Bussey v. Gulf & Ship Island Railroad

79 Miss. 597 | Miss. | 1901

Lead Opinion

Whitfield; O.- J.,

delivered the opinion of the court.

The only true way to understand chs. 65 and 66 of the laws of 1891 is to do'as ought always to be done in getting at the meaning of statutes; that is to say, to look at them in tbe light of their history and purposes. The action here is to recover for the negligence of the company, not that of a fellow servant. Appellants claim the right to bring the action under ch. 65. The court below held that, as the deceased was an employee, the suit could only be brought under ch. 66. It also held that ch. 66 repealed ch. 65 as to all actions by employees, and that under ch- 66 appellants had no ease. It is perfectly manifest that there was no express repeal. Repeals by implication are never favored.

Let us see, now, what the history and purposes of these two acts are. Prior to the constitution of 1890, actions for injuries causing death were governed by Lord Campbell’s act, which for the first time appeared in our law as art. 48, p. 486, code 1857, from which is taken literally, leaving out the clause as to ihe recovery for the death of a slave, (§676, code 1871), §1510 of the revised code of 1880. This act did not define the negligence which would give rise to the action. It left the liability of defendant to be determined by the general law regarding the relation of master and servant. It did not in the remotest degree touch or qualify the stringent fellow servant rule, illustrated in all its bald absurdity by the case of McMaster v. Railroad Co., 65 Miss., 264 (4 So. Rep., 59; 7 Am. St. Rep., 653). It left the law as- to. negligence where it found it, and dealt merely with who should bring the suit, and the measure of damages. Who should sue;,, and what the measure of damages should be, were fully within legislative control. The constitution did not interfere with this power. The harshness of the fellow servant rule had become intolerable. It shocked common sense and common justice, and received its apotheosis in McMaster’s case. The legislature had been appealed to in vain at successive sessions to modify this rule. It had the power to do it. But it declined to exercise it. It was left for the framers of the constitution of 1890 to accomplish this greatly-needed change; and sec. 193 of the constitution, which created for tbe first time in this state new — wholly new — rights and canses of action, never existing before, effected this change. It is indispensable to understand that sec. 193 did create the rights and causes of action it provided for. Wc expressly so held in White’s case, 12 Hiss., 16 (16 So. Rep., 248). It provided that as to employees injured by the negligence of fellow servants, of the class described in sec. 193, there should exist thereafter, as there had never done before, these causes of action. It enlarged the rights of those authorized to sue by adding new grounds of liability, theretofore un-blown to our law. That conception is fundamental to any proper understanding of the scope and purposes of these two acts. This section took away no right existing under the general law, nor any remedy provided by § 1510, revised code of 1880. It was never dreamed of that there was any conflict between § 1510, revised code of 1880, and sec. 193, Const. 1890. On the contrary, § 1510 of the revised code of 1880 was brought forward as § 663 of the code of 1892; and both this statute, with its scope, and sec. 193, with its scope, stood side by side for years without the thought ever entering anybody’s mind that there was conflict between them. Why ? Because they related to wholy different rights. Section 1510 and sec. 663 related to cases arising under the general law as it existed before the constitution of 1890. Section 193 of that instrument related exclusively to the new rights by it created — of recovery where the negligence was that of certain named fellow servants. But § 1510 of the revised code óf 1880 is brought forward as § 663 of the code of 1892, and as ch. 86 of the laws of 1896, and as ch. 65 of the laws of 1898. In purpose they are all one. All relate to causes of action antedating the constitution, of liability Tinder the general law of negligence, and in no way whatever to causes of action for injuries inflicted by certain fellow servants, first created by constitution, sec. 193. Now, sec. 193 of the constitution is also developed and brought forward as ch. 87 of the laws of-1896 and ch. 66 of the laws of 1898. It relates exclusively to actions brought by employees to recover for injuries due to the negligence of those fellow servants named in sec. 193 of the constitution. It repeats sec. 193, ipsis-■imis verbis. It has no relation whatever to rights of action under the general law of negligence, antedating the constitution of 1890. Here is a statutory scheme, under said art. 41, p. 486, code 1857, § 676, code 1871, and § 1510 of the revised code of 1880 (our form 'of Lord Campbell’s act), developed in § 663 of the code of 1892, and ch. 86 of the laws of 1896, and ch. 65 of the laws of 1898, wherein rights of action arising under the general law of negligence are provided for, and have been continuously maintained and improved — a complete and perfect scheme relating wholly to causes of action antedating the constitution of 1890, and having nothing on earth to do with rights of action arising from the .negligence of fellow servants. That is one scheme unrelated to, unaffected by, sec. 193 of the constitution. Here is another scheme, never existing before the 'constitution, created by sec. 193 of that instrument, relating not at all to causes of action provided for by the statutory scheme above, but exclusively to causes of action created by sec. 193, conferring the right to recover for injuries inflicted by the named fellow servants. They have stood side by side, never questioned, as both proper and not in conflict, before. It is perfectly manifest that if ch. 66 of the laws of 1898 is in conflict with ch. 65 of the laws of 1898, then sec. 193 of the constitution, which is ch. 66, was also in conflict with § 663 of the code of 1892, and also that ch. 87 of the laws of 1896 was in conflict with ch. 86 of said laws. There is no conflict whatever between the two acts (ch. 65 and ch. 66), in their essential frame.

It is said that ch. 65 has no relation to suits by employees at all — -not even where the employee sues on the ground of negligence of the master alone; and the court below so held, notwithstanding sec. 2 of said ch. 65 plainly says: “This act shall apply to all personal injuries of servants or employees received in the service or business of the master, where such injuries result in death.” This section cannot thus be read as blank paper. It expressly applies the principle of Lord Campbell’s act — recovery for injuries resulting in death — to all employees, when the injuries were due to the negligence of the master. It was part of a statutory scheme that had never assumed to deal with injuries caused by the negligence of fellow servants in any way whatever, and it was not dealing with them.

It is said the measure of damages is different in the two acts, and there is difference as to who may sue. Certainly. Do they not relate, as shown, to wholly different subject-matters? The measure of damages and the parties to sue might well be different — might be just what the legislature chose to make them. There is no conflict possible to be seen because of the different measures of damages, except where the two wholly different acts, with wholly different histories and purposes, are confused and blended, instead of being kept separate and distinct.

It is also to be specially noted that while sec. 193 left the remedies, measure of damages, and procedure under § 663 of the code of 1892 unaffected, it also clearly intended the legislature to provide and regulate remedies for rights provided by itself. It is true, it provided that “legal or personal representatives” might assert the rights thereby provided, and that in the Hunter case, 70 Miss., 471 (12 So. Rep., 482), which nullified the words “or legal representatives” in sec. 193, it was held the personal representative must sue, till legislation extended the remedy. The Hunter case did not attempt to hold the legislature was not authorized to extend the remedy provided by sec. 193. That section expressly says, “The legal or personal representatives shall have the same rights and remedies as are allowed by law to such representatives of other persons.” It was perfectly competent for the legislature to provide additional remedies, and it did do so in the acts we are considering, for the express purpose of abrogating the rule announced in the Hunter case; and it also by the same legislation abrogated the rule an-Bounced in tbe Pendergrass case, 69 Miss., 425 (12 So., Rep., 954). Tbe purpose of tbe legislature was plain. It was to observe tbe mandate of this most wholesome provision of tbe constitution, and so make effective tbe remedies for tbe new rights by it created, and also to broaden and develop the remedies for the rights provided for by § 676, code 1871, and § 1510 of tbe revised code of 1880 — the initial form in which the code of 1857 and that statute left them — to the present completeness furnished by ch. 65, laws of 1898.

The construction adopted by the court below would, if followed here, overrule the Wooley case, 77 Miss., 927; 28 So. Rep., 26. We expressly held there that the widow could sue under § 663, code of 1892, and Wooley was an employee, and the remedies for rights provided by sec. 193 had not been enlarged by legislation. If the view we combat is correct, Mrs. Wooley would have had no right of action. Chapter 65, laws of 1898, extends the remedy to all relatives named, giving only one suit, including damages of all kinds, as well to the relations as the decedent. It was perfectly competent for the legislature to do this. Another thing: If, as is suggested, the legislature did not have the power, under sec. 193, to extend the remedies as to who could sue for the assertion of the rights therein provided for, then, manifestly, the provisions of ch. 66, as to who may sue, are simply void, and ch. 65 is left unaffected in that regard —not repealed. ITow could an unconstitutional provision in ch. 66 repeal a constitutional provision in ch. 65 ? The proposition is wholly untenable. But it is said ch. 66 was passed four days later than ch. 65, and is the last expression of the legislative will. Granted. But about a different subject-matter.

It is a thoroughly settled canon of construction that the courts must never, if it can properly be avoided, so construe acts of the legislature as to impute folly to that body. To hold lhat ch. 66 repeals ch. 65 as to employees is not only to abrogate sec. 2 of ch. 65, but to charge the legislature with the absurdity of enacting two statutes, standing side by side, both in the acts of 1896 and of 1898, when one destroys the other. This we must decline to do. The conflict all vanishes in the light of the history and purposes of the two acts, and they are perfectly harmonized by our construction. There are minor differences, it may be conceded, which were well calculated to mislead the accomplished trial judge. But he should not have sacrificed the wide scope and large substantial rights worked out on different lines to mere trivial inharmonies, correctible by legislative amendment.

Reversed and remanded.

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Dissenting Opinion

OalhooN, J".,

dissenting.

Section 193, Constitution, is as follows (note that it refers to employees exclusively, and to no other class) : “Sec. 193. Every employee of any railroad corporation shall have the same right and remedies for any injury suffered by him from the act or omission of said corporation or its employees, as are allowed by law to other persons not employees, where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured, and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured, or of a fellow servant on another train of cars, or one engaged about a different piece of work. Knowledge by an employee injured of the defective or unsafe character or condition of any machinery, ways or appliances shall be no .defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars, or engines, voluntarily operated by them. Where death ensues .from any injury to employees, the legal or personal representatives of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons. Any contract or agreement, express or implied, made by an employee to waive the benefit of this section shall be null'and void; and this section shall not be construed to deprive any employee of a corporation, or his legal or personal representative, of any right or remedy that he now has by tbe law of tbe land. Tbe legislature may extend tbe remedies herein provided for to any other class of employees.”

Of course, it must be conclusively presumed that tbe constitutional convention, when it ordained this section, acted in full view of the common law and of Lord Campbell’s act, and pf tbe fellow servant ruleyprevailing in tbe decisions of tbe courts. It is also plain that this section can no more be added to nor subtracted from by legislatures than any other clause of tbe constitution. It should absolutely bind tbe lawmaking power, so that it cannot move beyond tbe limits of its own authorization. Tbe section refers alone to employees. Before Lord Campbell’s act, which was tbe beginning and prototype of all legislation on tbe subject, there could be no recovery for a personal injury after tbe death of tbe person injured. The right of action did not survive. It died with tbe person. “Ac-tio personalis moritur cum personaSection 663, Code 1892, the outgrowth of prior legislation on tbe subject, creates and bounds tbe right of recovery in tbe state of case it mentions only, and in no other state of case. It applies in terms to “any persons” (all persons), and against all persons and all corporations. Section 193 of tbe constitution, referring solely to employees, regulates, prescribes and measures tbe rights of all era ployees of any railroad “for any injury from tbe act or omission of said corporation or its employees where tbe injury results from tbe negligence of a superior agent or officer, or of a person (however inferior) having tbe right to control or direct tbe services of tbe party injured, and also,” etc. A superior agent or officer represents the corporation, which can act only through its officers and agents, and tbe expression used is the equivalent of saying: “Where the injury results from the negligence of the corporation, or of a person having the right to control or direct the services of the party injured.” So far as the meaning is concerned, it was useless to employ the words “superior agent or officer,” as indicating one having the right to “control or direct the services of the party,” because that is immediately and specifically provided for. Therefore, it is clear that it was meant that a '‘superior agent or officer” is a representative of the corporation, standing for it. This not only changes the fellow servant doctrine as previously established, but secures the right of employees beyond this, against the corporation represented by its “superior agent or officer.” The several separate provisions are plainly expressed. The right of action, is given to “the legal or personal representatives,” which terms, in the whole history of the law as applied to actions, mean administrators and executors. ITeirs, as such, could never sue in such cases; and neither Lord Campbell’s act, nor any of the acts following it or enlarging it, ever had any reference to the laws of inheritance. The constitutional provision applies to injuries not causing death as well as to those causing death, while § 663, code 1892, and § 1510, revised code 1880, relate alone to cases where death ensues. The constitution creates new rights in la-vor of employees of railroad corporations, enforceable by them while living, and by their legal or personal representatives after death. These rights were deemed of such importance as to be made the subject of the special provision contained in sec. 193, and the legislature was authorized to extend the remedies therein provided for to any other class of employees. This section of the constitution was put in the code of 1892 as § 3559 of that code, and, being thus treated as a mere statute, the idea was begotten that it might be amended by the legislature otherwise than by simply extending the remedies, as alone it was authorized to do. In the act of 1896 the legislature extended the remedies to the employees of all corporations, as it was fully empowered to do. Therefore, sec. 193 must now be considered as if employees of all corporations were embraced by it, and by it all secured the very valuable rights it confers. The legislature was powerless to amend the section except as expressly authorized; else why the limit on the authorization to an extension of the remedies “to any other class of employees ?” The legislature had no power to say who might sue and recover, except as specified in the section. This section is as sacred and free from legislative touch as any other. If it may be altered, so may be every other section, and the constitution may become the plaything of the legislatures and the courts. When a subject is regulated by the fundamental law, legislatures must keep hands olf, except as by it empowered to touch it. The constitution having dealt with the subject, it is taken out of the domain of legislative action, and the constitution alone is the boundary of the rights and remedies it prescribes. Employees only, being provided for by the constitution, must look not to legislative action, but to the paramount law, while all others must be governed by the statutes. If the constitutional provision in any respect narrowed the rights and remedies of employees as existing by statute before, it also greatly enlarged them, and the section must be regarded as the expression of the sovereign will as to the class provided for. If it had simply narrowed, it would not be contended that the legislature could enlarge, and so it cannot enlarge it beyond the prescribed limits of enlargement, any more than it can restrict or narrow those limits. It is therefore a conclusion inescapable that employees of all corporations must look to the constitution for the measure of their rights and remedies, and that others depend on the statute. The word “corporation,” in § 663, code 1892, is used as a defendant in an action for injury producing death, so as to secure liability of corporations in such cases, as well as natural persons. Chapters 65 and 66, laws of 1898, are* independent acts, varying as to the parties authorized to sue, and varying, as to the measure of damages; the former being code, § 663, with an addition,_ and the latter being sec. 193 of the constitution extended, and certain unauthorized interpolations as to who may sue, and also by inserting “or of the improper loading of cars.” The only effective provision in ch. 66 is the extension to employees of all corporations. Suppose § 663 of the code and sec. 193 of the constitution were embraced in one act; could ony one question that the part composing § 663 was for persons other than employees of corporations, and sec. 193 for such employees ? The same interpretation must now apply. Section 193, extended, very manifestly is the exclusive authority for, and measure of, the rights and remedies of employees of corporations, as § 663 is for other persons.

To recur: At common law all persons had a right of action against all persons, natural and artificial, for injury suffered by the wrong doing of the defendant. But death ended the claim. The right of action did not survive. Lord Campbell’s act saved the right after death; and our act not only did this, but gave the remedy Lo certain persons, prescribed the measure of damages, and the time within which the action must be brought. Employees, as well as others, were within the provision of the act. But there were certain rules springing from the relation of employees to the master and his other employees- — -fellow servants. Thus the law was when sec. 193 of the constitution prescribed the rights of employees of railroad-corporations — now of all corporations — and the remedy in case of their death. This clearly took them out of the operation of § 663, which refers alone to death, while sec. 193 embraces both life and death; defining the right of recovery during life, and securing survival to legal or personal representatives — administrators and executors — after death. This covers the whole ground, and is exclusive as to the rights of these employees. The statute (§ 663) is superseded as to them. Under any other view, resort ’must be had to sec. 193 for the right of an employee- of a corporation, and to the statute for the remedy, both as to who may sue, and what the recovery may be. If my view be correct, an employee may sue in life, and his administrator, or executors after his death, and no other can. Relatives or heirs may be beneficiaries of the recovery by these representatives, but they cannot sue, because sec. 193, the exclusive creator of rights and remedies for them, does not confer this right upon them. ' Under § 663, existing as § 1510 of the revised code of 1880 before sec. 193 of the constitution, all named in it might sue. But that was uot thought good enough for employees of railroads, and so special provision was made for them by sec. 193, which alone prescribes and regulates for them, whereby, necessarily, § 663, overridden by the higher law, was merged in it as to employees. If the foregoing views are wrong, and if chs. 65 and 66, laws 1898, are both válid in all their provisions, then, of course, wherein they do not harmonize the latter act must prevail. Certain it is that the adoption of the views of this opinion will avoid great confusion and .much difficulty. By the other view continual controversy will exist as to which act shall be applied, and how far resort must-be had to the common law, or to § 663, code, or sec. 193, constitution. Finally, it seems clear, also, in view of the preexisting law, that the word “child” does not include an adult, as in the law of descents. Loss of services must be the determining factor.

Case Details

Case Name: Bussey v. Gulf & Ship Island Railroad

Court Name: Mississippi Supreme Court

Date Published: Oct 15, 1901

Citation: 79 Miss. 597

Court Abbreviation: Miss.