Bussey v. Gulf & Ship Island Railroad

Whitfield; O.- J., delivered the opinion of the court. The only true way to understand chs. 65 and 66 of the laws of 1891 is to do'as ought always to be done in getting at the — 607 — meaning of statutes; that is to say, to look at them in tbe light of their history and purposes. The action here is to recover for the negligence of the company, not that of a fellow servant. Appellants claim the right to bring the action under ch. 65. The court below held that, as the deceased was an employee, the suit could only be brought under ch. 66. It also held that ch. 66 repealed ch. 65 as to all actions by employees, and that under ch- 66 appellants had no ease. It is perfectly manifest that there was no express repeal. Repeals by implication are never favored. Let us see, now, what the history and purposes of these two acts are. Prior to the constitution of 1890, actions for injuries causing death were governed by Lord Campbell’s act, which for the first time appeared in our law as art. 48, p. 486, code 1857, from which is taken literally, leaving out the clause as to ihe recovery for the death of a slave, (§676, code 1871), §1510 of the revised code of 1880. This act did not define the negligence which would give rise to the action. It left the liability of defendant to be determined by the general law regarding the relation of master and servant. It did not in the remotest degree touch or qualify the stringent fellow servant rule, illustrated in all its bald absurdity by the case of McMaster v. Railroad Co., 65 Miss., 264 (4 So. Rep., 59; 7 Am. St. Rep., 653). It left the law as- to. negligence where it found it, and dealt merely with who should bring the suit, and the measure of damages. Who should sue;,, and what the measure of damages should be, were fully within legislative control. The constitution did not interfere with this power. The harshness of the fellow servant rule had become intolerable. It shocked common sense and common justice, and received its apotheosis in McMaster’s case. The legislature had been appealed to in vain at successive sessions to modify this rule. It had the power to do it. But it declined to exercise it. It was left for the framers of the constitution of 1890 to accomplish this greatly-needed change; and sec. 193 of the consti — 608 — tution, which created for tbe first time in this state new — wholly new — rights and canses of action, never existing before, effected this change. It is indispensable to understand that sec. 193 did create the rights and causes of action it provided for. Wc expressly so held in White’s case, 12 Hiss., 16 (16 So. Rep., 248). It provided that as to employees injured by the negligence of fellow servants, of the class described in sec. 193, there should exist thereafter, as there had never done before, these causes of action. It enlarged the rights of those authorized to sue by adding new grounds of liability, theretofore un-blown to our law. That conception is fundamental to any proper understanding of the scope and purposes of these two acts. This section took away no right existing under the general law, nor any remedy provided by § 1510, revised code of 1880. It was never dreamed of that there was any conflict between § 1510, revised code of 1880, and sec. 193, Const. 1890. On the contrary, § 1510 of the revised code of 1880 was brought forward as § 663 of the code of 1892; and both this statute, with its scope, and sec. 193, with its scope, stood side by side for years without the thought ever entering anybody’s mind that there was conflict between them. Why ? Because they related to wholy different rights. Section 1510 and sec. 663 related to cases arising under the general law as it existed before the constitution of 1890. Section 193 of that instrument related exclusively to the new rights by it created — of recovery where the negligence was that of certain named fellow servants. But § 1510 of the revised code óf 1880 is brought forward as § 663 of the code of 1892, and as ch. 86 of the laws of 1896, and as ch. 65 of the laws of 1898. In purpose they are all one. All relate to causes of action antedating the constitution, of liability Tinder the general law of negligence, and in no way whatever to causes of action for injuries inflicted by certain fellow servants, first created by constitution, sec. 193. Now, sec. 193 of the constitution is also developed and brought forward as ch. 87 of the laws of-1896 and ch. 66 of the laws of 1898. It — 609 — relates exclusively to actions brought by employees to recover for injuries due to the negligence of those fellow servants named in sec. 193 of the constitution. It repeats sec. 193, ipsis-■imis verbis. It has no relation whatever to rights of action under the general law of negligence, antedating the constitution of 1890. Here is a statutory scheme, under said art. 41, p. 486, code 1857, § 676, code 1871, and § 1510 of the revised code of 1880 (our form 'of Lord Campbell’s act), developed in § 663 of the code of 1892, and ch. 86 of the laws of 1896, and ch. 65 of the laws of 1898, wherein rights of action arising under the general law of negligence are provided for, and have been continuously maintained and improved — a complete and perfect scheme relating wholly to causes of action antedating the constitution of 1890, and having nothing on earth to do with rights of action arising from the .negligence of fellow servants. That is one scheme unrelated to, unaffected by, sec. 193 of the constitution. Here is another scheme, never existing before the 'constitution, created by sec. 193 of that instrument, relating not at all to causes of action provided for by the statutory scheme above, but exclusively to causes of action created by sec. 193, conferring the right to recover for injuries inflicted by the named fellow servants. They have stood side by side, never questioned, as both proper and not in conflict, before. It is perfectly manifest that if ch. 66 of the laws of 1898 is in conflict with ch. 65 of the laws of 1898, then sec. 193 of the constitution, which is ch. 66, was also in conflict with § 663 of the code of 1892, and also that ch. 87 of the laws of 1896 was in conflict with ch. 86 of said laws. There is no conflict whatever between the two acts (ch. 65 and ch. 66), in their essential frame. It is said that ch. 65 has no relation to suits by employees at all — -not even where the employee sues on the ground of negligence of the master alone; and the court below so held, notwithstanding sec. 2 of said ch. 65 plainly says: “This act shall apply to all personal injuries of servants or employees — 610 — received in the service or business of the master, where such injuries result in death.” This section cannot thus be read as blank paper. It expressly applies the principle of Lord Campbell’s act — recovery for injuries resulting in death — to all employees, when the injuries were due to the negligence of the master. It was part of a statutory scheme that had never assumed to deal with injuries caused by the negligence of fellow servants in any way whatever, and it was not dealing with them. It is said the measure of damages is different in the two acts, and there is difference as to who may sue. Certainly. Do they not relate, as shown, to wholly different subject-matters? The measure of damages and the parties to sue might well be different — might be just what the legislature chose to make them. There is no conflict possible to be seen because of the different measures of damages, except where the two wholly different acts, with wholly different histories and purposes, are confused and blended, instead of being kept separate and distinct. It is also to be specially noted that while sec. 193 left the remedies, measure of damages, and procedure under § 663 of the code of 1892 unaffected, it also clearly intended the legislature to provide and regulate remedies for rights provided by itself. It is true, it provided that “legal or personal representatives” might assert the rights thereby provided, and that in the Hunter case, 70 Miss., 471 (12 So. Rep., 482), which nullified the words “or legal representatives” in sec. 193, it was held the personal representative must sue, till legislation extended the remedy. The Hunter case did not attempt to hold the legislature was not authorized to extend the remedy provided by sec. 193. That section expressly says, “The legal or personal representatives shall have the same rights and remedies as are allowed by law to such representatives of other persons.” It was perfectly competent for the legislature to provide additional remedies, and it did do so in the acts we are considering, for the express purpose of abrogating the rule announced in the Hunter case; and it also by the same legislation abrogated the rule an611 Bounced in tbe Pendergrass case, 69 Miss., 425 (12 So., Rep., 954). Tbe purpose of tbe legislature was plain. It was to observe tbe mandate of this most wholesome provision of tbe constitution, and so make effective tbe remedies for tbe new rights by it created, and also to broaden and develop the remedies for the rights provided for by § 676, code 1871, and § 1510 of tbe revised code of 1880 — the initial form in which the code of 1857 and that statute left them — to the present completeness furnished by ch. 65, laws of 1898. The construction adopted by the court below would, if followed here, overrule the Wooley case, 77 Miss., 927; 28 So. Rep., 26. We expressly held there that the widow could sue under § 663, code of 1892, and Wooley was an employee, and the remedies for rights provided by sec. 193 had not been enlarged by legislation. If the view we combat is correct, Mrs. Wooley would have had no right of action. Chapter 65, laws of 1898, extends the remedy to all relatives named, giving only one suit, including damages of all kinds, as well to the relations as the decedent. It was perfectly competent for the legislature to do this. Another thing: If, as is suggested, the legislature did not have the power, under sec. 193, to extend the remedies as to who could sue for the assertion of the rights therein provided for, then, manifestly, the provisions of ch. 66, as to who may sue, are simply void, and ch. 65 is left unaffected in that regard —not repealed. ITow could an unconstitutional provision in ch. 66 repeal a constitutional provision in ch. 65 ? The proposition is wholly untenable. But it is said ch. 66 was passed four days later than ch. 65, and is the last expression of the legislative will. Granted. But about a different subject-matter. It is a thoroughly settled canon of construction that the courts must never, if it can properly be avoided, so construe acts of the legislature as to impute folly to that body. To hold lhat ch. 66 repeals ch. 65 as to employees is not only to abrogate sec. 2 of ch. 65, but to charge the legislature with the absurdity of enacting two statutes, standing side by side, both in the acts of 1896 and of 1898, when one destroys the other. — 612 — This we must decline to do. The conflict all vanishes in the light of the history and purposes of the two acts, and they are perfectly harmonized by our construction. There are minor differences, it may be conceded, which were well calculated to mislead the accomplished trial judge. But he should not have sacrificed the wide scope and large substantial rights worked out on different lines to mere trivial inharmonies, correctible by legislative amendment. Reversed and remanded.