Masich v. United States Smelting, Refining & Mining Co.

191 P.2d 612, 113 Utah 101, 1948 Utah LEXIS 157

• Court: Utah Supreme Court
• Decided: March 25, 1948
• Docket: No. 7048.
• Status: Published

Opinions

LATIMER, Justice.

Appellant plaintiff in the court below, commenced an action for a declaratory judgment seeking to have the court determine his rights to institute a common law action for disability from silicosis contracted by him while in the employment of the defendant, United States Smelting, Refining & Mining Company. Plaintiff, in alleging his injuries states, in substance, that he is suffering from an occupational disease known as silicosis, which he alleges not to be complicated with active pulmonary tuberculosis. It is not necessary to set forth in detail the particular acts of negligence alleged, as they, in substance and effect, charge the defendants with failure to furnish the plaintiff a safe place to work, and the specific acts are unimportant to this decision. Plaintiff further alleges that since 1935 the defendant, F. S. Mulock, has been Vice President of the corporate defendant, and the manager of the mine where plaintiff worked and that he has been in control and direction of the policy of the company and the personnel who were employed to work in the mine. Plaintiff further alleges that he is not totally disabled by the disease, and therefore disputes the defendants contention that his sole and exclusive remedy is under and pursuant to Chapter 42-la and particularly Section 42-la-3, U. C. A. 1943, and the amendments thereto, and defendant’s further contention that the personal defendant is not liable for the action complained of. Plaintiff alleges further facts in support of his reasons for seeking a declaratory judgment. However, in view of the fact that we have elected to determine plaintiff’s rights, these other allegations are not set forth.

Defendants, in answer, deny that they were guilty of any of the alleged acts of negligence and for the most part deny the other allegations of plaintiff’s complaint. They affirmatively allege that at the time suit was instituted and at the present time, Section 42-la-3 provided an exclusive remedy against an employer for disease or injuries to health sustained by an employee and arising out of the course of his employment, and that this act precludes plaintiff from suing on his common law right. That prior to instituting this action in the district court, the plaintiff filed with the Industrial Commission of the State of Utah, his claim for compensation under the provisions of Chapter la of Title 42, U. C. A. 1943. That in the claim filed, plaintiff alleged he had contracted silicosis while employed by the defendants and that said claim is now pending before that commission.

The case was submitted to the trial court on the issues as raised by the pleadings and pursuant to a stipulation which provided that the only issues to be presented to the district court and to this court on appeal were as follows: (1) Does the Utah Occupational Disease Disability Law, Chapter la, Title 42, U. C. A. 1943, as amended, furnish the exclusive remedy of the plaintiff against the defendant, United States Smelting, Refining & Mining Company, and bar the maintenance of a personal injury suit in the district court? (2) Does the same law bar the maintenance of a personal injury action in the district court as to the defend- and F. S. Mulock? We believe our holding on the first issue makes a discussion of the second question unnecessary. Because of such stipulation and because, for the purposes of this suit alone, we assume the facts alleged in the pleadings to be true, we will treat only the questions of law involved.

While many of the sections of Chapter 42-la, U. C. A. 1943, have some bearing on the interpretation that should be given this act, it is deemed necessary to set forth only those which are of controlling importance. Section 42-la-3 is as follows:

“Exclusive Remedy Against Employer.

“The right to recover compensation pursuant to the provisions of this act for diseases or injuries to health sustained by an employee and arising out of or in the course of his employment, whether resulting in death or not, shall be the exclusive remedy against the employer.”

Section 42-la-13 provides as follows:

“Employer Liability for Compensation — Conditions When No Payment to Be Paid.

“‘(a) There is imposed upon every employer a liability for the payment of compensation to every employee who becomes totally disabled by reason of an occupational disease subject to the following conditions :

* ‡ sjf ‡

“ (2) No compensation shall be paid for a disease other than silicosis unless total disability results within one hundred twenty days from the last day upon which the employee actually worked for the employer against whom compensation is claimed.

“(3) No compensation shall he paid in case of silicosis unless during the ten years immediately preceding the disablement the injured employee shall have been exposed to harmful quantities of silicon dioxide (Si02) dust for a total period of not less than five years in this state and unless total disability results within two years from the last' day upon which the employee actually worked for the employer against whom compensation is claimed.”

Section 42-la-28 provides as follows:

“Occupational Diseases — Listed.

"For the purposes of this act only the diseases enumerated in this section shall be deemed to be occupational diseases:

*****

(27) Silicosis.”

Section 42-la-29 provides as follows:

“Silicosis — Defined.

“For the purpose of this act ‘silicosis’ is defined as a chronic disease of the lungs caused by the prolonged inhalation of silicon dioxide dust (Si02) characterized by small discrete nodules of fibrous tissue similarly disseminated throughout both lungs, causing a characteristic X-ray pattern, and by variable clinical manifestations.”

Section 42-la-30 provides as follows:

“ID. When Complicated with Other Diseases — Payments.

“In case of disability or death from silicosis complicated with tuberculosis of the lungs, compensation shall be payable as for disability or death from uncomplicated silicosis. In case of disability or death from silicosis when complicated with any disease other than pulmonary tuberculosis, compensation shall be reduced as provided in Section 51.”

Section 42-la-49 provides as follows:

“ (a) If the claim is made by an employee and based upon silicosis it must be filed within one year after the cause of action arises. * * *»

If we hurriedly scan the history and development of the law of compensation in this country, we first find the legislatures and courts dealing with accidental injuries arising out of or in the course of employment. These acts covered the employee who was accidentally injured in the course of his employment, but failed to cover an employee who was rendered ill because of an occupational disease. Some jurisdictions extended the coverage of the act to include occupational diseases, but for the most part the employee suffering from an occupational disease was left to his common law right of action.

In this state the Workmen’s Compensation Act, Utah Code 1943, 42-1-1 et seq., was construed to involve only accidental injuries, so that when an employee suffered an occupational disease, he was confronted with the necessity of establishing actual negligence on the part of the employer and was confronted by the common law defenses then available to the employer. This court recognized that the legislature had not occupied the field of occupational diseases when the Workmen’s Compensation Act was passed; and so thé employee suffering from disease was limited to his common law right of action. See Young v. Salt Lake City, 97 Utah 123, 90 P. 2d 174. The situation thus was that industry was required to share the cost of insuring the class of employees injured by accidents, while not being required to carry the burden of insuring those employees that were rendered ill because of diseases incidental to the business.

Shortly after this court decided the Young v. Salt Lake City case, supra, the legislature enacted the Occupational Disease Statute. Much of the wording of this act was taken from the Workmen’s Compensation Act, and the first part of Section 42-la-3, dealing with the exclusive remedy provision under the Disease Statute, is in all respects similar to the exclusive remedy provision under the Workmen’s Compensation Act (Section 42-1-57).

The parties have exhaustively treated the interpretation of Section 42-la-3, and each has, by transposition, made the act appear to sustain their respective contentions. We need not belabor this opinion with the respective claims, all we need do is to point out that a careful reading of the section convinces the members of this court that the wording is ambiguous and susceptible of being interpreted in the manner contended for by both parties. Such being the case, the duty of this court is to arrive at the legislative intent.

In newly enacted legislation it is sometimes necessary in order to determine the legislative intent, to scrutinize an act to the extent of dealing with or transposing a phrase, a single word, or even a punctuation mark; but no such refined scrutiny is necessary in this case. This for the reason that for many years our legislature has been dealing with a companion act similar in phraseology and context; the Workmen’s Compensation Act has been passed on repeatedly by this court, and the legislature has been content to accept the construction placed on that act by this court. The intent, purposes and objectives of the Occupational Disease Act, which is closely allied to the Workmen’s Compensation Act, can be determined by reliance on former interpretations of the Workmen’s Compensation Act without searching through the refinements of construction necessary, had the former act not been before the legislature on many occasions. In addition, the legislative intent in the Occupational Disease Statutes does not depend on the correlation or arrangement of words alone. Other and different reasons can be considered. One of the cardinal principles of statutory construction is that the courts will look to the reason, spirit, and sense of the legislation, as indicated by the entire context and subject matter of the statute dealing with the subject.

While it can be contended that this court has never directly passed on the exclusive remedy provision of the Workmen’s Compensation Act, many decisions have indicated that the act operated on the employer-employee relationship, and that coexistent with this charge was an abrogation of the employee’s common law right to sue the employer for any and all injuries suffered while in the course of his employment, except in those cases where the employer was not subject to the act or the common law remedy of the employee was expressly reserved by the act. In addition to the decisions that will be hereinafter referred to, the bench and bar of this state have for many years assumed that the employee has no right of action for physical damages suffered in the course of employment, even though the statutes made no award for the injury, and the employee had no remedy. Notably present in this class is lack of a remedy to recover for pain and suffering.

In the case of Peterson v. Sorensen, 91 Utah 507, 65 P. 2d 12, an employee commenced an action in the district court for injuries sustained when he fell into an elevator pit. The employer had not complied with the requirements of the act in that he was not carrying compensation and had not qualified as a self-insurer. Under the statute this failure to meet the requirements of the act permitted plaintiff to commence an action in the trial court. Mr. Justice Moffat, speaking for the majority of the court said, at page. 514 of 91 Utah Reports, page 16 of 65 P. 2d:

“* * * an action as known to the common law by the servant against the master for an injury sustained by the former no longer exists in this State. That such is the law when the master complies with the Workmen’s Compensation Act in the matter of carrying insurance may be conceded. The injured employee is not, however, deprived of his common-law right of action against a non-complying employer. * * *” (Italics added.)

Again in the case of Halling v. Industrial Commission, et al., 71 Utah 112, 120, 268 P. 78, 80, this court, speaking through Mr. Justice Hansen, stated:

“It will not be necessary to here consider the other provisions of the Workmen’s Compensation or Industrial Act, except to observe that in the instant case the applicant must recover, if at all, the compensation provided for in such act. Under the provisions of Laws Utah, 1921, c. 67, § 3132, it is only in the case of an injury caused by the employer’s willful misconduct that an injured employee, or in case the injury results in death, his dependents, may recover damages in an action at law for a wrongful injury. When the injury is caused merely by the negligent act of the employer, the injured employee, or, when the injury causes death, his dependents, must be content to accept the compensation provided for by the act. * * *” (Italics added.)

In the case of Shurtliff v. Oregon Short Line R. Co., 66 Utah 161, 173, 241 P. 1058, 1063, the question involved the application of the Idaho Workmen’s Compensation Act. Mr. Justice Straup, speaking for the court, stated:

“* * * But it' is also true that a court will administer and apply the law of the forum or jurisdiction until the law of the situs is shown, sometimes expressed that in the absence of proof it will be presumed that the law of another state is the same as the law of the forum, and in this jurisdiction, as is many others, the presumption is extended to statutory, as well as to common law. Grow v. Railroad Co., supra [44 Utah 160, 138 P. 398, Ann. Cas. 1916B, 481]. Under the statutes of this state, Comp. Laws Utah 1917, § 3132, and as amended by Laws Utah 1921, p. 175, known as the Workmen’s Compensation Act of this state, redress against an employer for personal injury of his employe not employed in interstate commerce must be had in pursuance of such statute, which remedy in such case is by the statute made exclusive. * * *” (Italics added.)

In the case of Murray v. Wasatch Grading Co., 73 Utah 430, 435, 274 P. 940, 942, this court, speaking through Mr. Justice Hansen, said:

“Since the enactment of the Workmen’s Compensation Act in 1917, the exclusive remedy of am. employee who is injured in the course of his employment is the right to recover the compensation provided for in the Act, Comp. Laws Utah 1917, § 3132, as amended by Laws Utah 1921, p. 175. * * *” (Italics added.)

This court again in the case of Robinson v. Union Pac. R. Co., 70 Utah 441, 261 P. 9, 12, treated the subject of the exclusive remedy of the employee. That case involved an employer’s right to recover from a third party for injuries occasioned to the employee while working on the premises of the employer. The interpretation of Section 3132, Compiled Laws of Utah, 1917, which is now 42-1-57, U. C. A. 1943, was discussed. The prevailing opinion in discussing the rights an injured employee might have, reads the phrase “against his employer” into section 3133, 1917 Compiled Laws of Utah, so that the section then read:

“If an employee under this act be injured or killed while in the course of his employment by anpther not in the same employment, he or his dependents in case of death, shall be entitled to compensation and no other remedy against Ms employer unless * * The legislature in effect approved this holding by amending the section and giving the employee or his heirs an option to either take compensation or proceed against the third party. (Italics added.)

The concurring opinion of Mr. Justice Straup, however, deals more specifically with the problem. Said he, at page 18 of 261 Pacific Reports:

“The question thus is, Is our statute as broad and comprehensive as is the Washington or Montana statute? I think not. That, I think, is evident by comparing our statute with that of either of such statutes. Our statute (section 3132), heretofore referred to, provides that' ‘the right to recover compensation pursuant to the provisions of this title for injuries sustained by an employee, whether resulting in death or otherwise, shall be the exclusive remedy against the employer’, except where the injury is caused by the employer’s wilful misconduct, etc. It is clear that such language is not as broad or as comprehensive as that contained in either the Montana or the Washington statute. In such respect our statute says that the right to recover compensation pursuant to the provisions of the title ‘shall be the exclusive remedy against the employer’ while the Washington statute says that it shall be exclusive as to all persons, and that payment made thereunder ‘‘shall be in lieu of any and all rights of action whatsoever against any person whomsoever,’ not only as against the employer as section 3132 provides, but as ‘against' any person whomsoever.’ ”

That our legislature when it occupied the accidental injury field intended to entirely abrogate an employee’s right to sue an employer who had complied with the provisions of the act, for any and all injuries suffered by the employee while in the course of his employment is further evidenced by another provision of the original act passed in 1917. When this act was passed, Article 16, Section 5 of the Utah Constitution prohibited the legislature from abrogating the right of action to recover for death. This was later amended, but in order not to offend against the constitutional provision, then in existence, Chapter 100, Section 66, Laws of Utah 1917, provided:

“Employers who comply with the provisions of Section 53 of this Act shall not be liable to respond in damages for injuries sustained by their employes not resulting in death. For injuries, however, resulting in death, the dependents of the deceased employe are given the right, within such time as the commission by rule shall prescribe, to elect (a) between bringing suit at law against such employer to recover damages for such death and in the event of suit said dependents must prove negligence on the employer’s part before they can recover, or (b) to accept the, benefits allowed to dependents of deceased employes by this Act in the event of death. If they elect (b) they shall not be entitled to sue such employer at law to recover damages. If they elect (a) they thereby forfeit any rights to compensation under this Act and in a suit at law shall not be entitled to recover damages from such employer if the deceased employe was himself guilty of contributory negligence, or if he assumed the risk, or if his death was due in whole or part to the negligence of a fellow servant. * * *” (Italics added.)

Section 53 refers to employers who have provided compensation. It will thus be observed that when an employer had qualified under the act, the legislature clearly expressed an intention to eliminate the common law action of an employee against the employer for injuries suffered by the employee, and to place the administration of the rights and remedies granted by the act in the hands of an administrative agency where the purposes of the legislation could be more expeditiously carried out. This provision denied the employee the right to bring a suit against his employer without regard to the compensability of the injury. Aside from the instances where the act itself created exceptions, it was not intended to divide the relationship so that if the compensation act failed to give complete redress, the injured employee could still resort to the courts to supplement the remedies given by the act. The same principles apply to the Occupational Disease Act.

Cases from many other jurisdictions could be cited wherein the courts of last resort have interpreted similar Workmen’s Compensation Acts to have abrogated the employee’s right to maintain an action at common law, even though the respective acts are not all-inclusive on every element of damages. Rather than make reference to all, we have elected to refer to the holdings of the Minnesota and California Courts.

While the Minnesota act is not similar in wording to our statute, as it does not make compensation the exclusive remedy against the employer, the reasoning applied by the Supreme Court of that state is in keeping with that of most of the other jurisdictions. In the case of Hyett v. Northwestern Hospital for Women and Children, 147 Minn. 413, 180 N. W. 552, 553, the Supreme Court of that state held an employee could not maintain an action for injuries for which no compensation was provided. In that case the employee sustained an injury to his pubic nerve, totally destroying the functions thereof, and rendering him permanently impotent. Finding no remedy under the Compensation Act for the particular injury, the employee instituted an action at law to recover damages.

'“That the remedy so given and provided is exclusive of all others seems to be the prevailing opinion of the courts where the question has received attention. Shanaham, V. Monarch Engineering Co., 219 N. Y. 469, 114 N. E. 796; Gregutis V. Waclark Wire Works, 86 N. J. L. 610, 92 A. 354; Peet v. Mills, 76 Wash. 437, 136 P. 685, L. R. A., 1916A, 358, Ann. Cas. 1915D, 154; King V. Viscoloid Co., 219 Mass. 420, 106 N. E. 988, Ann. Cas. 1916D, 1170. Connors v. Semet-Solway Co., 94 Misc. 405, 159 N. Y. S. 431, in which it was said that Shinnick v. Clover-Farms Co., 169 App. Div. 236, 154 N. Y. S. 423, holding to the contrary had been overruled by Jensen v. Southern Pacific, supra [215 N. Y. 514, 109 N. E. 600, L. R. A. 1916A, 403, Ann. Cas. 1916B, 276]. If the case was not in effect there overruled it clearly was so disposed of by the later decision of the Court of Appeals in the Shanahan case above cited. The case of Boyer v. Crescent Paper Co., 143 La. 368, 78 So. 596, takes the other view of the Louisiana Compensation Act and supports plaintiff in the case at bar. But to follow that rule would in a large measure be destructive of the main purpose and scheme of the statute, and deprive the employer of a right expressly granted him in return for his concession of liability for the nonactionable injury. It would result also in opening wide, the door to double litigation in a great majority of the compensation cases. With the opportunity presented the discovery of negligence in some respect contributing to' a particular injury would not be difficult, and thus the employer exposed to a second suit in which recovery could be had for pain and suffering, disfigurement of person, in addition to a recovery of compensation for actual disability under the Compensation Act. A personal injury received at the hands of a wrongdoer constitutes but one right of action. It cannot be divided into several parts to accord with the elements of damages recoverable therefor. It presents a single controversy to be settled in a single action. Dunnell’s Dig. 5167. That is elementary, and it is manifest that there was no intention on the part of the Legislature to change or abrogate it by the Compensation Act; and no such intention should be presumed by the court'. On the other hand, it is clear that the intention of that body was to present to the employers and employes of the state a comprehensive act embracing their exclusive rights and remedies for accidental or other injuries suffered by the employe. Morris v. Muldoon, 190 App. Div. 689, 180 N. Y. S. 319. If the compensation so provided is deemed inadequate, or that the act should be made to include all or any of the common-law elements or ingredients of relief found in the negligence law, the change should come about by legislation and not by rule of court.”

In 1917 the legislature of the State of California repealed certain provisions of the Workmen’s Compensation Act then in force, and enacted Chapter 586, Statutes and Amendments to the Codes, 1917. Section 6 (b) of the new act provided as follows:

“Where such conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this act, shall be the exclusive remedy against the employer for the injury or death; }}: * * il

The Supreme Court of California in the case of Alaska Packers’ Association v. Ind. Acc. Comm., et al., 200 Cal. 579, 253 P. 926, 928, interpreted the exclusive remedy provision of the act. The opinion contains the following statement:

“The California Workmen’s Compensation Act provides the only means by which an injured employee can recover compensation from his employer for injuries received in the course of and arising out of his employment, and it abrogates the. common-law liability of the master for such injuries in the cases to which it is applicable Netherlands American Steam Nav. Co. v. Gallagher, 2 Cir., 282 F. 171, 183. The obvious intent of the act was to substitute its procedure for the former method of settling disputes arising between those occupying the strict relationship of master and servant, or employer and employee, by means of actions for damages. Cooper v. Industrial Acc. Comm., 177 Cal. 685, 687, 171 P. 684. It substitutes a new system of rights and obligations for the common-law rujies governing the lia bility of employers for injuries to their employees. Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 692, 161 P. 398. When the specified conditions exist, the remedy provided by the act is exclusive of all other statutory or common-law remedies. De Carli v. Associated Oil Co., 67 Cal. App. 310, 207 P. 282.”

In passing to Section 42-la-S, the Occupational Disease Statute, attention is again directed to the fact that the wording used by the legislature is exactly the same as the wording used in the Accidental Injury Act, Section 42-1-57. This court, prior to the enactment of the Occupational Disease Statute, having construed the provisions of the Compensation Act to have abrogated the common law rights of employees, we see no reason to place a different interpretation on the same provision of the Occupational Disease Act unless the legislature by clear and unmistakable language has indicated a contrary interpretation. We find no such language in the statutes.

Sutherland on Statutory Construction, Horack’s 3rd Edition, Para. 4501, quotes the following principle on the intention of the legislature:

“* * * ‘And then the office of all the judges is always to make such construction as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the act pro bono publico.’ ”

With this principle to guide us, we analyze the effect of the two interpretations of the Diseases Act, as suggested by counsel for the respective parties. The first is that thé legislature intended to divide silicosis into at least two stages of development, and make compensation the exclusive remedy for total disability, and permit the employee to pursue his common law right of action when partially disabled. The second is, the legislature occupied the field of those diseases enumerated in the act and as to those diseases the Occupational Disease Statute furnishes the exclusive remedy and no common law remedy is available to the employee.

If we were to adopt the first construction contended for, we would not only upset what has been long regarded as the law of this state in the accidental injury field, we would further render the Occupational Disease Act so confusing, uncertain and impractical that proper administration would be almost impossible. The courts would have jurisdiction to hear and determine all controversies on all diseases where the employee had not reached total disability, and then upon reaching this stage, jurisdiction would be transferred to the Industrial Commission. Causes of action would be split without adequate procedure to prevent the employer from being liable for double damages. If an employee could not meet the other requirements provided in the act, he could still resort to his remedy through the courts. An employee totally disabled would be limited in the amount he could recover because the maximum payable is limited by the terms of the act. Yet the partially disabled employee would only be limited by the conscience of the jurors. In many proceedings brought before the commission, efforts would be made by the employer to establish partial disability, to throw the employee back to his common law remedy and in many actions in the district court, efforts would be made to show total disability, to throw the action back to the commission. Neither tribunal nor commission could be certain as to which had jurisdiction. Without detailing all of the difficulties to be encountered were such an interpretation rendered, enough have been mentioned to indicate that one of the beneficient purposes of such acts, to avoid litigation, lessen expense thereof, and afford an efficient and speedy tribunal to determine and award compensation, would be thwarted.

The duty of a court to avoid a construction that will result in confusion or uncertainty is a duty recognized by all. The general rule in this regard is stated as follows, in 50 Am. Jur., Statutes, Par. 382:

“In the interpretation of statutes, a court should be astute in avoiding a construction which may be productive of much litigation and insecurity, or which would throw the meaning or administration of the law, or the forms of business, into hopeless confusion or uncertainty. Indeed, it has been declared that statutes should never be given a construction that leads to uncertainty or confusion, if it is possible to construe them otherwise. Hence, an interpretation should, if possible, be put upon the provisions of a law which will permit the officials having the responsibility for its administration to proceed in an orderly manner. A particular construction will also be favored where it appears to be the only one which will afford a fixed, permanent, and certain rule to ascertain whether a particular case is included within or excluded from the operation of the statute. Similarly, where the construction of a statute involves a choice between uncertainties, the lesser should be chosen. However, where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory construction.”

Can we from the provisions of the act find support for the second interpretation set forth above? Section 42-1a-28, in enumerating the diseases deemed to be occupational, specifically sets forth silicosis. Section 42-la-29 defines that disease, and Section 42-la-30 provides that when it is complicated with tuberculosis of the lungs, compensation will be as provided for silicosis, and when it is complicated with other diseases, compensation shall be reduced. Other sections deal with the requirements for total time of exposure to silicon dioxide dust, the length of time the employee must have been so exposed in this state, which employer is to be charged with payment of compensation if there has been more than one employer, and finally the time within which total disability must arise. These requirements, together with those included within other provisions of the act, indicate not only that the legislature intended to completely occupy the field of those occupational diseases enumerated in the act, but also indicated that silicosis was so thoroughly considered by the legislature and so completely dealt with in the act itself, that it can be said that the legislature did intend to fully deal with both the right and the remedy of the employee suffering from silicosis. The act grants to the employee the right to recover compensation from the employer regardless of fault on the part of the latter, but prescribes certain standards that must be met by the employee before an award can be made. One of these standards is that the employee must be totally disabled. Until he reaches that stage, his injuries are not compen-sable. By limiting liability to total disability, the legislature excluded liability for partial disability, but in so doing it did not indicate an intention to reserve the common law right of action during the period of partial disability. There may be many reasons why the legislature considered the payment of compensation for partial disability to be impracticable. In setting up a practical method of imposing liability on the employer, the legislature was faced, in the case of silicosis, with dealing with a continuing and progressive disease that could be contracted while working for one employer and aggravated by conditions encountered while the employee was working for other employers. During these periods of different employment, the employee’s degree of disability might be gradually increased. If a cause of action were to be split, the partially disabled employee would be required to pursue his common law remedy against each of the employers for whom he had worked. When he became totally disabled, his condition would not be the sole responsibility of the last employer; it would be chargeable against all employers who, through their negligence, had contributed to his illness.

Even conceding that a law which would fasten liability on each employer could be satisfactorily enforced so that each subsequent employer would be required to contribute a certain part of the sum awarded to the injured employee, it would seem more consistent with our procedure that had the legislature so intended, the administration of such an act would be placed with the Industrial Commission and not left with the courts. Such a procedure could be much more expeditiously handled by an administrative agency. The passage of the Occupational Disease Act shows that the legislators were cognizant of the fact that employees, suffering from occupational disease were at a disadvantage in the courts, and that in order to afford them some reasonable protection, it was necessary to take the adjudication of the rights and remedies from the courts and place them under control of the commission, where those rights could be protected and the remedies efficiently administered. If such reason prompted the legislature to so deal with the rights and remedies of a totally disabled employee, it would be hard to understand why the legislature would leave the partially disabled person to his doubtful legal remedy when by so doing, it would muddle and confuse rights, remedies, and forums, so as to defeat the very purposes of the act.

Had the legislature intended to permit the partially disabled employee to proceed against his employer, it would have been simple and easy for the legislature to have so stated. A plan similar to the one adopted by the Province of Ontario could have been provided for. This plan is described in Kessler’s Accidental Injuries, (1931) p. 646. Under that system, the disease of silicosis was divided into three stages, as follows: (1) Ante primary silicosis; (2) Primary silicosis; and (3) Secondary stage of silicosis. The individual who was awarded compensation for ante primary silicosis recovered $500, those awarded compensation for primary silicosis, $1,000, and those considered in the secondary stage received % of their wage for life. This latter classification was considered as both serious and totally disabling.

The states of Pennsylvania and New York have construed their statutes dealing with the remedies of an employee when the disease from which he is suffering is scheduled in the act. The acts of both those states have the following provision:

“Compensation shall not be payable for partial disability due to silicosis.”

77 P. S. § 1105; Workmen’s Compensation Law, Consol. Laws, c. 67, § 66. Our act does not include this wording, but by making compensation payable only in the event of total disability, it clearly indicates an intent on the part of the legislature not to make compensation payable for partial disability.

In the case of Moffett v. Harbison-Walker Refracteries Co., 339 Pa. 112, 14 A. 2d 111, decided 1940, the Pennsylvania Supreme Court construed the Pennsylvania act thus, at page 117 of 339 Pa., page 114 of 14 A. 2d:

“In construing the statute, which is all that is now involved, we are hardly assisted by cases from other states unless they construe substantially similar provisions. Plaintiff’s brief asserts that ‘The weight of authority is against defendant’s position’, and cites eases from other jurisdictions, of which our own case, Billo v. Allegheny Steel Co., 328 Pa. 97, 195 A. 110, may fairly be said to be an example. That case arose and was decided before the statute brought occupational diseases under the act. The decision was that a plaintiff could sue in tort for silicosis; it was a disease not made the subject of the compensation legislation; no other result could have been reached. But neither that case, nor any that we have seen, would justify a construction of our statute in accord with plaintiff’s contention. We have examined the cases cited in plaintiffs brief and reject the statement that the weight of authority is against defendant’s position. The cases are simply not in point. There is one case, and so far as we have found, only one, in which the compensation statute deals with silicosis and distinguishes between partial and total disability; in that one the court concluded that the legislature dealt with the whole subject and held thei’e could be no recovery outside the provisions of the act; it is a decision of Harris, J., in New York, DelBusto v. Dupont DeNemours & Co., Inc., Sup. Ct. 1938, 167 Misc. 920, 5 N. Y. S. 2d 174. This case supports the view of the appellee.” (Italics mine.)

The Supreme Court of New York, in the case of DelBusto v. Dupont DeNemours & Co., supra, upheld the contention that the employee who was only partially disabled had no recourse at common law. The author of the opinion said at page 177 of 5 N. Y. S. 2d:

“This court is of the opinion that in enacting that portion of § 66, Article 4-a of the Workmen’s Compensation Law (citing th<^ statute) which provides, ‘Compensation shall not be payable for partial disability due to silicosis or other dust diseases,’ the legislature determined that in compelling the employee to bear the burden of partial disability it was a burden that he should in, accordance with the constitution, be compelled to bear in return for the compensation allowed him for total disability or death from silicosis or other disease. * * *”

This case is particularly interesting as it was rendered after the case of Barrencotte v. Cocker Saw, 266 N. Y. 139, 194 N. E. 61, which permitted an employee suffering from silicosis to maintain an action under his common law right of action. The development of the law in the state of New York was substantially as we indicate. Prior to 1935, the Workmen’s Compensation Law made no provision for the payment of compensation for disability, partial or permanent, due to silicosis. In the Barreneotte case, supra, an action was brought to recover damages at common law for injuries due to silicosis sustained as a result of the employer’s negligence. The court of appeals held that the New York legislature had intended to bar actions at common law only in the field within which it created liability or obligation to provide compensation for injury or disability, regardless of fault. Since' silicosis was not scheduled as an occupational disease, the court of appeals held those who suffered were free to bring an action at common law. The following year the act was amended to include any and all occupational diseases. In 1936 silicosis was made the subject of a separate article, and in 1938 the DelBusto case was decided.

The DelBusto case seems to me to be on all fours with the present action, particularly in view of the development of the law in the state of New York. Admittedly, the Supreme Court of New York is not the court of last resort in that state, but other cases have attempted to have the court of appeals upset the ruling of the DelBusto case. As far as we have been able to determine, those attempts have not met with any success.

In the Powers v. Porcelain Insulation Corporation case, 285 N. Y. 54, 32 N. E. 2d 790, the Court of Appeals refused to pass on the constitutionality of the New York act because questions other than the validity of the challenged statute were presented. Again, in the Scherini v. Titanium Alloy Co. case, 286 N. Y. 531, 37 N. E. 2d 237, the Court of Appeals refused to upset the law on procedural grounds, although one justice wrote a dissenting opinion in which he asserted the act violated both the Constitution of the State of New York and the 14th Amendment of the Constitution of the United States.

In 1946, the New York court in the case of Soporito v. Hetzler Foundries, Inc., 269 App. Div. 962, 57 N. Y. S. 2d 838, again had occasion to deal with the New York act. In that case the employee claimed to have suffered injuries to his circulating and cardiac system because of having had to work in rooms polluted with gas and fumes. The complaint alleged that the plaintiff’s injuries were not accidental injuries or occupational diseases such as to bring him within the coverage of the Workmen’s Compensation Law. The Supreme Court denied a motion to dismiss the complaint based on the contention that plaintiff’s sole remedy was by a proceeding under the Workmen’s Compensation Law. The Court of Appeals affirmed the order of the Supreme Court. While the decision does not so indicate, the ruling is consistent with prior rulings of that court to the effect that if a disease is not scheduled, then the employee still has his right to pursue his common law remedy. Had our legislature not scheduled silicosis, then the authorities cited by appellant would be in point.

Counsel for appellant has cited many cases dealing with legislative intent in enacting both accidental injury and occupational disease statutes. Among the cited cases are the following: Jones v. Rinehart & Dennis Co., 118 W. Va. 414, 168 S. E. 482; Downing v. Oxweld Acetylene Co., 112 N. J. L. 25, 169 A. 709; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; Rosenfield v. Mathews, 201 Minn. 113, 275 N. W. 698; Triff v. National Bronze Co. 135 Ohio St. 191, 20 N. E. 2d 232, 121 A. L. R. 1131; Jellic Coal Co. v. Adkins, 197 Ky. 684, 247 S. W. 972; Donnelly v. Minneapolis Mfg. Co., 161 Minn. 240, 241, 201 N. W. 305; Dalton Foundries Inc. v. Jefferies, 114 Ind. App. 271, 51 N. E. 2d 13.

These cases can be divided into three general groups, and for the most part we agree with the conclusions reached. However, they are not in point. Some of the cases hold that when the legislature has not occupied the occupational disease field, the employee suffering from a disease con tracted or aggravated by the employer’s negligence is not precluded from bringing his common law action. This is consistent with our holding in Young v. Salt Lake City, 97 Utah 128, 90 P. 2d 174. Another group holds that when the legislature enacts an occupational disease law it only occupies the field to the extent of the enumerated diseases. These cases would be in point, had silicosis not been enumerated in our act. The last of the three groups deals with the rights of employees to bring suits based on a right of action arising before enactment of the particular statute. Obviously when an act excludes causes of action arising before the act is passed, no valid reason exists for denying the employee his right of action for the injuries sustained before passage of the act.

We have concluded that the legislature occupied the complete field of silicosis and that under the facts alleged in this case, Section 42-la-3 bars plaintiff from maintaining this action. We now consider the question of whether or not the act is unconstitutional because it fails to provide compensation for a partially disabled employee. The contention is made that if a partially disabled employee is not granted compensation and, further, is denied his common law right of action then he has been deprived of his remedy by due course of law for an injury done to his person, contrary to the provisions of the Constitution of this state. There are two provisions of our Constitution which have been interpreted in Workmen’s Compensation litigation. Section 5, Article XVI, which involved the right to sue for wrongful death, is no longer involved so we are now only concerned with Section 11, Article I, which provides:

“All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.”

One of the first compensation acts tested for constitutionality was the New York act, enacted in 1910, Laws 1910, c. 674. In Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A., N. S., 162, Ann. Cas. 1912B, 156, the New York Court of Appeals struck down this act as being unconstitutional. Not until the year 1917, when the U. S. Supreme Court in the case of New York Central R. R. Co. v. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. 1d. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, held compulsory workmen’s compensation act constitutional was the uncertainty removed. The basis for holding such acts constitutional is that the state under its police power has the right to require industry to make compensation for the damage which the industry itself causes.

The constitutionality of compensation acts is too well settled to be now questioned, and is referred to solely for the reason that this case involves a problem not usually presented in this type of case. Here we have a claim that the act, if construed to involve no compensation for partially disabled employees, is unconstitutional because it does not go far enough in providing remedies to injured employees. Had the act provided some measure of compensation for partial disability, then the claim of unconstitutionality could not have been raised, as the employee would have had a redress for the wrong.

It may be that by reference to objections raised to the constitutionality of the act and the answers to the objections, we can find reason for the right of the legislature to enlarge, limit, or abrogate the rights or remedies of injured employees.

It has always been contended by employers that the act offended the due process clause because it abolished certain defenses such as contributory negligence fellow servant, and assumption of risk, and by the employee because it abolished the common law right of action for negligence. The contention has been overruled because no one has a vested right in any rule of law. A statutory right can be taken away and it may vest the individual with a right as sacred and important as one existing under common law principles. Many states must have held that both statutory rights and common law rights can be taken away, otherwise, there can be no question that acts which abolish actions for seduction, breach of promise, criminal conversation, and alienation of affections, would be unconstitutional.

Assuming the legislature can abolish the common law right of action for negligence, must it return a substitute right to each and every employee in some way affected by the abrogation to meet the test of constitutionality?

If the legislature were to abolish all compensation and all common law rights for negligence of an employer, no contention could reasonably be made that it was a proper exercise of the police power. The reverse would be true and pauperism with its concomitants of vice and crime would flourish. However, if the main purpose of the act is to assess the costs of injury and disease against the industry, the welfare of the employee is improved and the act is constitutional. The fact that under the act certain of the employees are denied their common law right, and at the same time only given compensation conditioned upon reaching a stage of total disability, does not offend against the Constitution as certain individual rights and remedies can be made to yield to the public good. The humanitarian principles of the occupational disease act do overcome in part, the inadequacy of relief at common law for a class of employees, and the act should not be discarded because some members of the class have rights, which may be adversely affected.

It should be remembered that our act is a compulsory act and should be considered in the light of the principle that the employer is charged with liability regardless of fault, when the employee is totally disabled or deceased, and therefore need not also be subjected to the employee’s common law right of action for negligence during the time the employee is partially disabled. This would, in effect, permit the employee to retain his common law right and then, upon reaching disablement, grant him an additional right. Such a rule would grant the employee two remedies for one wrong. If the legislature can deny the right to rely on the defense of contributory negligence and assumption of risk, and make the employer absolutely liable regardless of fault, then we believe it also has the right to say that compensation shall not be awarded until the employee has brought himself within the terms of the statute.

There must have been some reason for the legislature to limit the compensation to those employees who are totally disabled and to the dependents of those who are deceased. We are not of the opinion that the legislature intended to deny compensation to partially disabled employees and to deny them enforcement of their common law right without reason or just cause. Neither are we of the opinion that the legislature intended to preserve their common law right when it was well aware of the abuses that had brought about occupational disease legislation and the confusion that would exist if the degree of disability controlled the forum. We are convinced the legislature, because of the nature of the disease, the length of time for development, the difficulty of proof, the inability to properly apportion the negligence between employers, the cost and expense of litigation and the small return to the employee, decided to deal with silicosis through the commission and to require both the employer and the employee to shoulder part of the costs of occupational disease without regard to the negligence of either. The employee to share the burden during partial disability, and the employer when disablement or death occurred.

This court cannot ignore or strike down an act because it is either wise or unwise. The wisdom or lack of wisdom is for the legislature to determine. If the act is unjust, amendments to correct the inequities should be made by the legislature and not by judicial interpretation. Years of study and millions of dollars have been spent on research and study of silicosis, and the legislature is able to profit by these efforts when considering legislation on the subject. If after considering the reasons for and against a bill, the legislature enacts it into law, arguments for correction of any claimed inequities should be addressed to the legislature where they can be considered and if found to exist, be corrected.

The judgment is affirmed, with costs.

McDONOUGH, C. j., and PRATT, j., concur.