Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Bartlett & Thatcher, for Appellant.
Geo. B. Thatcher, for Appellant, on petition for rehearing.
H. R. Cooke, for Respondent.
By the Court, McCarran, J.:
This action grew out of injuries sustained by the respondent while in the employ of the appellant corporation, in the sinking of a mining shaft. The complaint in this cause sets forth that the respondent was injured while descending the shaft of appellant in a mining bucket, in pursuance of his employment in bailing water
from the bottom of the shaft. The respondent was 29 years of age, and had been earning wages as a miner at the rate of $5 a day. The injuries, as set forth in the complaint, were of a more or less serious nature, and it is alleged that defendant, by reason of the injuries, is incapacitated from performing ordinary manual labor, and, further, that he suffered numerous and severe hemorrhages and continued physical pain. The respondent in this case admits in his complaint the receipt of $36 from appellant.
This action was brought under the employers' liability act of this state, and a credit, or set-off, was admitted and allowed by respondent to appellant in the sum of $36, and respondent prayed for judgment in the sum of $1,964.
A demurrer, submitted by the appellant, was overruled by the trial court, following which order the appellant filed its answer, in which answer the appellant set up, among other things, the following allegation in support of its affirmative defense: That plaintiff ought not and should not have or maintain his cause of action, for on account of the facts set forth in his said complaint, for in that at Tonopah, Nye County, State of Nevada, the said plaintiff, for and in consideration of the sum of $36 to him in hand paid by said defendant in full accord and satisfaction of the facts set forth in plaintiff's complaint, and of the injury complained of therein, made, executed, and delivered to defendant that certain instrument in writing in full of all account and claims of and for and on account of the pretended facts set forth in plaintiff's complaint and in accord, relinquishment and satisfaction thereof as follows, to wit: Tonopah, Nevada, November 18, 1911. Received of the Halifax-Tonopah Mining Company the sum of seventy-six dollars, being in full of all account and claims of and for any injury heretofore sustained by the undersigned, while in the employ of the Halifax-Tonopah Mining Company and the undersigned, for and in consideration of the sum of seventy-six dollars does forever release and discharge said Halifax-Tonopah
Mining Company, of and from any and all claims of damages therefor, and does hereby release and discharge any and all claims of every nature, from the beginning of the world to the date of these presents, he may have or claim against said Halifax-Tonopah Mining company. Jack Lawson.'
Of the sum specified in the foregoing receipt $40 was paid respondent by appellant as wages for services actually performed, and the remainder of the sum, amounting to $36, was paid the respondent by appellant on account of his injuries. To this answer, and especially to that phase of the answer quoted above, respondent demurred on the ground that the affirmative defense did not state facts sufficient to constitute any defense to respondent's cause of action. This demurrer, on the part of the respondent, was sustained by the trial court, and ten days allowed appellant for amendment. To the ruling of the court in this respect the appellant excepted, and by notice duly given, through its attorney, declined to amend the answer. Thereafter the cause was heard before the trial court without the assistance of a jury, and a decision was rendered in favor of respondent, and judgment entered against the appellant in the sum of $1,174 and costs. From the order sustaining respondent's demurrer to appellant's answer, and from the judgment rendered in the cause, appeal is taken to this court.
1, 2. Section 5652 of the Revised Laws of the State of Nevada, applicable to the subject of personal injuries, is as follows: That no contract of employment, insurance, relief benefit, or indemnity for injury or death, entered into by or on behalf of any employee, nor the acceptance of any insurance, relief benefit, or indemnity by the person entitled thereto, shall constitute any bar or defense to any action brought to recover damages for personal injuries to, or death of such employee; provided, however, that upon the trial of such action the defendant may set off therein any sum it has contributed toward any such insurance, relief benefit, or indemnity that may have been paid to the person entitled thereto.
One question alone is to be decided by this court, viz: Was the receipt given by Jack Lawson, the respondent, to the Halifax-Tonopah Mining Company, the appellant, for the sum of $36, in full of all account and claims of and for any injuries sustained by respondent, such an acceptance as is contemplated by the inhibitions of section 5652 of the statute quoted above? In the consideration of this question, however, a secondary proposition is presented and raised by appellant, viz, the constitutionality of the section set forth.
The employers' liability act, of which the foregoing section is a part, was enacted by our legislature in 1907, and by the enactment of this statute common carriers and mill and mine owners were made liable to their employees in case of injury, or to the personal representative of their employees in case of death, where the injury or death was the result of negligence of the officers, agents, or employees of the common carrier, or mill or mine operator. By the enactment of this statute this state, speaking through its legislaturethe representatives of its peopledeclared its policy applicable to this all-important subject. By this statute the common-law rule of fellow servants was modified, and, moreover, the common-law rule of contributory negligence was superseded by the statutory rule, which is more or less properly termed the rule of relative or comparative negligence. In enacting section 5652, the object and purpose of the legislature was manifest and obvious, and the meaning of the words therein contained is to our mind in no wise obscure. By its enactment the legislature manifestly sought to avoid the various and devious contracts and agreements so often required by employers as a condition precedent to the obtaining of employment, and also to guard against the many and devious ways by which employers seek to avoid the consequences of their own acts, or the acts of their agents, by obtaining releases therefrom by the signing of instruments at the hands of the injured party tending to establish a settlement. Section 2071 of the code of the State of Iowa, dwelling
upon a similar subject, is as follows: Every corporation operating a railway shall be liable for all damages sustained by any person, including the employees of such corporation, in consequence of the neglect of the agents, or by any mismanagement of the engineers or other employees thereof, and in consequence of the wilful wrongs, whether of commission or omission, of such agents, engineers, or other employees, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding. Nor shall any contract of insurance, relief benefit, or indemnity in case of injury or death, entered into prior to the injury, between the person so injured and such corporation, or any other person or association acting for such corporation, nor shall the acceptance of any such insurance, relief benefit, or indemnity by the person injured, his widow, heirs or legal representatives after the injury, from such corporation, person, or association, constitute any bar or defense to any cause of action brought under the provisions of this section, but nothing contained herein shall be construed to prevent or invalidate any settlement for damages between the parties subsequent to injuries received.
The code of Iowa quoted above is very analogous to our own statute, but contains a distinctive provision recognizing and sanctioning settlements for damages between the parties.
Section 5652 invalidates any defense based upon contract made to cover the contingency of future injury, and it likewise invalidates a defense based upon the acceptance of insurance, relief benefit, or indemnity accepted by reason of injury already sustained. The acceptance of any insurance, relief benefit, or indemnity must necessarily be an act of acceptance done after an injury, and hence it follows that the intendment of the statute was to make nugatory any defense based on acceptance of insurance, relief benefit, or indemnity, after
the injury, as well as any defense based on contract or agreement made or entered into prior to injury, created for the purpose of relieving the employer from his proper responsibility.
The word indemnity means: Protection or exemption from loss or damage past or to come. It also means: Immunities from the punishment of past offenses. One who indemnifies, or enters into a contract of indemnity, thereby agrees to save harmless. The word, generally speaking, carries with it two meanings: First, in the sense of giving security; and, second, in the sense of relieving a party from liability for damage already accrued.
Laws enacted under the police power of the state, which will in their general nature promote healthful conditions of work and freedom from undue oppression, are always within the scope of the legislative department. The health and safety of the great mass of the employed is a subject with reference to which there has been vast and varied legislation in recent years, and the true aim and object of it all has been to protect life, person, and property where persons are engaged in hazardous vocations. The various legislative acts, dwelling upon this subject in the many states, have been passed upon by the courts in numerous decisions, with the result that the courts of last resort of many states, as well as the Supreme Court of the United States, have upheld the principle that such legislation was within the police power of the state; that power being exercised to govern men and things within the limits of its dominion. It has been generally said that where the health, prosperity, good order, and peace of the people, or of any general class of the people, require legislative regulations, it is within the power of the legislature of the several states to enact such statutes.
The legislature of the State of Nevada, speaking for the policy of the people of this state, has in the past enacted many laws intended to better the conditions of the laboring class, by laying down rules and ...