Slater v. The Atchison
Decision Date | 10 January 1914 |
Docket Number | 18,500 |
Citation | 91 Kan. 226,137 P. 943 |
Court | Kansas Supreme Court |
Parties | JOHN H. SLATER, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al. (ALBERT C. BATTELLE, Appellant) |
Decided January, 1914
Appeal from Franklin district court. CHARLES A. SMART, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. FACTORY ACT--Partly Penal--Partly Remedial--Statute of Limitations. The factory act (Laws 1903, ch 356, Gen. Stat 1909, §§ 4676-4683) is not a purely penal statute; on the contrary it is in part penal and in part remedial. While the public derives a benefit from the enforcement of the law, the immediate purpose of the statute, so far as it allows the injured party to recover, is to accord compensation, and this part of the statute is purely compensatory. Therefore an action in favor of a person injured by a violation of its provisions is not an action for a "penalty or forfeiture," but is an action "for injury to the rights of another not arising on contract," and is controlled by the two-year statute of limitations. (A. T. & S. F. Rld. Co. v. King, 31 Kan. 708, 3 P. 565.)
2. SAME--Unguarded Revolving Knives--Negligence--Personal Injuries. Where the evidence tended to show that the plaintiff's injuries were directly caused by the failure of the defendant to furnish a guard for the revolving knives of a planer, in compliance with the provisions of section 4 of the factory act (Gen. Stat. 1909, § 4679), and it was shown that the machine was designed and intended to be provided with a device known as a "shavings exhaust," consisting in part of an iron hood placed directly over the knives, and that this device was not on the machine when the plaintiff was injured but was installed shortly afterwards. Held that the purpose for which the device was designed and used was immaterial, since it conclusively appeared that when in place it served as a guard, and that if it had been in place it would have covered the knives so that the accident could not have occurred.
3. SAME--Practicable to Guard the Knives. Upon the facts stated in the opinion, it is held that there was sufficient evidence to show that it was practicable to guard the knives in the manner suggested in the preceding paragraph as well as by other methods and appliances.
4. CONTRIBUTORY NEGLIGENCE--No Defense Under Factory Act. Since contributory negligence is not a defense under the factory act (Caspar v. Lewin, 82 Kan. 604, 109 P. 657), it is held that the trial court properly refused to submit to the jury the question whether the plaintiff was negligent.
J. C. Rosenberger, K. C. Reed, both of Kansas City, Mo., and J. W. Deford, of Ottawa, for the appellant.
W. J. Costigan, of Ottawa, and Guthrie, Gamble & Street, of Kansas City, Mo., for the appellee.
In this action the servant recovered judgment for injuries caused by the failure of the master to comply with the provisions of the factory act requiring the guarding of dangerous machinery.
The main question raised by the defendant's appeal is whether the action is barred by the one year's statute of limitations, which provides that "an action upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a different limitation," shall be barred within one year. The answer depends upon whether the cause of action provided for by the factory act is one for the recovery of a penalty or forfeiture; in other words, whether the act itself is penal.
The defendant calls attention to the case of Caspar v. Lewin, 82 Kan. 604, 109 P. 657, where it was held that neither contributory negligence nor assumed risk are defenses available to the master in an action to recover under the statute. Our attention is challenged particularly to certain expressions in the opinion in that case where it was said that the act is a "police regulation adopted to reform the inhumanity of factory methods"; that the legislature, instead of attempting to enforce the act by means of a criminal prosecution, saw fit to provide "a civil remedy in damages," and that the statute was adopted "as a means of enforcing a positive duty enjoined by law in the interest of public welfare." Because of these statements in the opinion, and particularly because we there construed the act so as to permit an employee to recover for injuries sustained by a violation of its provisions, even though he himself was negligent, it is contended that the court has committed itself to the proposition that the act is penal in its nature. Counsel strenuously insist that the statements referred to were made in the opinion in Caspar v. Lewin as grounds for upholding the constitutionality of the act; and it is intimated that, having so ruled in order to save the act from the charge of unconstitutionality, we can not now, "without bending the law to suit the exigencies of each particular case," do otherwise than declare the act to be penal.
In the briefs it is said:
"Counsel for appellee are asking this court to put itself in the abominable position of saying that this statute is a penalty to save it from unconstitutionality as it did say in Caspar v. Lewin, while at the same time saying in the case at bar that it is not a penalty in order to save this case from the bar of the Statute of Limitations."
It may be remarked, in passing, that some of the arguments advanced in this case, like the arguments leveled against the power of the state to enact the factory law at all, would have carried far more persuasive force thirty or forty years ago than in this year of Grace; not because there has been any change in the principles of law which control in the construction of statutes, nor because the police power of the state has been enlarged. The state has always possessed the power to enact such a law. (Balch v. Glenn, 85 Kan. 735, 119 P. 67.)
The police power inherent in all government was just as broad forty years ago as it is to-day, but laws of this character were absent from the statute books because at that time public sentiment had not crystallized into a demand for their enactment. For instance it is altogether probable that if congress had attempted forty years ago to enact the stringent provisions of the safety-appliance law requiring interstate railways to equip their trains with safety devices for the protection of the lives and limbs of their employees, the law would have been declared unconstitutional. Yet only the other day the law was again upheld and at the same time construed as intended by congress to permit an employee who was injured by a failure to comply with its provisions the right to recover damages regardless of the ancient doctrine of "assumed risk," and notwithstanding his injuries were occasioned by his "contributory negligence." ( St. Louis & Iron Mountain Ry. v. Taylor, 210 U.S. 281, 52 L.Ed. 1061, 28 S.Ct. 616; and, see, Brinkmeier v. Railway Co., 81 Kan. 101, 105 P. 221.)
Society has made rapid progress in recent years in the development of humanitarian ideas and in a broader realization of the power of the state and the obligations resting upon it to enact laws to prevent the frightful toll of death and disability in hazardous occupations and in the use of dangerous machinery. Legislation has followed with somewhat halting steps, and the courts have quite generally responded to the awakened public conscience, albeit their progress has naturally been slower than that of legislatures.
We find no difficulty in determining that the statute is so far remedial in its character, notwithstanding some of its provisions, that the cause of action is not for the recovery of a penalty or forfeiture. And this we shall undertake to demonstrate, confident that it can be accomplished without embarrassment to the court, and, we trust, without bending the law to suit any supposed exigencies of this or any particular case.
It may be conceded that there is a conflict of authority in the various states as to whether such statutes should be regarded as penal, but it is not believed there is any conflict in the decisions of this court. Actions to recover on statutes which allow double or treble damages, as for cutting or carrying away timber (Gen. Stat. 1909, § 9692), are held to be controlled by the one-year statute. In Sullivan v. Davis, 29 Kan. 28, it was said:
"Where more than actual compensation is asked, it is by virtue of some express statute, and the excess is by such statute given in the way of penalty." (p. 34.)
Actions brought under the statutes for failure to comply with a proper demand for the release of mortgages are barred by the one-year limitation, because the plaintiff in such a case is permitted to recover the sum of $ 100 and attorneys' fees without regard to whether he has been damaged at all. The right to recovery under such statutes has been held penal and not in any sense compensatory. (Hall v. Hurd, 40 Kan. 374, 19 P. 802; Joyce v. Means, 41 Kan. 234, 20 P. 853; Wey v. Schofield, 53 Kan 248, 36 P. 333); and so the statute providing for amercing a sheriff for failure to execute process (Civ. Code, § 743) has been held penal and not compensatory, for the reason that the delinquent official may be amerced in a sum not exceeding $ 1000, in addition to being liable for any injuries sustained by the aggrieved person. See, also, Beadle v. K. C. Ft. S. & M. Rld. Co., 48 Kan. 379, 29 P. 696, where judgment against the plaintiff on a demurrer to his petition was affirmed on the ground that his action was barred by the one-year statute, the action being to recover a forfeiture of three times the actual damages sustained. It was a penalty allowed against a railroad for charging one person more than it charged others for the...
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