Feb., 1952, Vol. 5. No. 2, pp. 212-235. (15) Defendant is charged as a matter of law with knowledge of the dangerous characteristics of sodium bichromate because it is a scheduled occupational hazard under the laws of many states, including those where defendant is authorized by law to operate, Repka v. Fedders Mfg. Co., 264 N.Y. 538, 191 N.E. 553; T.M. Critcher Dental Depot. Inc., v. Miller, 251 Ky. 201, 64 S.W.2d 466; Sutkowski v. Mut. Chem. Co. of America, 115 N.J.L. 53, 178 A. 71; Cell v. Yale Towne Mfg. Co., 281 Mich. 564, 275 N.W. 250; Natl. Products Ref. Co. v. Court of Common Pleas, 123 N.J.L. 522, 10 A.2d 148; Schumacher v. Auto Lite Co., 41 N.E.2d 433; Ramsay v. Bendix Aviation Co., 314 Mich. 169, 22 N.W.2d 259; Michigan Act No. 245, Pub. Laws of 1943, Sec. 2(14), Stat. Ann. 1945, Cum. Supp. 17,220, et seq.; Sec. 1465. 68 (a). Ohio General Code, Sec. 19; General Statutes of North Carolina, Recompiled, 1950, Vol. 2C, Chapter 97-53, p. 294; Arkansas Statutes Annotated, 1947, Vol. 7, Sec. 81-1314, para. 5. (16) Appellant's allegation of error A contained in its supplemental brief is insufficient to raise any point for review. Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336; Carver v. M.K.T.R. Co., 362 Mo. 897, 245 S.W.2d 96. (17) Evidence of the experience of other industries in the deleterious effects of chrome was competent on the issues, was introduced by the defendant without objection, and no instruction limiting its effect was requested.
After having heard arguments on the motion, the circuit judge entered an order dismissing the cause, stating in said order as follows: "And being of the opinion that the claims set forth in the amended declaration are of the same nature as those in Cell v. Yale Towne Manfg. Co., 281 Mich. 564, and that any recovery of the plaintiff against the defendant must be under the workmen's compensation act, and that this court has no jurisdiction. "It is hereby ordered that the above entitled cause may be and it is hereby dismissed."
We do not doubt that at "common law the incurring of a disease or harm to health is such a personal wrong as to warrant a recovery if the other elements of liability for tort are present."See, e.g., Cell v. Yale Town Mfg. Co., 281 Mich. 564, 566; but cf. id. at 567-568.Hurle's Case, 217 Mass. 223, 224; see Hood Sons v. Maryland Casualty Co., 206 Mass. 223; cf. Gentry v. Swann Chemical Co., 234 Ala. 313, 317-318.
An allegation of wilful and wanton conduct by the employer stands no differently if the other requirements of the Act are present. See Cell v. Yale Towne Mfg. Co., 1937, 281 Mich. 564, 567, 275 N.W. 250. Moreover, the acceptance of benefits under the Act by decedent's mother, in the absence of fraud, operated as a complete release to the defendant "of all claims or demands at law, if any, arising from such injury."
"In any case it is not the result of one contact or a single event." And see, to the same effect, Williams v. Missouri Valley Bridge Iron Co., 212 Mich. 150; Cazan v. City of Detroit, 279 Mich. 86; Cell v. Yale Towne Manfg. Co., 281 Mich. 564; Thomas v. Parker Rust Proof Co., 284 Mich. 260; Lucier v. Pansy Hosiery Co., Inc., 286 Mich. 585. Accordingly, as it seems to me, there is no occasion here for discussion of the test applicable to or cases controlling of the question of compensability under part 7 of the act. This is a part 2 case.
But entirely apart from the foregoing, we think the trial judge reached the right conclusion for reasons about to be noted. In passing upon the trial court's order dismissing plaintiff's suit, all properly-pleaded facts alleged in plaintiff's declaration must be accepted as true. Cell v. Yale Towne Manfg. Co., 281 Mich. 564; Greater Muskegon Club Building, Inc., v. Commons, 321 Mich. 371. Hence, in this case the question is presented: Did defendant's alleged wilful and malicious inducement of the Paquins to break their contract with plaintiff constitute an actionable tort on the part of defendant? From the early case of Lumley v. Gye, 2 Ellis Blackburn 216 (118 Eng Rep 749), most of the common-law courts have adopted and enlarged upon the idea that unlawful interference with another's contract rights constitutes an actionable tort.
Under the statutes above noted exclusive jurisdiction over the issue thus presented is conferred upon the compensation commission and plaintiff's filing of such claim constituted a release of all claims at law arising from the injury. Whether plaintiff's injury and resultant disability were compensable under the act or not, his claim therefor was within the jurisdiction of the compensation commission, and, having proceeded before it under the act, he may not thereafter maintain an action at law. Sotonyi v. Detroit City Gas Co., 251 Mich. 393; Dailey v. River Raisin Paper Co., 269 Mich. 443; Twork v. Munising Paper Co., 275 Mich. 174; Curley v. Beryllium Corp., 278 Mich. 23; Cell v. Yale Towne Manfg. Co., 281 Mich. 564. Plaintiff relies on Grand Rapids Trust Co. v. Petersen Beverage Co., 219 Mich. 208, and Hansen v. Pere Marquette R. Co., 267 Mich. 224. The PetersenCase is distinguishable in that there the plaintiff was a minor, unlawfully employed, this Court holding that, for that reason, he did not come within the workmen's compensation act, as then in effect, and any proceeding taken thereunder was a nullity and no defense to a subsequent action at law.
Under the terms of the act and the decisions of this court, the department of labor and industry does not have jurisdiction to award compensation against William Van Dyke after plaintiff had started suit "severally" against Louise Van Dyke to recover damages for the same injury. This question has many times been before us and has been settled by this court. Brabon v. Gladwin Light Power Co., 201 Mich. 697; Oleszek v. Ford Motor Co., 217 Mich. 318; Varga v. Detroit Edison Co., 240 Mich. 593; Simon v. Cadillac Motor Car Co., 242 Mich. 93; Bross v. City of Detroit, 262 Mich. 447; Dailey v. River Raisin Paper Co., 269 Mich. 443; Noto v. Acme Truck Sales Service Co., 270 Mich. 394; Cell v. Yale Towne Manfg. Co., 281 Mich. 564; Graham v. Michigan Motor Freight Lines, Inc., 304 Mich. 136; Nichols v. Ford Motor Co., 306 Mich. 268. See, also, 3 Comp. Laws 1929, § 8410, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8410, Stat. Ann. 1944 Cum. Supp. § 17.144).
7 Ky. 684, 247 S.W. 972; Donnelly v. Minneapolis Mfg. Co., 161 Minn. 240, 201 N.W. 305; Boyer v. Crescent Paper Box Factory, 143 La. 368, 78 So. 596; Thomas v. Shippers' Compress Warehouse Co., La. App., 158 So. 859; Smith v. International High-Speed Steel Co., 98 N.J.L. 574, 120 A. 188; Downing v. Oxweld Acetylene Co., 112 N.J.L. 25, 169 A. 709, affirmed in 113 N.J.L. 399, 174 A. 900; Barrencotto v. Cocker Saw Company, 266 N.Y. 139, 194 N.E. 61; Shinnick v. Clover Farms Company, 169 App. Div. 236, 154 N.Y.S. 423; Trout v. Wickwire Spencer Steel Corp., Sup., 195 N.Y.S. 528; Jones v. Rinehart Dennis Co., 113 W. Va. 414, 168 S.E. 482; Triff v. National Bronze Aluminum Foundry Co., 135 Ohio St. 191, 20 N.E.2d 232, 121 A.L.R. 1131 (in this case the court, after following the decision in Jones v. Rinehart Dennis Co. for a period of twenty years, reversed itself and decided that a common-law action could be maintained in Ohio by a defendant who had acquired silicosis or pneumoconiosis); Cell v. Yale Towne Mfg. Co., 281 Mich. 564, 275 N.W. 250; Thomas v. Parker Rust Proof Co., 284 Mich. 260, 279 N.W. 504; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; Billo v. Allegheny Steel Co., 328 Pa. 97, 195 A. 110; Covington v. Berkeley Granite Corp., 182 Ga. 235, 184 S.E. 871; Mapes v. Massey-Harris Co., D.C., 19 F. Supp. 667; Clark v. M.W. Leahy Co., 300 Mass. 565, 16 N.E.2d 57; Dixon v. Gaso Pump Burner Mfg. Co., 183 Okla. 249, 80 P.2d 678; McGehee v. Mepham Co., 279 Ill. App. 115; Depre v. Pacific Forge Co., 151 Wn. 430, 276 P. 89; Dailey v. Mutual Chemical Co. of America, 125 N.J.L. 465, 16 A.2d 557; Butler v. Eberstadt, 113 N.J.L. 569. 175 A. 159; Boal v. Electric Storage Battery Co., 3 Cir., 98 F.2d 815; note in 100 A.L.R. p. 519. 10. As the decisions of sister states constitute evidence of what the common law is (15 C.J.S., Common Law, p. 634, sec. 21), the cases cited supra strongly support a conclusion that a right of action for damages caused by an occupational disease exists at common law and is available in t
(1) The trial court erred in refusing the peremptory instructions, B-1 and E, requested by defendant and appellant, the Marshall Company, at the close of all the evidence, to find the issues in favor of the Marshall Company, for the following reasons: (a) Because the petition did not state a case of occupational disease, in that it disclosed plaintiff's alleged injuries were the result of alleged negligence of defendants, nor did the evidence prove an occupational disease. Zole v. Town Mfg. Co., 218 Mich. 564, 275 N.W. 250; Lucier v. Pansy Hosiery Co., 286 Mich. 585, 282 N.W. 254; Seattle Can Co. v. Dept. of Labor, 147 Wn. 303, 265 P. 739; Victory Sparkler Specialty Co. v. Francks, 147 Md. 368, 128 A. 635, 44 A.L.R. 363; Gentry v. Swan Chem. Co., 234 Ala. 506, 174 So. 530; Birmingham Elec. Co. v. Meachan, 175 So. 322; American Mut. Liab. Co. v. Aquicola Furnace Co., 183 So. 677; Industrial Comm. of Ohio v. Roth, 98 Ohio St. 34, 120 N.E. 172; Wolf v. Chemical Co., 336 Mo. 746, 81 S.W.2d 323; Downey v. Gas Co., 338 Mo. 803, 92 S.W.2d 580; Ind. Comm. v. Talso, 376 Ohio App. 282, 174 N.E. 622; Dille v. Plainview Coal Co., 217 Iowa 827, 250 N.W. 607; Quality Milk Prod. v. Linde, 159 Okla. 256, 15 P.2d 58; Barron v. Texas Employees Ins. Co., 36 S.W.2d 464. (b) Because the evidence disclosed that plaintiff's alleged injuries were the result of an accident as defined in the Missouri Workmen's Compensation Act (Sec. 3659, R.S. 1939), and under said act, and the court was without jurisdiction, plaintiff and def