State for Benefit of Workmen's Compensation Fund v. E. W. Wylie Co., 7288

• Decision Date: 19 March 1953
• Docket Number: No. 7288,7288
• Parties: STATE for Benefit of WORKMEN'S COMPENSATION FUND et al. v. E. W. WYLIE CO.
• Court: North Dakota Supreme Court

Page 76

58 N.W.2d 76

79 N.D. 471

STATE for Benefit of WORKMEN'S COMPENSATION FUND et al. v. E. W. WYLIE CO.

No. 7288.

Supreme Court of North Dakota.

March 19, 1953.

Syllabus by the Court.

1. Where the intention of the legislature is so apparent from the face of the statute that there can be no question of its meaning, then there is no room for construction. Where, however, adherence to the strict letter of the law would result in seemingly contradictory provisions in the law, it devolves upon the court to ascertain the true meaning.

2. 'The cardinal rule of construction is, that where any doubt exists, the intent of the legislature, if it can be plainly perceived, ought to be pursued. It is also a rule that the whole law is to be taken together, and one part expounded by any other which may indicate the meaning annexed by the legislature itself to ambiguous phrases.' Chief Justice Marshall in Postmaster-General v. Early, 12 Wheat. 136, 6 L. Ed. 577.

3. Apparent conflicts in a statute must be harmonized, if possible, to give effect to the intention of the legislature.

4. When a statute is amended to delete a proviso therein and makes no other change, the balance of that section is left in the same status as before the amendment.

5. It is reasonable presumption that the legislature does not intend to repeal a statute without so declaring. Repeals by implication are not favored and the courts will not find such a repeal to have been effected if there are reasonable grounds to hold to the contrary.

6. The provisions of the Workmen's Compensation Act are to be construed liberally in favor of the workman.

7. The common-law right of an injured employee to sue for damages when injured is not to be taken away by statute unless by direct enactment, or necessary implication.

8. The relationship of employer and employee must exist in order to make the provisions of the Workmen's Compensation Act applicable.

9. Sec. 65-0428 NDRC 1943 is construed and held to apply only in case of an employer and his employee as provided in Sec. 65-0108 NDRC 1943, and it is further held that such section is not violative of Sec. 20 of the North Dakota constitution or Art. 14 of the United States constitution.

Sullivan, Kelsch & Scanlon, Mandan, for appellant.

J. K. Murray, Bismarck, Paul M. Sand, Asst. Atty. Gen., for respondents.

GRIMSON, Judge.

This is a suit for damages brought by the State of North Dakota for the benefit of the Workmen's Compensation Fund of North Dakota and Ellsworth La Duke against the E. W. Wylie Company, a foreign corporation, and Rolly Hull under Sec. 65-0109 of the Workmen's Compensation Act, as amended by Chap. 355, S.L.1949, 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 may claim compensation under this title and obtain damages from and proceed at law to recover damages against such other person. * * *'

The statute then provides that the recovery in such suit, if any, goes first to the workmen's compensation fund to reimburse this fund for the compensation paid and only the balance, if any, to the injured employee.

The plaintiff alleges in its complaint that the defendant E. W. Wylie Company is a foreign corporation doing a motor vehicle transportation business in this state; that the defendant Rolly Hull was an employee of the E. W. Wylie Company, driving one of its trucks westward along Highway No. 10 in North Dakota on March 26, 1949; that one Ellsworth La Duke was an employee of the Consolidated Freightways, Inc., driving one of its trucks eastward at said time and place; that because of the carelessness and negligence of said Rolly Hull a collision occurred between the two trucks, causing serious injuries to said Ellsworth La Duke on account of which he sustained damages in the sum of $2,999; that the Consolidated Freightways, Inc., and Ellsworth La Duke were subject to the workmen's compensation law; that said La Duke filed a claim under said law with the workmen's compensation bureau which made him a partial allowance for medical and hospital expenses in the sum of $208.87; that no allowance was made for his damages.

The defendant E. W. Wylie Company answers making general denial, admitting the collision, specifically denying negligence and setting up contributory negligence by Ellsworth La Duke. Before the case was called for trial the defendant served an amended answer adding to its original answer Paragraph 8, setting forth as a complete defense to the plaintiff's cause of action that the defendant, E. W. Wylie Company, had made application to come within the Workmen's Compensation Act, reported all of its employees as required, paid all premiums assessed and complied in every respect with the Workmen's Compensation Act of the State of North Dakota, and by reason thereof had brought itself within and under the provisions of the workmen's compensation laws and was lawfully entitled to all the protection afforded by the Workmen's Compensation Act of North Dakota at the time said Ellsworth La Duke was injured as alleged in the complaint. These facts defendant claims relieved him of liability for the injuries to Ellsworth La Duke, the employee of the Consolidated Freightways Inc., which was likewise insured under the Workmen's Compensation Act. No service was made on Rolly Hull.

At the commencement of the trial plaintiff moved to strike out Paragraph 8 from the amended answer on the grounds that it was immaterial and that the defendant, in spite of the allegations therein, was a third party under Sec. 65-0109, NDRC 1943, as amended by Chapter 355, S.L.1949, p. 505. The motion was granted. During the trial an offer of proof was made to prove the allegations of Paragraph 8 which was denied. The jury brought in a verdict in favor of the plaintiff in the sum of $2,065.65 which was in excess of the award made by the bureau to Ellsworth La Duke. Judgment was entered on the verdict. This appeal is from that judgment.

The defendant specifies as errors the granting of the plaintiff's motion to strike out Paragraph 8 of defendant's amended answer; the refusal to admit evidence to sustain the allegations of that paragraph; the overruling of the defendant's motion at the end of the trial for a directed verdict, and submitting the issues to the jury. No question is raised as to the amount of the verdict or the sufficiency of the evidence to sustain it. The only question here argued and now before the court is whether striking out the defense alleged in Paragraph 8 of defendant's amended answer was error. A decision on that is controlling on the other errors assigned.

The defendant, E. W. Wylie Company, contends that since it is an employer who has fully complied with the workmen's compensation law it is immune from liability to the plaintiff; that it has paid into the fund the amount assessed against it and that the contributions so made by it became a part of a common fund from which all awards made by the bureau are paid; that said fund is made up from premium rates computed upoin classification of employments. Sec. 65-0401, NDRC 1943; that both defendant and Consolidated Freightways, Inc., are engaged in the same line of business and included in the same classification; that both the corporations are protected by said act as against actions for damages by the employees of either of them; that the employees are entitled only to the compensation provided by the fund.

Plaintiff on the other hand contends that it is only in cases where the relationship of employer and employee exists between the injured employee and the employer that the latter is protected under the act. Otherwise stated, it is the contention of plaintiff that any employer other than the one employing the injured workmen, even though such employer complies fully with the terms of the act, is a third person within the purview of Sec. 65-0109, NDRC 1943, as amended.

The question for decision, is, therefore, whether or not the defendant, E. W. Wylie Company, is some other person than the fund who is liable to pay damages in an action at common law for the injuries occasioned by the negligence of its employees when the employer and the employee as well as the employer of the injured employee are all subject to and had fully complied with the Workmen's Compensation Act at the time such compensable injuries were sustained.

Two sections of our workmen's compensation law are involved in this controversy. The plaintiff contends that Sec. 65-0108, NDRC 1943, controls the situation in the case at bar. That section reads as follows:

'An employer securing the payment of compensation to his employees by contributing premiums to the fund shall be relieved thereby of all liability for personal injuries or death sustained by his employee, and the persons entitled to compensation under the provisions of this title shall have recourse therefor only to the fund and not to the employer.'

The defendant in support of his contention cites Sec. 65-0428, as amended by Chap. 354 S.L.1949, which reads as follows:

'Employers who comply with the provisions of this chapter shall not be liable to respond in damages at common law or by statute for injury to or death of any employee, wherever occurring, during the period covered by the premiums paid into the fund.'

The defendant contends that Sec. 65-0428 as now amended is plain and unambiguous and, therefore, is not subject to construction by the courts. He points out that the statute employs ordinary, plain language when it says that the employer shall not be liable for damages 'for injuries to or death of any employee wherever occurring during the period covered by the premiums paid into the fund.'

It will be noted that there is in that language no...