Wiest, C. J.
The above eight cases involve the same issues of law and have been heard together upon the record in
Thomas
v.
Parker Rust Proof Company,
and this opinion in that case applies as well to all the others.
Catherine Thomas, administratrix of the estate of Brit Thomas, deceased, brought this action at law, claiming that decedent, while in the employ of defendant company, suffered a diseased condition of the lungs, due to the inhalation of dust and fumes during a course of years and known as silicosis or pneumoconiosis, causing his death. The workmen’s compensation act (2 Comp. Laws 1929, § 8407
et seq.
[Stat. Ann. § 17.141
et seq.])
at the time affording no remedy against the employer for an occupational disease, this claimed right of action at common law was brought to recover damages under allegations that defendant, as employer, negligently and wilfully, failed to provide preventative means and measures which would have saved the employee from injury.
Upon motion of defendant, it appearing that defendant and plaintiff’s decedent were at all times subject, in their relation of employer and employee, to the provisions of the workmen’s compensation act, the court dismissed the suit under the authority of
Cell
v.
Yale & Towne Manfg. Co.,
281 Mich. 564.
Plaintiff prosecutes review, presenting the principal question of whether, under the rule of employer and employee operating under the provisions of the workmen’s compensation act, damages for an injury to the employee, not compensable under that act, may be recovered in an action at law.
Counsel for plaintiff herein also appeared as counsel for plaintiff in the
Cell Case.
In the
Cell Case
we said:
“Plaintiff contends that he has not met with an accident, neither is he suffering from an occupational disease but that he has been injured by the negligence of the defendant, and inasmuch as the compensation act affords no remedy, except for accidental injuries, and none for occupational diseases it has not abrogated the common law remedy here invoked. * * *
‘ ‘ Upon review plaintiff admits there is no remedy at law for an occupational disease, strictly as such, but claims that for injuries sustained, without accident, but by reason of the failure of the employer to protect him as an employee, he may maintain this suit.”
We there held:
“The relation of master and servant existed. The declaration avers a duty upon the master to •provide a vent for the fumes and culpable neglect to do so.
“Plaintiff averred an action governed by the law of master and servant. Such an action cannot be maintained against an employer operating under the workmen’s compensation act.”
Notwithstanding the opinion in that case the same counsel present a like question in the instant case.
No rehearing was asked in the
Cell Case,
and we might well limit opinion herein to a statement that the instant case is controlled by the opinion in that case.
The provisions of the compensation act clearly bar prosecution of the instant case.
Section 1 of the act (2 Comp. Laws 1929, § 8407 [Stat. Ann. § 17.141]) provides:
“In an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:
“(a) That the employee was negligent, unless and except it shall appear that such negligence was wilful ;
“(b) That the injury was caused by the negligence of a fellow employee;
“(c) That the employee had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.”
Section 8409, 2 Comp. Laws 1929 (Stat. Ann. § 17.143), provides:
“The provisions of section one shall not apply to actions to recover damages for the death of, or for personal injuries sustained by employees of any employer who has elected, with the approval of the industrial accident board * hereinafter created, to pay compensation in the manner and to the extent hereinafter provided. ’ ’
And 2 Comp. Laws 1929, § 8410 (Stat. Ann. § 17.144), provides:
“Any employer who has elected, with the approval of the industrial accident board hereinafter created, to pay compensation as hereinafter provided, shall not be subject to the provisions of section one; nor shall such employer be subject to any other liability whatsoever, save as herein provided for the death of or personal injury to any employee, for which death or injury compensation is recoverable
under this act, except as to employees who have elected in the manner hereinafter provided not to become subject to the provisions of this act.”
It will be noted that the mentioned section 8407 takes away from the employer, not operating under the act, certain common-law defenses, while section 8409 constitutes the provisions of section 8407 wholly inapplicable to an employer operating under the compensation act, and section 8410 expressly limits the employer’s liability, where both the employer and employee are operating under the provisions of the act, by providing that the employer shall not be subject to any other liability whatsoever.
Operation under the compensation act is not mandatory but elective; an employer may elect to operate under its provisions; if not so operating certain common-law defenses are abrogated. An employee, by written notice at the time of hiring, may elect not to be subject to the provisions of the act (2 Comp. Laws 1929, §8414 [Stat. Ann. § 17.148]-).
Where the employer elects to operate under the provisions of the act, and the employee fails to exercise the right of rejection, the provisions of the act enter the contract relation between them and both are bound by the provisions of the act and neither can complain that the act takes away any common-law rights relative to actions or defenses.
“We have repeatedly held the rights of respective parties under the workmen’s compensation law, are fundamentally based upon the contract of employment.”
Boshaw
v.
J. J. Newberry Co.,
259 Mich. 333 (83 A. L. R. 412).
The provisions of the workmen’s compensation act are, in effect, read into the contract of employment between the employer and the employee.
City of Grand Rapids
v.
Crocker,
219 Mich. 178.
Being matter of contract the provisions of the act are binding upon the parties to the contract.
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Wiest, C. J.
The above eight cases involve the same issues of law and have been heard together upon the record in
Thomas
v.
Parker Rust Proof Company,
and this opinion in that case applies as well to all the others.
Catherine Thomas, administratrix of the estate of Brit Thomas, deceased, brought this action at law, claiming that decedent, while in the employ of defendant company, suffered a diseased condition of the lungs, due to the inhalation of dust and fumes during a course of years and known as silicosis or pneumoconiosis, causing his death. The workmen’s compensation act (2 Comp. Laws 1929, § 8407
et seq.
[Stat. Ann. § 17.141
et seq.])
at the time affording no remedy against the employer for an occupational disease, this claimed right of action at common law was brought to recover damages under allegations that defendant, as employer, negligently and wilfully, failed to provide preventative means and measures which would have saved the employee from injury.
Upon motion of defendant, it appearing that defendant and plaintiff’s decedent were at all times subject, in their relation of employer and employee, to the provisions of the workmen’s compensation act, the court dismissed the suit under the authority of
Cell
v.
Yale & Towne Manfg. Co.,
281 Mich. 564.
Plaintiff prosecutes review, presenting the principal question of whether, under the rule of employer and employee operating under the provisions of the workmen’s compensation act, damages for an injury to the employee, not compensable under that act, may be recovered in an action at law.
Counsel for plaintiff herein also appeared as counsel for plaintiff in the
Cell Case.
In the
Cell Case
we said:
“Plaintiff contends that he has not met with an accident, neither is he suffering from an occupational disease but that he has been injured by the negligence of the defendant, and inasmuch as the compensation act affords no remedy, except for accidental injuries, and none for occupational diseases it has not abrogated the common law remedy here invoked. * * *
‘ ‘ Upon review plaintiff admits there is no remedy at law for an occupational disease, strictly as such, but claims that for injuries sustained, without accident, but by reason of the failure of the employer to protect him as an employee, he may maintain this suit.”
We there held:
“The relation of master and servant existed. The declaration avers a duty upon the master to •provide a vent for the fumes and culpable neglect to do so.
“Plaintiff averred an action governed by the law of master and servant. Such an action cannot be maintained against an employer operating under the workmen’s compensation act.”
Notwithstanding the opinion in that case the same counsel present a like question in the instant case.
No rehearing was asked in the
Cell Case,
and we might well limit opinion herein to a statement that the instant case is controlled by the opinion in that case.
The provisions of the compensation act clearly bar prosecution of the instant case.
Section 1 of the act (2 Comp. Laws 1929, § 8407 [Stat. Ann. § 17.141]) provides:
“In an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:
“(a) That the employee was negligent, unless and except it shall appear that such negligence was wilful ;
“(b) That the injury was caused by the negligence of a fellow employee;
“(c) That the employee had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.”
Section 8409, 2 Comp. Laws 1929 (Stat. Ann. § 17.143), provides:
“The provisions of section one shall not apply to actions to recover damages for the death of, or for personal injuries sustained by employees of any employer who has elected, with the approval of the industrial accident board * hereinafter created, to pay compensation in the manner and to the extent hereinafter provided. ’ ’
And 2 Comp. Laws 1929, § 8410 (Stat. Ann. § 17.144), provides:
“Any employer who has elected, with the approval of the industrial accident board hereinafter created, to pay compensation as hereinafter provided, shall not be subject to the provisions of section one; nor shall such employer be subject to any other liability whatsoever, save as herein provided for the death of or personal injury to any employee, for which death or injury compensation is recoverable
under this act, except as to employees who have elected in the manner hereinafter provided not to become subject to the provisions of this act.”
It will be noted that the mentioned section 8407 takes away from the employer, not operating under the act, certain common-law defenses, while section 8409 constitutes the provisions of section 8407 wholly inapplicable to an employer operating under the compensation act, and section 8410 expressly limits the employer’s liability, where both the employer and employee are operating under the provisions of the act, by providing that the employer shall not be subject to any other liability whatsoever.
Operation under the compensation act is not mandatory but elective; an employer may elect to operate under its provisions; if not so operating certain common-law defenses are abrogated. An employee, by written notice at the time of hiring, may elect not to be subject to the provisions of the act (2 Comp. Laws 1929, §8414 [Stat. Ann. § 17.148]-).
Where the employer elects to operate under the provisions of the act, and the employee fails to exercise the right of rejection, the provisions of the act enter the contract relation between them and both are bound by the provisions of the act and neither can complain that the act takes away any common-law rights relative to actions or defenses.
“We have repeatedly held the rights of respective parties under the workmen’s compensation law, are fundamentally based upon the contract of employment.”
Boshaw
v.
J. J. Newberry Co.,
259 Mich. 333 (83 A. L. R. 412).
The provisions of the workmen’s compensation act are, in effect, read into the contract of employment between the employer and the employee.
City of Grand Rapids
v.
Crocker,
219 Mich. 178.
Being matter of contract the provisions of the act are binding upon the parties to the contract.
The compensation act imposes upon the employer certain duties and liabilities theretofore unknown to the law and, in some instances, brings a surrender of rights on the part of the employee.
An employee had no right of action at common law against an employer for injury or death due to an occupational disease.
Adams
v.
Acme White Lead & Color Works,
182 Mich. 157, 159, 162 (L. R. A. 1916A, 283, Ann. Cas. 1916D, 689, 6 N. C. C. A. 482). So, no such
right of action
was taken away by failure of the compensation act to constitute an occupational disease a compensable injury. An occupational disease was not an accidental injury at common law and its inclusion in the compensation act would have been an added liability of the employer and, as such, require specific mention or designation as has since been accomplished in specified instances by Act No. 61, Pub. Acts 1937 (Comp. Laws Supp. 1937, § 8485-1
et seq.).
The legislature framed the compensation act to take the place of all common-law remedies and, as such remedies arose from accidental injuries occasioned by negligence of the employer, the term “accidental injuries” was employed advisedly.
If plaintiff’s decedent’s disease was occupational then the alleged negligence of defendant did not make it an accidental injury. If such alleged failure on the part of the employer to warn of the danger and provide protective means and measures constituted actionable negligence, previous to adoption of the act, then this action cannot be maintained.
The declaration alleged: “That in the year 1929 the deceased commenced working for the defendant in the aforesaid plant in the presence of the aforesaid machinery and more especially in the sand
blasting department, where dnst, sand, chemicals, smoke, gas, fnmes, silica, and silica bearing compounds were readily generated and diffused in the air;” that by reason of so working plaintiff’s decedent contracted silicosis which caused his death on March 4, 1935. There is no allegation that the silicosis came suddenly, by reason of negligence on the part of defendant and was the result of one contact or event and, therefore, accidental.
We said in
Adams
v.
Acme White Lead & Color Works, supra,
160:
“In occupational diseases it is drop by drop, it is little by little, day after day for weeks and months, and finally enough is accumulated to produce symptoms. ’ ’
We held in
Munson
v.
Christie,
270 Mich. 94:
“As to employers and employees under the act ‘the right to compensation or damage’ incident to an industrial injury suffered by an employee is restricted to such as the act provides. ’ ’
In
Tews
v.
C. F. Hanks Coal Co.,
267 Mich. 466, we said:
“The compensation act is in derogation of the common law and, therefore, its measure of relief may not be extended beyond its express terms; it is a legislative creation permitting no enlargement by principles of equity or common-law adaptation. It is arbitrary and where it speaks nothing can be added nor changed by judicial pronouncement. It imposes liability upon operatives under its provisions and measures exclusive relief in its own terms. ’ ’
Again we say, as we said in the case of
Cell
v.
Yale & Towne Manfg. Co., supra,
plaintiff averred an action governed by the law of master and servant and
such an action cannot be maintained against the employer operating under the workmen’s compensation act.
Counsel for plaintiff contend that, by dismissal of the suit, plaintiff has been deprived of a trial by jury, contrary to article
1-,
of the amendments to the Constitution of the United States, and article 2, § 13, of the Constitution of the State of Michigan.
No case having been stated there was no right to trial by jury. The holding herein does not deprive plaintiff of the equal protection of law, nor does it impair the obligations of the contract of employment under the workmen’s compensation act.
The judgment is affirmed, with costs to defendant. A like affirmance follows in the other seven cases.
Bushnell, Sharpe, and North, JJ., concurred with Wiest, C. J.