Robinson v. Union Pacific R. Co.

Cases from the state of Washington (Zenor v. Spokane I.E.R.R. Co. 109 Wash. 186 P. 849) and from Montana (Bruce v.McAdoo, 65 Mont. 275, 211 P. 772, and Northern Pacific R.R.Co. v. Meese, 239 U.S. 619, 36 S. Ct. 223, 60 L. Ed. 467), wherein the statutes of such states are construed, are cited to support the contention that sections 3132 and 3133 of our statute referred to in the main opinion require the same construction. I think the statutes of such states are much broader than is our statute. The Montana statute (Rev. Codes 1921, § 2838) provided that:

"Except as specifically provided in this act, all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and common-law rights and remedies for and on account of such death of, or personal injury to, any such employee are hereby abolished."

Because of such and other similar language of the act the Supreme Court of Montana, in Bruce v. McAdoo, supra, held that the remedy as provided by the act in case of an employee coming under its provisions for personal injury or death was exclusive. Such conclusion was reached because of express language of the statute abolishing all other causes of action whether statutory or common-law. The Washington statute (Laws 1911, p. 345, §§ 1 and 5) contained a schedule of awards and provided that each workman injured in the course of his employment should receive certain compensation, and that "such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever," and that "all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished." In considering the statute the Supreme Court of Washington, in Peet v. Mills, 76 Wash. 437, 136 P. 685, L.R.A. 1916A, 358, Ann. Cas. 1915D, 154, held that the compensation provided by the act in case of injury to a workman in the course of his employment was exclusive of every other remedy, either as against the employer or as "against any person whomsoever," and "that all causes of action theretofore existing except as they are saved by the provisos of the act are done away with." Such conclusion was reached also because of express language of the statute to that effect. When the Supreme Court of the United States, in Northern Pac. R.R. Co. v. Meese, supra, dealt with the same statute, it but followed the usual and well-settled doctrine that "federal courts must accept the construction of a state statute deliberately adopted by the highest court of that state," and that "the highest court of the state having held, in construing the Washington Workmen's Compensation Act of 1911, that the compensation thereby provided in the cases covered by its terms was intended to be exclusive of every other remedy and that all causes of action theretofore existing and not saved by its provisos were done away with, the federal court should accept that construction." Thus, what was said in Northern Pac. R.R.Co. v. Meese, supra, was merely saying and adopting what was said and decided in Peet v. Mills.

The question thus is, Is our statute as broad and comprehensive as is the Washington or Montana statute? I think not. That, I think, is evident by comparing our statute with that of either of such statues. Our satute (section 3132), heretofore referred to, provides that "the right to recover compensation pursuant to the provisions of this title for injuries sustained by an employee, whether resulting in death or otherwise, shall be the exclusive remedy against the employer," except where the injury is caused by the employer's willful misconduct, etc. It is clear that such language is not as broad or as comprehensive as that contained in either the Montana or the Washington statute. In such respect our statute says that the right to recover compensation pursuant to the provisions of the title "shall be the exclusive remedy against the employer," while the Washington statute says that it shall be exclusive as to all persons, and that payment made thereunder "shall be in lieu of any and all rights of action whatsoever against any person whomsoever," not only as against the employer as section 3132 provides, but as "against any person whomsoever."

We then look to section 3133. It may be conceded the meaning of that section is somewhat obscure. Yet it is quite clear it is not open to the same construction given or required to be given the Washington or the Montana statute, for neither the language of our statute nor the effect of it is the same as in either of the other statutes. Section 3133 merely deals with the same subject but under a different condition dealt with in section 3132 — the right to recover compensation against the employer. The provision in section 3133, that if the employee be injured or killed, under the condition therein stated, he or his dependents "shall be entitled to compensation and to no other remedy" (unless the employer be subject to the provisions of sections 3129 and 3130), refers to compensation as against the employer. To give it any other meaning renders the phrase, "unless the employer be subject to the provisions of sections 3129 and 3130," meaningless. The exclusiveness of the remedy of necessity refers to the remedy as against the employer, for it is his liability with respect to which the sections and the whole of the act relate, and not to the liability or nonliability of any one else. The further provision contained in section 3133, that "no employee or the dependents in case of death shall be granted compensation in such case unless such employee, or his dependents, as the case may be, shall assign any cause of action existing against the person responsible for or causing the injury or death" to the insurance carrier or other person or association liable for the payment of such compensation, but means that unless such an agreement is made neither the employee nor his dependents, if he be injured or killed in the course of his employment by another not in the same employment, are entitled to any compensation whatsoever as against the employer, unless the employer be subject to the provisions of sections 3129 and 3130.

If the language of section 3132 or 3133 be construed to mean, as is provided in the Washington statute, that the compensation therein referred to "shall be in lieu of any and all rights of action whatsoever against any person whomsoever," and that all civil actions and civil causes of action for personal injuries and death of an employee in the course of his employment are abolished, then, the pertinent question is, What cause of action or right would be left to be assigned as provided by section 3133? Clearly, there would not anything be left which legally could be assigned. Thus, the fair meaning of the section is that when an employee in the course of his employment is injured or killed by another not in the same employment, he, or his dependents, in case of his death, to entitle him or them to compensation as against the employer, are required to assign the cause of action against such other causing the injury or death to the employer or his insurance carrier, the person or company liable for the payment of the compensation, and if he or they shall not do so, neither may recover anything from the employer nor from his insurance carrier. If, however, in such case neither the employee, nor, in case of his death, his dependents, seek compensation against the employer — do not seek anything against him or his carrier — but choose to prosecute his or their cause of action against such other who is responsible for the injury or death, they are at liberty to do so. I can give the section no other sensible meaning, especially when construed in connection with section 3132 as must be done.

To construe section 3133 as the Washington and Montana statutes have been construed, that the cause of action against such other causing the injury or death is abolished, notwithstanding the section in question providing for an assignment of the cause to be prosecuted by the assignee against the person causing the injury or death, leads, as suggested by the Chief Justice, to an absurdity. I think the tenor of the whole of our Industrial or Workmen's Compensation Act deals with the subject of compensation to be paid employees by the employer or his insurance carrier, and the conditions, circumstances, and amount to be paid. In connection therewith section 3132 but provides that the compensation therein provided "shall be the exclusive remedy against the employer." As to him, all other remedies are done away with. Section 3133 but deals with a condition under which the employer still is liable to pay compensation; the condition being that though the employee in the course of his employment be injured or killed by another not in the same employment, he or his dependents nevertheless are entitled to compensation against the employer, and as by the act provided and not otherwise, provided, however, that in such case to entitle the employee or his dependents to compensation as against the employer, he or they must assign the cause of action against such other to the employer or to his insurance carrier. But I do not see anything wherein or whereby in such case the employee, or, in case of his death, his dependents, may not waive all right to compensation as against the employer and his carrier and prosecute his or their cause against him responsible for the injury or death. While the injury and death here resulted in the course of the employee's employment — for courts generally, as we, have held that about all injuries received by an employee on his employer's premises or at his plant or place at which the employee is engaged at work, short of a willful injury on his part, is an injury in the course of or arising out of the employment — yet, here, the injury causing the death was by an alleged negligent and independent act of the defendant over which the employer had no control or direction. I am not saying that for such reason the injury sustained by the deceased did not arise out of or in the course of his employment, for the defendant was engaged at work at and about the premises on or about which the employee was at work and who thus was exposed to whatever hazard attended the work at which the defendant was engaged, yet where the alleged act of the defendant was independent of the employer's work and in no sense under his control or direction, and he not responsible for it, it is difficult to understand, by the language employed in the act, that it was the intention of the Legislature, in such case, to abolish or destroy the employee's right to seek redress against such an independent tort-feasor, if the employee, or, in case of his death, his dependents, choose to pursue such course instead of seeking compensation from his employer. Our Industrial Act is a Workmen's Compensation Act and not an exemption act of strangers and tort-feasors exempting and releasing them as to one because in the employ of another, and on whom wrongs and torts are committed by them to his injury and damage.

I thus am of the opinion that the dependents had the right to waive all compensation as against the employer and his insurance carrier as they did by the prosecution of this action against the person or company alleged to have caused and to be responsible for the death of the deceased, and to prosecute the cause as they did against the defendant.