Gimble v. Montana-Dakota Utilities Co.

• Decision Date: 28 August 1950
• Docket Number: No. 7208,MONTANA-DAKOTA,7208
• Citation: 44 N.W.2d 198,77 N.D. 581
• Parties: GIMBLE v.UTILITIES CO.
• Court: North Dakota Supreme Court

Page 198

44 N.W.2d 198

77 N.D. 581

GIMBLE v. MONTANA-DAKOTA UTILITIES CO.

No. 7208.

Supreme Court of North Dakota.

Aug. 28, 1950.

Rehearing Denied Oct. 17, 1950.

Syllabus by the Court.

1. It is an established rule of statutory construction that a legislative act is presumed to be prospective unless the legislature clearly manifests a contrary intention.

2. In construing amendments the court takes judicial notice of history of the original act as well as of the amendment and it must be presumed that the legislature has at all times been aware of the history of the terms used in the original act which are repeated in the amendment.

3. Where a phrase used in an original act is repeated with like context in an amendment it is presumed that the legislature intended to use it in the same sense and with the same effect in the amendment as it was used in the original act.

4. Where the action taken by the legislature during the course of passage of a law is pertinent to its construction the legislative journals are competent and prior sources of information for the court to consider in determining legislative intent.

5. Under Sec. 65-0109, RCND 1943, an employee who was covered by the Workmen's Compensation Act and who was injured through the negligence of a third party under circumstances entitling him to compensation, by filing a claim with the Workmen's Compensation Bureau and accepting an award subjected his claim to the operation of the statute which subrogated the Workmen's Compensation Fund to all of the rights which he had to bring an action to recover damages for his injuries.

6. Chapter 355, SLND 1949 which amended Sec. 65-0109, RCND 1943, operated prospectively with respect to compensable employees who filed claims with and received awards from the Workmen's Compensation Bureau for injuries sustained under circumstances creating in some person other than the Fund a legal liability to pay damages with respect thereto, and this amendment did not reinvest the injured employees with the right to maintain actions upon claims to which the Workmen's Compensation Bureau had been subrogated under Sec. 65-0109, RCND 1943 prior to its amendment.

Strutz, Jansonius and Fleck, Bismarck, for plaintiff and respondent.

Sullivan, Kelsch & Sullivan, Mandan (Albert R. Scanlon, Mandan, on oral argument), for defendant and appellant.

Francis Murphy and J. F. X. Conmy both of Fargo, Murray & Murray, of Bismarck, and Joseph P. Stevens, of Minot, all appearing as attorneys amici curiae.

MORRIS, Judge.

This is an appeal from an order of the District Court striking that portion of the defendant's answer which purports to set forth an affirmative defense. The controversy is essentially one of law which may be outlined by a brief statement of basic facts.

The plaintiff was severely injured on the third day of June 1948, while acting as member and employee of the organized fire department of the village of Hazelton, North Dakota. The village has complied with the requirements of the North Dakota Workmen's Compensation Act, title 65, RCND 1943, and the plaintiff was therefore an employee entitled to the protection and benefits provided by the Workmen's Compensation Law. He brings this action individually and as trustee for the Workmen's Compensation Bureau and the Workmen's Compensation Fund in accordance with the provisions of Sec. 65-0109, RCND 1943 as amended by chapter 355, SLND 1949 to recover damages for injuries which he alleges were sustained through the negligence of the defendant.

The defendant answered by way of general denial and also set up an affirmative defense in which it pleaded plaintiff's coverage by the Workmen's Compensation Act and further alleged:

'6. That the plaintiff had two or more concurrent remedies by reason of the injuries which he sustained as alleged in his complaint, either to claim compensation from the Workmen's Compensation Fund or to bring an action against this defendant in tort for the recovery of damages.

'7. That the plaintiff, on the 12th day of June, 1948, freely elected to file and did file a claim against the Workmen's Compensation Fund to avail himself of the benefits of the Workmen's Compensation Act; that after due notice and hearing, the Workmen's Compensation Bureau made an award upon plaintiff's claim so filed, and that on the 7th day of January, 1949, pursuant thereto, paid the sums of (1) $1364.61 to the Bismarck Evangelical Hospital in payment of plaintiff's hospital bill, (2) of $482.00 to Dr. R. M. Nuessle for professional services, (3) of $6.00 to Dr. Monteith for professional services, and (4) of $443.00 as an allowance for loss of earnings due to partial disability occasioned by said injury, all of which were accepted and retained by the plaintiff.

'8. That by reason of the facts alleged herein, the plaintiff elected to and did make a decisive choice between the inconsistent remedies he then had and that by reason thereof; (1) the plaintiff's cause of action, if any he had, was assigned and transferred, by operation of law, to the Workmen's Compensation Bureau, and thereupon the Bureau became subrogated to his legal rights against this defendant, and (2) plaintiff is now estopped, as a matter of law, from maintaining or prosecuting this action for the recovery of damages from this defendant.

'9. That said action is not prosecuted in the name of the real party in interest, and that the plaintiff has no legal capacity to sue, and has no right or authority to maintain or prosecute this action in his individual capacity or as trustee for the Workmen's Compensation Bureau of the State of North Dakota.'

On motion of the plaintiff the trial court ordered the affirmative defense stricken on the ground that it did not set forth a legal defense.

In deciding this controversy, we accept the allegations of the answer as true. The plaintiff was injured while acting as a compensable employee under the Workmen's Compensation Act. On June 12, 1948, he filed a claim against the Workmen's Compensation Fund which was allowed and an award made thereon. Under this award there was paid $1852.61 hospital and medical expenses and $443.00 as an allowance for loss of earnings. At the time of the injury, award and payments the law in effect was Sec. 65-0109, RCND 1943 which provides: 'When an injury or death for which compensation is payable under the provisions of this title shall have been sustained under circumstances creating in some person other than the fund a legal liability to pay damages in respect thereto, the injured employee, or his dependents, at his or their option, either may claim compensation under this title or obtain damages from, or proceed at law to recover damages against, such other person. If compensation is claimed and awarded under this title, the fund shall be subrogated to the rights of the injured employee or his dependents to recover against that person. If the fund shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this title, any such excess less the expenses and costs of the action shall be paid to the injured employee or his dependents.'

The thirty first Legislative Assembly by chapter 355, SLND 1949 amended and reenacted Sec. 65-0109, RCND 1943 to read as follows: 'When an injury or death for which compensation is payable under the provisions of this title shall have been sustained under circumstances creating in some person other than the fund a legal liability to pay damages in respect thereto, the injured employee, or his dependents may claim compensation under this title and obtain damages from, and proceed at law to recover damages against, such other person. If compensation is claimed and awarded under this title, the fund shall be subrogated pro tanto to the rights of the injured employee or his dependents to the extent of amount of compensation paid. The action to recover such damages against such other person shall be brought in the name of the injured employee, or his dependents in the event of his death, in his or in his dependents' own right and name for the balance of compensation due him and as trustee for the Workmen's Compensation Bureau for what it has paid on such claim. Expenses and costs of such litigation shall be prorated between claimant and bureau, should any damages be awarded. If no damages are awarded, the cost of the litigation shall be paid by the employee.'

This amendment became effective July 1, 1949. The plaintiff brought this action under the amendment and contends that it is fully retroactive and applies to all injuries that were sustained prior to as well as after the effective date of the act, under circumstances creating liability in some person other than the fund, even though the injured person elected to file a claim against the fund under the old statute and was awarded and received compensation. The defendant on the other hand contends that the amendment was prospective in its application, at least as to those injuries for which a claim was filed against the Workmen's Compensation Fund and an award made to the claimant prior to the effective date of the amendment.

In this jurisdiction we have adopted the general and well established rule of statutory construction that an act of the legislature is presumed to be prospective unless the legislature clearly manifests a contrary intention. Messersmith v. Reilly, 70 N.D. 638, 296 N.W. 920; Murray v. Mutschelknaus, 70 N.D. 1, 291 N.W. 118; Petters & Co. v. Nelson County, 68 N.D. 471, 281 N.W. 61; Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883; E. J. Lander & Co. v. Deemy, 46 N.D. 273, 176 N.W. 922; Adams and Freeze Co. v. Kenoyer, 17 N.D. 302, 116 N.W. 98, 16 L.R.A.,N.S., 681; Clark v. Beck, 14 N.D. 287, 103 N.W. 755.

'Even as to those statutes which the Legislature may constitutionally give retrospective effect, there is no presumption that such effect was intended.' First National...