26 Colo. 284 | Colo. | 1899
delivered the opinion of the court.
The question presented, and elaborately argued in the court of appeals, was as to whether the action comes within the provisions of the act of 1898, and therefore the service of notice as required by sec. 2 of the act was essential to its maintenance, or whether the facts alleged constitute a cause of action entitling plaintiff to a recovery under the act of 1877, unaffected by the later act. The court of appeals held that the complaint stated a complete cause of action, and a right to recover under the act of 1877, which was not controlled or affected by the act of 1893. It, however, based its . conclusion mainly upon the fact that the title to the act of 1893 limited the right to maintain an action thereunder to the agents, servants and employees sustaining damages, and did not embrace within its terms any provisions affecting the cause of action, right of action, or the recovery of damages sustained by any other person; and that in so far as the act attempts to regulate, restrict, or in any manner affect actions by one who was in no capacity in the employ of defendant, it is obnoxious to sec. 21 of article 5 of the constitution, which provides that:
“No bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.”
If, in the title to the act, which is .“ An act concerning damages sustained by agents, servants and employees ” the word “ damages ” is used in its technical sense to express simply compensation for injuries received, or the amount which the injured party is~entitled to recover, the construction given to the title by the court of appeals is manifestly
“ Section 1. Where, after the passage of this act, personal injury is caused to an employee, who is himself in the exercise of due care and diligence at the time;
“ (1) By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer, of of any person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works and machinery were in proper condition; or “ (2) By reason of the negligence of any person in the service of the employer, entrusted with exercising superintendence whose sole or principal duty is that of superintendence;
“ (3) By reason of the negligence of any person in the service of the employer who has the charge or control of any switch, signal, locomotive engine or train upon a railroad, the employee, or in case the injury results in death the parties entitled by law to sue and recover-for such damages shall have the same right of compensation and remedy against the employer, as if the employee had not been an employee of or in the service of the employer or engaged in his or its works.”
Clauses 1 and 2, which are the only provisions that can be
“But it would not need the aid of previous exposition to show that the main purpose of the statute, as the title intimates, is to extend the liability of employers in favor of employees, that it does not attempt to codify the whole law upon the subject, and that it leaves open some common-law defenses and some common-law liabilities. In view of these general considerations, we are to construe the statute liberally in favor of employees, and we ought to be slow to conclude that indirectly, and without express words to that effect, it has limited the workman’s common-law rights most materially in respect to the conditions and time of bringing an action, and the amount which he can recover.”
And concludes:
“ We are of opinion that in those cases within the words of the Statute of 1887, c. 270, sec. 1, cl. 1, in which the common law gives an employee a remedy, he still has a right to sue under the same conditions, and to recover damages to the same extent, as if the statute had not been passed.”
The negligence complained of in the case at bar was that of the defendant itself in failing to exercise due care in providing a safe and proper appliance for raising the smokestack. The complaint charges this negligence both upon the defendant company and its manager; and also charges that the manager used the appliance in a grossly negligent manner. If it may be said that under these averments, the default of the company was not the sole producing cause of the injury, but that the negligence of the manager also contributed thereto, it is immaterial, since it appears from the complaint that
Counsel for appellant concede that an employee who survives an injury can still avail himself of his common-law remedy, notwithstanding the statute of 1893; but contend that the same rule does not apply to one whose right of action is given by the statute of 1877. We cannot see any reason for this distinction, or perceive why the right of action created by the statute is abrogated by the subsequent act, any more than one that existed at common law, since no such intention is indicated in terms, or by implication. It is well settled that a statute providing a new remedy for an existing right does not take away a pre-existing remedy without express words or necessary implication. 23 Am. & Eng. Encjr. Law, p. 393 and cases cited. The same rule of construction is applied to statutes in derogation of existing statutes as applies to those in derogation of common law, and the same presumption obtains that no change is intended, unless the later statute is clear and explicit to that effect. Sutherland on Stat. Constr. § 139. The statute, of 1893, as we have before stated, does not attempt in any manner to repeal, modify or restrict any of the provisions of the statute of 1877, nor to change or abridge any right or remedy thereby given. It merely provides that the parties who were entitled by law to sue, in case the injury results in death, shall have the same right of compensation and remedy that it gives to the employee. In other words, its plain purport and intent is to extend to the parties designated in the act of 1877 the right to recover for an injury resulting in death, under the same circumstances that would have entitled the employee to maintain the action if death had not ensued. The right, therefore,
Affirmed.