Newcom v. Keever

Mr. Chief Justice PARKER

(concurring in the result).

I concur in the affirmance of the summary judgments.

Review of the history and evolution of § 1-1066, W.S.1957, reveals that in the original act (1871) the final phrase now under consideration began with the word “Provided” — both capitalized and italicized— and was followed by “That,” also capitalized. This format of expression would indicate the proviso to have been a restraint upon the permissive legislation allowing recovery not permitted at common law.

In the 1909 amendment of the statute, when the limitation of the amount which could be recovered was removed, the word “Provided” was no longer emphasized. In 1939 when the legislature added as a recoverable element of damage “a reasonable sum for the loss of the comfort, care, advice and society of the decedent” the capitalization of the word “provided” and of the succeeding word “that” was dropped. Undoubtedly these various changes in the proviso were legislative stenographers’ ideas of correct usage, which cannot be allowed to detract from the restraint originally placed upon the permissive nature of the entire statute.