Nadeau v. Caribou Water, Light & Power Co. , 118 Me. 325 ( 1919 )

Morrjll, J.

I concur in overruling the motion for a new trial. The verdict was fully justified by the evidence as disclosed by the entire record; and no evidence offered in defense was excluded.

I also concur in overruling the exceptions, but not for the reasons stated in the opinion.

As the case was presented upon the pleadings, I think that the rulings of the presiding Justice were correct. The declaration sets forth a cause of action at common law and contains all the allegations necessary to sustain such action. The defendant pleaded the general issue without a brief statement. The record shows that the evidence which the defendant contended by his second requested instruction, and now contends, should have been offered by the plaintiff, was twice offered-by the plaintiff (pages 26 and 73 of the record), and was excluded upon objections by defendant’s counsel. The application of the “The Workmens’ Compensation Act,” as enacted in this State, to this action, was thus twice distinctly raised by the interrogatories of plaintiff’s counsel, the objections of defendant’s counsel, and the rulings of the presiding Justice.

That Act did not create any new cause or form of action; it did not give an injured employee a new remedy in the courts of the State; but it did give a new and wider remedy for securing compensation for industrial injuries; by a procedure in which negligence has no place and which is designed to charge compensation for injuries received by-employees in industry upon the industry itself. That procedure is entirely outside the common law courts, and is only reviewable in equity to a limited extent. R. S., Chap. 50, Sec. 34.

Nor did the Act abolish any existing forms of action. An existing common law right of action is not to be deemed abolished except by express enactment or necessary implication, C. & O. Canal Corp. v. Hitchings, 59 Maine, 206; King v. Viscoloid, Co., 219 Mass., 420. If the plaintiff so elects, an action to recover damages for injuries received in the course of employment may still be brought at common law, or und'er the provisions of R. S., Chap. 92, Sec. 9, or under "The Employer’s Liability Law,” R. S., Chap. 50, Secs. 49-57; but whether an employee, or the representative of a deceased employee, electing to bring such action, can recover therein depends upon other eon-sidera/tions.

Sec. 2 of Chap. 50 provides: “In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for death, resulting from personal injury so sustained, it shall not be a defense (a) that the employee was negligent; (b) that the injury was caused by the negligence of a fellow servant; (c) that the employee had assumed the risk of the injury.”

This section is complete in itself and general in its terms; applies to all actions to recover damages for personal injuries sustained by an employee in the course of his employment, ot for death, resulting from personal injury so sustained; it absolutely denies to a defendant three important grounds of defense, and to that extent imposes a burden upon the employer, with the manifest object of inducing that employer to become an assenting employer under Section 6, and thus under the provision of Section 5, obtain exemption from, suits at law.

But the employer may not be subject to the burden so imposed; (a) the plaintiff may not be an employee within the terms of the act; (b) the defendant may be an assenting employer, within the terms of the' act, in which case the majority opinion holds, and I think correctly, that he must plead and prove the necessary facts to gain immunity from the action at law; and I apprehend that he must also plead and prove that he is an assenting employer in order to avail himself of the defenses stated in Section 2, in an action at law by an employee who has given notice under Section 7, claiming his right of action at law; .(c) he may be a ‘Wall employer” (as denominated in the opinion) under Section 3. Upon this section the defendant apparently relies; in that case. I think that it was incumbent on him to plead and prove that he employed five or less workmen or operatives regularly in the same business, if he would avail himself of any defense specified in Section 2. The facts as to the number of employees are always within the knowledgé of the employer.

If the declaration shows that the plaintiff’s occupation at the time of the injury was an occupation within the terms of the Act, and the defendant pleads neither that he is an assenting employer under Sections firie and six, nor a “small employer” under Section'3, he must be held by the express terms of Section 2, to be precluded from the defenses therein specified.

I do not find any language in the Act, which expressly Or by necess-sary implication put's upon an injured employee, or the representative of a deceased injured employee, the burden of alleging and proving that the number of employees in the employer’s service exceeds five in order that the defendant may be precluded from the defenses named in Section 2. I think that such was not the intention of the Act; that intention was not to impose new burdens upon the injured employee, but to give him a wider remedy. “It was undoubtedly the intention of the Legislature by that statute to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and -arising therefrom, and to substitute for such remedies the wider right of compensation given by the Act. But we find in the Act nothing which goes further than this for the protection of the employer.” King v. Viscoloid Co., supra. Nor do I find anything further in the Maine Act, except the provision in Section 7 as to any right of action by others than the minor for injuries to a minor “working at an age illegally permitted” under the laws of the State. The excepting language in Section 5 is the same as in Section 3 — -“The provisions of section two shall not apply”— and the same language is used in Section 4 of the new act. Public Laws, 1919, Chap. 238. In my view the same rules of pleading and evidence should apply under Section 3 as under Section 5.

As I read it, the act (Section 3) does not divide non-assenting employers alone into two classes; it does divide all employers into two classes, denominated in the opinion “small employers” and “large employers”; to the former, Section 2 does not apply; they need not become assenting employers to avail themselves of the defenses there specified; the latter must become assenting employers if they would have the benefits of Section 5. A Texas case is cited; but the right of action against non-subscribing employers is expressly given by the Texas statute and the provisions restricting defenses are by the same section. expressly made applicable thereto; the court might well hold that the plaintiff bringing an action under that section and desiring the benefit of those restrictions, should allege the necessary facts tojoring himself within the statute. In this State the rights of action of an injured employee, or of the representatives of a deceased injured employee, existed before the statute and are not abolished by it; the defenses thereto are restricted. In my opinion the distinction is material and the Texas case is not applicable here; if in fact it is not opposed in principle to the cases from Maryland and Kansas, cited in the opinion.

In the instant case the declaration shows that the plaintiff’s occupation at the time of the injury was an occupation within the terms of the Act. The case is entirely barren of any allegations or facts which render Section 2 inapplicable. Therefore the only issue was -the negligence of the defendant. Dooley v. Sullivan, 218 Mass., 597; Pope v. Heywood Bros. & Wakefield Co., 221 Mass., 143.