Janney v. Fullroe , 47 N.M. 423 ( 1943 )

We concur in the opinion of Mr. Justice BICKLEY except the portion which denies liability of the insurer for the fifty per cent. additional award arising from employer's failure to use a safety device required by law. In our opinion, it misconstrues the statute. In its original form the statute first appears as L. 1917, c. 83, § 7, a part of the Workmen's Compensation Act as first enacted. It bears the same section number in the reenactment of the law, with changes and additions in certain respects but not in this respect, as L. 1929, c. 113, 1929 Comp., § 156-107. In both the 1917 and 1929 laws, the section reads: "In case an injury to, or death of, a workman results from his failure to observe a statutory regulation appertaining to the safe conduct of his employment, or from his failure to use a safety device provided by his employer, then the compensation otherwise payable under this act shall be reduced by fifty per centum. In case an injury to, or death of, a workman results from the failure of the employer to provide the safety devices required by law then the compensation otherwise payable under this act shall be increased by fifty per centum."

In further revision and largely a reenactment of the Workmen's Compensation Law by L. 1937, c. 92, 1941 Comp. § 57-907, this subject matter is treated as Section 5 of the new act. The language of the section as it had appeared since 1917 was re-enacted without change of a word or a syllable. As amended with the amendatory language italicized just as it appears in L. 1937, c. 92, § 5, it reads: "In case an injury to, or death of a workman results from his failure to observe a statutory regulation appertaining to the safe conduct of his employment, or from his failure to use a safety device provided by his employer, then the compensation otherwise payable under this act shall be reduced by fifty per centum (50%). In case an injury to, or death of, a workman results from the failure of the employer to provide the safety devices required by law, or in any industry in whichsafety devices are not provided by statute, if an injury to, ordeath of, a workman results from the negligence of the employerin failing to supply reasonable safety devices in general use forthe use or protection of the workman, then the compensation otherwise payable under this act shall be increased by fifty per centum (50%). Provided further, that any additional liabilityresulting from any such negligence on the part of the employershall be recoverable from the employer only and not from theinsurer, guarantor or sureties of said employer under this actexcept that this shall not be construed to prohibit employersfrom insuring against such additional liability."

The problem is a simple one of statutory construction, the chief end and aim of which always is to arrive at true legislative intent. The original language of this section having been re-enacted on two separate occasions, it is not to be deemed a new enactment as to so much of the section as remains in its original form, as held by Mr. Justice BICKLEY and Mr. Justice BRICE, but rather as a continuation thereof. Horack's Sutherland Statutory Construction, 3rd Ed. § 1933; Cortesy v. Territory,7 N.M. 89, 32 P. 504; State v. Thompson, 37 N.M. 229, 20 P.2d 1030; Dietz v. Hughes, 39 N.M. 349, 47 P.2d 417. This is a rule of construction which we heretofore often have recognized as indicated by the cases just cited. On the other hand, there is a rule of construction that a statute should be read as a whole, as to future transactions the provisions introduced by the amendatory act being read together with those of the original section re-enacted in the amendatory act or left unchanged thereby, as if they had been enacted originally as one section. Horack's Sutherland Statutory Construction, 3rd Ed., § 1934.

However, all rules are but aids in arriving at true legislative intent (In re Vigil's Estate, 38 N.M. 383, 34 P.2d 667, 93 A.L.R. 1506), and should never be used to override same where it otherwise plainly appears as in this case. Grammatically, the employer-appellant presents for consideration the more logical construction. The amendment interjects into the statute a new liability, namely, for negligence on employer's part in failing to supply reasonable safety devices in general use. It is brought in by the language first appearing in italics in the statute as copied hereinabove. Intervening between it and the proviso is the language of the original statute increasing the compensation otherwise payable by fifty per cent. Then follows the proviso in a separate sentence declaring that "any additional liability" resulting from "any such negligence" shall be recoverable from the employer only and not from the insurer "except that this shall not be construed to prohibit employers from insuring against such additional liability." (Italics ours).

The question arises as to what the legislature intended when it spoke of "any additional liability" and "any such negligence". Was it referring to the additional liability incurred for failure of the employer to provide a safety device required by law as well as the additional liability henceforth to be incurred for failure to provide a reasonable safety device in general use? The employer already and since 1917 had been subject to the additional liability arising in the former case. Moreover, since 1917, by mandate of the statute, the employer had been compelled to carry insurance to secure the employee in the payment of this additional liability as well as for any other compensation, under a policy providing that the insurer "shall be directly and primarily liable to the workman and in event of his death, his dependents, to pay the compensation for which the employer is liable". 1941 Comp. § 57-903. This fact must be borne in mind in determining the legislative intent.

With this background to aid us, it is easy to give to the language "any such negligence" its proper grammatical construction by identifying the antecedent of "such negligence" as the "negligence" last above mentioned and brought in by way of amendment as a new ground for additional compensation, namely, the employer's failure to supply reasonable safety devices in general use. As if to differentiate between the negligence (though not so called by name) involved in an employer's failure to provide a safety device required by law and the negligence arising from the employer's failure to supply reasonable safety devices in general use, now for the first time being brought into the statute as a basis for additional compensation, the legislature provided that any additional liability arising from "any such negligence" should be recoverable from the employer only and not from the insurer, etc. The mind very naturally certainly at first blush, relates the words "any additional liability" to that created by the amendment and likewise relates the words "any such negligence" to that mentioned in the amendment as the basis for the additional compensation. The longer one revolves the matter, the stronger becomes the impression that this is the true meaning and intent of the language employed. We gave the words "such injury", in the Workmen's Compensation Act, a like construction where employed in the statute construed in Vukovich v. St. Louis, Rocky Mountain Pacific Co., 40 N.M. 374, 60 P.2d 356.

It seems quite incongrous to think of the additional liability mentioned in the proviso (which the employer alone must bear but is not prohibited from insuring against) as one and the same, or as embracing the same liability which, under the law as it then existed and for twenty years previously had existed, he not only is not prohibited from, but is compelled to, insure against. The argument is not persuasive that this sudden and anomalous change in legislative policy was intended.

The opposite construction tendered by insurer-appellant seems illogical in that, if correct, it takes away from the employee a security he had under the old law for all compensation recoverable for an injury arising from employer's failure to provide a safety device required by law as against the noticeable tendency of our legislature over the years to liberalize the act in favor of the employee. Certainly, prior to this amendment, any injury arising from a default of the kind just mentioned would support a recovery of the added compensation both against the employer and the insurer. The statute authorizes and commands the same. Under the minority view of this question, it would be optional with employers whether to protect the employee by insurance in his recovery of the additional compensation authorized by the original act as well as that based on the amendment. It seems obvious that the legislature intended no such result.

We do not have to seek for reasons weighty enough to have influenced the legislative decision to leave the requirement for insurance compulsory in the one case and optional in the other. They suggest themselves. In the matter of safety devices required by law, the employer has no discretion. They are named in the statute and he must employ them. In such case the legislature has decided for him both the question of their worth and the wisdom of employing them. When it comes to the requirement for reasonable safety devices in general use, however, we find a different situation. The determination of what is a reasonable safety device in general use necessarily rests in the judgment and discretion of the employer. Much will depend on how he exercises that discretion. If he permit thoughts of cost and expense to outweigh considerations of safety, the statute is circumvented and the personal security of his employees is imperiled. The legislative mind apparently felt that it would furnish the employer an incentive for resolving close questions of reasonableness and general use in favor of the workman and against himself, even though permitted insurance coverage at his option, if either in good or bad faith, he mistakenly or wrongfully resolved the question in his own favor at the risk of added liability.

Still another realistic consideration appears to render understandable legislative action in this respect. Under the existing law, except under conditions not important to mention, every employer was required to carry insurance. From the time of its enactment the Workmen's Compensation Act so provided. This insurance was for the benefit of employers as well as employees throughout the State. When these policies were written the insurer calculated the factor of risk involved by reason of the fifty per cent. additional compensation authorized by this section of the statute and fixed its premium accordingly. With the creation of new grounds for recovery of the extra compensation, it seems to have impressed the legislature as unfair to the insurer to impose the additional liability on it, if it legally could, without granting the privilege of charging an added premium therefor. The terms of existing policies, naturally would extend beyond the effective date of the amendment and unquestionably, in many cases, employer and employee alike would be found insisting that losses occurring subsequent to such date were within the coverage supplied by existing policies. Accordingly, by limiting to the employer alone recovery of extra compensation based upon the newly created ground, unless contracted for outside the terms of existing policies, the legislature not only bridged the transition period arising from the relation of current policy expirations to effective date of the amendment but at the same time by legislative declaration forestalled any attempt to fasten the additional liability on insurers except where contracted for in the light of the amendment.

Up to this point, we have simply viewed the language of the amendment against the background afforded by the existing statute and, having thus placed the two in a proper perspective, have applied elementary rules of grammatical construction to find in the statute the meaning we give it. A possibly controlling consideration, not heretofore mentioned, may explain the amendment. It argues strongly for the construction we give the statute and offers the most plausible explanation of why the legislature authorized the fifty per cent. additional compensation where the injury results from failure of the employer to furnish a reasonable safety device in general use as well as where the injury results from failure to provide a safety device required by law.

As the statute stood at the time of the amendment and for many years prior thereto, the employee would suffer a loss of fifty per cent. of his normal compensation through failure to use any safety device supplied by his employer, whether required by law or not; whereas, the employer would incur liability for the additional compensation only in the event he failed to provide a safety device required by law. It undoubtedly impressed the minds of the legislators as unfair that the employee should suffer a diminution of compensation in two defined instances for failure to use a safety device supplied by the employer, leaving the employer under the added liability for failure to supply safety devices in but the one instance. In other words, if the employee was to lose half his compensation in either of two instances for non-use of safety devices supplied by the employer, fairness and equality would seem to demand that the employer should suffer liability for the extra compensation for failure to supply the safety device in both instances. So it must have impressed the legislature.

Accordingly, having set out to equalize the law in the respect indicated, the legislature did so by adding as a new ground for recovery of the extra compensation the employer's failure to supply the safety devices (limited to those that are reasonable and in general use) whose non-use, when supplied, would reduce the employee's compensation by one half. The proviso as to insurance was merely incidental to the main object of equalizing the statute in the respect mentioned. Realizing, however, that this new liability would normally be outside the protection of current policies and beyond contemplation of the existing statute on insurance, the legislature added the proviso. Hence, liability for the additional compensation authorized by the amendment was imposed on the employer alone, the legislature seemingly finding justification therefor, as already indicated, in the thought that fear of the added liability would cause the employer to resolve close questions of reasonableness and general use against himself and in favor of the employee. In our view, it results that the phrase "additional liability", mentioned in the proviso, refers to that newly created by the amendment and it presupposes the liability for extra compensation existing at the time the amendment was undertaken.

It thus is seen that, while the idea of equality was influencing the legislative mind during the process of amendment, it was in a more fundamental respect than reflected in the suggestion of the minority that their construction would place all employees on the same plane in respect of insurance protection. It is noticeable that it would accomplish uniformity by denying such protection to both groups. Rather, we think the controlling thought was to remedy a glaring inequality between all employees and all employers, as distinct groups, by giving to the former extra compensation for injuries arising out of the latters' failure to supply those safety devices whose non-use, when supplied, would reduce the employees' compensation by one half.

A reason for this provision regarding insurance, advanced by insurer-appellant and accepted by the minority, is not very persuasive. It is suggested in explanation of imposition of the liability on employer alone, with the option of having insurance, that the additional compensation is in the nature of a penalty; that in most permanent injury cases the employee is seldom fully compensated, money being unable to replace an arm or other important body member; and that, if the added compensation be imposed on the employer alone, he would the more likely supply the safety device and thus avoid the injury. The argument fails in the face of the statutory authorization to insure against even this liability and, carried to its logical conclusion, it questions the wisdom of insuring against any loss.

Nor would it alter our idea of the true meaning of the statute to view as a penalty the additional award authorized. It is interesting to note in this connection, however, that as originally enacted in 1917 and as re-enacted in 1929, no mention of the word "penalty" occurs in connection with this section of the statute. Its use first appears as a headnote to § 156-107 supplied by the compiler in preparing New Mexico Statutes Annotated, 1929. In revising and re-enacting the Workmen's Compensation Act by L. 1937, c. 92, the legislature amended by reference to section numbers appearing in 1929 Compilation, thus bringing in the headnotes employed by Courtright. Whether in so doing, the legislature studiedly characterized as a penalty the additional awards theretofore and then authorized, we do not attempt to say. In the view we take of the statute's meaning, it can make no difference.

We think the judgment as rendered is correct and should be affirmed and it will be so ordered.

MABRY and THREET, JJ., concur.