shall employee to the nature which apportionment shall due. the disease was Such proportioned time such was em to the employers, ployed and shall be the service of such only hearing, notice of the time after a determined and given every place have been which shall any portion employer alleged liable for of such to be any portion compensation. If the board finds *4 payable by compensation an of such prior who is made liable for the total to whose appeal § 17.6[8] [*] The “board” powers board. et seq.).—Reporter. and duties are now vested See here referred to is the industrial PA 1955, No 62 in the (Stat workmen’s Ann 1955 Cum accident board Supp Wagner LaSalle provided by as section, this shall accordingly an make award in favor of the last em- ployer, may and such award be enforced in the same compensation.” (CL manner anas award for 17.228].) § [Stat 417.9 Ann 1950 Eev stating: commissionwas correct question specific “The tо the the be decided is whether ‘employer employed,’ term provisions included in quoted of section 9 means last above, Michigan employer.” legislative determining expressed In intent part §7, 9, of the act, this workmen’s Court in Alexander Co., v. Ford Motor 329Mich 535, held that this section must be construed connection pertinent provisions 'with other of the statute and employee occupa- that disablement from an disability hap- tional disease or shall be treated as a pening personal injury. of a determining “employer In what mеant is. employee
who last to the nature of which the disease set due,” § given forth in 7, 9, consideration must namely, other sections of sections 2. § provides: Part 7, 1, of the act used this act: “Whenever “(a) ‘disability’ The word means the state be- ing earning wages disabled from full at the work subjected in which the was last con- disability.” resulting ditions 17.220].) [Stat Ann 1950 Eev Part 7, 2, the act reads: employee resulting “The disablement of an hap- such disease or shall be treated as pening personal injury meaning aof within procedure practice provided act apply proceedings this act shall part, except all under this specifically provided where otherwise *5 Michigan Reports. 345 190 §417.2 [Stat (CL Ann 1950 Rev 1948, herein.” §17.221].) § time date the and the act establishes 2, 1, Part of injury as follows: of injury’ injury’ of ‘date of ‘time or “The term in or in the case of disease in act shall used the case of this single injury to a an not attributable day the last of work be event subjected employee the condi- was last
which the disability resulting 1948, or death.” tions 17.151].) § § [Stat 1950Rev Ann § regard application part the 2, of in1, In to the part apрellee in his brief states: construction of 7, among appears the confusion “There to be some application part § profession occupational 1 to an 2, as to compensable part 7 disease case under of the act. appear to conflict between “There would be some part part § § and 2.” 2, 1, 7, § applied provisions part 2, 1,
This Court injury pneu determining in a in monoconiosis case the date of Lakey Foundry & Stewart v. any Co., Mich 469. eliminate 463, Machine To possible existing states confusion, Court part part § 1, 7, there is no conflict between and 2, in be considered as 2, disablement to jury part § will established 2, as set forth in 7, injury by provisions time and date as to part § 1. 2, proceed part § we 7, 9, we consider
As construe combining §§ and 2, 2, 1, and and provisions salient of these sections we establish following: employee An disabled when he can- wages “full at the em- not earn the work which ployee subjected resulting to the was last conditions disability” 1); “disability (part §7, said shall injury” happening personal be treated of a Wagner v. LаSalle 2); (part determine the time date of injury day there must be established “the last work in the in which the was. subjected resulting to the conditions (part 1);§ compen- or death” “the then total *6 employer sation due shall recoverable employed employee employment who last to the nature of which the disease was due and in (part which was contracted” 7, 9). plaintiff
Defendant established fact that had employed been in Ohio foundries for more than years and that his disablement resulted within 8- years injurious exposure aftеr his last there and, fore, was entitled to benefits under the Ohio work men’s act, and further that ex * planation plaintiff’s was offered for refusal to claim workmen’s under the Ohio statute. deny allegations Plaintiff not does defendant’s regard, argument this but contends that said fal- is employment might'be lacious because the last in a occupational State where there are no silicosis dis- ease benefits. Plaintiff further that if states defend- a Mich- interpretation adopted, ant’s of the statute is igan employer escape liability though сould even hazardous, employee exposed years had been to foundry. dust conditions question naturally plaintiff If arises: interpretation adopted commission’s not is would a such construction allow return Michigan, many years employment, after out-State Michigan employer and claim from period had him for a time, short by proving that such was the last Mich- igan employer? question upon
That was not in the- commented opinion plaintiff’s nor in commission’s was brief, and by plaintiff’s not counsel when answered asked [*] See Page’s Ohio Revised Code Annotated, 4123.68.—Reporter. Michigan Beports. during argument. It is evident this oral Court could the commission nor this Court
that neither legislative prerogatives safe- and establish exercise employment guards time of such as minimum employment out- a maximum time side State. opinion to the med- referred
In its the commission proof plaintiff to advanced ical pneumonoconiosis that had moderate type (1) stated the silicosis exposure plaintiff’s his that in could be due to condition dep- (2) exposure sand; foundries disability uty plaintiff’s that the commissioner found employ did manifest itself while .not subsequent to itself defendant but did manifest his the State with an within the date of inasmuch as Ohio, of the may injury plaintiff from an date recover intervening employer he was compensation whose his claim for hence, not disabled, (3) *7 denied; that there should be and are same was bearing Michigan Supreme no decisions Court question; (4) according particular that to on this pp §§ unless 484-487, 508-511, Am Jur, Statutes, 50 operate beyond the to a statute the intention have expressed country сlearly or limits of the State is subject purpose, language, mat- or indicated presumed history, legislation to in- or no ter, operate territorial tended to outside country enacting it. State findings were as follows: The commission’s legislature, enacting finding “It is our legisla- part did not intend that such of the 7, 9 jurisdic- operate the territorial outside tion should rather intended that but tion the State apply only within the limits of the it should finding Michigan. Consequently it is our con- § 9 act that the term ‘em- nection with ployer’ ‘Michigan employer’ and the term means "Wagner v. LaSalle ‘employer employed’ ‘Michigan who last means em- ” ployer employed.’ who last opinion only in its commission refers case, Hos namely: Kilby v. Charles S. Wilson Memorial pital, App Div NYS2d 410). Plaintiff (104 in his brief does call not attention to additional cases argument and in oral stated that counsel for defend agreed appeal presents ques ant with him that this impression only Michigan tion of first hut in the United States. Kilby
In this New York case claimant awas training general student nurse under the control and supervision hospital. of the defendant Defendant government and the United States had a wartime agreement nurses’ was under which financial assistance given hospital any to defendant for student joining corps. nurse the nurses’ cadet For a training hospital of her with defendant claimant Kilby assigned ato United States veterans’ hos- pital. proof government There Avas that the directed assignment fully controlled her course training, proof but there was also that the Wilson hospital general charge training continued in of her gradu- and her work. She returned to for Wilson disability ation the time and was there at was found. provided The Federal statute for govern- for a student nurse while on assignment, argued by ment and was Wilson that jurisdic- the New York hoard had no tion claim. The court that the held board exposure found that the occurred and the disease hospital contracted in the that the Court had at the work Wilson power require any contrary *8 finding. following The court made the statement (p 277), evidently impressed Michigan which the workmen’s commission, hut does not impress present the Court in case: Reports. Michigan in exposure found some had been if the “Even hospital, it the veterans’ incurred
to have been could were been, that there as it has found, also be liability. exposures upon In which base other beyond being hospital government the event, such charge, apportion the power the the the of State to parties party within the fall on award would reach of New York must employer liability jurisdiction. Hence, general solely against as Wilson assessed be employ- controlling the claimant’s one ment at time of disablement.” might quoted of im-
The statement some above questio.n portance presented this Court if the before helpful apportionment, in de- was ciding but is one appeal, question lia- i. e.: The here on this employer. bility the defendant an intervenor subjected plaintiff The that he was last admitted resulting he while was to conditions foundry (U. Aluminum at S. Ohio Company) during The 1950. commis- Match Plate opinion establish a date did not or order sion injury pursuant 2, 1 17.151]). [Stat Such a determina- Ann 1950 Rev day meeting the test of work in the tion “the last in which the was last sub- disability” jected resulting to the conditions could namely finding, plaintiff’s date result in but —that injury employ 1950, while in October, Company, Aluminum Match Plate of the IT. S. plaintiff Cleveland, Ohio, after left several months employ injury the was not of defendant. The Ohio date opinion or order
mentioned finding commission. commission’s was based disablement, on date of as follows: plaintiff finding that sustained a total “It is our occupation pursuing his former disablement result of silicosis, as the direct occu- molder pational date disease, on June on which *9 Wagner 195 LaSalle at the American advised of his condition lie was * * * Hospital Legion and that snch re- disease long exposure plaintiff’s foundry- sulted dust.” Co., Kalamazoo Stove & Furnace
In Sutter v. upon commented the occu 226, 232, Mich this Court pational follows: disease statute as occupational derogation
“The disease statute is law, common and is to receive a strict construc- by aptly tion It was stated Tews v. courts. Co., C. F. Hanks Coal Mich 466: “ derogation measure of relief ‘The act of the is and, law therefore, common its may beyond express terms; not bе extended its it is legislative permitting enlargement a creation equity principles is adaptations. or common-law It arbitrary nothing speaks and where it can add- be changed by judicial pronouncement. ed nor It im- liability poses upon operatives provisions under its ” and measures exclusive relief in own terms.’ disagree finding We not with do the commission’s legislature enacting that the of the 7, 9, legislation oper- not intend did that such should jurisdiction ate outside the territorial of this State. In 3, 19, of the workmen’s act §17.193]), §413.19 [Stat Ann 1950 Rev legislature limited the оf the work- by stating men’s commission that said jurisdiction arising commission should have out of injuries suffered without the territorial limits of this injured employee those cases where the injury at the a resident this State time of plain- contract of hire was made this State. The tiff herein was not resident of this State at the injury time of the and the contract hire with company not made in Ohio this State.
It that because of the follow, does not hoAvever, part fact that workmen’s compensation Michigan Reports. employer, upon binding Ohio act would resрonsibility necessarily shift that that would injury the defend- from the Ohio for the theory adopt employer. such ant To legislature intended to conclude that our would be and that kind, in all of this make an award cases *10 prevented jurisdiction where the of the commission plaintiff following it he crossed our State from stop it at the line and line into that must Ohio employer Michigan was the last determine what compensation employer that should bear the total paid. that must be upon
Plaintiff in the fact that his brief comments Michigan had no benefits for molders until silicosis years 1943-some workmen’s after first enacted Plaintiff law.* further upon comments that the fact silicosis contracted by exposure period years over a dust that day’s exposure each that, adds to disease and wisely legislature therefore, the removed from the the employee who becomes disabled silicosis picking employer employ burden of out the in whose ment the disease could be said to have been con tracted. legislature
It is true removed from the employee employer right picking or burden out the
in whose the disease was con definitely by stating tracted that that burden should by employer “the be borne who last employee in the to the nature of which the disease was due and in which was contracted.” places § 9, of the Part 7, a rather unusual bur employer, upon the last and, den as was said in silicosis caused Certain result [*] part The workmen’s 7, of the amendments occupational by (CL 1948, PA by mining 1937, diseases were made No was in PA 61. This act sets compensable. [Stat act is PA 1912 1943, Ann 1950 No 245. compensable by up Rеv (1st a schedule in which present wording Ex Sess), No 10. 17.220]) addition the is the Wagner LaSalle supra, Kalamazoo, Sutter v. it does not allow en- largement by principles equity or common-law adaptions by arbitrary this Court and it is in nature speaks nothing changed and where it can be added or judicial pronouncement. From an examination of the various sections of the act, as above to, referred this Court comes to the legislature conclusion that intended that jurisdiction commission would have and should exer- cise § employer in a case of this nature under 7, upon employer, provided, the last that such last Michigan employer;
awas and where, as case, the last with- Michigan, out the State of said commission lacked jurisdiction to make an award.
The order of the workmen’s commis- January compen- sion dated sation is reversed and benefits are denied. J., Dethmers, C. Sharpe, Reid, Boyles,
Carr, JJ., concurred with Kelly, J. *11 (dissenting). have here a case in J. We Smith, years age, which a ployed of workman 68 who has been em- greater a molder for the foundries as years, totally of 40 сontracted and is has silicosis agree I with the disabled the disease. commis- finding question of fact that “there is no but sion’s plaintiffs including that as molder, employment by foundry, exposed his the defendant danger him to and the hazard and sand dust of dust disease.” question, pay There is a of who shall however, foundry bill. Plaintiff has had igan in Mich years for some 16 and he his makes claim against Michigan employer, his last here. defendant Michigan employer, send however, would him to recovery, any, my for if Brother Kelly, Ohio Michigan Reports. observing fact that that “defеndant established the * * * plaintiff to benefits under was entitled (a act” conclusion 'Ohio workmen’s me), indisputable him far to denies which is from recovery Michigan upon interpretation agree. I act with which cannot [Stat Ann 1950 Rev The statute says occupa- 17.228]) that total for not tional “shall be recoverable.” There is diseases point people at what our have done. much doubt They recovery. granted a But a theoretical have cry right hand, is a far from cash recover Accordingly, legislators the law does our wеll know. stop goes here. It on tell us from whom recovery Compensation total is to he had: “shall from the last recoverable (Often employee” occupation. in the hazardous employer. In than one such case there has been more the act apportionment provides the financial others.) among the burden be recover- the issue: Do the words “shall Now for employer in from the last able” mean recoverable (no point where located, Ohio, of time matter Can- Timbuktu) or does it mean lаst ada, Michigan? the State examine the alternatives: If means Let us point employer no matter where he time, legislature conclude that the has done have to is, we thing, that it has offered an illu- vain and useless knowing, hope to well we sufferers, these sion people that it know, and as our has shred know, (or authority employers elsewhere) over in Ohio money say recoverable” them. “shall be merely may that the workman If it means travel to foreign and take his chances on the the law of I I he take it that there, desire, should so no act *12 give legislature right. was needed to him the his reject accordingly urged upon alternative this us Wagner LaSalle legislators by appellant. I cannot believe that our offering formality gone through the cruel have desper- compensation he so silicosis sufferer a ately providing requires time persons that at the same whom over be recoverable” “shall jurisdiction. legislators have no conceivable our the total that the act means that then, I conclude, from the shall be recovеrable who last due employer Michigan the claimant occupation. in the hazardous my Kelly point introduces a But at this Brother compensation, right requirement on the in the new recovery That com- here denied: the last which basis of employer paid pensation shall be provided, employ- employers, that that last chain of Michigan. own In his words: er is in of the various sections of an examination “From comes to the to, referred this Court as above legislature that the com- intended conclusion that jurisdiction exercise and should mission would have nature under a of this case upon employer, provided, such last the last employer; employer Michigan where, as was employer employer with- was an case, in this the last Michigan, lacked commission out the State of said jurisdiction to make an award.” interpretation are mani- with difficulties wholly re- extraneous fest: It reads into the act quirement. right It workman’s makes a disabled upon compensation depend trary a fortuitous arbi- exposure, e., i. to risk incident, unrelated employer. geographical It of the last the means, location years long with of Michigan that a workman moreover, right exposure loses all conditions if economic for silicosis line into him area have forced over nearby employment in such case time, for a short without “the last *13 |Apr. Reports. Michigan may Michigan.” it action, course This warmly has noted, is been commended be one people, namely, seeking out work where the our though temporary ab- it means a work even is, surroundings. usual and The sence one’s home writing consid- wisdom, wisdom, or lack of such how- erations into a workman’s legislators, are after a full considera- ever, judicial competing not for considerations, tion of interpretation. guise of determination under the The Michigan act, a it act is under consideration Michigan work- workmen, with deals Michigan problems. ing To me the conditions, prima employer” “last facie, the mean, words “last proviso, Michigan employer.” a To add, however, my has that such last done, Brother given beyond area, our com- shаll have is been petence legislative considerations and involves described. above interpretation of act The commission’s avoids clearly judicial legislation The and is correct: such compensation Michigan employer. due shall recoverable from be may result, noted, be
The keeping spirit with both the letter and the have In ease before us we workman act. prolonged totally after a silicosis disabled Michigan. exposure There is a and substantial efficient final re- cause, relation between reasonable - responsibility. requirements sult, ultimate compensability are satisfied. appellee. The award should affirmed. Costs concurred with BLACK, J. J., Smith,