Clark v. Olson

• Decision Date: 29 March 1934
• Docket Number: 7174.
• Citation: 31 P.2d 283,96 Mont. 417
• Parties: CLARK v. OLSON.
• Court: Montana Supreme Court

31 P.2d 283

96 Mont. 417

CLARK v. OLSON.

No. 7174.

Supreme Court of Montana

March 29, 1934

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

Suit by Fred V. Clark against Mrs. Axel M. (Hazel G.) Olson. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

ANGSTMAN J., dissenting.

M. J Lamb, of Billings, for appellant.

H. C Crippen and H. C. Crippen, Jr., both of Billings, for respondent.

CALLAWAY Chief Justice.

In this case we delivered an opinion on January 19, 1934, reversing the judgment of the trial court and directing a dismissal of the action. Within time the plaintiff filed a motion for rehearing, to which each side filed an elaborate brief. Not being fully satisfied that we had reached the correct result, we granted a rehearing, and have been favored with further briefs and oral arguments. Now, having given the case further consideration, we are satisfied that our original conclusion was correct. After all, the case is one of statutory construction, and it is the statutes of our own and not those of any other state which we must construe.

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 to the city notice of his injuries, and claimed compensation under the provisions of the Workmen's Compensation Act (Rev. Codes 1921, § 2816 et seq.). In presenting his claim to the Industrial Accident Board, plaintiff stated that his disability resulted from an accidental injury received on the 13th 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 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 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 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., 44 Mont. 180, 119 P. 554; Lewis & Clark County v. Industrial Accident Board, 52 Mont. 6, 155 P. 268, L. R. A. 1916D, 628; 6 R. C. L. 1916, 628; Shea v. North-Butte Min. Co., 55 Mont. 522, 179 P. 499, 503; Dosen v. East Butte Copper Min. Co., 78 Mont. 579, 254 P. 880, 886; Edwards v. Butte & Superior Min. Co., 83 Mont. 122, 270 P. 634; Betor v. National Biscuit Co., 85 Mont. 481, 280 P. 641; State ex rel. Loney v. Industrial Accident Board, 87 Mont. 191, 286 P. 408; Kerns v. Anaconda Copper Min. Co., 87 Mont. 546, 289 P. 563; Murray Hospital v. Angrove, 92 Mont. 101, 10 P.2d 577; Moffett v. Bozeman Canning Co., 95 Mont. 347, 26 P.2d 973.

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 Improvement Co., supra; Lewis & Clark County v. Industrial Accident Board, supra. Nor shall he become a charge upon the public generally (Shea v. North-Butte Min. Co., supra; State ex rel. Loney v. Industrial Accident Board, supra), that is, an object of public charity; rather, he shall "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-Butte Min. 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 Pacific Ry. Co. v. Messe, 239 U.S. 614, 36 S.Ct. 223, 60 L.Ed. 467.

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 lawmaking 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--in most cases he is not. In either case the employee 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 Pacific Ry. Co., 66 Mont. 538, 214 P. 82), was, not that one employee should receive an exorbitant or liberal sum and another an inadequate amount, but that all employees should receive a fair measure of compensation. Whether the Legislative Assembly shall permit double compensation to the employee--the payments allowed by the Compensation Act and also the right to sue a tort-feasor--is a matter of legislative control. See authorities, post.

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 (section 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...