31 P.2d 283 | Mont. | 1934
Lead Opinion
It is submitted that under our statutes, particularly sections 2838, 2839 and 2840, Revised Codes 1921, and the decisions by this court in City of Butte v. Industrial Accident Board,
Many other cases may be brought to the attention of the court in which, possibly, the statute is not just the same, but the right of the employee, regardless of the statute, to sue the third person is strongly upheld, and from which only one rational conclusion can be reached with regard to our statute as it now stands, and that is that the statute refers simply to the rights and obligations of employer and employee. (See McArthur v.Dutee W. Flint Oil Co.,
The facts are that the plaintiff, an employee of the city of Billings, while at work about 3 o'clock in the morning of September 13, 1932, in the ordinary course of his duty as a street cleaner, was run over and seriously injured by an automobile operated by the defendant. Asserting that the injuries arose out of and in the course of his employment, he gave the city notice of his injuries, and claimed compensation under the provisions of the Workmen's Compensation Act (Rev. Codes 1921, sec. 2816 et seq.). In presenting his claim to the Industrial *421 Accident Board, plaintiff stated that his disability resulted from an accidental injury received on the thirteenth day of September, 1932, in the course of and arising out of his employment by the city of Billings, but in presenting the claim he did so with the "specific and distinct understanding" that he did "not waive any claim or the right to assert and maintain a claim" against the defendant for the injuries she had inflicted upon him "and for adequate damages because of the same," including the right to bring suit against her.
Plaintiff's claim was allowed by the Industrial Accident Board, and he was awarded compensation at the rate of $18 per week from the date of the accident. Thereafter he brought this suit, alleging in his complaint that he was injured in the performance of his work as an employee of the city by being knocked down and run over by an automobile driven by the defendant in a careless, negligent, and reckless manner.
The defendant admitted the accident and resultant injuries, except as to the extent claimed, and set forth as a separate defense that the plaintiff, being a city employee, was under the Workmen's Compensation Act, and that he had been awarded compensation by the Industrial Accident Board.
After the pleadings were made up, the defendant moved for judgment in her favor thereupon. The motion was denied. Eventually the case came on for trial before a jury. Plaintiff offered evidence tending to sustain the material allegations of his complaint, including a certified copy of his claim to the Industrial Accident Board. When plaintiff rested, the defendant moved for a nonsuit on the ground that the plaintiff has no cause of action against her because of the fact that "any and all of such rights of action, if any formerly existed, have been taken away by the Workmen's Compensation Law," and therefore the plaintiff has no right of action, nor any cause of action against the defendant. The motion was denied. The defendant did not offer any testimony, but moved for a directed verdict, for the reasons stated in her motion for a nonsuit, which the court likewise denied. The jury found *422 for plaintiff and from a judgment entered in conformity with the verdict, the defendant has appealed.
The determinative question is: Has the plaintiff, who at the[1] time of the accident was an employee of the city, and therefore protected by the Workmen's Compensation Act, the right to maintain an action against the defendant, a tort-feasor not subject to the provisions of the Act?
This court repeatedly has taken occasion to comment upon the reasons which brought forth the Workmen's Compensation Law, the object sought to be attained thereby, and its operation in practice. (Cunningham v. Northwestern Improvement Co.,
As was said in Dosen v. East Butte Copper Min. Co., supra, it has been the constant endeavor of this court, in obedience to the statutory direction, and also in view "of the rationale of the legislation, to interpret the provisions of the Act liberally with a view to accomplish the result intended." The theory of the Act is that the loss suffered by the injury shall not be borne by the employee alone except as he may be compensated by a suit at law, and the inadequacy of that remedy has been denounced in vigorous language. (Cunningham v. Northwestern ImprovementCo., supra; Lewis Clark County v. Industrial AccidentBoard, supra.) Nor shall he become a charge upon the public generally (Shea v. North-Butte Min. Co., supra; State exrel. Loney v. Industrial Accident Board, supra), that is, an object of public charity; rather, he shall *423 "commensurate in some degree to the disability suffered," be compensated by the industry and indirectly by the public. The idea is that the industry which bears the expense of its mechanical wreckage shall also care for its human wreckage. Thus it is required that the industry proceed with justice and humanity. (Moffett v. Bozeman Canning Co., supra.)
"At this late day," said this court in Shea v. North-ButteMin. Co., supra, "it cannot be controverted that the remedies recognized by the common law in this class of cases, together with all rights of action to arise in future, may be altered or abolished to the extent of destroying actions for injuries or death arising from negligent accident, so long as there is no impairment of rights already accrued." (And see Northern PacificRy. Co. v. Messe,
At first blush the query may arise, Why should the right to sue an independent tort-feasor be taken from the employee? Whatever the answer may be, the fact is that the legislative assembly had the power to take away the right (unless already accrued), if it saw fit to do so. Other reasons aside, there are two which may have influenced the law-making body in enacting this feature of the law: (a) That it desired to relieve the employee of the necessity of maintaining a suit at law, and to give him instead quick and sure relief through an administrative board without expense to him; and (b) that it desired to give the assurance of definite financial relief, akin to insurance, which affords better and surer protection than the hazards of a lawsuit; this assurance itself being a compensation for the loss of the right to sue.
The spirit of the law is that an employee is to be guaranteed compensation for all injuries incident to the particular employment received in the course of the employment. To illustrate: An employee in his regular employment may be injured by an independent agency having no connection with the employer or his business. That appears to be the case here. The wrongdoer in such case may be financially responsible, and yet he may not be — in most cases he is not. In either case the employee *424
receives compensation from the agency set up by the state. If it were otherwise, the employee, unable to obtain any recompense from the irresponsible tort-feasor, would be left without compensation for his injury. That situation can no longer exist under the Compensation Act. Here the city was operating under the Act. What are the perils incident to the occupation of a street sweeper? Certainly those perils must include and contemplate the dangers to which the employee is naturally subjected in the course of his work. The peril of being run over and injured by an automobile certainly is one of the likely dangers of that employment. So far, there is no doubt that the Compensation Act is a boon to the employee in particular and to society in general. The real purpose of the Compensation Act, whether it be called a Compensation Act or an Employers' Insurance Act (Black
v. Northern P. Ry. Co.,
It is conceded that the city, the employer, and the plaintiff, the employee, were bound by the terms of the Act when the accident occurred (sec. 2840, Rev. Codes 1921), and that plaintiff, under the provisions of section 2838, has no cause of action against the city. That section provides that, where the employer and employee have elected to come under the provisions of the Act, the employer shall not be subject to any other liability whatsoever for the death of or personal injury to any employee except as in this Act provided; "and, except as specifically provided in this Act, all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and common-law rights and remedies for and on account of such death of, or personal injury to, any such employee are hereby abolished." *425
Section 2839 declares: "Where both the employer and employee have elected to come under this Act, the provisions of this Act shall be exclusive, and such election shall be held to be a surrender by such employer and such employee of their right to any other method, form, or kind of compensation, or determination thereof, or to any other compensation, or kind of determination thereof, or cause of action, action at law, suit in equity, or statutory or common-law right or remedy, or proceeding whatever, for or on account of any personal injury to or death of such employee, except as such rights may be hereinafter specifically granted; and such election shall bind the employee himself, and in case of death shall bind his personal representative and all persons having any right or claim to compensation for his injury or death, as well as the employer, and those conducting his business during liquidation, bankruptcy, or insolvency."
Counsel for plaintiff argue that sections 2838 and 2839 do not bar plaintiff's action against the defendant, for, they say, those sections apply only to causes of action arising between employer and employee and have no reference to an action by the injured employee due to the negligence or wrong of another not in the same employ; and they undertake to show that this court should not consider itself bound by its former decisions. (Bruce v. McAdoo,
In order to comprehend the full purport of the Bruce and Black decisions, it is necessary to take into consideration section 2863, Revised Codes 1921, as it existed when those cases were decided. That section then read as follows:
"`Employee' and `workman' are used synonymously, and means every person in this state, including a contractor other than `an independent contractor,' who, after July 1, 1915, is engaged in the employment of an employer carrying on or conducting any of the industries classified in sections 2847 to 2852, inclusive, of this Code, whether by way of manual labor or otherwise, or whether upon the premises or at the plant of such employer, or who is engaged in the course of his employment *426 away from the plant of his employer; provided, however,
"1. If the injury to a workman occurring away from the plant of his employer is due to the negligence or wrong of another not in the same employ, the injured workman, or, if death results from such injury, beneficiaries or dependents, as the case may be, shall elect whether to take under this Act or seek a remedy against such others; such election shall be made in advance of the commencement of the action.
"2. If he take under this Act, the cause of action against such other shall be assigned to the state for the benefit of the industrial accident fund, or the employer or insurer, as the case may be.
"3. Any such cause of action assigned to the state may be prosecuted or compromised by the board, in its discretion.
"4. If such workman, his beneficiaries, or dependents, as the case may be, shall elect to proceed against the person responsible for the injury, such election shall constitute a waiver of any right to compensation under the provisions of this Act."
Sections 2838, 2839 and 2863 were companion sections, enacted as a part of Chapter 96 of the Session Laws of 1915, and necessarily were considered together. The clauses "and, except as specifically provided in this Act" in section 2838, and "except as such rights may be hereinafter specifically granted" in section 2839, refer to section 2863 and to subdivisions 1, 2, 3 and 4 thereof. Thus the law-making body did not overlook the contingency, certain to be met, of an employee receiving an injury while in the course of his employment, by the negligence of a third person not connected with the industry.
The question whether these sections were exclusive only as between the employer and the employee was decided adversely to plaintiff's contention in the Bruce and Black Cases. In both the court had in mind the purpose of the legislative assembly to substitute the enlightened system of compensation for injuries sustained by a workman, instead of relegating him to the litigious and too often ineffectual remedy provided by the common law. *427
In the Bruce Case the court, speaking through Mr. Justice Galen, after setting forth and analyzing the statutes, and after a review of the authorities, especially those of the state of Washington (with the observation that the statutes of Washington, Oregon, and Montana were practically identical upon the point then under consideration), held that the provisions of our Compensation Act were exclusive of any other remedy — "all other remedies being abolished" — except where the injury was caused by the negligence of a third person away from the plant of the employer, in which case alone the employee or his beneficiaries in case of death were given the right of election whether to take under the Act or to seek damages from the third person. The court relied upon Peet v. Mills,
The question came before this court again in the Black Case in which a reconsideration thereof was urged upon the theory *428 that the Bruce Case was decided upon the authority of cases which arose under the Washington Compensation Act, which counsel argued is different from ours. It was urged that our statute does not contain the following declaration found in the Washington statute (Laws 1911, p. 356, sec. 5): "And, except as in this Act otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever." In answering this contention, Mr. Justice Holloway, speaking for the court, said: "`Where both the employer and employee have elected to come under this Act, the provisions of this Act shall be exclusive, and such election shall be held to be a surrender by such employer and such employee of their rights to any other method, form or kind of compensation, or determination thereof, or to any other compensation, or kind of determination thereof, or cause of action, action at law, suit in equity, or statutory or common-law right or remedy, or proceeding whatever, for or on account of any personal injury to or death of such employee, except as such rights may be hereinafter specifically granted.' It is difficult to conceive of language more comprehensive. If the employer and employee come under the Act, the provisions of the Act are exclusive. The single exception noted applies only where the injury occurs away from the plant or the employer (sec. 2863, above). By coming under the Act, the employee surrenders the right to any other method of obtaining redress for his injuries received at the plant of his employer, and since this plaintiff and his employer, the Equity Coal Company, were operating under our Act, and plaintiff's injuries were received at the plant of his employer, it follows that he was bound to seek redress under the Compensation Act, and may not maintain this action. It would be idle to reiterate the reasons which compel this conclusion. They are stated concisely in the opinion in the Bruce Case, and from the logic of that decision we think there cannot be an escape."
With the interpretation given by this court to sections 2838, 2839 and 2863 the legislative assembly was fully aware, and *429 yet it did nothing to change its policy in that respect. On the contrary, in 1925 it amended section 2863 with respect to the definitions of "employer" and "employee," but repealed subdivisions 1 to 4, inclusive (Chap. 121, sec. 3, Laws 1925, pp. 205, 206), taking away from the employee the rights preserved to him by the provisos contained in sections 2838 and 2839. Thus the legislative assembly did away with the provision that, where the injury had occurred at the hands of a third person away from the plant of the employer, the employee might seek compensation under the terms of the Act, or pursue his remedy against the third person.
The supreme court of Washington has consistently adhered to the doctrine enunciated in Peet v. Mills, supra. InDiblasio v. Hunter,
In Murphy v. Schwartz,
In Robinson v. McHugh,
The Bruce and Black Cases have been cited by courts in other jurisdictions, but never with any adverse comment so far as we are advised. In a recent case by the supreme court of Oregon,King v. Union Oil Co. of California,
In Bristol Telephone Co. v. Weaver,
Plaintiff has cited many cases holding that, where an employer and an employee accept the provisions of the Workmen's Compensation Act, the employee does not thereby lose his right of action against a third person who, as a tort-feasor, has caused his injury. But in every one it appears that the statutes considered were different from ours. In fact, the Compensation Acts in nearly all of the other states either grant the right of election to the employee or do not abolish the common-law remedy. Hence cases from other jurisdictions, excepting Washington and Oregon, because of the difference in their statutory law, are not even of persuasive force here. We must decide this case upon our own statutes.
In passing, it may not be inapt to say that a number of cases hold that, where the employee has the right to elect whether he will take under the provisions of the Workmen's Compensation Act or sue the wrongdoer, he may choose either remedy but cannot avail himself of both. Typical are McDonough v. NationalHospital Assn.,
Sections 2838 and 2839 are plain and unequivocal. The[3, 4] intention of any legislation must be inferred in the first place from the plain meaning of the words used. If this intention can be so arrived at, the courts may not go further and apply other means of interpretation. (State v. Cudahy PackingCo.,
In Taylor v. Fidelity Casualty Co.,
We see no reason to recede from the doctrine announced in theBruce and Black Cases; our statute considered, we are constrained to follow it in this case. *433
No good reason appears why an employee should not be accorded the right to maintain an action against a tort-feasor not subject to the provisions of the Act, preserving to the employer the right of subrogation to a portion of the compensation received from the third party. The twenty-third Legislative Assembly took this view. By Act approved March 14, 1933, it amended section 2839, Revised Codes 1921, in material particulars, one of which was that, "Where both the employer and employee have elected to come under this Act, the provisions of this Act shall be exclusive, and such election shall be held to be a surrender by such employer and such employee, as between themselves, of their right to any other method, form or kind of compensation, or determination thereof," and giving the employee, where injury is caused by the act or omission of another than the employer, a right of action against such third person, providing for the employer's right of subrogation to a portion of the compensation, and so forth. (Chapter 138, sec. 1, Laws 1933, p. 283.)
It is clear that, when the legislative assembly thus amended the section, it was of the opinion that an employee working under the terms of the Compensation Act did not have any right to proceed against a third person for an injury done in the course of the employee's employment, and acted affirmatively to give the employee such right. But Chapter 138, supra, did not come soon enough to aid the plaintiff.
This case must be decided upon the law as it was when the accident occurred.
The opinion promulgated January 19, 1934, is withdrawn from the files. The judgment is reversed and the cause remanded to the district court of Yellowstone county, with directions to dismiss the action. Remittitur forthwith.
ASSOCIATE JUSTICES MATTHEWS, STEWART and ANDERSON concur.
Dissenting Opinion
In my opinion, our Workmen's Compensation Act was designed simply to fix the *434
rights and remedies of an injured employee as against his employer, and not as against negligent third persons. I think the cases of Bruce v. McAdoo,
Sections 2838 and 2839, Revised Codes 1921, are relied upon as abolishing all causes of action against negligent third persons. Section 2838 provides: "Any employer who elects to pay compensation as provided in this Act shall not be subject to the provisions of section 2836, nor shall such employer be subject to any other liability whatsoever for the death of or personal injury to any employee except as in this Act provided; and, except as specifically provided in this Act, all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and common-law rights and remedies for and on account of such death of, or personal injury to, any such employee are hereby abolished; provided, *435 that section 2836 shall not apply to actions brought by an employee who has elected not to come under this Act, or by his representatives, for damages for personal injuries or death, against an employer who has elected to come under this Act."
Section 2839 is as follows: "Where both the employer and employee have elected to come under this Act, the provisions of this Act shall be exclusive, and such election shall be held to be a surrender by such employer and such employee of their right to any other method, form, or kind of compensation, or determination thereof, or to any other compensation, or kind of determination thereof, or cause of action, action at law, suit in equity, or statutory or common-law right or remedy, or proceeding whatever, for or on account of any personal injury to or death of such employee, except as such rights may be hereinafter specifically granted; and such election shall bind the employee himself, and in case of death shall bind his personal representative and all persons having any right or claim to compensation for his injury or death, as well as the employer, and those conducting his business during liquidation, bankruptcy, or insolvency."
In the Bruce Case this court said: "The only exception contained in the statute thereafter `specifically granted' is in instances where the workman is injured `away from the plant of his employer due to the negligence or wrong of another not in the same employ,' in which instance the injured employee or his beneficiaries or dependents are given the right of election to take compensation under the Act or to seek a remedy against the third person to whose negligence is ascribed the injury or death of the employee, which election must be made in advance of the commencement of any action." (Sec. 6 (2), subd. 1; now sec. 2863, Rev. Codes 1921.)
It is my opinion that the court was in error in holding that the exception referred to in sections 2838 and 2839 had reference to section 2863. It is my view that the exception had to do with sections 3003 and 3004. Section 3003 provides: "For any injury happening to any of his workmen during *436 default in any payment to the industrial accident fund, the defaulting employer as to such injury shall be considered as having elected not to come under the provisions of this Act, except that he shall be and remain liable to pay to the industrial accident fund the amount of such default, together with the penalty prescribed by section 2996." Section 3004 provides: "The person entitled to sue under the provisions of the preceding section shall have the option of proceeding by suit or taking under this Act. If such person take under this Act, the cause of action against the employer shall be assigned to the state for the benefit of the industrial accident fund. If such person shall elect to proceed against the defaulting employer, such election shall constitute a waiver of any right to compensation under the provisions of this Act."
I think neither the exceptions under sections 2838 and 2839 nor any other of the provisions of those sections have to do with a cause of action against negligent third persons.
In my opinion, section 2863 does not purport to grant a right of action against a negligent third person, otherwise taken away by sections 2838 and 2839. It simply recognizes the existence of a right of action against negligent third persons in all cases, and, in case the injury occurs away from the plant of the employer, requires the employee to make an election of remedies. It is absurd to suppose that the legislature intended to grant to an employee injured away from the plant of an employer greater rights and privileges than to one injured on his plant. Is there any conceivable reason why a person injured on the plant of his employer by a negligent third person should not have the same right to sue the third person as an employee who is injured off the plant? It seems to me that such unwarranted discrimination between an employee injured on the plant of the employer, and one injured off the plant, should not be imputed to the legislature. Such a construction of the statute would result in this situation: A and B are both in the employ of C. All have elected to be governed by the Workmen's Compensation Act. A was working on the plant of C. B, three feet removed from A, was off *437 the plant. Both A and B are injured — totally disabled — in the same manner and at the same time by the negligence of D, who is a stranger to the Workmen's Compensation Act. Under the construction of these statutes as made in the Bruce and BlackCases, A's exclusive remedy is to receive the compensation provided for against his employer. This compensation falls short of making him whole financially. He must lose one-half of his wages. He receives nothing for pain and suffering or for physical impairment. If the disability is permanent, he is nevertheless paid one-half his wages only for 300 weeks, as the law was originally enacted. (Sec. 16, Chap. 96, Laws 1915.)
B, who happened to be off the plant of his employer when injured, may, if he so elects, sue D and recover full compensation for the damage sustained by him. This interpretation denies to A the equal protection of the law. I realize that it is competent for the legislature to make classifications when there is some reasonable basis therefor, precluding the idea that the classification is arbitrary. But I can see no reasonable basis for such hostile discrimination.
This question seems to have been suggested to the Supreme Court of the United States in the case of Northern P. Ry. Co.
v. Meese,
It is my view, therefore, that, when the legislature amended section 2863 by Chapter 121 of the Laws of 1925, it left all employees in the same situation and permitted them to seek compensation against the employer as well as to seek recovery against a negligent third person.
Other courts, under statutes substantially the same as our sections 2838 and 2839, have held that they abolish only causes of action against the employer, and do not affect rights of action against negligent third persons. In the case of HotelEquipment Co. v. Liddell,
In O'Brien v. Chicago City R. Co.,
In Stacy v. F.M. Hoyt Shoe Co.,
In Davis v. Central Vermont Ry. Co.,
In the case of Silvia v. Scotten, 2 W.W. Harr. (32 Del.) 295, 122 A. 513, 514, the statute under consideration was materially different from ours, but what the court said has equal application here. It said: "When the purpose of the Workmen's Compensation Act is borne in mind it would be highly unreasonable to assume that in its enactment the legislature intended to save a class of wrongdoers who are in nowise related to the compensation scheme from the liability which the law had theretofore imposed upon them. The Workmen's Compensation Act concerns only employer and employee and is designed to afford a fair and equitable adjustment of their mutual rights and obligations, primarily for the benefit of the employee. A stranger to the employment is outside of the Act's contemplation, and his liabilities are not intended by the Act to be disturbed."
The supreme court of Utah, in Robinson v. Union P. Ry.Co.,
The supreme court of Oregon placed the same interpretation upon a similar statute to ours before the amendment of 1925, as did the Bruce and Black Cases [King v. Union Oil Companyof California,
In the majority opinion two reasons are suggested which may have influenced the legislature in depriving an injured employee of the right to sue a negligent third person. It is suggested that, briefly stated, the first reason is that of relieving the employee of the expense necessary in instituting and maintaining an action at law, and, second, to give definite assurance of financial relief unattended by the hazards of a lawsuit. These are the reasons which prompted the legislature to fix the rights of the employee against the employer. They furnish no ground or plausible excuse for awarding a medal of immunity to a negligent third party. Motives of benevolence and charity toward those who labor cannot well be manifested by depriving them of substantial rights. An interpretation *443 of the statute — just but not generous to the employee — permits him to recover against a negligent third person.
The judgment should be affirmed.
