Wilcox v. Warren Construction Co.

BENNETT, J.,

Dissenting. — Henry "Wilcox, the father of the plaintiff, was killed in an accident while in the employ of the defendant company. He left a widow by a second marriage, who was then insane and who died in the state hospital for the insane about three months after his death. The deceased also left two orphan children by a previous marriage, who were minors at the time of his death, and who are the plaintiffs herein. A demurrer to the complaint was sus*144tained in the court below, and the question here, is whether or not the plaintiffs — minor children of the deceased — have a right to recover for their father’s death under the Employers’ Liability Act of 1911; or whether the sole right to sue for his death was vested in the widow, and entirely extinguished by her death.

That part of the provision of the act of 1911, which is important here, is as follows:

“The widow of the person so killed, his lineal heirs, or adopted children, or the husband, mother or father, as the case may be, shall have a right of action, etc. ’ ’

It is urg-ed on behalf of respondent that under the provisions of this act the widow of Wilcox was, at the time of his death, the sole beneficiary, and that when she died the action was either extinguished, or the right passed to her legal heirs, in preference to the children of the deceased.

This act does not seem to have ever been construed by the courts of this state, as between the widow and the children of the deceased.

In McFarland v. Oregon Elec. Ry. Co., 70 Or. 27 (138 Pac. 458, Ann. Cas. 1916B, 527), the court construed the latter clause of the act, as to who was the beneficiary between the mother and father, and it is claimed by' the respondent that the general language of the opinion covered the case of a widow and child, as well as the question which was then before the court.

In that case the court held that the mother was the sole beneficiary to the exclusion of the father, saying:

“It is believed that when these sections are construed together the damages that are recovered in the action for the loss of life * * are * * given to the person or persons there specified in the order stated. ’ ’

However, as the question of preference between the widow and the orphan children was not before the court *145in that case and, as there is much ground for distinction between the priority of the mother and father on the one hand, and those of the widow and children upon the other, we must, according to recognized principles, assume that the court only intended to pass upon the question that was really presented in the ease for decision, and that its language is limited to that question.

In Wells on Res Adjudicata and Stare Decisis, Section 583, it is said:

“The reasoning, illustrations and references contained in the opinion of a court, are not authority or precedent: but only the points arising in the particular case, and which are decided by the court.”

And again in Section 584:

“Language used in an opinion, whether in the reasoning or the conclusion established thereby, is always to be explained and restricted by the case under consideration, and to that extent only is a decision fitted to serve as a precedent.”

In Black’s Law of Judicial Precedents, page 38, it is said:

“But the opinion may far outrun the decision, not only in the way of including inferences and illustrations, but also in the way of noticing points not essential to the final conclusion or laying down principles of law far broader than is necessary for the particular case in judgment. In that case, it has no authority as a precedent beyond the point or points actually and necessarily decided.”

There is so much difference, in the relation and dependency of the mother and father upon a son, on the one hand, and of a widow and children, with reference to the husband and father, upon the other, that the order of priority as between the mother and father, ought hardly to be conclusive as between the widow and *146children. And this is especially true where the language defining their relative rights is different. Ordinarily the mother is less able to take care of herself — ■ less independent — and more likely to be dependent upon her son for support than the father, and there might be some reason for giving her a preferred right. But this could hardly be said as to the widow and children, both of whom may be assumed to be wholly dependent upon the husband and father for their support. Again, the disjunctive “or” is used between “mother” and “father,” which may have some significance as tending to show that it was intended that they should take alternatively, while the conjunction between “widow” and “lineal heirs” is entirely omitted and left to be supplied or inferred from the context and general nature of the law.

"Where there is so much to distinguish, I assume that the court in the McFarland case only intended to pass upon the question which was before it, and leave the different question as between the widow and children, to be decided at such time as it might actually arise.

The construction of the section of the Laws of 1911, already quoted, seems to depend upon what conjunction is understood and interpolated after the word “killed” and before the word “his.” If the word “and” is interpolated it would read thus:

“If there shall be any loss of life the widow of the person so killed (and) his lineal heirs or adopted children, etc.”

Read thus it would clearly indicate that the widow and children were to take together and not by preference, and that each should recover for his own individual injury. On the other hand, if the word “ or” is interpolated, it would read thus:

*147“If there shall be any loss of life the widow of the person so killed (or) his lineal heirs or adopted children, etc.”

—and would have some tendency to indicate the intention to give a preference on behalf of the widow, although it would not be conclusive because the word “or” in such statutes is sometimes construed as “and” in spite of the direct use of the disjunctive: 2 Sutherland on Statutory Construction (2 ed.), § 397.

It seems to be well settled under the authorities that where the beneficiaries are grouped in different groups, and one group is given preference over another group, that the first group takes, to the exclusion of the latter one, and that upon the death of all of the former group the liability is extinguished: Woodard v. Railway Co., 23 Wis. 400; Frazier v. Railroad Co., 96 Ga. 785 (22 S. E. 936); Railroad Co. v. Bean, 94 Tenn. 388 (29 S. W. 370); Webb, Admr., v. Railroad Co., 88 Tenn. 119 (12 S. W. 428); Duval v. Hunt et al., 34 Fla. 85 (15 South. 876).

The serious question in this case, however, is as to whether the law really intended to make a separate grouping, as between the widow and the children, or whether they were all intended to be included in one group. There seems to be only four states in which the question has been passed upon as between the widow and children, under statutes similar to our own. These states are Missouri, South Dakota, Kentucky and Tennessee. In Missouri the statute is almost exactly like our own, and it has been construed as giving the widow the preference right to the exclusion of the children: Hamman v. Central Coal Co., 156 Mo. 232 (56 S. W. 1091).

*148The same construction was given by the Supreme Court of South Dakota to a statute in that state, which, while not by any means identical with our own, is very similar in its wording: Belding v. Black Hills Co., 3 S. D. 369 (53 N. W. 750).

On the other hand, in Kentucky and Tennessee, under statutes worded almost exactly like our own as to the order of the beneficiaries, the courts have given them a construction giving the widow and children equal preference rights, and permitting each to recover compensation for his own injury, in one action to be brought by or for the benefit of all.

In Kentucky the provision is, that “the widow, heir, or personal representative of the deceased shall have the right to sue. ’ ’ Under this statute it was held that there was no preference as between the widow and children, but that both of them took in preference to the personal representative: Henderson v. Railway Co., 86 Ky. 389 (5 S. W. 875).

In Tennessee an amendment to the Code of that state provided that, while the action could be brought only by the widow, it should be brought “for the benefit of his widow or next of kin.”

It was held by the Circuit Court of Appeals for the Sixth District in an opinion rendered by Judge Taft in Fleton v. Spiro, 78 Fed. 576, 578 (24 C. C. A. 321, 324), that the word “or” in this clause should be construed and read as “and,” the court saying:

“It is not uncommon, in order to carry out the object intended by the legislature, for courts to construe ‘or’ as meaning ‘and.’ ”

The same construction of the same statute was made by the Supreme Court of Tennessee in Webb, Admr., v. Railroad Co., 88 Tenn. 119 (12 S. W. 428).

*149The Federal Employers ’ Liability Act provided that the action shall be brought by the personal representative “for the benefit of the surviving widow or husband and children of such employee”: U. S. Comp. Stats., § 8657; 8 Fed. Stats. Ann., p. 1208.

Under this act it has been held, that while the widow and children take by preference over remoter heirs, yet as between themselves, they take together and not by group, and that each could recover for his or her own respective injury — all to be included in one action to be brought for the benefit of all the beneficiaries.

It is urged on behalf of the respondent that the federal statute is conjunctive in its terms, while ours is disjunctive; but it will be noticed that there is just as much reason to construe that statute as disjunctive, as between the widow and children, as there is to give our statute such construction.

"When we view this law as a matter of first impression, it seems difficult to resist the conclusion from the whole body of the act, that the legislative intent, was to give compensation both to the widow and children for the loss which they suffer by reason of the negligence or wrongful act of another, causing the death of the husband and father. That this law was intended to be compensatory in its character is now well settled: McFarland v. Oregon Elec. Ry. Co., 70 Or. 27 (138 Pac. 458, Ann. Cas. 1916B, 527,; Fisher v. Portland Ry., L. & P. Co., 74 Or. 229 (137 Pac. 763, 143 Pac. 992, 145 Pac. 277).

Under such a statute the widow cannot, of course, in any event, recover anything for the loss which the children may have suffered by reason of the death of the parent. She can only recover for her own loss. If the children are shut out by her, then they will receive no compensation whatever, nor will anyone receive any *150compensation on their behalf. They were just as dependent upon the deceased for their support — indeed, more dependent — than the widow. In many cases the widow is only a stepmother to the children and under no obligation whatever for their support after the death of the father. In many other cases, as in this case, she may die before a recovery. It seems to me unquestionable, that one, and indeed the principal intent of the legislative mind in adopting this law, was to provide a means of support for the widow and children whose natural support is taken away. To adopt the construction urged by respondent would deprive the children of any support whatever, and leave them in many cases to become a burden upon society, while the defendant, whose negligence caused the death of the father, would be relieved of all liability.

To suppose that the people, in enacting this law, intended to recompense the widow for her injury, but to leave the helpless children without any recompense or support whatever, is to suppose that they have made a distinction without any reason whatever, and that the law instead of being a consistent and co-ordinate thing, with a reasonable and harmonious purpose, was the mere expression of an inconsistent whim — giving to one and taking away from another, utterly without any reason or distinction.

In Sutherland on Stat. Const. (2 ed.), Volume 2, Section 490, it is said:

“Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardships or injustice; in construing an act of the general assembly, such a construction will be placed upon it as will tend to advance the beneficial purposes manifestly within the contemplation of the general assembly at the time of its passage; and courts *151will hesitate to place such a construction upon its terms as will lead to manifestly absurd consequences.”

In Quenn v. Clarence, L. R. 22 Q. B. 23-65, it is said by Lord Chief Justice Coleridge :

“In such a matter as the construction of a statute, if the apparent logical construction of its language leads to results which it is impossible to believe that those who framed or those who passed the statute contemplated, and from which one’s own judgment recoils, there is in my opinion, good reason for believing that the construction which leads to such results cannot be the true construction of the statute.”

The majority of this court are interpolating the word “or” between “widow” and “lineal heirs,” and then giving the clause an alternative construction which shuts the children out entirely, if there happens to be a widow at the time of the father’s death.

The trouble with this construction of the law, as it seems to me, is that it entirely overlooks every cardinal principle of statutory construction, except the one uncertain, inconstant and obscure grammatical rule, that when the conjunction “or” is used between the two last of a series of terms, it shall be read in between each of the other terms, and as so interpolated shall have an invariable alternative construction. As we have already seen, this rule is almost as often broken as it is observed. It is a small nicety of the English language, which has never been closely followed, either by those who use the language or by those who construe it. It is of little more importance than the correct use of punctuation marks, which all courts disregard where they conflict with the general purpose of a law.

In 29 Cyc. 1505, it is said:

“The word ‘or’ is often used and has been often construed as if it were ‘and’ in statutes.”

*152And to support the text the work cites the decisions of the courts of California, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Minnesota, Missouri, New Jersey, New York, North Carolina, Pennsylvania, West Virginia and Wisconsin.

And yet we are asked to follow this small grammatical rule to the length of disregarding the evident intent of the law, the general purpose for which it was enacted — the “evil to be remedied” and to give it the unreasonable interpretation which, would shut out an adopted child, because there happened to be a natural one — shut out a crippled and dependent husband, because there happened to be a grown son not at all dependent — and shut out even the natural children, however poor and dependent they may be, because, as in this case, they happen to have a stepmother who is alive at the time of the father’s decease.

Under the law as it stood before the enactment of the liability law, the administrator could bring an action for the death of the husband and father and recover $7,500. Ordinarily where the estate is solvent, the children would receive one half of this recovery and the widow.the other half. The employers’ liability statute, as construed by this court, takes away this right of recovery, as long as there is any beneficiary under the latter act (Niemi v. Stanley Smith Lbr. Co., 77 Or. 221, 227 (147 Pac. 532, 149 Pac. 1033), and therefore destroys any hope of relief and support or recompense for their loss which the children had under the old law.

If we construe this law as giving the children nothing where there is a widow, it ceases to have the benign and beneficial effect, enlarging the rights of those who are injured by the. negligent killing of the father and husband, which was clearly intended by its makers; *153and becomes instead, a monstrous thing which not only fails to provide them any further recompense for their loss, but actually takes away the small compensation, which they would ordinarily have enjoyed under the old law.

I do not think this law should be considered a drastic one in any harsh or unreasonable sense. On the contrary, I think its every principle is in accordance with justice and humanity.

At any rate, its provisions are no more drastic when applied in favor of the helpless children of the deceased, than when enforced for the benefit of a widow.

It seems now well settled that such acts are to be liberally construed in favor of the beneficiaries: McFarland v. Oregon Elec. Ry. Co., 70 Or. 27 (138 Pac. 458, Ann. Cas. 1916B, 527); McClaugherty v. Rogue River Electric Co., 73 Or. 135, 155 (140 Pac. 64, 144 Pac. 569).

It seems to me that when the provisions of the law are read altogether, its plain purpose is to provide a recompense for both widow and children, and that this plain purpose ought to prevail over any narrow grammatical construction as to the use of “or” and “and.”

I think, in construing this clause of the law, the word “and” should be understood rather than the word “or,” and that it should be construed as giving to the widow and children each a compensation for his or her individual injury, to be taken equally and not by preference, and all to be recovered in one action, in which it seems all of those who are living should join.

This construction also seems to me, (1) more in harmony with our general inheritance statutes, which provide that upon the death of the husband or father, the widow and children shall each inherit some portion of his estate; (2) that it is a more reasonable conclusion *154as to the real intent of the legislative mind; and (3) that it is the more humane and just construction of a doubtful and ambiguous provision, since it provides just compensation for the helpless children as well as the widow.

I think the judgment of the court below should be reversed and the case remanded for trial.

Bean, J., concurs.