Citations
- 135 Ohio St. 191
Full opinion text
Williams, J.
Workmen’s compensation was originally adopted by statute in Ohio in 1911 (102 Ohio Laws, 524), and the first constitutional provision relating thereto was ratified by the electorate in 1912; however, prior to the enactment of Section 1465-68 See also the case of Victor Rubber Co. v. Robbins, Admx., 101 Ohio St., 536, 130 N. E., 942. Attention is also called to the able opinion by Judge Warrington in Zajkowiski v. American Steel & Wire Co., 258 F., 9, 6 A. L. R., 348.
In Zajachuck v. Willard Storage Battery Co., 106 Ohio St., 538, 140 N. E., 405, this court reached a conclusion that the right to recover damages for occupational disease was taken away by Section 1465-70, G-eneral Code. At the time the alleged cause of action arose occupational diseases were not compensable in Ohio. After the amendment of the Constitution of 1923 was adopted this court had the question before it again and held that the constitutional provision (Section 35, Article II) as amended took away the right of action. Mabley & Carew Co. v. Lee, 129 Ohio St., 69, 193 N. E., 745, 100 A. L. R., 511. A majority of this court are in accord with the dissent of Judge Zimmerman in the latter case and are constrained to hold that those two cases should be overruled.
The first amended petition concludes with a prayer for a money judgment, for relief in equity and for a declaratory judgment. The prayer, however, is- not controlling (Schaefer v. First National Bank of Findlay, 134 Ohio St., 511) and the court must look to the pleading itself to determine its sufficiency. Plainly the action is one for damages for negligence of the defendant and all language with reference to equitable relief and a declaratory judgment may be disregarded as redundant and immaterial. The pleading states facts sufficient to constitute a cause of action.
In the other instant case [Triff case] the action is for wrongful death. Such an action did not exist at common law but has been maintainable in Ohio' since 1851 (49 Ohio Laws, 117). The petition sets forth facts which show a violation of the common-law duty of the employer in failing to warn plaintiff’s decedent and failing to provide a safe place to work, and also a violation of safety statutes referred to and many specific rules of the Industrial Commission. • It is alleged therein that the decedent came to his death by silicosis contracted in the course of his employment by reason of the negligence of the defendant. The nature and extent of his loss by the impairment of his health are not set out in the pleading and it is not clear whether plaintiff seeks to recover also for damages to the decedent while living. Such an action now survives although not at common law.
The action brought by the administratrix, Suzie Triff, has for its basis the same principles of law as if brought by the’employee while still living and can be maintained if the right to do so has not been eliminated by the provisions relating to compensation; therefore what is said heretofore regarding the right being taken away in discussing the Smith case is applicable here. Jones, Admx., v. Rinheart & Dennis Co., supra. The petition in the Trijf case states facts sufficient to constitute a cause of action.
The controlling principles of construction may be summarized thus: At the time workmen’s compensation was first adopted in Ohio an action for occupational disease or for wrongful death therefrom could be maintained against the employer guilty of actionable negligence. There has never been a statutory or constitutional provision expressly denying the right to maintain an action growing out of a non-compensable occupational disease. The language to be construed is general in character; and the letter should not prevail over the spirit for the polestar of interpretation is the intent of the provisions.
Since the underlying purpose of compensation is to make industry bear the burden of human wreckage by paying stated awards for injury and loss of life in the course of employment, the court should avoid a strained construction which would leave many employees, who are blameless victims of their employer’s torts, without either damages or compensation and absolutely remediless. It is an obvious injustice to allow some employees who contract occupational disease compensation and others nothing — not even damages tortiously inflicted. The true objective of compensation could hardly be attained by giving the language a meaning that would work injustice when another course lies open consistent with the spirit manifested in all the constitutional and statutory provisions when considered together. By giving the words of the organic and statutory law their ordinary meaning and keeping in mind the purpose sought, the conclusion is inevitable that the right of action growing out of a non-compensable occupational disease still subsists.
Since the first amended petition in the Smith case and the petition in the Triff case, each state a cause of action, the judgments of the courts below will be reversed and the causes remanded for further proceedings.
Judgments reversed and causes remanded.
Day, Zimmerman and Hart, JJ., concur.
Weygandt, C. J., Myers and Matthias, JJ., dissent.
Weygandt, C. J.,
dissenting. The majority opinion requires two comments.
In the first place it proceeds at great length with the wholly unnecessary task of construing language the meaning and intent of which were fully agreed upon by the employers and employees of Ohio at the time they submitted their proposed amendment to Section 35 of Article II of the Ohio Constitution. The majority opinion makes no mention of the extremely important explanatory statement prepared by a joint committee for the guidance of the voters of Ohio. This statement points' out that the amendment ‘ ‘ assures every worker compensation for injuries or death arising out of and in course of employment, backed by state law and state administration without necessity for recourse to law suits or employment of attorneys or payment of court costs.”
According to the majority opinion this is incorrect.
The statement further says that the amendment “gives the worker an additional award without suits at. law where the injury was the fault of the employer due to his failure to comply with specific requirements for the health and safety of the workers.”
According to the majority opinion this is incorrect.
The statement further says that the amendment “wipes out the ‘open liability’ — giving recourse only to the compensation law for injuries' or death arising out of and in course of employment.”
According to the majority opinion this is incorrect.
The statement further points 'out that the amendment “fixes a limit of financial liability in such cases and protects the assets and credit of the employer. ’ ’
According to the majority opinion this is incorrect.
The statement further says that the amendment “defines ‘lawful requirement’ so as to bring it within the rule of reason, and gives the employer notice of his specific obligations under it.”
According to the majority opinion this too is incorrect.
It was the apparent commendable desire of both employers and employees to clarify the law and put an end to the costly and futile strife that existed under the old order of things. For years this fortunately has been regarded as an accomplished fact, as indicated by many decisions of this court. This accomplishment is now destroyed by the majority opinion.
In the second place it should be observed that the majority opinion cites many decisions from other states, but none involves the constitutional language here employed.
Myers, J., dissenting. I cannot concur in the majority opinion for the reason that this court has previously, in the Willard Storage Battery and the Mabley & Carew cases, declared the law of Ohio on. this subject. On the strength of the decisions .of those cases the law has since been changed with respect to silicosis as an occupational disease. For this court now to declare that those previous decisions were wrong is to play fast and loose with fundamental principles. Employer and employee alike recognized and respected those decisions. For over a quarter of a century the Workmen’s Compensation Law has been recognized as a compromise for the establishment of justice as between employer and employee with respect to injuries. That having been the status for over a quarter of a century, I am unwilling to assist in changing it now.
Matthias, J.,
dissenting. The judgment in this case should have been affirmed on the authority of the Mabley & Garew case. The cases of Mozingo v. Marion Steam Shovel Co., 130 Ohio St., 591, 200 N. E., 756; Riffee v. Marion Steam Shovel Co., 133 Ohio St., 109, 11 N. E. (2d), 1022; Brammer v. Alloy Cast Steel Co., 133 Ohio St., 117, 12 N. E. (2d), 295; and Noggle v. Alloy Cast Steel Co., 133 Ohio St., 118, 12 N. E. (2d), 295, involving questions similar to those presented in the instant case, were decided adversely to the claims of plaintiff. An appeal of the first case to the Supreme Court of the United States was dismissed for want of a substantial federal question (298 U. S., 645). In the other cases, writs of certiorari were denied (304 U. S., 558). The present decision opens a long standing controversy deemed to have been finally ended by the adoption of amended Section 35 of Article II of the state Constitution in 1923.
Section 1465-70,. General Code, the purpose of which clearly was to unconditionally abolish open liability of employers complying with the requirements of the Workmen’s Compensation Act, has been in effect for the past twenty-six years. It was enacted pursuant to the very laudable purpose of abolishing vexatious, expensive and often futile litigation between employer and employee and to provide and enforce one system of compensation for the employee and complete immunity of the employer from suit, with the single exception of the employee’s right to maintain suit at law where damages were claimed as a result of the violation of a specific, lawful requirement. Dissatisfaction arising from this partial open liability resulted in the preparation of the proposed constitutional amendment, by the joint and harmonious action of the representatives of the employers and employees. The immunity which had been granted by Section 1465-70, General Code, pursuant to the permissive provisions of the Constitution, was incorporated in the mandatory provisions of that amendment.
Now it is asserted and held by the majority that there is still an open liability and that under this amendment the right is reserved to maintain suits at law upon claims for any kind of disability for which compensation has' not been specifically provided under the Workmen’s Compensation Law.
The majority opinion states that Section 1465-70, General Code, should not be given a wider scope than it had when originally enacted, and that it did not then embrace occupational diseases in its terms. However, by the subsequent enactment of Section 1465-69&, General Code, the Legislature extended such exemption of employers from liability so as to include exemption from suit for damages for disability resulting from occupational disease. The effect of the decision in this case is to hold these statutory provisions unconstitutional.
Numerous practical questions will arise as a result of the decision in this case. For instance, under the provisions of Section 1465-68a, General Code, as amended since these cases were instituted, silicosis has been included with compensable occupational diseases; but compensation is to be awarded only if the employee has been subjected to injurious exposure to silica dust for periods aggregating five years.. Under this decision, an action at law without limitation in amount of recovery may be maintained by employees suffering from silicosis who had been exposed to silica dust less than five years, for their disability is not compensable under the Workmen’s Compensation Law, This is only illustrative of the many similar potential situations created by the decision in this case.
Paraphrasing the language of an eminent jurist in a recent cause celebre, it may be well stated that if ex-perienee is any guide the present decision will give momentum to kindred litigation and reliance upon it far beyond the scope of the special facts of this case, for legal doctrines have, in an odd kind of way, the faculty of self-generating extension.