Allen v. Trester
| Decision Date | 31 July 1924 |
| Docket Number | 22739 |
| Citation | 199 N.W. 841,112 Neb. 515 |
| Parties | MARGARET ALLEN, APPELLANT, v. LOUIS H. TRESTER ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county; WILLARD E STEWART, JUDGE. Reversed.
REVERSED.
Sterling F. Mutz and W. C. Parriott, for appellant.
Fawcett Mockett & Tou Velle, F. B. Baylor and A. Moore Berry, contra.
HEARD before MORRISSEY, C. J., LETTON, DEAN, DAY, GOOD and THOMPSON, JJ., and REDICK, District Judge.
This action is brought by the plaintiff, Margaret Allen, surviving parent, to recover damages which she claims to have been sustained by reason of personal injuries suffered by her minor son, Delbert Allen, alleged to have been caused by negligence of the defendants. It is alleged that said minor son is totally incapacitated both mentally and physically by reason of said injuries, that plaintiff is a poor person wholly dependent upon her son for her support that he has been precluded by his injuries from earning money or furnishing her further support, and that she has been damaged in the sum of $ 15,598.33 by reason of the premises.
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, and an attempt was made to amend section 15 of the original act, (Laws 1913, ch. 198), being section 3656, Rev. St. 1913 (). The section is as follows, so far as pertinent to the present case: The intention was to amend by adding the following: "No parent or guardian of an injured minor employee shall be entitled to recover any damages by reason of said injuries other than as expressly provided in this article." If this amendment is valid and effectual, plaintiff has no cause of action. and the judgment must be affirmed.
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, 9 N.W. 477; State v. Tibbets, 52 Neb. 228, 71 N.W. 990, in which the cases are collected and the subject considered at length; State v. Bowen, 54 Neb. 211, 74 N.W. 615; Armstrong v. Mayer, 60 Neb. 423, 83 N.W. 401.
Is the amendment germane to the subject-matter of the original section? We are forced to a negative conclusion. The subjects of the original section 15 were: (1) The description or definition of those who should be considered employees under the act, including minors who might be legally employed; and (2) giving minors the same authority to contract and elect under the act as is possessed by adults. It cannot be doubted that any amendment affecting the status of the minor as an employee, or his newly conferred power to contract and elect, would be proper and germane to the subject of this section, but we are unable to perceive any relation of those subjects to common law or statutory rights of action existing in the parent. The language of section 15, prior to the amendment, suggests no thought of remedies, or of the rights of parents or guardians. These are subjects entirely foreign to the section. Again, these matters are the subject of section 11. The amendment in question would doubtless be germane to the subject of section 11. Section 11 does not purport by the contract of the minor to bind the parent, but only the "employee himself, and for compensation for his death shall bind his legal representatives, his widow, and next of kin," etc. We must declare the law as we find it, and we are driven to the holding that the amendment is not germane to section 15 and violative of section 11, art. III of the Constitution, and is therefore ineffectual. While, as before stated, the title to the original act is broad enough to cover the subject of this amendment, the title is no part of the enactment, and, therefore no matter how broad the title, the particulars of the law must be found, it at all, in the body of the act.
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 parties thereto of their rights to any other method, form or amount of compensation." Comp. St. 1922, sec. 3034. The statute having expressly provided who shall be bound by the contract and under what circumstances, persons, such as parents, not included in its terms, are not bound upon the familiar principle of construction, "Expressio unius est exclusio alterius." If the construction contended for by defendants is proper, the amendment was unnecessary. The legislature evidently considered that the matter of the amendment was not covered by sections 11 and 15. We cannot attribute to the legislature an intention not deducible from the language of the act and hold that the act provides for surrender of the parent's rights.
Defendant Trester cites the following cases: Adkins v. Hope Engineering & Supply Co., 81 W.Va. 449, 94 S.E. 506. 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.L. 418, 108 A. 357, 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.L. 174, 107 A. 285, 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 apply unless the notice be given by or to the parent or guardian of the minor." The holding of the court as contained in the syllabus was: "Where a father permitted his minor son to work for defendant without giving the notice that the provisions of section 2 of the workmen's compensation act were not intended to apply, he accepted the provision of the statute and thereby...
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