Utah Savings & Trust Co. v. Diamond Coal & Coke Co.

McCARTY, J., after stating the foregoing facts, delivered the opinion of the court. Appellant’s first contention is that there is no statute in the State of Wyoming creating a cause of action for death by wrongful act. Section 2364a, Revised 1 Statutes Wyoming 1887, (section 3448, Rev. St. Wyo., 1899), provides: “Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof; then, in every such case, the person who, or the corporation which, would have been liable, if death had not ensued,. shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.” Section 3449 of the same act provides that “ every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportions provided by law, in relation to the distribution of personal estates left by persons dying intestate, In every such ease the jury shall give such damages as they shall deem fair and just not exceeding five thousand dollars, and the amount so recovered shall not be subject to any debts or liabilities of the deceased: provided that every such action shall be commenced within two years after the death of such deceased person.” The Constitution of the State of Wyoming went into force and effect January [306] 1,1890, and section 4, article 9, of that instrument provides : “For any injury to person or property caused by wilful failure to comply with the provisions of this article, or laws passed in pursuance hereof, a right of action shall accrue to the party injured, for the damage sustained thereby, and in all cases in this State, whenever the death of a person shall he caused by wrongful act, neglect or default, such as would, if deaih had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured, and the Legislature shall provide by law at its first session for the manner in which the right of action in respect thereto shall he enforced.” Section 4, article 10, is as follows: “No law shall he enacted limiting the amount of damages to be recovered for causing the injury or death of any person. Any contract or. agreement with an employee waiving any right to recover damages for causing the death or injury of any employee shall he void.” Section 3, article 21, is as follows : “All laws now in force in the Territory of Wyoming, which are not repugnant to this Constitution, shall remain in force until they expire by their own limitation, or he altered or repealed by the Legislature. ’ ’ Appellant insists that section 3449 is in conflict with th.e provisions of the Constitution, because it attempts to limit the amount of damages in this class of cases to $5,000, and therefore was not continued in force by section 3, article 21, of the Constitution. It is elementary thát where a part of a statute is in conflict with the Constitution, hut the remainder is in harmony with it, if it can he done the parts will he separated — and that which is constitutional will he upheld. Black, Int. Law, p. 96, thus states the rule: “It frequently happens that some parts, features, or provisions of a statute are invalid by reason of repugnancy to the Constitution, while the remainder of the act is not open to the same objections. [307] 'In such cases it is the duty of the courts not to pronounce the whole statute unconstitutional, hut, rejecting the invalid portions, to give effect and operation to the valid, portions.” Judge Cooley, in his work on Const. 'Lim. (6 Ed.), p. 211, in part says: “If when the unconstitutional part is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, it must he sustained.” This doctrine has been repeatedly declared and followed by this court. State v. Beddo, 22 Utah 432, 63 Pac. 96; Ritchie v. Richards, 14 Utah 345, 47 Pac. 670; Eureka v. Wilson, 15 Utah 53, 48 Pac. 150, 62 Am. St. Rep. 904; Ex parte Duncan, 1 Utah 81. That portion of the Wyoming statute limiting the amount of recovery in this class of cases to $5,000, while it is repugnant to the provisions of the Constitution of that State, is susceptible of being separated from the remainder of the act, which is not open to the same objection; and when so severed the part of the act not in conflict with the Constitution is complete in itself, and capable of being enforced in conformity with the general purpose of the act. Dunn v. City of Great Falls, 13 Mont. 58, 31 Pac. 1017. The next contention of appellant is that the trust created by the statute of Wyoming can only be enforced by a trustee appointed in that jurisdiction. While 2 there are a few decisions to the contrary, the great weight of authority holds that a legal liability once created, either by the rules of the common law or by statute, can be enforced, and a right of action maintained, in any court having jurisdiction of such matters, provided jurisdiction of the parties can be obtained, and the action itself is not opposed to good morals or the policy of the State where it is brought. In the case of White v. Railroad Co., 25 Utah 346, 355, 71 Pac. 593, Mr. Chief Justice BASKIN,in discussing this question,says: “While there is some conflict of decisions on the subject, it is generally held that a right given by the statutes of [308] one State will be recognized and enforced in the courts of another State.” Dennick v. Ry. Co., 103 U. S. 11, 26 L. Ed. 439; Stewart v. Ry. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537; Higgins v. Ry. Co., 155 Mass. 176, 29 N. E. 534, 31 Am. St. Rep. 544; Railway Co. v. Crudup, 63 Miss. 291. At the close of the testimony for respondent, appellant moved the court for a nonsuit on the ground that no damages had been proved, and the action of the 3 court overruling the motion is now alleged as error. The record shows that deceased at the time of his death was a stout, healthy man, forty-two years of age, and that his son, who was twenty years of age, was living with him. Under these circumstances, the question of damages was one for the jury to determine; and the trial court having properly submitted this question to it, under the Constitution and a long list of decisions of this court on this question, we are powerless to interfere, even though we might differ with the jury as to what would, under the facts disclosed, be a fair and just verdict. ’ Counsel contend that the evidence fails to show negligence on the part of the appellant, and therefore the case should have been taken from the jury. There is evidence to support a finding by the jury that the 4 company knew, or by the use of ordinary diligence • could have known, of the condition in which the shack was kept where drivers stopped while waiting for cars. And there is also evidence which tends to show that the fire started in the vicinity of this shack. Charles Mahan, a witness for defendant, testified, in part, as follows: ‘ ‘ Wh en I detected the smoke I thought I could smell cloth and pine boards. I might have said the shack was on fire. I think I did. It was the only thing, along the car course on the outside I could imagine could possibly burn.” Under all the circumstances it was purely a question of fact for the jury to determine as to whether the condition in which the shack was kept constituted negligence on the part of the appellant, and [309] whether the fire that caused the death of decedent was the result of such negligence. These issues were fairly submitted to the jury, and, the jury having found against the appellant, the findings cannot be disturbed, as there is evidence to support them. The contention that the evidence shows contributory negligence on the part of the deceased is entirely unsupported by the evidence. There is not a word of testimony that tends to show that the deceased 5 knew, or that it was his place to know, what the conditions were in and around the shack; and he had a right to assume that the company would do its duty, and exercise ordinary care and caution to prevent fires and other casualties in the mine where he was at work. Of all the men who were at work in the sixth south entry, mining coal, at the time the fire started, not one escaped. When the body of deceased was found, it was between the room where he was at work when notified of the fire and the shack, where the preponderance of the evidence shows the fire must have started, which tends to show that he did not,understand the driver when he called to him “to come to room 59 and through the seventh level and out.” One of the miners, to whom the most explicit instructions were given respecting the avenues of escape, was unable to get to a place of safety, and was killed by the smoke and gases caused by the fire. We find no reversible error in the record. The judgment is affirmed, with costs. BASKIN, O. J., and BAETCH, J., concur.