Colorado Milling & Elevator Co. v. Mitchell

• Decision Date: 19 June 1899
• Citation: 26 Colo. 284,58 P. 28
• Parties: COLORADO v. MITCHELL. MILLING & ELEVATOR CO.
• Court: Colorado Supreme Court

58 P. 28

26 Colo. 284

COLORADO

MILLING & ELEVATOR CO. v. MITCHELL.

Supreme Court of Colorado

June 19, 1899

Appeal from court of appeals.

Action by Anna M. Mitchell against the Colorado Milling & Elevator Company. From a judgment in favor of defendant sustaining a demurrer to complaint, plaintiff prosecuted error to the court of appeals, and the case was reversed. 55 P. 736. Defendant then appealed to the supreme court. Affirmed.

This action was brought by the appellee in the district court of Larimer county against appellant to recover damages for the death of her unmarried son, William M. Mitchell. For cause of action she, in substance, averred that on the 7th day of August, 1896, he was employed by appellant to assist in raising a smokestack at its mills, which it was then engaged in rebuilding, at the city of Ft. Collins, which work was under the immediate supervision, direction, and control of one Benjamin F. Hottel, its general manager and representative; that said Hottel, acting for and representing appellant, provided a derrick for lifting said smokestack into position, which was insufficient for that purpose; that by reason of such insufficiency, and the grossly negligent manner and method in which the same was caused to be used by said Hottel, the stack fell, striking said Mitchell, and causing his death. A demurrer was interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, the particular objection being that it failed to allege the giving of any notice of the time, place, or cause of the injury, in compliance with section 2 of the act of 1893, generally known as the 'Employers' Liability Act' (Laws 1893, p. 129; 3 Mills' Ann. St. p. 423, § 1511b). The demurrer was sustained, and judgment entered dismissing the action. On error to the court of appeals this judgment was reversed. Mitchell v. Elevator Co., 55 P. 736. The company brings the case here on appeal.

T. J. O'Donnell, Milton Smith, Platt Rogers and Robinson & Love, for appellant.

Frank J. Annis, Garbutt & Garbutt, J. Warner Mills, Clinton Reed, and Patton & Esteb, for appellee.

GODDARD J. (after stating the facts).

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 1893, and therefore the service of notice as required by section 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 employés 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 section 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 employés,' 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 correct. If, on the other hand, we give to it the meaning with which it is frequently used, and of which it is also susceptible as a law term, as expressing 'the injury for which compensation is sought,'--in other words, as synonymous with 'injuries,'--the title sufficiently expresses the subject treated in the body of the act. We are inclined to accept the latter view, and for the purpose of this review assume the act to be constitutional. If this view be adopted and force be given to all the provisions of the act of 1893 it does not in any manner repeal, modify, or change any of the provisions of the statute of 1877; nor does it purport to specify all the causes from which a right of action may accrue in favor of an employé against an employer. Section 1 of the act, which is the only section that undertakes to specify the causes for which an injured employé may recover, is as follows: 'Section 1. Where, after the passage of this act, personal injury is caused to an employé, 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, or 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 employé, or in case the injury results in death the parties entitled by law...