noting unanimous concurrence of all thirteen justices of this court from Masich, 113 Utah 101, 191 P.2d 612 (1948), to Hirpa v. IHC Hospitals, Inc., 948 P.2d 785 (Utah 1997) (Howe, J., applying Berry analysis in unanimous opinion)
How later courts described this case
- noting unanimous concurrence of all thirteen justices of this court from Masich, 113 Utah 101, 191 P.2d 612 (1948), to Hirpa v. IHC Hospitals, Inc., 948 P.2d 785 (Utah 1997) (Howe, J., applying Berry analysis in unanimous opinion)
- "The intent, purposes and objectives of the Occupational Disease Act, which is closely allied to the Work[ers'] Compensation Act, can be determined by reliance on former interpretations of the Work[ers'] Compensation Act...."
- "[B]oth 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."
- "[B]y making compensation payable only in the event of total disability, [our law] clearly indicates an intent on the part of the legislature not to make compensation payable for partial disability."
Written by the judges who cited it.
The opinion
WOLFE, Justice
(concurring).
I concur with the opinion of Mr. Justice Latimer and in the reasons given therefor. In doing so, I am not unaware that it may visit a hardship on an employee who has had his strength and ability largely but not totally impaired by the negligence of an employer in failing to use modern technological methods for keeping down silicon dioxide dust, in that he must continue to drag himself to work until he can no longer work at all. And in saying this, I have in mind a hypothetical case. We have no evidence of what the conditions were in the plant of the defendant. For aught we know they may have been as perfect as science and invention could make them.
As the prevailing opinion points out, this disease is a slowly progressive one. If our Occupational Disease Disability Law left open to the courts a cause of action for partial disability due to án occupational disease named in the schedule, could the plaintiff retutn again or perhaps again and again and recover for successive increments of disability due to the conditions under which he worked? It would seem as is pointed out in the prevailing opinion that had the legislature wanted to provide for successive increments of disability short of total disability, common sense would have caused it to place such recourse in the Industrial Commission where the applicant’s progress could be watched and registered from time to time rather than in courts of law (and there might be invoked the jurisdiction of several courts in one progressive case) not practically equipped for such business. I am impressed with the fact that from a standpoint of common sense and practica
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bility alone, the legislature must have intended to make the Industrial Commission the sole tribunal for the handling of occupational diseases.
I do not understand that Article I, Sec. 11, of the Constitution of Utah, prohibits the modification or even the entire removal or destruction of a common law right by legislative enactment. There is still such a thing as damnum absque injuria. I need express no opinion as to those injuries based on rights respecting person, property or reputation which under the pressure of the growth of the enlightened conscience of mankind have become a part of the common law. Much of what was said in the concurring opinion in the case of
McGrew
v.
Ind. Comm.,
96 Utah 203 , 85 P. 2d 608 , in respect to the motivating force of that factor as to social legislation has application to the common law. And I think this process is still operating. I see no reason why the common law which recognized rights, duties and 'liabilities to meet the conditions of a certain period may not later recede from those or modify them if the needs of the people require that. Naturally most departures from the common law, especially if marked, will be made by the legislature, but judicial legislation (and such it is regardless of what jurisprudencial terminology may be employed) fills the interstices in a more gradúale process. I must agree with Mr. Justice Wade that the legislative intent as expressed by the constitutional and statutory provisions and the surrounding facts and circumstances must always be the determining factor in this question. But I agree with Mr. Justice Latimer that by such test the legislature did intend in this case to abolish any right to recover at the common law for partial or total disability due to silicosis resulting from negligence of the employer. I do not think the intent to abolish the common law right must be shown by a specific statutory provision, nor do I think that every element of damage, such as pain and suffering, as they existed in the common law, must be specifically abolished or else considered as having been preserved. Where the scheme enacted by the legislature is of such a nature as to make highly
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incongruous and impracticable certain other asserted additional or piece-meal remedies, there may be inferred an intent by the legislature to abolish them.
If the situation is such that the claimed common law right when placed against the provisions of the act is shown to be untenable, and resort to different tribunals would introduce such confusion, uncertainty, incongruity and impracticality of remedy and of the operation and administration of the act that it must be inferred that the legislature intended to make the substituted rights to compensation the sole rights and the substituted tribunal the sole tribunal for resort, then the inference is tantamount to a specific provision.
Union Portland Cement Co.
v.
State Tax Commission,
110 Utah 135 , 170 P. 2d 164 , on rehearing, 110 Utah 152 , 176 P. 2d 879 .