Reynolds v. E. Clemens Horst Co. , 35 Cal. App. 711 ( 1917 )

We have given careful attention to the forcible and instructive petition for rehearing filed herein by appellant. The position urged with the strongest reason relates to the effect of the so-called saving clause in the said Workmen's Compensation Act of 1913. It may be admitted that the language was not very happily chosen to express the intention of the legislature that the law in force at the time should apply to an accident occurring prior to January 1, 1914, but that such was the intention of the legislature we feel reasonably satisfied. Otherwise, said section 91 of the act of 1913 could have no purposeful and effective operation.

If we adopt the reasoning of appellant we must hold that there is no statutory law in force in this state whereby respondent may secure any remedy for the wrong that she suffered. The said act of 1913 was intended to present and embody a complete scheme for the enforcement of a cause of action like that before us, and it is apparent that all prior legislation on the subject is inconsistent with the provisions of said act. But this statute manifestly can be of no value or benefit to respondent, since by express provision the vital part of the act can have no application to any negligence occurring prior to January 1, 1914.

We do not think the legislature intended that there should be no statutory provision whereby persons in the class of the plaintiff might secure redress for their injuries, but that a fair and just construction of said saving clause leads to the conclusion that respondent's case was to be controlled by the law as it existed when she was injured.

We also think it should be held that plaintiff's right of action was a vested right which could not be taken away by the repeal of said Roseberry Act. At the time the accident happened she was at work under the operation of a law which provided that if injured by the negligence of her employer, she was entitled to damages for the same although she might be guilty of slight negligence herself. In other words, the law provided that a, certain class of persons was entitled to be compensated by the employer for personal injuries suffered by the former. Plaintiff showed that she belonged to that class and, therefore, had a vested right to such compensation. The subject was carefully considered by this court in the case ofJames v. Oakland Traction Co., 10 Cal.App. 785, [103 P. 1082], in which a petition for hearing by the supreme court was denied. Therein it was held, in an opinion written by Justice Hart, that "Where section 501 of the Civil Code, as it stood at the time of the injury, regulated the speed of the car so as not to exceed eight miles per hour, such section as it then stood entered into and became part of the contract between the carrier and passengers, which conferred a vested right to recover for breach of such contract, and the subsequent repeal thereof in 1903 cannot operate retroactively to destroy or affect such vested right." We think the same principle is applicable here. The conditions prescribed in the said Roseberry Act constituted a part of plaintiff's contract with defendant, and the question is not, therefore, one of abrogating or changing a statutory remedy, but the construction upon which appellant insists involves an interference with and the destruction of a vested right of an employee sustaining a certain relation to the employer.

The cases cited by appellant — at least, most of them — can be reconciled with our position herein, as they involve a purely statutory right, whereas we are dealing with an obligation based upon the common law which is made definite and enforceable by the provisions of the statute.

We may repeat that if plaintiff's right to recover for damages was derived wholly from the statute the legislature, no doubt, while said right was inchoate and not reduced to possession or perfected by final judgment, might repeal the statute and destroy the remedy, but a different rule seems to apply where, as herein, the right is really derived from the common law.

We think the said Roseberry Act and section 1970 of the Civil Code were applicable to the case of the plaintiff, and on the other points we adhere to the views heretofore expressed. The petition for rehearing is denied.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 25, 1918.