Shea v. North-Butte Mining Co.
| Decision Date | 08 March 1919 |
| Docket Number | 4348. |
| Citation | 179 P. 499,55 Mont. 522 |
| Parties | SHEA v. NORTH-BUTTE MINING CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Action by Murty Shea against the North-Butte Mining Company and Norman Braly. Judgment dismissing action, and plaintiff appeals. Affirmed.
H. H Parsons, of Missoula, E. K. Cheadle, of Lewistown, W. D Rankin, of Helena, and B. K. Wheeler and Maury & Melzner, all of Butte, for appellant.
L. O Evans, of Butte, W. B. Rodgers, of Anaconda, and D. M. Kelly, of Butte, for respondents.
The defendant North-Butte Mining Company is a corporation organized under the laws of the state of Minnesota, and is the owner of mining claims which it is engaged in operating in Silver Bow county. When the cause of action upon which recovery is sought herein arose, the defendant Norman Braly was its superintendent. This action was brought to recover damages for a personal injury alleged to have been suffered by the plaintiff through the negligence of the defendants during the course of his employment as a miner. The complaint is in the ordinary form, and alleges facts sufficient to sustain a recovery, unless a recovery is precluded by the provisions of the act passed by the Fourteenth Legislative Assembly commonly known as the Workmen's Compensation Law (chapter 96, Laws 1915). Denying all the allegations of the complaint charging them with negligence, the defendants alleged as a complete affirmative defense that at the time the plaintiff was injured the defendant North-Butte Mining Company had elected to become bound by Plan No. 1 of the Workmen's Compensation Law, and had performed all the conditions prescribed by the act to render such election effective; that the plaintiff had also, pursuant to the terms of the act, elected to be bound thereby; and that, both plaintiff and defendant North-Butte Mining Company having made their election, the liability of the defendants to compensate the plaintiff for any injury suffered during the course of his employment through any negligent act or omission by them was such only as in that act provided. To this affirmative defense the plaintiff interposed a general demurrer, which was overruled. Thereupon, the plaintiff refusing to join issue by reply, upon application of defendants his default was entered and judgment rendered and entered against him dismissing the action, with costs. From this judgment he has appealed.
Plaintiff does not question the sufficiency of the answer to constitute a defense, provided the Workmen's Compensation Law is valid. Quoting from the brief of counsel: "The only question involved in this case is the constitutionality of the Workmen's Compensation Act."
The causes, from an historical point of view, impelling the enactment of Workmen's Compensation Laws, and the object to be served by them, have heretofore been stated somewhat at length by this court. 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. It is not necessary to restate them. It is sufficient for present purposes to call to mind that the object sought was to substitute for the imperfect and economically wasteful common-law system by private action by the injured employé for damages for negligent fault on the part of the employer, which, while attended with great delay and waste, compensated those employés only who were able to establish the proximate connection between the fault and the injury, a system by which every employé in a hazardous industry might receive compensation for any injury suffered by him arising out of and during the course of the employment, whether the employer should be at fault or not, except only when the injury should be caused by the willful act of the employé. In other words, the theory of such legislation is that loss occasioned by reason of injury to the employé shall not be borne by the employé alone, as it was under the common-law system, but directly by the industry itself, and indirectly by the public, just as is the deterioration of the buildings, machinery, and other appliances necessary to enable the employer to carry on the particular industry.
To every thinking person the object sought commends itself not only as wise from an economic point of view, but also as eminently just and humane. Such legislation, in whatever form it may provide compensation, has been formulated after the most patient study and investigation by our most eminent men in professional and industrial walks of life, in order to avoid such obstructions or limitations as might be encountered under our written constitutions. A persistent enlightened public opinion has brought about the enactment of such laws in a great number of the states of the Union. Some of them are elective, while others are compulsory; and though the validity of many, perhaps all, of them has been challenged on almost every possible constitutional ground, they have generally been upheld. Our own statute is elective. While it has been criticised on the ground that the schedule of rates of compensation provided for by it are not sufficiently liberal, and also on the ground that it makes an unwise and unjust discrimination against the dependents of aliens, yet that it operates more justly and more satisfactorily than the old system is demonstrated by the fact that as soon as it became operative, on July 1, 1915, the great body of employers as well as of employés in the various industries in the state accepted its provisions, and have since been subject to them, as administered by the Industrial Accident Board created by the act for that purpose.
Under these circumstances, the rule that an act of the Legislature will not be declared invalid because it is repugnant to some provision of the Constitution, unless its invalidity is made to appear beyond a reasonable doubt, applies with peculiar force.
It is said that the act is repugnant to section 6 of article 3 of the Constitution, which declares that "courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character; and that right and justice shall be administered without sale, denial, or delay." The respect wherein the act is repugnant to this provision is not specifically pointed out, but we gather from the brief of counsel that their objection is that, though the act is elective, it in effect closes access to the courts by the injured employé and compels him to seek relief, if he can obtain any at all, through the Industrial Accident Board. In other words, since the section declares in express terms that there shall be a judicial remedy for every wrong suffered by one person at the hands of another, it is beyond the power of the Legislature to provide any other remedy, though such other remedy is entirely optional.
The act is very long, and we shall not undertake to quote it. It will be sufficient to state the substance of the provisions which are made the points of attack by counsel. The modes provided by which the election must be made by both the employer and employé are prescribed in sections 3(f), 3(g), 3(h), 3(i) and 3(j). The employer is required to file with the Industrial Accident Board his election in such form as the board shall prescribe. It must state which of the three plans provided for he elects to be bound by, and a notice of it must be posted in a conspicuous place in his place of business, and also a copy of the notice filed with the board, accompanied by an affidavit showing that it has been posted as required. After the employer has made his election by complying with these requirements, every workman then employed by him, or thereafter entering his employment, is conclusively presumed to be bound by the act, unless he elects not to be bound by it. He shall make such election by written notice in the form prescribed by the board, served upon the employer, a copy of which must be filed with the board, together with proof of its service. If the employer fails to elect to come under the act, an ordinary action may be maintained against him for damages for an injury suffered by the employé in the course of his employment, or for death resulting from such injury, but the employer may not allege as a defense that the plaintiff was guilty of contributory negligence, or that the injury was caused by the negligence of a fellow servant, or that the employé had assumed the risk incident to the employment, or arising out of the failure of the employer to perform any of his common-law duties. On the other hand, if the employé elects not to be bound after the employer has elected to be bound, all the common-law defenses are available to the employer. It is declared to be the intention of the act that the employer shall elect to be bound before he becomes subject to it, and that the employé shall be presumed to have elected to be subject to it and under the plan stated by the employer, unless he shall affirmatively elect not to be bound by it. The employé may revoke his election at any time. The employer may make his election at any time. In case he does so, he becomes subject to the act for the remainder of the fiscal year. After having once made his election, he is bound for the rest of the fiscal year under the plan first elected, and also for the succeeding years, unless within not less than 30 nor more than 60 days before the end of the fiscal year he elects not to be bound by it, or unless within the same time he elects to be bound by some one of the other plans. Such election must be made in the same manner as the original election. It is further declared that when both the employer and employé have...
To continue reading
Request your trial