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think its effect would be a deprivation of property not authorized by the reserved power to regulate.
As to corporations hereafter formed, the question is very different. The franchise to be a corporation is not one inherent in the citizen, but proceeds solely from the bounty of the legislature, and for that reason the legislature may dictate the terms on which it will be granted and require the acceptance of the provisions of this act as a condition of incorporation. (Purdy v. Erie R. R. Co., 162 N. Y. 42; Minor v. Erie R. R. Co., 171 N. Y. 566; People ex rel. Schurz v. Cook, 110 N. Y. 443; S. C., 148 U. S. 397; Chicago, R. I. & Pac. R. Co. v. Zernecke, 183 U. S. 582.) Even in the case of existing corporations, the corporate existence of all those created since the constitution of 1846 may be revoked by the legislature, though the property rights of such corporations and their special franchises other than the one to be a corporation can not be impaired. (Const. Art. VIII, sec. 1; Lord v. Equitable Life Assur. Socy., 194 N. Y., 212.) The property and franchise would have to be managed by the owners as partners or tenants in common, and the legislature might require as a condition of the continued right to be a corporation that before the expiration of a reasonable period the provisions of the statute should also be accepted by them. They are in the condition of a tenant at will who, when the landlord raises the rent, must either comply with his terms or, after the expiration of a reasonable time prescribed by a notice to quit, surrender his rights under the lease. But individual citizens, following the ordinary vocations of life, asking no favors of the Government, whether a corporate or other franchise, but only the protection of life and property, which every Government owes to its citizens, and guilty of no fault, can not be compelled to contribute to the indemnity of other citizens who, by misfortune or the fault of themselves or others, have suffered injuries, except by the exercise of the power of taxation imposed on all
, at least all of the same class, for the maintenance of public charity. Of course, I am not now referring to obligations springing from domestic relations.
EMPLOYERS' LIABILITY-DEPARTMENTS OF LABOR CONSTRUCTION OF STATUTE-Judd v. Letts, Supreme Court of California, 111 Pacific Reporter, page 12.-Frances Augusta Judd was employed by Arthur Letts as a saleswoman in his store, and at the close of her day's labor on February 21, 1908, she entered an elevator to go for her wraps on another floor of the building. By the negligence of the elevator operator, as was alleged, Miss Judd was injured, and she sued to recover damages for her injuries. Damages were awarded in the superior court of Los Angeles County, and this judgment was, on appeal, affirmed.
The decision turned on the construction of section 1970 of the Civil Code as amended in 1907 (Acts of 1907, ch. 97). The particular point involved was the meaning of the words “department of labor" as used in this statute. The view taken by the court is set forth in that portion of its opinion here reproduced, which was
delivered by Judge Sloss September 8, 1910. Judge Sloss said, in part:
Prior to 1907, the section read as follows: “An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the negligence causing the injury was committed in the performance of a duty the employer owes by law to the employee or unless the employer has neglected to use ordinary care in the selection of the culpable employee. The amendment added this proviso: “Provided, nevertheless, That the employer shall be liable for such injury when the same results from the wrongful act, neglect or default of any agent or officer of such employer, superior to the employee injured, or of a person employed by such employer having the right to control or direct the services of such employee injured, and also when such injury results from the wrongful act, neglect or default of a coemployee engaged in another department of labor from that of the employee injured, or employed upon a machine, railroad train, switch signal point, locomotive engine, or other appliance than that upon which the employee injured is employed, or who is charged with dispatching trains, or transmitting telegraphic or telephonic orders upon any railroad, or in the operation of any mine, factory, machine shop, or other industrial establishment.” While the proviso is framed in a manner that may leave a doubt concerning the proper relation of some of the phrases, we think it quite clear that the intent of the amendment was to take from all classes of employers the benefit of the fellow-servant rule, in cases where the employee injured and the one at fault are engaged in different departments of labor. The appellant argues that the concluding words of the proviso, "upon any railroad, or in the operation of any mine, factory, machine shop or other industrial establishment," qualify all the preceding clauses following the words, “and also.” So arguing, he claims that the Broadway Department Store is not a railroad, mine, factory, machine shop, or other industrial establishment, and that therefore the department of labor" exception has no application. There is no rule of grammatical construction which requires that the final clause be given the effect claimed. The interpretation thus urged would, we think, unduly limit the effect of the proviso.
This brings us to a consideration of the meaning of the phrase “another department of labor.” The general rule exempting employers from liability for injuries sustained by one servant through the negligence of another servant in the same common employment has been declared, in the absence of any statute on the subject, by all the courts applying the doctrines of the common law. The decisions are by no means in accord with respect to the fundamental reason or basis for the rule, and this phase of the subject has called forth the expression of a multitude of varying views. With a discussion of these we need not here concern ourselves. So, too, the courts have differed in their attempts to define the relation of common service. In the absence of any statutory limitation of the doctrine, there have been in some jurisdictions decisions denying to the employer exemption in cases where the injured employee and the one whose negligence was asserted were not "consociated" in the same “department, or "line of employment. In this State no such modification had ever, prior to the amendment of section 1970, been recognized. That section, as it formerly stood, was regarded as declaratory of the common law (Congravé v. S. P. R. R. Co., 88 Cal. 360, 26 Pac. 175), under its terms, a common employment existed when each of the servants in question was employed in the same general business” (Mann v. O'Sullivan, 126 Cal. 61, 58 Pac. 375, 77 Am. St. Rep. 149).
It would seem clear from these considerations that the purpose of the amendment to section 1970 was to modify, in the interest of those employed, the rigor of the rule which, in many cases, denied them relief for loss or injury sustained without their fault. The enactment is remedial in character, and should be construed liberally with a view to carrying out the object sought. Such appears to have been the tendency of the courts in dealing with similar statutes. The term "department of labor” used in our statute has failed to receive definition at the hands of the legislature, and must, therefore, be construed by the courts according to the ordinary significance of the words used, taken in connection with the apparent purpose of enactment.
It would be difficult, if not impossible, to formulate a definition of the phrase "department of labor" in such terms as to furnish an exact test by which to determine on any given state of facts, whether two employees are in different departments. In a general way it may be said that the question of identity of department is to be determined by inquiring, among other things, whether the employees in question are habitually associated or brought together in the performance of their duties, whether they are under the immediate direction and control of the same superior, and whether the duties of one have any relation to or connection with those of the other. Where the facts are disputed, or, if undisputed, are such as to reasonably permit contrary inferences, the jury should be permitted to determine whether the servants were engaged in the same department of labor. But, where the facts are such that reasonable minds could not differ as to the conclusion, the question becomes one of law for the court. In Morgan v. J. W. Robinson Co., 107 Pac. 695, the only case in which we have had occasion to consider the effect of the amendment of section 1970, the court had no hesitation in declaring that, as matter of law, the employees there involved (i. e., a carpenter engaged in the construction of a building and a man operating a freight elevator used in a retail store) were engaged in different departments of labor. We are satisfied that the same result must be reached on the facts here shown. The plaintiff's only duties were those connected with the sale of cloaks and suits. The operation of the passenger elevator was an entirely separate and distinct branch of service. There was no relation between the two beyond the fact that, at the close of her day's service, the plaintiff was permitted, for her convenience, to use the elevator in going from her place of work to the dressing room. It could not be said that she and the elevator boy were engaged in the same department of labor without perverting the ordinary meaning of words and destroying the effect of the amendment. The court rightly instructed the jury with reference to this point.
EMPLOYERS' LIABILITY-FELLOW-SERVANT LAW-NATURE LIABILITY-INJURIES CAUSING DEATH-SURVIVAL OF RIGHT OF ACTION-DAMAGES—Beeler v. Butte & London Copper Development Company, Supreme Court of Montana, 110 Pacific Reporter, page 528.Edwin Beeler was killed while in the employment of the company named above as a pump man in one of its mines. This action was brought by his heirs to recover damages under the provisions of sections 5248 to 5250 of the Revised Codes of Montana, and from a judgment in their favor in the district court of Silver Bow County the company appealed. The appeal resulted in the judgment of the lower court being affirmed, as appears from the following quotations from the opinion of the court as delivered by Judge Sanner. Numerous errors were alleged as grounds for reversal of the judgment, but these were reduced to a few general propositions which the supreme court discussed in part as follows. Taking up the first objection raised, Judge Sanner said:
It is urged that the complaint fails to state a cause of action in this: (a) That the action is not maintainable by plaintiffs, since it does not survive to the heirs but only to the personal representatives of the person injured; (b) that the action is upon a liability created by statute, and, having been commenced more than two years after the cause of action accrued, it is barred by the provisions of subdivision 1, section 6449, Revised Codes.
(a) The authority for this action is in the act approved February 20, 1905 (ch. 23, p. 51, Laws 1905), reexpressed in sections 5248, 5249, and 5250 of the Revised Codes. In section 5250 it is expressly provided that the right of action shall survive and may be prosecuted and maintained by the heirs or personal representatives of the person injured. The complaint alleges that the plaintiffs are the widow and child, respectively, and that there are no other heirs, of the person injured and since deceased. This is a sufficient answer as to the right of plaintiffs to maintain this suit.
(b) The theory of limitation, as disclosed in the chapter of the code on that subject, has no reference to the defenses that may or may not be interposed in resistance to a plaintiff's demand; but it is grounded in every instance upon the nature of the demand itselfwhether it be upon a judgment, written contract, account, etc. Subdivision 1, section 6449, must be viewed in the light of the fact that the phrase "liability created by statute” has come to have a fixed application to a class of cases quite distinct from those elsewhere mentioned or referred to in the same chapter. If the action at bar had been for injuries resulting from the negligence of a vice principal, instead of a fellow servant, it would be recognized at once as a straight action in tort, governed, as to its limitation, without any thought of its being a "liability created by statute.” Now, the fact that the injury which is the basis of the action, resulted from the negligence of a fellow servant instead of a vice principal does not affect the essential nature of the action; it is still an action for personal injuries founded upon actionable negligence. And while it may properly be said (see Kelly v. Northern Pacific Ry. Co., 35 Mont. 243, 88 Pac. 1009) that under the act approved February 20, 1905, an employer's liability exists where none existed before, yet the true function of that act must be regarded, not as creating a new cause of action, but merely to carry forward the right of the injured party and to remove a defense theretofore available in this class of causes (Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 Pac. 960). It follows that in the sense employed by the chapter on limitations of actions, this is not an action on a "liability created by statute," and the contention that it is barred by subdivision 1, section 6449, is not sound. Such being our conclusion, it is unnecessary to consider whether, under the conditions presented by the record, the statute of limitations could be available to appellant in the absence of a special plea thereof.
The nature of the accident and the acts that caused it were then reviewed, with the conclusion that it resulted from the negligence of a fellow servant, and that, while Beeler was dead at the time when he was discovered, it does not appear that death was instantaneous, but, on the contrary, that there was sufficient competent evidence to support the conclusion that he lived an appreciable time after the injuries were sustained. These facts were regarded by the court as sufficient to warrant the refusal of the court below to direct a verdict for the defendant company.
Of the other points considered, none of which was found to furnish a basis for interfering with the judgment of the lower court, only that relating to the grounding of a claim for damages need be noted. On this point Judge Sanner said:
Complaint is made of instruction F, as follows: "The court instructs the jury that if under all the evidence and all of the instructions of the court your verdict should be for the plaintiffs and against the defendant, then it will be necessary for you to assess and write into that verdict the amount of damages caused proximately to Edwin Beeler by the acts, if proven, of the hoisting engineer. In determining this amount you are limited to a sum of money which would have compensated Edwin Beeler for the pain and suffering of mind and body which the injuries caused (if any such pain and suffering were caused), between the time that he was injured and the time he died, if he survived the injuries for any length of time, and to the further sum that would have compensated him, unless you find that death was instantaneous, for the impairment, if any, which was caused by the injuries, of his capacity to earn money in the future if he had not been ' injured. Now gentlemen, the amount sued for and claimed in the complaint of $25,000 must not be to you any criterion in determining the amount of your verdict, if you do render any, in favor of the plaintiffs, but I charge you that in no event shall your verdict be in excess of the amount of $25,000.”
We see no error here. The phrase “any length of time” read in juxtaposition with the phrase "unless you find death was instantaneous” makes it clear that the court intended to advise the jury that there must have been an appreciable period of suffering. The statute authorizing this suit gives to the heirs the right to prosecute and maintain the same action that the injured man could have maintained, had he lived. Unquestionably, his right of action