Golden v. Lerch Bros. Inc.

1 Reported in 300 N.W. 207. In Golden v. Lerch Bros. Inc. 203 Minn. 211, 281 N.W. 249, the plaintiff got judgment for damages suffered by her husband (who died after the verdict) as result of the negligence of Lerch Brothers, a copartnership. From 1915 to 1929, Mr. Golden was their employe. That negligence was the failure to provide him with a safe place to work. In consequence, he contracted the disease (from which he died January 29, 1935) of pneumoconiosis or silicosis with an end and fatal result of superimposed tuberculosis. He had quit his employment by Lerch Bros. Inc. in January 1930. Lucy Golden, as special administratrix and substituted plaintiff in the original case, has assigned her judgments (there are two of them, one in the district court and one here for costs and disbursements) to Lerch Bros. Inc.2 That corporation by garnishment now seeks to hold the garnishees, Globe Indemnity and Travelers Insurance Companies, liable as insurers of Lerch Brothers. The decisions below going against them, the garnishees severally appeal from the order denying their alternative motions for amended findings or a new trial. The theory of recovery in Golden v. Lerch Bros. Inc. was narrow. The negligence charged was the violation of Mason St. 1927, § 4174. That statute required proper ventilation of the laboratory wherein Golden was employed so that dust arising therein from the crushing and treatment of ore samples would not become harmful to those employed. Neither by pleadings nor evidence was there advanced on behalf of plaintiff in the original case the theory of accidental injury. That negative is not controlling, but it is enlightening. Recovery was based upon a finding of fact, implicit in the verdict, that because *Page 32 of defendants' negligence Golden had become the victim of an insidious and slowly developing disease rather than accident. The policies issued by the two insurers were identical in coverage. They are labeled "Standard Workmen's Compensation and Employers' Liability Policy." They insured the employer against loss by reason of "personal injuries sustained by employees, including death at any time resulting therefrom." After that initial statement, the coverage falls into two classes. The first insures generally against liability of the insured under any workmen's compensation law. That is the workmen's compensation side of the contract. The other side has to do with the employers' liability coverage. In that respect, the insurer's promise is "to indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America." That promise of indemnity is subject to this limitation (paragraph VII of the policy): "This agreement shall apply only to such injuries so sustained byreason of accidents occurring during the policy period limited and defined as such in Item 2 of said Declarations," which are a part of the policy. Item 2, so referred to, makes no mention of accidents or other cause of damage, but is confined to limitations by terminal dates of "the period during which the Policy shall remain in force, unless cancelled." (Italics supplied.) A condition of the policy, F, is that "this Employer, upon the occurrence of an accident, shall give immediate written notice thereof to the Company [insurer] with the fullest information obtainable." Another condition, D, makes an injured employe a beneficiary of the contract.3 It declares that the contract, in respect *Page 33 to injured employee, "shall not be affected by the failure of this Employer to do or refrain from doing any act required by the Policy; nor by any default of this Employer after the accident in the payment of premiums or in the giving of any notice required." The insurers are liable, if at all, only if they insured the employer against damages to employes arising from chronic disease as well as those arising from accident. Since January 15, 1919, the Travelers have been off the risk, whatever it was. The record in the Golden case is again before us. We do not repeat much of its facts. If Golden had quit the employ of Lerch Brothers January 15, 1919, concurrently with expiration of the last Travelers policy, there is no evidence that, as of that date or earlier, he had become afflicted with any disease. He may have been exposed, but to so slight an extent that, if the exposure had not been continued, there probably would have been no resulting disease. As matter of law, the record, as against the Travelers, falls far short of showing damage arising from an insured risk incurred before January 15, 1919. At best, a finding against the Travelers on that issue would rest on conjecture rather than inference. The Globe policies covered the risk continuously from January 15, 1919, to January 1, 1931. We hold that, inasmuch as Golden died of chronic disease which did not result from accident, the Globe company is not liable. That is because the insurance, other than that against liability for workmen's compensation, did not cover disability or death resulting from disease, but rather and only, "injuries * * * sustained by reason of accidents." Even the workmen's compensation insurance would have been confined to cases of accident except for its inclusion of all liability under the compensation law. That necessarily includes liability for any disease classed as occupational by the statute. Mason St. 1927 and 1940 Supp. § 4327. Silicosis and pneumoconiosis, with or without superimposed tuberculosis, are not so included. *Page 34 The cases are in hopeless conflict.4 Were we to follow those from Nebraska and Alabama,5 our conclusion would be otherwise than it is. In accord with our view are cases from New York, New Jersey, Pennsylvania, Illinois, and the federal courts.6 Because of the conflict and resulting state of authority, we have given the whole problem the most thoroughgoing reexamination of which we are capable. The recovery of Golden against his employers was not under the compensation law. It was exclusively on their common-law liability for negligence. That tort functioned harmfully, not through or because of accident, but rather and exclusively by insidious and chronic disease, in the causation of which there was no accident. So, under paragraph VII of the policies, there is no liability on the insurer. That paragraph makes the policies apply "only" to injuries "sustained by reason of accidents." The language is too plain for reasonable debate. With or without application to its subject matter, there is no ambiguity. One of the least justifiable *Page 35 errors of the judicial process is its occasional creation of ambiguities in contracts where none really exist. It is not for judges to set up, or permit counsel to stuff for them, mere dummies whereon to demonstrate skill with the dialectical bayonet. Before proceeding, it is well to go to the factual roots of the issue by examining again and somewhat in detail the nature of Golden's fatal ailment. The medical testimony supporting recovery in the Golden case is illustrated by that of Dr. E.L. Cheney, whose diagnosis, based on personal examination and X-rays, was that Golden had "pneumoconiosis,7 superimposed by a tubercular trouble, tuberculosis infection, involving both lungs." He said pneumoconiosis was not a germ disease. His opinion was that "the men who work in dust-laden atmospheres, particularly certain types of dust, over a period of years, are known * * * to be found with this condition we call pneumoconiosis. That is the effects of the dust particles on the lung tissues." He added that the onset and progress of pneumoconiosis "is usually very slow." The victim "can continue with his work for a long time with a considerable degree of pneumoconiosis." The usual result is a greater susceptibility to tuberculosis infection. Pneumoconiosis "was the original foundation" of Golden's trouble. "He had the pneumoconiosis first, and he had this respiratory infection [influenza] second, and then later on the definite tubercular infection." *Page 36 Dr. Cheney's testimony was typical of all the medical opinion for the plaintiff. It showed a condition the beginning of which was not referable, within years, to any definite time or event. Its existence and progress were unknown for a long time. That demonstrates a cause the direct antithesis of accident. As appears from medical definition, silicosis (which is but one sort of pneumoconiosis) does not result from infection by germ or bacillus. We who must dwell in cities are more or less continually exposed to pneumoconlosis. The lungs of many of us, under close inspection, might show the effects of anthracosis. Silicosis frequently is an "occupation disease," which is simply "one caused by the occupation of the patient." Gould's Medical Dictionary (3 ed.). That shows how irrelevant is the presence of tort as agency of causation. The cause of occupational disease has too often been the tortious neglect of employers in not furnishing employee with safe working premises. Such neglect is the target of our statute requiring proper ventilation of workrooms where, without it, employes would be subjected to the dangerous inhalation of noxious dusts or gases. Mason St. 1927, § 4174. So we cannot agree that what is otherwise and plainly an occupational disease is rendered nonoccupational by the wholly fortuitous circumstance that it is caused by an employer's tort. In contrast is American Mut. L. Ins. Co. v. Agricola Furnace Co. 236 Ala. 535, 183 So. 677. Habitual conduct may be, occasionally is, a tort. But it is never an accident. Whatever else it may be, an accident is an event. As such, it must be susceptible of identification and reference to time, place, and result, with whatever degree of certainty a particular case may demand. Habitual conduct, intentional as to performance but not as to harmful effect, cannot be an accident under any reasonable definition. His employer's subjection of Golden to work in an unventilated, dust-filled workroom was all along intentional and usual. It was tortious but not an accident. It was the cause of his disease. The latter was a fibroid condition of his lungs, insidiously *Page 37 started and slowly continued through the chronic to the fatal stage, by his inhalation, through long hours of many working days, year after year, of minute air-borne particles of silica dust. Such a cause defies reasonable inclusion in any reasonable definition of accident. Accidents do not and cannot take years in the happening. Neither the first nor any succeeding separate inhalation of silica dust can be perceived. It is a slow process rather than an event. Under insurance policies, an accident must be an episode of which notice can be given, followed by proof that it happened within the policy term. No inhalation of dust, unless it be so toxic as to result in acute disease, can be such an event. Neither can any succession of inhalations. Disease, where it results, is of itself an event. But it is result rather than cause, and we are now concerned, as controlling decision, with cause alone. The disease as result is relevant only as it aids in identifying the cause so as to appraise the latter as accidental or not. At this point it helps consideration to observe the medical distinction between diseases which are acute and those which are chronic.8 The former are characterized by sudden onset and so are frequently referable to accident as cause.9 For example are cases of typhoid fever, Aetna L. Ins. Co. v. Portland Gas Coke Co. (9 Cir.) 229 F. 552, L.R.A. 1916D, 1027; glanders, H. P. Hood Sons v. Maryland Cas. Co. 206 Mass. 223, *Page 38 92 N.E. 329, 30 L.R.A.(N.S.) 1192, 138 A.S.R. 379; tetrachloride poisoning resulting in asthma, Globe Ind. Co. v. Banner Grain Co. (8 Cir.) 90 F.2d 774. Chronic diseases, such as silicosis, have an insidious and always unrecognized beginning. They progress slowly for a long period, without suspicion of their presence. Moreover, the process of fibrosis, as we understand it, may be stopped, and, if attacked soon enough, it may not progress beyond the point where, without scientific examination, its presence will be known. We do not mean to imply that, on occasion, chronic disease cannot result from accident. Our impression is that cancer may be caused by a blow. Because, in the tort for which damages were recovered in the Golden came, there was no accident, neither insurer is liable. So the order must be reversed with direction that judgment be entered for the garnishees. So ordered. 2 Lerch Brothers operated as a copartnership until August 8, 1929, when the corporation was organized and took over the business. 3 In view of the fact that injured employes are so clearly beneficiaries of the policies, the query suggests itself why it was necessary in order to reach the insurers to resort to the circuitous route of garnishment rather than direct suit. La Mourea v. Rhude, 209 Minn. 53, 295 N.W. 304. 4 Cases similar to those cited herein are collected and discussed in Annotations, 112 A.L.R. 158; 35 A.L.R. 737; 52 A.L.R. 374; 64 A.L.R. 966; 30 L.R.A.(N.S.) 1192. 5 Updike Inv. Co. v. Employers L. Assur. Corp. Ltd.131 Neb. 745, 270 N.W. 107; American Mut. L. Ins. Co. v. Agricola Furnace Co. 236 Ala. 535, 183 So. 677. Compare Victory Sparkler Specialty Co. v. Francks, 147 Md. 368, 128 A. 635,44 A.L.R. 363; Bosworth v. Metropolitan L. Ins. Co. 114 W. Va. 663,173 S.E. 780; King v. Travelers Ins. Co. 123 Conn. 1,192 A. 311; Hoage v. Employers' L. Assur. Corp. Ltd. 62 App. D.C. 77,64 F.2d 715. Similar contrary results were reached, but coverage was restricted by use of the word "accident" as an adjective rather than a noun, a material variation. See 25 Harv. L.Rev. 328. 6 Taylor Dredging Co. v. Travelers Ins. Co. (2 Cir.)90 F.2d 449; Globe Ind. Co. v. Sterling Stewart Corp. 283 N.Y. 582,27 N.E.2d 441, affirming 257 App. Div. 1027,18 N.Y. So.2d 678; United States Radium Corp. v. Globe Ind. Co. 13 N. J. Misc. 316, 178 A. 271. See Billo v. Allegheny Steel Co. 328 Pa. 97,195 A. 110; Boal v. Electric Storage Battery Co. (3 Cir.)98 F.2d 815; Peru Plow Wheel Co. v. Industrial Comm.311 Ill. 216, 142 N.E. 546; Jackson v. Employers' L. Assur. Corp.139 Misc. 686, 248 N.Y. S. 207, affirmed, 234 App. Div. 893,254 N.Y. S. 1010, affirmed, 259 N.Y. 559, 182 N.E. 180. 7 "A general term applied to chronic induration or fibrous inflammation of the lungs due to the inhalation of dust. Various names are given to it according to the kind of dust causing the inflammation; anthracosis, that due to the inhalation of coal dust; siderosis, that due to inhalation of metallic dust; chalicosis, that due to the inhalation of mineral dust." Gould's Medical Dictionary (3 ed.). Apparently there are three alternative spellings of the term for this disease, viz., pneumoconiosis, pneumonoconiosis, and pneumonokoniosis. We have adhered to the spelling used in our former opinion, viz., pneumoconiosis. The same authority thus defines silicosis: "A deposit of particles of silica in the tissues specifically, a chronic fibroid condition of the lung or the bronchial lymphatic glands, produced by the inhalation of particles of silica." 8 In medical terminology an "acute disease" is one "having a rapid onset, a short course, and pronounced symptoms and termination; not chronic. Sharp, severe." "Chronic" is the antonym of "acute." It means "long-continued; of long duration; opposed to acute." Gould's Medical Dictionary (3 ed.). 9 But see State ex rel. Faribault Woolen Mills Co. v. District Court, 138 Minn. 210, 164 N.W. 810, L.R.A. 1918F, 855 (typhoid contracted from drinking water, held not an accident). Same as to pneumonia, Costly v. City of Eveleth, 173 Minn. 564,218 N.W. 126. Both cases were controlled by the definition of "accident" in our workmen's compensation law. That definition is "an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body." Mason St. 1927, § 4326(h).