Hammack v. Monroe Street Lumber Co., 34512

• Decision Date: 21 May 1959
• Docket Number: No. 34512,34512
• Citation: 54 Wn.2d 224,339 P.2d 684
• Court: Washington Supreme Court
• Parties: Eugene HAMMACK and Laura Hammack, his wife, Appellants, v. MONROE STREET LUMBER COMPANY, a corporation, Respondent.

Page 224

54 Wn.2d 224

339 P.2d 684

Eugene HAMMACK and Laura Hammack, his wife, Appellants, v. MONROE STREET LUMBER COMPANY, a corporation, Respondent.

No. 34512.

Supreme Court of Washington, En Banc.

May 21, 1959.

Rehearing Denied Aug. 14, 1959.

Thomas Malott, Sidney Schulein, Spokane, for appellants.

Witherspoon, Kelley, Davenport & Toole, Spokane, for respondent.

Rosling, Williams, Lanza & Kastner, Joseph J. Lanza, of counsel, Elliott, Lee, Carney & Thomas, Millard C. Thomas, of counsel, Hall, Cole & Lawrence, Melvin F. Buol, Seattle, amici curiae.

FOSTER, Justice.

Appellant, plaintiff below, appeals from a judgment dismissing his action for damages resulting from a motor vehicle collision, but, because the sole issue concerns the effect of the repeal of the immunity proviso on prior injuries, Laws of 1939, chapter 41, § 2, pp. 121, 123, ¹ by Laws of 1957, chapter 70, § 23, p. 279, a detailed statement of the evidence is unnecessary. There was a prior appeal Hammack v. Monroe Street Lbr. Co., 49 Wash.2d 581, 303 P.2d 1095. It is sufficient to say that both appellant and his employer were engaged in extrahazardous industry as classified by the industrial insurance act, when appellant was injured in a traffic accident on April 4, 1955, with the respondent's truck, which was then being operated by the respondent, also in the course of extrahazardous industry.

Under the statute in force on April 4, 1955, a person classified as a workman under the industrial insurance act, who, at the time of the accident, was in the course of extrahazardous employment for an employer likewise so engaged, had no cause of action against a tort-feasor or his employee who was likewise engaged in any extrahazardous employment. Hand v. Greyhound Corp., 49 Wash.2d 171, 299 P.2d 554. That proviso was dropped in the recast of some of the sections of the industrial insurance act by the legislature in 1957.

By Laws of 1911, chapter 74, § 1, p. 345, which, so far as material, is set out in the margin, ² a workman's right to sue for an injury sustained in the course of extrahazardous employment was abolished.

By § 3 of that act (the applicable portion of which is set out in Appendix A), if the injury took place off the employer's premises, a workman injured by one other than his employer was afforded a choice of compensation under the industrial insurance act, or the right to sue such third party for the full damage sustained.

In 1927, a change in the statutory definition of 'injury' ³ made a corresponding change in this section necessary, which, so far as material, is set out in Appendix B. In the amendment, the requirement that the injury occur away from the plant of the employer was deleted, so that, in all cases of injury to a workman by anyone other than his employer, he was given the choice of taking under the industrial insurance act or suing the third party.

Two years later, the right to sue a third party for an injury to a workman was withdrawn if the third party and his employee were in the course of any extrahazardous employment. That provision, so far as material, is as follows:

'* * * Provided, however, That no action may be brought against any employer or any workman under this act as a third person if at the time of the accident such employer or such workman was in the course of any extra-hazardous employment under this act. Any such cause of action assigned to the state may be prosecuted or compromised by the department, in its discretion. * * *' Laws of 1929, chapter 132, § 1, p. 325, 327.

In Robinson v. McHugh, 158 Wash. 157, 291 P. 330, and Denning v. Quist, 160 Wash. 681, 296 P. 145, filed February 16, 1931, it was held that this statute applied to injuries occurring before its effective date. The legislature was in session when Denning v. Quist, supra, was filed, and, obviously, to overcome the effect of that decision and of Robinson v. McHugh, supra, it enacted Laws of 1931, chapter 90, in § 1 of which it is provided:

'* * * This act shall not affect any cause of action existing at the time said chapter 132 of the Session Laws of 1929 became effective, or the right to take an appeal and/or bring an action thereon, or any appeal pending, or right of appeal existing at the time said chapter 132 of the Session Laws of 1929 became effective.'

A petition for rehearing in Denning v. Quist, supra, followed, pursuant to which this court modified its decision by directing dismissal of the first action without prejudice. We said, on the second appeal in that case, 172 Wash. 83, 19 P.2d 656, 658:

'Following our decision denying recovery to Denning, as above noticed, and soon after the approval by the Governor of chapter 90, supra, his counsel filed a petition for rehearing in that cause calling our attention to, and relying upon, the above-quoted italicized language of that chapter as restoring to him the right to maintain an action in the courts seeking recovery for his injuries suffered in the course of his extrahazardous employment, as such right existed prior to the enactment of the amendatory chapter 132, p. 325, Laws of 1929. This court, upon consideration of the petition, amended its decision on May 14, 1931, and entered an order directing the superior court to dismiss the action 'without prejudice'; thus preventing the dismissal of the action from becomingres judicata as against Denning, but not deciding what his right might be under the above quoted italicized language of chapter 90 (Laws of 1931, p. 263), supra. * * *'

The legislative disapproval of our decisions that the immunity proviso of 1927 should have a retrospective application was recognized in the second appeal in which the court concluded:

'Although the language above quoted is somewhat vague and uncertain, all parts of an act may be considered to ascertain the legislative purpose, and it is manifest by the title to the act that it was the purpose of the Legislature to 'reserve' to all parties having causes of action existing at the time chapter 132 (Laws of 1929, p. 325), supra, took effect, 'to bring and prosecute proceedings * * * or action thereon,' (Laws 1931, p. 263), to restore or reserve to some person or persons having some kind of a right of action, such right. It would seem that the rights intended to be restored, or reserved, or not affected, were such as that of appellant here. It is a rule of statutory construction almost universal that it is the duty of the courts to give such construction to the language of a statute as will make it purposeful and effective, rather than futile and meaningless.

'Unless, as above indicated, it was the sole purpose of the Legislature in enacting chapter 90, supra, to permit persons having causes of action against third parties to recover damages from them on account of their negligence, although that was a statutory action, or rather a statutory election, the legislation was meaningless and ineffective.'

Thus the law remained until 1957, when the right to sue any third party without restriction was restored. Laws of 1957, chapter 70, p. 272, amends the bulk of the industrial insurance act, and enacts, as basic law, the division, combination and codification of the session law sections dealt with therein. Section 23, the one in question, so far as material, is as follows:

'If the injury to a workman is due to negligence or wrong of another not in the same employ, the injured workman or, if death results from the injury, his widow, children, or dependents, as the case may be, shall elect whether to take under this title or seek a remedy against such other, * * *' Laws of 1957, chapter 70, § 23, p. 279.

There is not, however, a sign, syllable or word indicating a legislative intention that the removal of the previous restriction should render anyone liable for an accident occurring before the effective date of the 1957 codification.

In 1814, Mr. Justice Story, in the Society for the Propagation of the Gospel v. Wheeler, 22 Fed.Cas. 756, 767, No. 13,156, defined a retrospective law of follows:

'* * * Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective; * * *'

Seventy years later, the supreme court itself approved that definition in Sturges v. Carter, 114 U.S. 511, 519, 5 S.Ct. 1014, 29 L.Ed. 240. No American court has ever sustained a statute which created a liability for an act for which, at the time of its occurrence, there was no liability.

On the other hand, the cases are legion in which statutes have been held to be unconstitutional because of an attempt to impose liability for acts when, at the time of the occurrence, there was none. Some are collected in the margin. ⁴

Such decisions are well exemplified by Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589, 594, (February 10, 1958). That was an appeal from a judgment of dismissal after a general demurrer had been sustained. A minor sued for personal injury. At the time of the injury, the city of Caldwell was protected against liability by sovereign immunity. Thereafter, the legislature of Idaho enacted a statute waiving sovereign immunity, upon which the minor relied. The supreme court of Idaho affirmed the trial court in its conclusion that the legislature could not constitutionally impose a liability for a past act for which, at the time of the occurrence, there was no liability. The court expressed that view in language so plain that it is incapable of misunderstanding. It said:

'A statute will not be given a retroactive construction by which it will impose liabilities not existing at the time of its passage. United States v. Nez Perce County, D.C.C.D.Idaho 1936, 16 F.Supp. 267, remanded 9 Cir., 1938, 95 F.2d 232, rehearing denied 9 Cir., 1938, 95 F.2d 238; Massa v. Nastri, Conn. , 3 A.2d 839, 120...