Nelson v. Westland Oil Co., 14063.

• Citation: 181 F.2d 371
• Decision Date: 13 April 1950
• Docket Number: No. 14063.,14063.
• Parties: NELSON v. WESTLAND OIL CO. FOSTER v. WESTLAND OIL CO. WESTOM v. WESTLAND OIL CO. MYERS v. WESTLAND OIL CO.
• Court: U.S. Court of Appeals — Eighth Circuit

181 F.2d 371 (1950)

NELSON v. WESTLAND OIL CO.

FOSTER v. WESTLAND OIL CO.

WESTOM v. WESTLAND OIL CO.

MYERS v. WESTLAND OIL CO.

No. 14063.

United States Court of Appeals Eighth Circuit.

April 13, 1950.

J. P. Stevens, Minot, N. D., (Murray & Murray, Bismark, N. D., W. J. Austin, McClusky, N. D., and Bruce M. VanSickle, Minot, N. D., on the brief), for appellants.

J. F. X. Conmy, Fargo, N. D., (Francis Murphy, Fargo, N. D., on the brief), for appellee.

Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

These appeals, which have been consolidated and submitted upon a single record, challenge the validity of a judgment dismissing the actions of the plaintiffs (appellants). Three of the actions were brought to recover for wrongful deaths, and one for personal injuries. The deaths and injuries resulted from a fire which occurred in Minot, North Dakota, on July 21, 1947. The fire is alleged to have been caused by the negligence of the defendant (appellee). All of the actions were brought after July 1, 1949. Jurisdiction is based on diversity of citizenship.

The defendant, in each of the cases, moved the District Court as follows: "To dismiss the above entitled action on the grounds and for the reasons that said action is not brought in the name of the real party in interest and the plaintiff named does not have the legal capacity to sue and the Court has no jurisdiction of either the parties or the subject matter, said motion being made upon all of the pleadings, files and records of this Court, particularly including the deposition on file of the Secretary of the North Dakota Workmen's Compensation Bureau, affirmatively showing that the plaintiff has filed claim for the loss and injury described in the complaint with the North Dakota Workmen's Compensation Bureau and that said Bureau has made an award upon said claim and has been and is making payments to the plaintiff pursuant to said award and that under the law of the State of North Dakota applicable the said North Dakota Workmen's Compensation Bureau has thereby become entirely subrogated by operation of said law to all rights the plaintiff might otherwise have had against this defendant on account of said loss and injury."

The defendant's motions were granted, and from the ensuing judgment of dismissal these appeals were taken.

In the consideration of these cases, we must, of course, assume that the allegations of the complaints are true, and that the deaths and injuries for which recovery is sought were caused by the defendant's negligence and that it is liable therefor.

It is conceded that the plaintiffs were entitled to the benefits of the North Dakota Workmen's Compensation Act, Title 65, North Dakota Revised Code of 1943, and that, prior to July 1, 1949, each of them had claimed, and had received, compensation under the act. It is also conceded that prior to July 1, 1949, no action had been brought against the defendant to enforce its liability growing out of these deaths and injuries.

At the time of the fire and until July 1, 1949, the third-party liability provision of the North Dakota Workmen's Compensation Act, § 65-0109, North Dakota Revised Code, 1943 read as follows: "65-0109. Injury Through Negligence of Third Person: Option of Employee; Fund North Dakota Workmen's Compensation Fund Subrogated When Claim Filed. 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."

In 1949 the Legislature of North Dakota enacted Chapter 355, Laws of North Dakota 1949, effective July 1, 1949, reading as follows:

"Section 1. Amendment. Section 65-0109 of the North Dakota Revised Code of 1943 is hereby amended and re-enacted to read as follows:

"65-0109. Injury Through Negligence of Third Person; Option of Employee; Fund Subrogated When Claim Filed. 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 costs of the litigation shall be paid by the employee."

It therefore appears that prior to July 1, 1949, the common-law liability of a third party for the injury or death of a workman, if compensation had been claimed and awarded, could be enforced only by the North Dakota Workmen's Compensation Bureau "for the replenishment of the compensation fund, and for the benefit and assistance of the injured workman." Tandsetter v. Oscarson, 56 N.D. 392, 217 N.W. 660, 661, 662.

After July 1, 1949, by the terms of Chapter 355, Laws of North Dakota 1949, amending and reenacting § 65-0109 of the North Dakota Revised Code of 1943, the common-law liability of a third party for the injury or death of a workman, for which compensation had been claimed and paid, was no longer to be enforced by the Workmen's Compensation Bureau, but by the workman or his dependents in his or their own right and as trustee or trustees for the Bureau to the extent of the compensation paid by it to him or them.

The plaintiffs are of the opinion that the State Legislature, in amending § 65-0109, intended to accord to workmen or their dependents who on July 1, 1949, had, or thereafter would have, claims against third persons, the right to enforce the liability of such persons.

The defendant believes that Chapter 355, Laws of North Dakota 1949, must be construed to relate solely to causes of action for injuries and deaths which occurred after July 1, 1949, and that to give it the construction for which the plaintiffs contend, would violate § 1-0210 of the North Dakota Revised Code of 1943, which provides: "No part of this code is retroactive unless it is expressly declared to be so."

The parties have exhaustively briefed the questions whether the amendment of § 65-0109 affected substantial rights or was merely procedural, and whether, if procedural, it could, under North Dakota law, be held to apply to causes of action which had accrued prior to the effective date of the amendment.

The general rule is stated in 50 American Jurisprudence, § 482, pages 505-506, as follows: "A retrospective law, in a legal sense, is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes...