Virden v. Smith

• Decision Date: 06 November 1922
• Docket Number: 2555.
• Citation: 210 P. 129,46 Nev. 208
• Parties: VIRDEN v. SMITH ET AL.
• Court: Nevada Supreme Court

210 P. 129

46 Nev. 208

VIRDEN v. SMITH ET AL.

No. 2555.

Supreme Court of Nevada

November 6, 1922

Appeal from District Court, Washoe County; A. Bartlett, Judge.

Upon denial of E. D. Virden's application to the Nevada Industrial Commission for additional allowance for disability, he brought action against the Commission. From a judgment in his favor, the Commission appeals. Judgment reversed.

L. B Fowler, Atty. Gen., and Robert Richards, Deputy Atty. Gen for appellant.

Mack & Green, Charles H. Burritt, and Edward C. Short, all of Reno for respondent.

DUCKER J.

On the 20th day of July, 1918, the respondent, whose employers had accepted the provisions of an act of the Legislature of this state known as the Workmen's Compensation Act (St. 1911 c. 111), sustained injuries in the course of his employment, which resulted in a permanent and complete paralysis of both legs, from the hips downwards. On that date respondent's employers notified the Nevada Industrial Commission of the accident and resulting injuries, which made an award to respondent of $50 per month, pursuant to the rate then fixed by said act for such cases. The provision under which the rate was fixed read as follows:

"Permanent total disability: In cases of total disability adjudged to be permanent, compensation of fifty per cent. (50%) of the average monthly wage, but not less than twenty dollars ($20) per month nor more than fifty dollars ($50) per month during the life of the injured person." Stats. 1917, p. 443.

This compensation has ever since been paid. On March 22, 1921, the act was amended so that this provision reads as follows:

"Permanent total disability: In cases of total disability adjudged to be permanent, compensation of sixty (60%) per cent. of the average monthly wage, but not less than thirty ($30) dollars per month nor more than sixty ($60) dollars per month during the life of the injured person: Provided, in cases of permanent total disability, if the character of the injury is such as to render the workman so physically helpless as to require the services of a constant attendant, an additional allowance of thirty ($30) dollars per month may be made so long as such requirements shall continue, but such increase shall not obtain or be operative while the workman is receiving hospital care under or pursuant to the provisions of section 23 of this act." Stats. 1921, p. 239.

On or about the 9th day of July, 1921, the respondent applied to the Nevada Industrial Commission for the allowance of an additional $30 per month pursuant to the nurse allowance provision of the amendment. The application was denied by the commission. An action was instituted by the respondent against the commission in the district court which resulted in a judgment in favor of the former--that he recover from the latter the sum of $30 per month from and after the 28th day of March, 1921, and for so long as his condition required for him the attendance and services of a practical nurse. Hence this appeal by the officers constituting the commission.

There is no controversy as to the facts, but merely as to the application of the amendment and its validity, if intended by the Legislature to act retroactively. Appellants contend that it is prospective in its operation, and, further, that if it is retroactive in its operation, it impairs the obligation of a vested agreement entered into as an award pursuant to statute, and therefore violates constitutional inhibitions. Although the Workmen's Compensation Act is in derogation of the common law, it is remedial legislation, and should be liberally construed to effectuate its purpose. This class of legislation, however, constitutes no exception to the general rule. It is deemed prospective and not retroactive in its operation. The rule of construction in this regard is of strict application. Milliken v. Sloat, 1 Nev. 573. It was recently applied by this court in Wildes v. State, 43 Nev. 388, 187 P. 1002:

"There is always a presumption," said the court in that opinion, quoting approvingly from United States v. Heth, 3 Cranch, 399, "that statutes are intended to operate prospectively only, and words ought not to have a retroactive operation unless they are so clear, strong, and imperative that no other meaning can be annexed to

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