McCourtie v. United States Steel Corp.

Knutson, Justice

(concurring specially).

I concur in the result of this decision in so far as it holds that it was error on the part of the trial court, in submitting the case on a special verdict, to inform the jury what the result of its findings on the facts *519 would be. Under Rule 49.01 of Rules of Civil Procedure, it is discretionary with the trial court whether the case should be submitted to the jury on a special verdict, but, if such verdict is used, it should be used properly. Any other procedure would destroy the value of the rule entirely.

I cannot concur, however, in the construction placed on M. S. A. 176.061. I think that employees of contractors and subcontractors working on the same project are within the meaning of our statute and that our former decisions all so hold.

In construing a statute passed by the legislature, courts have only one function to perform. That is to ascertain the legislative intent and to give to the language used by the legislature such meaning as to carry out that legislative intent. If the language used in the statute is unambiguous, it is our duty to give to it the usual and ordinary meaning of such language. If the language of the statute is ambiguous, it still is our duty to give to it such meaning as to carry out the intention of the legislature as we understand that intention to be. Sometimes we must look to the purpose which the legislature sought to accomplish in order to properly interpret language used by it when the meaning of such language is not clear. What the legislature sought to accomplish by this statute is quite clearly indicated in the concurring opinion of Mr. Justice Pirsig in Gentle v. Northern States Power Co. 213 Minn. 231, 237 , 6 N. W. (2d) 361, 364 , which is so heavily relied upon by the majority. In that opinion he said:

“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.”

This language was quoted with approval in Gleason v. Geary, 214 Minn. 499 , 8 N. W. (2d) 808 , also relied upon by the majority. That contractors and subcontractors working on the same project were within the purpose for which this legislation was enacted was recognized even before the Gentle case. In Tevoght v. Polson, 205 Minn. 252, 254 , *520 285 N. W. 893, 894 , we said:

“* * * It may be that it [the legislature] intended that his common-law right of action should only be eliminated in situations like those where contractors and subcontractors are engaged on the same project and their employes exposed to the hazards created by such mutual engagements.”

In no case do we have a right to substitute for the language used by the legislature language of our own choosing in order to arrive at a result which we think will be better, from a social and economic point of view, than the result which the legislature intended to accomplish. It seems to me that that is exactly what we are doing here. In our role as interpreter of the laws passed by the legislature, only the exercise of judicial self-restraint prevents usurpation of the lawmaking function of the legislature. If our theory of separation of powers, which is the very backbone of our constitutional form of government, is to retain vitality, it is of the utmost importance that we conscientiously exercise such self-restraint.

The language of the statute we have under consideration (§ 176.061, subd. 4), as far as is material here, reads as follows:

“The provisions of subdivisions 1, 2, and 3 apply only where the employer liable for compensation and the other party legally hable for damages are * * * engaged in the due course of business, (a) in furtherance of a common enterprise, or (b) the accomplishment of the same or related purposes * * *.”

The majority opinion now says that, in order to come within this statutory language, there are three requisites:

“ (1) The employers must be engaged on the same project;

“(2) The employees must be working together (common activity); and

“(3) In such fashion that they are subject to the same or similar hazards.”

The majority opinion says: “This interpretation of the statute emphasizes the common activities of the employees as opposed to the common activities of the employers * * *.” No doubt the interpretation *521 placed on the statute in this case does do just that, but it is difficult to see how that interpretation can be made, either from the language used in the statute or any purpose which the legislature could have intended to accomplish by the enactment of the statute, or from what we have heretofore believed its purpose to be.

While it seems fruitless to discuss our prior cases on this subject, many of which cannot be reconciled, the majority claims to arrive at the present interpretation of the statute from our former decisions. The common activities of employees, which have now been substituted for the common enterprise of employers or the accomplishment by employers of the same or related purposes, have heretofore been used only in connection with the mutuality-of-hazards idea which first appeared in Gleason v. Geary, supra. The method whereby this language is now extended so as to supersede the language of the statute is simple. The majority quotes from Swanson v. J. L. Shiely Co. 234 Minn. 548, 558 , 48 N. W. (2d) 848, 854 , the following language:

“* * * the legislature intended that an employe’s common-law right of action be eliminated only where two or more employers subject to the act are engaged on the same project and their employes are working together in such fashion that they are exposed to the same or similar hazards created by such mutual engagements and are exposed to the same risks of injury.” (Italics supplied.)

The meaning of the clause, “their employes are worldng together in such fashion that they are exposed to the same or similar hazards created by such mutual engagements and are exposed to the same risks of injury,” is changed by the simple expedient of inserting the conjunctive “and” in the middle of the clause so as. to find in it two requisites instead of one and by eliminating entirely a part of the clause. Thus, after such rearrangement, it will read: “their employes are working together and in such fashion that they are exposed to the same or similar hazards.” The words, “created by such mutual engagements,” are left out entirely. Thus do the words, “working together,” become one of the requisites and the balance of the clause another requisite under the new rule without reference as to how these words were used in the opinion from which they were extracted. Having so changed the meaning of the *522 sentence taken from the Swanson case, the majority now arrive at the conclusion that it is the common activities of the employees that constitutes the criteria.

From the very beginning we have held that employees whose employers are working on the same project were within the statute. Since Gleason v. Geary, supra, we have also required that the employees be exposed to the same hazards.

It is true that in the concurring opinion of Mr. Justice Pirsig in the Gentle case he comes to the conclusion that ( 213 Minn. 238 , 6 N. W. [2d] 364):

“* * * The statutory terms ‘common enterprise’ and ‘same or related purposes’ of the employers should be construed to mean that their employes were engaged in some common activity which brings them within the policy underlying the subsection.”

This statement is not inconsistent with a holding that employees of contractors and subcontractors working on the same project (that is, the same building) are engaged in a common activity. After reviewing our former decisions, we finally came to the conclusion in Crawford v. Woodrich Const. Co. Inc. 239 Minn. 12, 20 , 57 N. W. (2d) 648, 653 , that the term “common enterprise” and the “accomplishment of the same or related purposes” had been merged into a new rule bom of statutory construction and that henceforth the statute should be interpreted and actually applied as if it read:

“ ‘The provisions of subdivision 1 of this section shall apply only where the employer liable for compensation and the other party or parties legally hable for damages were both either insured or self-insured and were engaged in the due course of business,’ on the same project, and their employees were working together in the performance of such project in a manner which exposed them to the same or similar hazards on the premises where the injury was received and at the time thereof, 8 and not otherwise.”

That case was decided by a unanimous opinion of this court in 1953. *523 The majority now hold in effect that the word “project” should be discarded and still another rule adopted and seemingly base that contention on the decisions of this court, all of which were reviewed in deciding the Crawford case.

This court’s understanding of the interpretation of the statute in the Gleason case may be gleaned from former decisions. In Volding v. Hamish, 236 Minn. 71, 77 , 51 N. W. (2d) 658, 662 , we said:

“In Gleason v. Geary, 214 Minn. 499, 500 , 8 N. W. (2d) 808, 809 , the terms ‘common enterprise’ or ‘related purposes’ as used in § 176.06, subd. 1, were limited to situations where the respective employes of two or more employers were found to be ‘engaged on the same project and thereby exposed to the same or similar hazards.’ The test there applied had previously been suggested in the concurring opinion of Mr. Justice Pirsig in Gentle v. Northern States Power Co. 213 Minn. 231 , 6 N. W. (2d) 361 . * * *

“Based on this test, before the statute becomes applicable, it must be established that the injured employe was actually working on the same project with the employes of the third party so as to be exposed with them to the same or similar hazards.”

In that case we held that the employees of different employers were working on the same project; hence that they were within the statute. As to the nature of their work, we said ( 236 Minn. 78 , 51 N. W. [2d] 662):

“On the date of the injury, plaintiff had arrived at the store to carry out the obligations of his employer in bringing about the above result [that is, to open a new store]. Under his control and direction were other employes of Butler Brothers who had various functions in connection with preparing defendant’s store for the opening. These functions included preparation of the sales floor, unpacking, pricing, and placing of merchandise, trimming of windows, placing of cash registers, instructing defendant’s sales organization, preparing advertising, work in the stock rooms, and like activities. In performing this work, the employes of Butler Brothers worked closely with defendant’s store manager, Kenneth P. Johnson, and other employes of defendant.”

*524 If that case were before us today, in the light of the majority opinion, would we now hold that the employees of one employer who were preparing the sales floor were engaged in the same activities as employees of another employer unpacking merchandise or placing it on display counters for sale? Would we hold that the employees of one employer trimming windows were engaged in the same activity as employees of another employer working in the store room? That is what we did hold in the Voiding case, but, under the present decision, it seems to me that we would have to hold just the opposite.

That contractors and subcontractors working on the same project are within the statute has been recognized in this court at least since our decision in Tevoght v. Polson, 205 Minn. 252 , 285 N. W. 893 . The language from that case quoted above clearly shows this to be true. In 1 Schneider, Workmen’s Compensation Law (2 ed.) §§ 44, 45, p. 359, we find the following:

“* * * The most usual case of an employer and a third person tortfeasor engaged in a common enterprise or in the accomplishment of related purposes is that of a principal contractor and a sub-contractor.”

In many of our decisions we have said that Minnesota stands alone in having a provision such as this and that there is no counterpart to it in the law of other states. 9 That is not entirely accurate. In 1937 Oregon adopted a statutory provision (Ore. Rev. Stat. § 656.154) to some extent, at least, patterned after our act. 10 The Oregon statute had one requirement that we did not have, to wit, that the two employers have joint supervision over the project on which the employee was engaged. However, as far as the language involved in this case is concerned, the language of the statutes is identical.

It is interesting to note the interpretation placed on this language by the Oregon court. In Inwall v. Transpacific Lbr. Co. 165 Ore. 560, *525 570 , 108 P. (2d) 522, 526 , in discussing whether employees of two separate employers were engaged in a common enterprise, the Oregon court said:

“* * * They were as much ‘engaged in the furtherance of a common enterprise’ at that place as is the brick mason, the carpenter, the plasterer, the plumber and the electrician in the construction of a house. The services of all those men ‘in the furtherance of a common enterprise’ are essential to the construction of the finished house. * * *

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“* * * ^ become ‘engaged in the furtherance of a common enterprise’ it is not essential that the workmen formally enter into an agreement to that effect. All that is essential is that they occupy the same premises and perform component parts of a general undertaking.” 11 (Italics supplied.)

The majority would hold that the employee of a subcontractor performing carpentry who drills a hole through the studdings of a house in the process of construction would not be engaged in the same activity as the employee of a subcontractor doing the electrical work who inserts a wire through the hole. The only difference between that illustration and the facts of the instant case is that the project we are dealing with here is larger.

The majority also hold that the employees of these two contractors were not exposed to the same hazards.

In Crawford v. Woodrich Const. Co. Inc. 239 Minn. 12, 19 , 57 N. W. (2d) 648, 653 , we said:

“A consideration of the rule as applied to the employees and the hazards, with reference to such mutual engagement, leads to the inevitable conclusion that the employees must be engaged in the performance of the same project of the employers. In applying the rule we have recognized that the ‘same project’ need not necessarily create the ‘same or similar hazards’ to which the employees are exposed and that it is only necessary that the ‘same project’ exposes them to such *526 hazards. In other words, it is the exposure rather than the creation of the hazards which makes the rule applicable.” 12

The evidence here shows that, when the pieces of steel fell out of the bundle mid started cascading down the superstructure, everyone ran for cover. It so happened that the falling steel did not hit any of the steelworkers but did strike plaintiff. It is conceivable that the same piece of steel or different pieces out of the same bundle could have struck both steelworkers and plumbers. It was only because of their adroitness that the steelworkers escaped.

The majority seek to justify the holding that they were not exposed to the same dangers by pointing out that steelworkers and plumbers were not supposed to be working at the same time. The simple truth of the matter is that at the time of this injury they were working at the same time. If they were then exposed to the same hazards, which I fail to see how we can deny, it is immaterial what they were supposed to do on some other occasion.

It cannot be denied that the interpretation of this statutory provision has presented this court with many difficulties in the past. We have, however, heretofore tried to construe it so as to give it a meaning which would carry out the purposes which the legislature sought to accomplish. It seems to me that we now depart from that fundamental rule of interpretation. We neither clarify the law or our former decisions. What we in effect are doing is to repeal the statute by a process of judicial construction. It is difficult to imagine any situation where the statute can now have any application. I think that we should be frank enough to say, in view of this decision, that we will give it no consideration in the future. Probably the result we have arrived at is a good one from a social point of view, but it seems to me that it is not our function to determine what social paths we should follow in the future. If the statute is to be amended or repealed, the prerogative to do so lies with the legislature and not with the courts. It is unfortunate, of course, in view of the difficulty we have had in the past in construing this statute that the legislature had not done something to clarify the law, but it *527 still remains a fact also that our function, as long as the statute exists as it does, is to seek some pattern of construction consistent with the intent of the legislature and to give to the language used such meaning as will carry out that intent. We tried to do that in the Crawford case, which we now discard. It seems to me clear that our decisions contemplate, if they do not hold, that subcontractors engaged in performing component parts of the same construction are engaged on the same project and are within the statute. Obviously, the purpose of this statute was to place all employees working on the same project in the same position with respect to their rights of recovery if any of them were injured. That is what Mr. Justice Pirsig said in Gentle v. Northern States Power Co. supra, and that is what we have indicated in other decisions. It would seem unrealistic that the legislature had any other purpose in mind, and this decision now completely destroys that purpose. I think that defendant is entitled to judgment as a matter of law.

This is substantially the same language found in the Swanson case which I have discussed above.

See, Manteuffel v. Theo. Hamm Brg. Co. 238 Minn. 140 , 56 N. W. (2d) 310 .

For an interesting discussion of the adoption of the Oregon statute and the attempt of the Oregon court to reconcile the Minnesota decisions, see the concurring opinion of Mr. Justice Tooze in Johnson v. Timber Structures, Inc. 203 Ore. 670 , 281 P. (2d) 723 .

See, also, Atkinson v. Fairview Dairy Farms, 190 Ore. 1 , 222 P. (2d) 732 .

See, also, Volding v. Harnish, 236 Minn. 71 , 51 N. W. (2d) 658 ; Breimhorst v. Beckman, 227 Minn. 409, 421 , 35 N. W. (2d) 719, 728 .