1 Reported in 8 N.W.2d 808.
Plaintiff's action to recover damages for personal injuries resulted
in a directed verdict for her adversary, and she appeals from an order denying her motion for new trial.
Plaintiff was employed as a "chicken picker" by Boote Hatchery Packing Company at Worthington, whose business is that of buying, dressing, and preparing poultry and other farm products for the market. Defendant's business is that of a building contractor. In August 1940 he was engaged by the hatchery to do some repair work at its plant. This job included breaking up and removing an old cement floor and reconstructing it. Some of the hatchery's men assisted defendant's workmen in the job. The reason for this arrangement was to save employing more expensive labor, the hatchery men being paid at a lower rate than that paid defendant's workmen.
During the evening and far into the night of August 28, a crew of men composed partly of hatchery employes and employes of defendant were at work breaking up and removing a section of the old cement floor and placing reinforcing steel in that area preparatory to laying the new floor the next morning. The area so prepared was located between the dressing room of women employes (where they changed their street clothes for their working apparel) and the "roughing" room, where they worked. As the situation then was, they could not go from their dressing room to their place of employment unless a bridge or some other contrivance was built over the portion of the area to be laid to new cement. The hatchery superintendent requested defendant to devise and construct such a means of egress, and defendant's workmen did so between 7:00 and 7:30 in the morning of August 29. Plaintiff entered the dressing room before the men got at the job. About half an hour later, when she was ready to go to work, she saw the new structure and realized at once its purpose. It is appropriately referred to in the record as a "catwalk." When plain-tiff reached about the middle of it it collapsed, causing her serious injuries. Predicating her cause upon defendant's negligence in its construction, she brought this action. It is conceded that if the ordinary negligence action lies she established her cause.
To avoid such liability, defendant pleaded, and it was admitted by the reply, that both employers, i. e., the hatchery and defendant, were under the workmen's compensation act. Therefore, so defendant contends, and the court adopted his view, since plaintiff has elected to accept compensation under the amendment to the act here in question, she cannot now maintain a common-law negligence action against him. The barrier is said to be Minn. St. 1941, § 176.06, subd. 1 (Mason St. 1940 Supp. § 4272-5[1]).
Many cases involving this troublesome section have come here for review. In the memorandum opinion of the trial judge, after reviewing many of them, he concluded that these "unfortunately, but perhaps unavoidably, do not give any too accurate a pattern to follow." As to the first case there discussed, Uotila v. Oliver I. Min. Co. 165 Minn. 475, 206 N.W. 937, he thought we had not attempted "to construe the amendment, or lay down rules governing the application of it." As to subsequent cases, referring specifically to Rasmussen v. George Benz Sons,168 Minn. 319, 324, 210 N.W. 75, 212 N.W. 20, and Anderson v. Interstate Power Co. 195 Minn. 528, 532, 263 N.W. 612, which have to do with the delivery of commodities by the vendor to his purchaser, he deemed these to be helpful, as to the facts here presented, only to the extent "they may lay down the general rules of construction of the act." It was his thought that the general rule to be followed is that stated in the Rasmussen case (168 Minn. 324, 210 N.W. 77): "Business is related when the parties are mutually or reciprocally interested in a commercial way, or where the business of one has a necessary relation toward or in conjunction with the other." With this as his general guide and upon the language employed in the decision of Seidel v. Nicollet Ave. Properties Corp. 202 Minn. 569, 279 N.W. 570, the judge concluded that an instructed verdict for defendant was inescapable.
The importance of the question presented is obvious. Difficulty of solution should not frighten us from trying to find a more "accurate pattern" for the bench and bar "to follow" than those one may gather from our prior decisions.
In the Anderson case we discussed and sought to distinguish the facts there appearing from those in the Rasmussen case, but in deciding it we obviously limited the scope and effect of the test laid down in the Rasmussen case, for we there determined (195 Minn. 532, 263 N.W. 614):
"We hold that the mere supplying of a necessary product, such as electric power, does not create the relationship of a common enterprise. Nor does the fact that both companies had sent out employes to locate the trouble alter the situation. It was not a joint or concerted action. Each company was acting independently of the other. The admitted facts show that plaintiff and George Penny, defendant's employe, were each acting individually and for their separate employers. That both parties were seeking to locate trouble on their respective lines in approximately the same location at approximately the same time was incidental and fortuitous and did not create the legal relationship of common enterprise."
Again, in the later case of Tevoght v. Polson, 205 Minn. 252,255, 285 N.W. 893, 894, we said that in the Anderson case:
"* * * this court held squarely that the mere supplying of a product by one employer to another did not bring the employers within either clause (a) or clause (b) of the amendment, that is, the vending and delivery of supplies upon the premises of one of the employers does not amount to either a furtherance of a common enterprise or to the accomplishment of the same or related purposes. We must therefore hold that the rule announced in the Rasmussen case is modified to the extent that it does not apply in a situation such as that now before us where one employer is merely engaged in delivering a commodity to another employer."
Our latest case is that of Gentle v. Northern States Power Co. 213 Minn. 231, 235, 6 N.W.2d 361, 363, where we again held (citing the Tevoght and Anderson cases) that it is now "definitely settled" that "the vending and delivery of supplies by a third party to the workman's employer does not amount to either a
furtherance of a common enterprise or to the accomplishment of the same or related purposes."
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1 Reported in 8 N.W.2d 808.
Plaintiff's action to recover damages for personal injuries resulted
in a directed verdict for her adversary, and she appeals from an order denying her motion for new trial.
Plaintiff was employed as a "chicken picker" by Boote Hatchery Packing Company at Worthington, whose business is that of buying, dressing, and preparing poultry and other farm products for the market. Defendant's business is that of a building contractor. In August 1940 he was engaged by the hatchery to do some repair work at its plant. This job included breaking up and removing an old cement floor and reconstructing it. Some of the hatchery's men assisted defendant's workmen in the job. The reason for this arrangement was to save employing more expensive labor, the hatchery men being paid at a lower rate than that paid defendant's workmen.
During the evening and far into the night of August 28, a crew of men composed partly of hatchery employes and employes of defendant were at work breaking up and removing a section of the old cement floor and placing reinforcing steel in that area preparatory to laying the new floor the next morning. The area so prepared was located between the dressing room of women employes (where they changed their street clothes for their working apparel) and the "roughing" room, where they worked. As the situation then was, they could not go from their dressing room to their place of employment unless a bridge or some other contrivance was built over the portion of the area to be laid to new cement. The hatchery superintendent requested defendant to devise and construct such a means of egress, and defendant's workmen did so between 7:00 and 7:30 in the morning of August 29. Plaintiff entered the dressing room before the men got at the job. About half an hour later, when she was ready to go to work, she saw the new structure and realized at once its purpose. It is appropriately referred to in the record as a "catwalk." When plain-tiff reached about the middle of it it collapsed, causing her serious injuries. Predicating her cause upon defendant's negligence in its construction, she brought this action. It is conceded that if the ordinary negligence action lies she established her cause.
To avoid such liability, defendant pleaded, and it was admitted by the reply, that both employers, i. e., the hatchery and defendant, were under the workmen's compensation act. Therefore, so defendant contends, and the court adopted his view, since plaintiff has elected to accept compensation under the amendment to the act here in question, she cannot now maintain a common-law negligence action against him. The barrier is said to be Minn. St. 1941, § 176.06, subd. 1 (Mason St. 1940 Supp. § 4272-5[1]).
Many cases involving this troublesome section have come here for review. In the memorandum opinion of the trial judge, after reviewing many of them, he concluded that these "unfortunately, but perhaps unavoidably, do not give any too accurate a pattern to follow." As to the first case there discussed, Uotila v. Oliver I. Min. Co. 165 Minn. 475, 206 N.W. 937, he thought we had not attempted "to construe the amendment, or lay down rules governing the application of it." As to subsequent cases, referring specifically to Rasmussen v. George Benz Sons,168 Minn. 319, 324, 210 N.W. 75, 212 N.W. 20, and Anderson v. Interstate Power Co. 195 Minn. 528, 532, 263 N.W. 612, which have to do with the delivery of commodities by the vendor to his purchaser, he deemed these to be helpful, as to the facts here presented, only to the extent "they may lay down the general rules of construction of the act." It was his thought that the general rule to be followed is that stated in the Rasmussen case (168 Minn. 324, 210 N.W. 77): "Business is related when the parties are mutually or reciprocally interested in a commercial way, or where the business of one has a necessary relation toward or in conjunction with the other." With this as his general guide and upon the language employed in the decision of Seidel v. Nicollet Ave. Properties Corp. 202 Minn. 569, 279 N.W. 570, the judge concluded that an instructed verdict for defendant was inescapable.
The importance of the question presented is obvious. Difficulty of solution should not frighten us from trying to find a more "accurate pattern" for the bench and bar "to follow" than those one may gather from our prior decisions.
In the Anderson case we discussed and sought to distinguish the facts there appearing from those in the Rasmussen case, but in deciding it we obviously limited the scope and effect of the test laid down in the Rasmussen case, for we there determined (195 Minn. 532, 263 N.W. 614):
"We hold that the mere supplying of a necessary product, such as electric power, does not create the relationship of a common enterprise. Nor does the fact that both companies had sent out employes to locate the trouble alter the situation. It was not a joint or concerted action. Each company was acting independently of the other. The admitted facts show that plaintiff and George Penny, defendant's employe, were each acting individually and for their separate employers. That both parties were seeking to locate trouble on their respective lines in approximately the same location at approximately the same time was incidental and fortuitous and did not create the legal relationship of common enterprise."
Again, in the later case of Tevoght v. Polson, 205 Minn. 252,255, 285 N.W. 893, 894, we said that in the Anderson case:
"* * * this court held squarely that the mere supplying of a product by one employer to another did not bring the employers within either clause (a) or clause (b) of the amendment, that is, the vending and delivery of supplies upon the premises of one of the employers does not amount to either a furtherance of a common enterprise or to the accomplishment of the same or related purposes. We must therefore hold that the rule announced in the Rasmussen case is modified to the extent that it does not apply in a situation such as that now before us where one employer is merely engaged in delivering a commodity to another employer."
Our latest case is that of Gentle v. Northern States Power Co. 213 Minn. 231, 235, 6 N.W.2d 361, 363, where we again held (citing the Tevoght and Anderson cases) that it is now "definitely settled" that "the vending and delivery of supplies by a third party to the workman's employer does not amount to either a
furtherance of a common enterprise or to the accomplishment of the same or related purposes."
Going back to the Seidel case, 202 Minn. 569, 572,279 N.W. 570, we have this factual background: Seidel's employer was in the business of repairing electric elevators. Defendant owned a large office building where two such elevators were operated side by side. The elevator doors opening into the basement were out of repair, and plaintiff's employer undertook the repair job. New parts were needed to make the doors operate properly. Since it was necessary for defendant in the conduct of its business to keep one elevator in continual use, plaintiff proceeded to repair the other. In doing the work (202 Minn. 571,279 N.W. 571) "plaintiff desired elevator No. 2 to come down below the first floor so as to pass therefrom an electric wire with a light bulb into the shaft of No. 1," where he was then working. Defendant's servant, in attempting compliance with this direction, "through some misunderstanding," lowered the wrong one, beneath which plaintiff was working. As a consequence plaintiff "was severely injured." A majority of this court thought that a common-law negligence action could not be maintained because the work being done came (202 Minn. 572,279 N.W. 572) —
"within the quoted language of both (a) and (b). The enterprise common to both employers here was the repairing of these elevator doors — defendant's need required it to be done, and the desire of plaintiff's employer to profit by doing the work. * * * Defendant's servant at plaintiff's bidding attempted to aid in the accomplishment of the same or related purposes in operation on the very premises where the injury was received."
Mr. Chief Justice Gallagher and Mr. Justice Loring concurred in the result, saying, in view of certain cases there cited (202 Minn. 575-576, 279 N.W. 573):
"* * * it may properly be held that plaintiff's employer and defendant were engaged in a course of business in the furtherance of 'related purposes,' in operation on the premises where the injury
was received. We confess, however, that we are unable to seehow a person engaged in the business of operating an apartmentbuilding equipped with elevators and one engaged in thebusiness of repairing elevators can be engaged in a course ofbusiness in 'furtherance of a common enterprise.' So to hold would mean that everyone making repairs to or furnishing material for an apartment or commercial building would be engaged in a common enterprise with the owner of the building. We do not believe that such construction was ever intended by the legislature. With that part of the opinion we are unable toagree." (Italics supplied.)
The Seidel opinion was filed April 29, 1938. It is interesting to note that on July 29, 1938, the opinion in Pittsburgh P. G. Co. v. Carey (8 Cir.) 98 F.2d 533, was filed. The Seidel case was not referred to, probably because it had not been called to the court's attention, but our prior cases were. They are cited in 98 F.2d p. 536. There plaintiff (Carey) was employed by an electric company engaged in installing electric wiring in a garage at St. Cloud. Appellant (the glass company) was engaged in installing plate glass in the building. A big crate of glass had arrived on a truck in charge of its employes. They needed additional help "to give them a lift" and requested Carey and another to lend a helping hand. During the unloading the braces of the crate broke, and its contents fell upon plaintiff, causing injuries. The question presented by appellant was whether this statute permitted the maintenance of a common-law negligence action, since both employers and their employes (98 F. [2d] 536) "were engaged in a common enterprise, to-wit, the construction of the Holt Garage, and the injury complained of was received 'in the due course of business,' and 'in the accomplishment of the same or related purposes in operation on the premises where the injury was received at the time thereof.' " The trial court had submitted the case to the jury as a common-law action, and plaintiff had a verdict. On appeal there was an affirmance, because, said the court
(98 F. [2d] 536, 537), upon "an examination" of the decisions of this court, which "must control here":
"The two companies involved were not engaged in the same or related purposes, were not mutually or reciprocally interested in a commercial way, nor had the business of one a necessary relation toward or in conjunction with the other."
We refrain from further citation of our cases, since these may be readily found under notes in 6 Dunnell, Dig. Supp. § 10407.
1. There can be no doubt that the amendment was remedial legislation. Therefore it should receive such fair and liberal construction "as to make it a workable one, thereby giving force and effect to the legislative purpose." Tomasko v. Cotton, 200 Minn. 69, 77, 273 N.W. 628, 632. It should be "so construed as to give effect to the obvious legislative intent." 6 Dunnell, Dig. Supp. § 8937, and cases under notes.
2. Legislative intent, however, is to be ascertained from the language employed by the lawmakers. But if that language be doubtful "that construction must be adopted which militates against a forfeiture," where that was the clear legislative purpose. Needles v. Keys, 149 Minn. 477, 479, 184 N.W. 33, 34. The general subject is treated and sustaining cases are cited in 6 Dunnell, Dig. Supp. § 8940, and cases under notes. A literal construction is not to be adopted if thereby the general policy and object of the statute are "plainly at variance with * * * the legislation as a whole." United States v. American Trucking Assns. 310 U.S. 534, 543, 60 S.Ct. 1059,1064, 84 L. ed. 1345, 1351.
3. That the language of the present enactment comes well within the doubtful class is obvious. The cases we have discussed demonstrate that.
4. Prior to the adoption of the workmen's compensation act the injured workman was limited to the common-law action for negligence. He could proceed against his employer or against anyone else whose negligence, as defined by the law and within its limits, had caused him harm. Under the compensation act, adopted
in 1913, as construed in Hansen v. N.W. Fuel Co. 144 Minn. 105. 108, 174 N.W. 726, 727, the person injured in the course of his employment could proceed against his employer, "or against a third party by a common law action for negligence." If he recovered in such an action he could have "no greater amount than that fixed by the compensation act." If he took under the compensation act, "his employer is subrogated to his common law action against the third party," and the employer in his action against the third party was "limited to the amount payable under the compensation act." That case was decided November 7, 1919.
Later, in 1921, the legislature adopted L. 1921, c. 82, § 31, which superseded L. 1913, c. 467, § 33. This was amended by L. 1923, c. 279, § 1 (Mason St. 1927, § 4291). By L. 1937, c. 64, § 5, § 4291 was reënacted and is now Minn. St. 1941, § 176.06, so that the prohibition in respect to the right of the injured workman against the negligent third party applies "only where the employer liable for compensation and the other party * * * legally liable for damages were both * * * engaged in the due course of business, (a) in furtherance of a common enterprise, or (b) the accomplishment of the same or related purposes in operation on the premises where the injury was received at the time thereof, and not otherwise." We think the obvious legislative purpose in adopting the amendment was to restore to the injured person an enlarged remedy against the negligent third party. Under subd. 2 of the amended act, provision is made for reimbursement to his employer to the extent of his contribution under the act, the workman taking the excess. It is thus apparent that the blame is placed where it belongs, upon the party at fault, where of right it should be. That was the view of this court in Tevoght v. Polson,205 Minn. 252, 254, 285 N.W. 893, 894, where we said, by way of discussion rather than decision:
"No other state has such a provision as that incorporated in this amendment [L. 1923, c. 279, § 1], and it was left to this court to interpret its provisions, which especially in the case of subd. (b) are rather vague and uncertain. The legislativehistory of c. 279 throws no light whatever upon the purposes of the legislatureor the extent to which it sought to restore to the employe hiscommon-law right of action. It may be that it intended that hiscommon-law right of action should only be eliminated insituations like those where contractors and subcontractors areengaged on the same project and their employes exposed to thehazards created by such mutual engagements." (Italics supplied.)
Unquestionably the legislative purpose was to enlarge the rights and remedies of the injured workman. His employer, under the original act, was well taken care of, and these rights under the second subdivision of the amended act were retained for him. He has lost nothing by the change. Since it was the injured workman the legislature sought to help, we should now say without equivocation that (205 Minn. 254, 285 N.W. 894) the legislature "intended that his common-law right of action should only be eliminated in situations like those where" several employers "are engaged on the same project and their employes exposed to the [same or similar] hazards created by such mutual engagements."
And that was the view of Mr. Justice Pirsig in his concurring opinion in Gentle v. Northern States Power Co. 213 Minn. 231,237, 6 N.W.2d 361, 364:
"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."
Speaking of our prior cases he said (213 Minn. 238,6 N.W. [2d] 364):
"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. * * * The statutory terms 'common enterprise' and 'same or related purposes' of theemployers should be construed to mean that their employes wereengaged in some common activity which brings them within thepolicy underlying the subsection." (Italics supplied.)
In the present case it is plainly to be seen that defendant, an independent construction contractor, and the hatchery were not engaged in a "common enterprise" or in the "accomplishment of the same or related purposes" at the time and place of plaintiff's injury. True, they were both interested in having the repair job done, but that is true whenever one contracts for any improvement, whether a repair job or new construction. Common enterprise could be said to have existed while the hatchery workmen were engaged with those regularly employed by defendant, since they were working together and exposed to the same risks. In that event, if harm had come to one of them, obviously it would be but fair and just that, since both employers were under the act, the workmen so employed should stand in the same relation to each other and to their employers as if they were working for a common employer.
5. Plaintiff, a "chicken picker," was clearly not engaged in anything relating to the repair work or the building of the catwalk. Let us suppose that in the Seidel cane, 202 Minn. 569,279 N.W. 570, plaintiff's employer had sent his secretary to defendant's building on some errand in the line of her employment, that one of defendant's employes had negligently left an elevator door open so that thereby she was led to believe that it was safe for her to enter, that she did so enter and fell into the elevator shaft and thereby received injuries, would she be deprived of her common-law right of action? It is doubtful that anyone would conclude that she was deprived of that right. For the same reason, plaintiff, a chicken picker for the hatchery, ought to be possessed of the same right.
The workmen's compensation act was enacted to simplify and rearrange the obligation of the master to the servant in relation to injuries received in the employment. There was no intent to change or interfere with the relation between the servant and third persons or to interfere with the servant's right of action against third persons, except as that right might affect compensation from the master. To step outside of that sphere and deny the servant his right of recovery against third persons would be to unjustly discriminate against him as compared with other persons injured by third persons and to deprive him of a cause of action left to others. To do so would be beyond the scope of the act as expressed in its title and would not be germane to its purpose. The act evinces no purpose to deprive an employe of such a cause of action under the ordinary relationship, although providing for subrogation in proper cases. It confines the deprivation of such causes to servants of masters engaged in a common enterprise or in related purposes on the premises where the injury occurs. The strict tenor of the words used places the distinction solely on the "common enterprise" or "related purposes" of the masters, regardless of whether the injured servant be engaged in such enterprise or purpose; but we must interpret the language in the light of the purpose and intent of the act, as this court did in construing the original railroad fellow-servant act, which in its tenor applied to all servants of railroads, whether exposed to the extra hazards peculiar to railroading or not. This court held that to so apply it would be unconstitutional discrimination in favor of those not exposed to railroad hazards. It would allow them to recover for injuries caused by the negligence of a fellow servant in circumstances like those where servants of nonrailroad masters could not recover. It held that the legislature intended only to apply the law to servants exposed to the extra hazards of railroading. So construed, the classification was justified. Lavallee v. St. P. M. M. Ry. Co. 40 Minn. 249, 41 N.W. 974. Here, we think the legislature intended only to deny common-law rights to servants who engaged in the "common enterprise" or "related
purposes" of the masters and not to deny such rights to servants of the same master who are not so engaged. Thus there is no unjust discrimination. There is ground for such classification, because, as to common enterprises and similar related purposes, the masters have joined forces and in effect have put the servants into a common pool. To deprive the servant of his common-law action when he is not engaged in the common enterprise or related purpose is to deprive him of a cause of which others whose masters are not so engaged are not deprived in like circumstances, simply because in some other branch of the master's activities on the premises the master has joined forces with the tortfeasor. We do not regard this as a sound basis for classification.
We adopt this view with confidence that we have arrived at the true solution of the problem. All expressions in our former opinions inconsistent with this conclusion are overruled.
Order reversed.