112 Neb. 515 | Neb. | 1924
This action is brought by the plaintiff, Margaret Allen,
Plaintiff’s action is of a dual character: First, an action at common law to recover her pecuniary loss of wages of her son during minority occasioned by negligence of the defendant; and, second, an action based upon the pauper statute, Comp. St. 1922, sec. 5140, for loss of support, she being dependent upon her son’s earnings. A demurrer to the petition was sustained by the lower court, and plaintiff declining to plead further the action was dismissed. Plaintiff brings the case here for review.
The question presented by the record is a new one in this jurisdiction. Plaintiff’s son and his employer, Trester Wrecking Company, are within the provisions of and governed by the workmen’s compensation act of this state, so, as between them, all other methods of compensation, except as provided by that act, are barred. The question for decision is whether or not the action of the plaintiff, under the common law, or under the pauper statute, one or both, are also barred by that act. As the act stood prior to 1917 there was no express provision in it by which the right of action of the parents for the loss of such services was affected and the common law action of the parent for loss of services remained unimpaired. In some states the statutes in specific words, or by clear implication, deprive the parents of minor workmen coming under the compensation act of the right to bring the common-law action. The Nebraska statute contained no such provision prior to 1917. Evidently, this omission having been observed by interested parties, it was brought to the attention of the legislature, arid an at
Plaintiff contends that the amendment is unconstitutional because (1) the title of the act is not broad enough to cover the amendment. (2) The amendment is class legislation and discriminatory. (3) The amendment is not germane to the section amended. We think the first objection is not well taken as the title of the original act is broad enough to include any provision touching the liability of an employer to any person on account of injuries to the employee. The second objection we need not consider in view of our conclusions upon the third. It is the settled law of this state that where the title to a bill is to amend a particular section of an act no amendatory legislation not germane to the subject-matter of the section proposed to be changed is permissible. Miller v. Hurford, 11 Neb. 377; State v. Tibbets, 52 Neb. 228, in which the cases are collected and the subject considered at length; State v. Bowen, 54 Neb. 211; Armstrong v. Mayer, 60 Neb. 423.
The next question requiring attention is the contention of defendant that the employers’ liability law is a surrender of any compensation to any person on account of injuries to the employee, other than as provided in the act. Except in the single case of death, the language of the act does not purport to affect any claims other than those of parties to the contract, it being: “Such agreement or the election hereafter provided for shall be a surrender by the
Defendant Trester cites the following cases: Adkins v. Hope Engineering & Supply Co., 81 W. Va. 449. This holds that if the provisions of the statute as to giving notice by the employer have been followed, the workmen’s compensation act deprives the father of his common-law action for loss of wages and service of a minor son. A like provision is in the statute of New Jersey, Laws 1911, ch. 95, sec. 2, par. 9. In Hartman v. Unexcelled Mfg. Co., 93 N. J. Law, 418, the point actually decided is not applicable here, though it is said in the opinion: “The act provides for no suit by a parent for compensation per quod.” Buonfiglio v. Neumann & Co., 93 N. J. Law, 174, was like the present case, by the parent for pecuniary loss caused to him by an injury to his minor son, and it was held that, under the statute of New Jersey providing that “the agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in section 2 of this act,” the common-law action of the parent was barred. The decision was based upon the provision that, in the absence of notice of election by either party to the contract, the contract of hiring shall be presumed to have been made with reference to the provisions of section 2 of the act (providing compensation regardless of negligence) and that “in the employment of minors, section 2 shall be presumed to
The Nebraska statute contains no such or similar provisions assuming to bind the parent of the minor employee except in cases where death results from the injuries, and we are clearly of the opinion that, owing to the difference in the statutes, the holdings of the New Jersey courts are not authority in this jurisdiction. Other actions have been expressly barred in several states. Kentucky Laws 1916, ch. 33, sec. 11: “And no other person shall have cause of action or right to compensation for an injury to or death of such minor employee or loss of service on account thereof, by reason of the minority of such employee.” Remington’s Comp. St. Wash., sec. 7673: “All civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished.”
“Shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries.” Connors v. Semet-Solvay Co., 159 N. Y. Supp. 431.
“Save as herein provided, no employer shall be liable for any injury for which compensation is recoverable under this act.” Shade v. Ash Grove Lime & Portland Cement Co., 92 Kan. 146.
Perháps the leading case on this subject in this country
The reasoning of the court in that case appeals to us as sound. The legislature simply have not covered the case. We are clearly of the opinion that the plaintiff’s action for loss of services while her son was a minor is not barred by the employers’ liability law.
Defendant Louis H. Trester, foreman of the wrecking company, is joined as being guilty of the negligent act causing the injuries to the plaintiff’s son, and it is claimed that he was not an employer nor a third party, but an em: ployee of the company, and therefore not liable. Whatever the ruling on this proposition would be in a proceeding for
The remaining question for determination is whether the petition states a cause of action under the pauper act of this state. Section 5140, Comp. St. 1922, after declaring the liability, inter alia, of a son for the support of his indigent parent, if of sufficient ability, and that every person who shall refuse to support the indigent relative named, when directed by the county board, shall pay the county board not exceeding $10 a week. “And provided, further such poor person entitled to support from any such relative may bring an action against such relative for support in his or her own name and behalf.” This fixes á legal liability upon the son which can be enforced either by the county board, when the conditions have been. complied with, or by a direct suit by the “poor person.” There is no new right of action granted against third persons by this act. No such action is known to the common law. The cases cited by appellant to support a right of action for this cause, with two exceptions, were brought under statutes which expressly confer the right, and 4he expressions used in each of these cases on this point are pure obiter dictum. These cases will now be examined.
In Yost v. Grand Trunk R. Co., 163 Mich. 564, the only point involved was whether the mother, where the father had deserted the family, was entitled to bring an action for the loss of the services of the minor. The question raised in the case does not seem to have been considered by the court, or to appear from the opinion to have been within the issues, although in the last paragraph of the opinion it is said arguendo: “If the plaintiff is poor, under the provisions of sections 4487 and 4490, Comp. Laws, it would be the duty of the minor child, if able, to maintain her. If the duty of the maintenance of the minor child is
The other case is Gulf, C. & S. F. R. Co. v. Hall, 34 Tex. Civ. App. 535. This holds that a parent cannot recover damages for loss of pecuniary benefits to be expected from his son after he reaches the age of 21, by reason of personal injuries to the son, unless such damages are pleaded. This implies that, if pleaded, they were recoverable, but does not so decide, and also is obiter.
The common-law right of action is for the value of services of the minor for the reason that all these services belong to the parent until the minor attains the age of 21 years. The pauper statute does not give the indigent parent the right to all the services of the minor. It confers no right to any services whatever, and if the minor is not of sufficient ability to support the parent the law then imposes the duty upon others. This statute does not in terms confer a right of action upon a parent for lack of support against any one but the persons within the classes named therein. The decisions resting upon the fact of minority can throw no light upon the present problem; neither can the statutes which expressly confer a right of action, such as the federal employers’ liability act and the statute against liquor dealers. Such statutes expressly grant the right to bring actions to a class of persons not theretofore entitled to maintain an action. If the pauper statute had expressly provided that a parent should have a right of action against a negligent employer, if the
So far as the petition states a cause of action for the loss of services of the minor until he attains his majority, it is not vulnerable to a demurrer, but so far as it is based upon any right to recover against a third party under the pauper act, it fails to state a cause of action. This necessitates a reversal of the judgment of the district court.
Reversed.