Aleksich v. Industrial Acc. Fund , 116 Mont. 127 ( 1944 )

I dissent. I agree with the majority's interpretation of the holding in Moore v. Industrial Accident Fund, 80 Mont. 136,259 P. 825, as it touches upon the provisions of section 2863. I cannot agree, however, with the decision in Moore v.Industrial Accident Fund, supra, on the question of ejusdemgeneris as applied to the statutes before us and neither can I agree with the majority's holding on that question. If there were no statutory definition of a hazardous occupation any jurist would need considerable temerity to go before the public and urge that the occupation of police officer is not an inherently dangerous one under any of the ordinary rules. Were it not for section 2852, however, I probably should be inclined to agree with the majority's construction of the provisions of Chapter 256, section 2847 et seq. For emphasis let me repeat the provisions of section 2852. They are: "If there be or arise any hazardous occupation or work other than hereinbefore enumerated, it shall come under this Act and its terms, conditions, and provisions as fully and completely as if hereinbefore enumerated." That language is clear and explicit. It negatives conclusively any intention that the preceding sections were intended to name all the hazardous occupations to the exclusion of any of a type not generally mentioned. Since the decision in Moore v. Industrial AccidentFund, supra, and Page v. New York Realty Co., 59 Mont. 305,196 P. 871, this court handed down the decision in Burk v.Montana Power Co., 79 Mont. 52, 255 P. 337, 338. There, after enumerating certain hazardous occupations in which the employment of minors was prohibited, the statute also prohibited their employment "in any occupation not herein enumerated which is known to be dangerous." In the statute before us the language is "other than hereinbefore enumerated." I can see no difference between the effect of these two ways of phrasing exactly the same idea. In the Burk Case the same argument was made as here that the rule of ejusdem generis applied. In disposing of the argument the court said: "Defendant asserts that the rule ofejusdem generis must be applied in construing this statute, and the occupation in which the plaintiff was employed, not being of the same kind and character as those specifically enumerated, does not come within the purview of the general clause. The ruleejusdem generis is only a rule intended to aid the court inarriving at the intention of the Legislature and cannot be invoked where its application would result in a disregard of plain and unambiguous language used in the statute. In this instance to apply the rule would be to refuse to give to the words `not herein enumerated' any effect. They would be surplusage, and the general clause would have the same meaning as if it read, `or in any occupation known to be dangerous.'"

What is said in the Burk Case applies exactly to this case and the majority has made no attempt to distinguish the two cases. There are cases without number holding that the rule ofejusdem generis may be applied only where there is ambiguity. (See generally, 28 C.J.S., Ejidos or Exidos — Ejusdem, p. 1050; Sutherland Statutory Construction, sec. 437.) To me it seems clear that section 2852 created a separate, independent class of occupations which the legislature intended to be hazardous within the statute. The language is much stronger in section 2852 than in that in the section before the court in the Burk Case. Not only does the language of the section attempt to declare all occupations that are inherently hazardous to come within the provisions of the Act, even though not named, but it went further and said that any new occupations which might arise which are inherently hazardous should also be included. There are two other reasons why the doctrine of ejusdem generis should not be applied to this statute. In the first place, the general rule is that the doctrine will not apply where the matters listed in the general statute are of widely divergent types and in the second place, the doctrine is ordinarily applied only to penal statutes such as the one found in the Burk Case. (See 59 C.J. 982.)

In Dosen v. East Butte Copper Mining Co., 78 Mont. 579,254 P. 880, 886, we said this: "In construing a statute the court must endeavor to give meaning to every word, phrase, sentence, and section, if it is possible to do so, and will never hold any part of it inoperative, if it is reasonably possible to reach any other conclusion." By the construction this court places on section 2852 this latter rule is violated. To apply the rule of ejusdem generis is to refuse to give to the words "other than hereinbefore enumerated" any effect. As a matter of fact to apply the doctrine is to eliminate section 2852 entirely from the statutes. To my mind the occupation of the deceased was hazardous within the Workmen's Compensation Act.

The majority is considerably disturbed over the fact that under the construction I place on the statute too much discretion would be left to the Industrial Accident Board and to the court in the determination of what occupations are hazardous and which are not. A sufficient answer to this suggestion seems to me to be that in many, if not most states the statutes do not attempt to define in any way a hazardous occupation but the Act merely provides that it is to cover all hazardous occupations, yet the courts of other jurisdictions apparently have no difficulty on the score which so much concerns the majority. (See Generally, 71 C.J. 359.)

The majority has also overlooked the provisions of section 2964, Revised Codes, which provides: "Whenever this Act or any part or section thereof [referring to the Workmen's Compensation Act] is interpreted by a court, it shall be liberally construed by such court." This court in a great many cases has construed this provision to mean that the liberal construction called for is one in favor of the injured workman and every presumption is indulged to bring the claimant within the provisions of the Act. (See Generally, 71 C.J. 341; Dosen v. East Butte Copper MiningCo., supra; Shea v. North Butte Mining Co., 55 Mont. 522,179 P. 499; Cunningham v. Northwestern Imp. Co., 44 Mont. 180,119 P. 554; Lewis Clark County v. Industrial AccidentBoard, 52 Mont. 6, 155 P. 268, L.R.A. 1916D, 628.)

I should like to point out one thing further in which I feel the majority is in error in its decision. Under section 2840, Revised Codes, the city has no election but must come under Plan 3 of the Workmen's Compensation Act. (See City of Butte v.Industrial Accident Board, 52 Mont. 75, 156 P. 130.) Section 2862 provides: "`Employer' means the state and each county, city and county, * * * who has any person in service, in hazardous employment, under any appointment or contract of hire, * * *." Section 2863 defines "employee' 'and "workman" and provides that those words "mean every person in this state * * * under any appointment * * * and all who are connected with or engaged in hazardous occupations of the elected and appointed paid public officers * * *." Under section 2847 the law provides that "any employer having any workman engaged in any of the hazardous works or occupations herein listed shall be considered as an employer engaged in hazardous works and occupations as to all his employees." That section applies here. Under the latter provision we need not concern ourselves with whether a police officer is engaged in a hazardous occupation. Other employees and appointees of the city of Butte are. It is admitted in the argument that the city of Butte was covered by Plan 3 and under section 2847 all of its employees are covered by the Act. In Williams v. Brownfield-Canty Carpet Co., 95 Mont. 364,26 P.2d 980, 982, we said: "It is not necessary, however, for us to engage in an elaborate discussion of this matter [whether the claimant was engaged in a hazardous occupation] in the present case, because it appears that there is no question but what Brownfield-Canty Carpet Company, employer, was under the Act for part of its employees, and, as we have said, if it was under it for part of its employees, it was under it for all of them."

I think the judgment should be reversed and the cause remanded with direction to enter judgment for plaintiff.

Rehearing denied October 16, 1944.