Buhler v. Maddison , 109 Utah 245 ( 1946 )

I concur. Since my reasons for concurring vary somewhat in several places from those set forth in the court's opinion, I shall set forth sufficient of my views to note the variances. Sometimes by adhering too close to labels we create difficulties for ourselves. Substantive law as defined by Bouvier's Law Dictionary, Baldwin's Century Edition, consists of

"those rules which give recognition to rights and duties, which rules are the very foundation and substance of the law."

Adjective law according to the same authority consists of

"those rules which provide remedies for infringement of rights and failure to perform duties. Those rules of procedure by which substantive law is given concrete application to persons and events. They emanate from both legislatures and courts."

These definitions correspond to the jurisprudential concepts of those rights designated as primary, such as one's right to be free from the invasion of his person, and the right designated as secondary which is the right to have redress for a violation of such primary right.

I am inclined to the view that no new cause of action was created in favor of an employee whose employer rejected the act but rather that the employee was relegated to his common law action with certain defenses taken from the defendant and a presumption of negligence created in favor of the plaintiff. Hence no new right was created, but in taking away certain defenses and supplying plaintiff with a presumption not based on logical or natural inference which remains in the case to go to the jury along with rebuttal testimony in place of proof required, a right substantive in nature was created. This right may be looked upon as more than remedial, that is as an enlargement of the previously given primary right by the taking away of certain defenses and the furnishing of a presumption to aid recovery which would seem to be substantive in nature. Another way of looking at the situation is that proof supplied by statute is substantive in nature in that within the framework of the basic right given, an additional right is given to have the defendant presumed negligent at least to the extent to which negligence is alleged. At least I think we can well say that the sort of presumption granted by the Nevada statute is not such as calls for the application of the law laid down in this state in the case of certain presumptions, to wit: that they go out of the case where any evidence tending to rebut them is introduced into the case. The Nevada statute itself appears to require that the presumption created by it remains in the case as proof to go to the jury with the rebuttal testimony. This seems to me in nature substantive, perhaps for the reasons specified in the opinion i.e., that it is so closely interwoven with the basic right to recover for negligence as to make it an inseparable part of that right.

I think one of the reasons, if not the sole reason, for dispensing with the doctrine of contributory negligence and for presuming negligence on the part of the employer in the case of an employer who rejects the act was to persuade and even coerce the employer to accept the act. While the failure to accept the act is not made punitive as is the failure to procure insurance under our act, it is highly coercive.

In this case it is unnecessary to determine whether the presumption of negligence is confined to that alleged in the complaint, or if it applies to any negligence which may reasonably have caused the injury, because in this case I cannot think of any negligence of the employer which could have caused the damage except that alleged. Certainly if a plaintiff can simply allege negligence in general or specifically as to some particular negligence and yet get the benefit of the presumption as to any additional or different negligence which may support a verdict, I see most serious difficulties in making up and presenting issues to the jury. The language in the cases ofReeder v. Pincolini, 59 Nev. 396, 94 P.2d 1097, and Cahow v. Michelas, Nev., 149 P.2d 233, seems to lean toward the proposition that the presumption furnished the plaintiff employee by the Nevada statute is a presumption that the defendant was guilty of any negligence which would support a verdict for the plaintiff regardless of whether alleged. I have a serious doubt that the Nevada statute meant to inject into a complaint which only assigned negligence generally any negligence which might reasonably be conceived as giving support to a verdict for the plaintiff. If such be the holding it would seem that the jury might arrive at a verdict on some possible presumed negligence which was never, because of the presumption, specifically brought to its notice and in regard to which the employer might not have produced rebuttal testimony. It would require the court to speculate as to all possible negligences which could support a verdict which were by the presumption, thus broadly construed, injected into the case and then try to determine whether there was rebuttal evidence to go to the jury on all such negligences. If there were not rebuttal evidence on all such conceivable negligences it would seem that a verdict for the plaintiff would have to be directed on the presumed negligence not rebutted. The court would be at a loss as to what issues it was trying. I am of the present opinion that the presumption is one which takes the place of proof but does not dispense with the necessity of allegations of the negligence charged. And as to this matter I think it probable that we would be guided by the law of this jurisdiction rather than by the decisions of the Nevada court for the manner in which an issue is to be pleaded and presented would seem definitely to be a matter of practice and procedure.

In concurring in the opinion of Mr. Chief Justice LARSON I assume that questions as to whether the Nevada act meets the tests of the Federal Constitution are not foreclosed by the opinion. Such questions have not been raised so no ruling is called for in that regard.