Hardware Mutl. Cas. Co. v. Butler , 116 Mont. 73 ( 1944 )

I dissent. The provision in section 2839, Revised Codes, relating to attorney's fee, being a special Act and complete in itself, exclusively controls the case at bar as to the phase of the matter. (In re Wilson's Estate, 102 Mont. 178,56 P.2d 733, 105 A.L.R. 367.) Sections 8993 and 9076, Revised Codes, have no application here. The pertinent part of section 2839 provides: "In the event said employee shall prosecute an action for damages for or on account of such injuries so received, he shall not be deprived of his right to receive compensation but such compensation shall be received by him in addition to and independent of his right to bring action for such damages, provided, that in the event said employee, or in case of his death, his personal representative, shall bring such action, then the employer or insurance carrier paying such compensation shall be subrogated to the extent of one-half (1/2) of the gross amount received by such employee as compensation under the workmen's compensation law. All expense of prosecuting such action shall be borne by the employee, or if the employee shall fail to bring such action or make settlement of his cause of action within six (6) months from the time such injury is received, the employer or insurance carrier who pays such compensation may thereafter bring such action and thus become entitled to all of the amount received from the prosecution of such action up to the amount paid the employee under the Workmen's Compensation Act, and all over that amount shall be paid to the employee. In the event that the amount of compensation payable under this Act shall not have been fully determined at the time such employee shall receive settlement of his action, prosecuted as aforesaid, then the Industrial Accident Board shall determine what proportion of such settlement the insurance carrier would be entitled to receive under its right of subrogation and such finding of the board shall be conclusive. Such employer or insurance carrier shall have a lien on such cause of action for one-half (1/2) of the amount paid to such employee as compensation under the Workmen's Compensation Act, which shall be a first lien thereon."

The section is too clear to admit of doubt as to its meaning. The construction placed upon it by the majority is one that simply supplants legislative authority by court mandate: a bold invasion of the province of another branch of state government. Such an act on the part of the court is inexcusable when there is no ambiguity in the statute. It is of no moment as to what the court may think of the merits or demerits of an Act of the legislature. It is the exclusive province of that body to enact statutes and ours to construe them, and we have often said that when the wording of a statute is unambiguous there is nothing to construe, it construes itself. Instead of the widow having any right to make any contract to give an attorney one-half of the amount recovered from the tort-feasor, section 2839 clearly and expressly requires her to pay the attorney for his services.

It is absurd to quote Ruling Case Law, or any other text writer, for the purpose of rendering nugatory an express statute. General rules of equity cannot be applied to vary, contradict, or nullify a clear statutory provision. This ought to be obvious to even a novice in the law.

It is not for this court to enter the field of conjecture and say we do not "believe" the legislature intended this, that or the other when the legislative intent is expressed in plain and unambiguous language, and we are expressly required to construe statutes according to the "approved usage of the language". (Sec. 15, Rev. Codes.)

The majority return again and again to the false premise that the widow had the right to contract with her attorney to turn over to him funds that section 2839, Revised Codes, says shall belong to the Industrial Accident Fund. When plain words used in their legal sense fail to convince, logic and reasoning are wasted.

In this connection it is interesting to note that by a curious coincidence the legislature by an amendment effective March 16, 1943, for the first time gave the statute the exact effect which the majority seek to give it before the amendment.

Thus while in 1940 section 2839 subrogated the insurance carrier "to the extent of one-half (1/2) of the gross amount received by such employee as compensation under the workmen's compensation law," the 1943 amendment, Laws 1943, Chapter 230, reduced the right of subrogation "only to the extent of eitherone-half (1/2) of the gross amount received by such employee as compensation under the workmen's compensation law, or one-half (1/2) of the amount recovered and paid to such employee insettlement of, or by judgment in said action, whichever is thelesser amount."

And while in 1940 section 2839 provided that the insurance carrier should have "a lien on such cause of action for one-half (1/2) of the amount paid to such employee as compensation under the Workmen's Compensation Act, which shall be a first lien thereon," the 1943 amendment altered the section to give the insurance carrier "a lien on such cause of action for one-half (1/2) of the amount paid to such employee as compensation under the Workmen's Compensation Act or one-half (1/2) of the amountrecovered and paid to such employee in settlement of, or byjudgment in said action, whichever is the lesser amount, which shall be a first lien thereon."

Thus the amendment would bring about the exact result contended for here, as to attorneys' fees, by limiting the subrogation and the lien to one-half of the recovery or settlement, if less than one-half of the compensation. Thus one-half of the judgment or settlement would be free from the subrogation right and first lien, so as to be subject to the attorneys' lien under the general statute pertaining to the subject generally.

This court said in Nichols v. School District, 87 Mont. 181,287 P. 624, 627: "In the construction of an amendatory Act it will be presumed that the Legislature, in adopting it, intended to make some change in the existing law (State ex rel.Public Service Comm. v. Brannon, 86 Mont. 200, 283 P. 202, [67 A.L.R. 1020]), and the courts will endeavor to give some effect to the amendment. (State ex rel. [Federal Land] Bank v.Hays, supra [86 Mont. 58, 282 P. 32]; 36 Cyc. 166.) And this presumption is fairly strong in the case of an isolated, independent amendment, as here. (State ex rel. Rankin v.Wibaux County Bank of Wibaux, 85 Mont. 532, 281 P. 341; 36 Cyc. 1164.) When changes have been introduced by amendment, whether by omission, addition, or substitution of words, it is not to be assumed that they are without design. (2 Lewis' Sutherland on Statutory Construction 2d Ed., 777)". This is the accepted rule; see 59 C.J. 1096, sec. 647; 25 R.C.L. 1050, sec. 276.

It is true that the rule is not absolute. Thus this court said in State ex rel. Rankin v. Wibaux County Bank, 85 Mont. 532,281 P. 341, 344: "It is generally held that where the phraseology of a statute is changed, it will be presumed that the Legislature, in adopting the amendment, intended to make a change in the existing law, and the courts will endeavor to give some effect to the amendment. (36 Cyc. 1164; 2 Lewis' Sutherland on Statutory Construction, sec. 401.) But every change of phraseology does not indicate a change of substance and intent. The change may be made to express more clearly the same intent or to improve the diction."

But no one can seriously contend that this amendment was "to express more clearly the same intent or to improve the diction." It altered the lien from one upon the entire cause of action up to one-half of the compensation, to one upon only half of the cause of action where the compensation exceeded the judgment or settlement. Obviously a reduction of the lien from 100 per cent. to 50 per cent. of the cause of action is not a clarification of the prior intent nor a mere improvement of the diction.

The 1943 amendment to the section has no application to the case at bar as the events that gave rise to the case before us occurred prior to the 1943 amendment, and such amendment was not made expressly retroactive. (Sec. 3, Rev. Codes.)

The majority further limit the board's right of subrogation to one-half of the amount of compensation which happens to have been paid at the settlement of the damage action. That construction practically nullifies the provision, since compensation payments are normally made over many weeks, in this case 400 weeks, or over seven years; it removes all certainty and brings the subrogation amount largely within the control of the claimant by her haste in reaching a settlement, to the detriment of the fund.

That the legislature had no such intention is shown by the fact that it used no words which can possibly be construed to limit the board's right of subrogation to one-half of the compensation paid at time of settlement. The statute says that the subrogation shall be "to the extent of one-half (1/2) of the gross amount received by such employee as compensation." That the legislature meant the entire amount is shown, not only by the fact that it used no words of limitation, but that in addition it expressly provided how the subrogation amount should be determined "in the event that the amount of compensation payable under this Act shall not have been fully determined at the time such employee shall receive settlement of his action." Whether the amount of compensation has been fully determined or not is entirely immaterial if the only question is what has already been paid. There is no possible excuse for the misconstruction of so clear a statute, unless words have lost all meaning.

The Act may possibly be more reasonable or workable as amended in 1943 and as now construed by the majority to mean before the amendment, especially if it was intended to encourage damage suits during the six months period granted to claimants by the Act. But the legislature could ban such actions entirely, as it did by section 2839 prior to its amendment in 1933; and the question of legislative policy as to the conditions under which such actions shall be prosecuted, if at all, is not for the courts to determine.

The judgment of the lower court should be affirmed.