I concur. Since my reasons for concurring vary somewhat in several places from those set forth in the court's opinion, I shall set forth sufficient of my views to note the variances.
I am inclined to the view that no new cause of action was created in favor of an employee whose employer rejected the act but rather that the employee was relegated *Page 288 to his common law action with certain defenses taken from the defendant and a presumption of negligence created in favor of the plaintiff. Hence no new right was created, but in taking away certain defenses and supplying plaintiff with a presumption not based on logical or natural inference which remains in the case to go to the jury along with rebuttal testimony in place of proof required, a right substantive in nature was created. This right may be looked upon as more than remedial, that is as in enlargement of the previously given primary right by the taking away of certain defenses and the furnishing of a presumption to aid recovery which would seem to be substantive in nature. Another way of looking at the situation is that proof supplied by statute is substantive in nature in that within the framework of the basic right given, an additional right is given to have the defendant presumed negligent at least to the extent to which negligence is alleged. At least I think we can well say that the sort of presumption granted by the Nevada statute is not such as calls for the application of the law laid down in this state in the case of certain presumptions, to wit: that they go out of the case where any evidence tending to rebut them is introduced into the case. The Nevada statute itself appears to require that the presumption created by it remain in the case as proof to go to the jury with the rebuttal testimony. This seems to me in nature substantive, perhaps for the reasons specified in the opinion, i.e., that it is so closely interwoven with the basic right to recover for negligence as to make it an inseparable part of that right.
I doubt that the presumption of negligence was introduced in the Nevada act in order to place accepting and rejecting employers "on an equal footing" by eliminating from the action at law negligence and contributory negligence because those elements were eliminated by the Nevada Compensation Act. While contributory negligence is abolished as a defense under the Nevada statute in an action at law unless *Page 289
"Willful and with intent to cause injury, or the result of intoxication on the part of the injured party",
where the accident was due to the sole negligence of the plaintiff employee, the defense was not eliminated. The statute furnished the plaintiff with a presumption of negligence on the part of the employer and that such negligence was the proximate cause of the injury. But the presumption could be rebutted and while in many cases the employer would not be in position to rebut it and it would thus amount to a virtual elimination of negligence, one cannot say such employee was on an equal footing with the employee whose employer had accepted the act. In some case he might be better off if he would get and collect a judgment large enough to pay his attorneys and have more than compensation would have paid him. In other cases where the employer had convincing evidence to overcome the presumption he might lose altogether and be worse off.
I think the reason for dispensing with the doctrine of contributory negligence and for presuming negligence on the part of the employer who rejects the act was to persuade and even coerce the employer to accept the act. While the failure to accept the act is not made punitive as is the failure to procure insurance under our act, it is highly coercive.
In my special concurrence to the former opinion rendered in this appeal I pointed out that the presumption of negligence on part of the employer furnished a plaintiff by the Nevada statute should be confined to the specific allegations of negligence stating the reasons why I so concluded. I there stated:
"Certainly if a plaintiff can simply allege negligence in general or specifically as to some particular negligence and yet get the benefit of the presumption as to any additional or different negligence which may support a verdict, I see most serious difficulties in making up and presenting issues to the jury. The language in the cases of Reeder v. Pincolini,59 Nev. 396, 94 P.2d 1097, and Cahow v. Michelas, [62] Nev. [295], 149 P.2d 233, seems to lean toward the proposition that the presumption furnished the plaintiff employee by the Nevada statute is a presumption that the defendant was guilty of any negligence which would support a verdict for the plaintiff regardless of whether *Page 290 alleged. I have a serious doubt that the Nevada statute meant to inject into a complaint which only assigned negligence generally any negligence which might reasonably be conceived as giving support to a verdict for the plaintiff. If such be the holding it would seem that the jury might arrive at a verdict on some possible presumed negligence which was never, because of the presumption, specifically brought to its notice and in regard to which the employer might not have produced rebuttal testimony. It would require the court to speculate as to all possible negligences which could support a verdict which were by the presumption, thus broadly construed, injected into the case and then try to determine whether there was rebuttal evidence to go to the jury on all such negligences. If there were not rebuttal evidence on all such conceivable negligences it would seem that a verdict for the plaintiff would have to be directed on the presumed negligence not rebutted. The court would be at a loss as to what issues it was trying. I am of the present opinion that the presumption is one which takes the place of proof but does not dispense with the necessity of allegations of the negligence charged. And as to this matter I think it probable that we would be guided by the law of this jurisdiction rather than by the decisions of the Nevada court for the manner in which an issue is to be pleaded and presented would seem definitely to be a matter of practice and procedure." Buhler v. Maddison, 109 Utah 245,166 P.2d 205, at page 214.
The main opinion on rehearing has adopted this view and Mr. Justice Wade in his concurrence specifically affirms this view point. Hence it is unnecessary to make the observation which I formerly made to the effect that
"I cannot think of any negligence of the employer which could have caused the damage except that alleged."
This will save any strain on my imagination and that of Mr. Justice Wade. *Page 291