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feature25 have been sustained; while on the other [ 0 10] 2. Imposition of Liability without Fault. hand a compulsory compensation28 act has been held A strong if not a controlling reason for holding a invalid.27

compulsory compensation act void was found by is plain, and instances are ample it insures the prompt receipt by the [b] Taking to a large extent theowhere his failing so to protect them injured employee or his dependents retical.-"Granted, that employers must make him liable at common of a certain sum undiminished by are compelled to insure and that law. Having pronounced constitu- the expenses of litigation. The two there is

in that sense a taking. tional, then, an act which compels acts are, therefore, so plainly dis- They insure themselves and their both employers and employed to go similar that the decision in the Ives employees from loss, not others. into a scheme of insurance, we do Case is not controlling in this”); The payment of the required preminot hesitate to say that the differ- Herkey V. Agar Mfg. Co., 90 Misc. ums exempts them from further ence in new or added liability by the 457, 464, 153 NYS 369 (where the liability. The theoretical taking no act of a stranger on the premises is supreme court trial term refused to doubt disappears in practical experinot enough to make it unconstitu- declare L. (1914) C 41 invalid be- ence. As matter of fact every tional. It is but a slight extension cause of the possible injurious con- industrial concern, except the very of the common-law assurance of a sequences of error, though Crane, J., large ones who insure themselves, safe place to work. Neither would it said: "I am strongly of the opinion, have for some time been forced by be a violation of the due process

for the reasons stated, that the conditions, not by law, to carry acguaranty to make the master an in- Workmen's Compensation Act can- cident indemnity insurance. A relasurer of the workman at the shop." not be forced upon employees any tively small part of the sums thus Stertz

State Industrial Ins. more than upon employers; that if paid actually reached injured workCommn., (Wash.) 158 P 256, 260. there cannot be a compulsory act men or their dependents. With the

25. Western Indemn. Co. v. Pills- for the master, neither there economic saving of the present bury, 170 Cal. 686, 707, 151 P 398 be a compulsory act for the servant; scheme, insurance in the long run (In this case the validity of the if the employer may elect whether should certainly be as cheap Boynton Act [St. (1913) p279) was he will come in under the Workmen's under the old wasteful plan, and the sustained; this act superseded the Compensation Act or stand by his families of all injured workmen, not Roseberry Act (St. (1911) p 796), common law liability, so can the em- a part only, will receive some comthe essential difference between the ployee. It must be 'by mutual con- pensation for the loss of earning two acts being that the compensa- sent or the law is of no force.. power of

the wage earner.

We tion provisions of the later statute If the plaintiff were the only one should consider practical experience are compulsory on all employers and interested I should have no hesi- as well as theory in deciding whether employees coming within its terms, tancy

in deciding that, she might a given plan in fact constitutes a while the earlier statute gave to both maintain this action, but she is not taking of property in violation of employers and employees a right of the only one interested. This act the Constitution." Jensen v. Southelection in this regard. The court gives to all injured employees, irre- ern Pac. Co., 215 N. Y. 514, 525, was divided; three judges voted to spective of contributory negligence 109 NE 600, LRA1916A 403, AnnCas sustain the act as against the prin- or their ability to maintain a com- 1916B 276. cipal objection that it imposed lia- mon law action, certain definite sums 26. Compensation and insurance bility upon the employer without


money when injured. Notice, acts distinguished see_supra $ 2. fault; three judges voted to sustain however, must be given by the em 27. Ives v. South Buffalo R. Co., the act for the reason that, although ployee within the time prescribed 201 N. Y. 271, 94 NE 431, 34 LRANS the imposition of liability without by the act and other formalities 162 and note, AnnCas1912B 156 and fault would render the act invalid complied with. Through a desire note. if it is meant that "the whole bur- | for more money or the persuasions [a] Reason for rule-"When our den may lawfully be cast upon inno- of lawyers many injured employees, constitutions were adopted it was cent employers whose employees are in reliance upon my decision, might the law of the land that no man injured, without affording them any

be inclined to forego the compensa- who was without fault or negligence means of dividing the burden with tion given by the statute and re- could be held liable in damages more fortunate employers engaged in

sort to an action for ' negligence. for injuries sustained by another. the industries whose employees have The Court of Appeals might subse- That is still the law, except as to not carelessly hurt themselves," the quently determine that in this man- the employers enumerated in the act allowed the employer to relieve

ner I was in error, or that in the new statute, and as to them it prohimself from liability"by paying a

light of subsequent decisions (In re vides' that they shall be liable to relatively small sum as insurance"; Second Employers' Liability Cases, their employees for personal injury and the seventh judge dissented, 223 U. S. 1, 32 SCt 169, 56 L. ed. by accident to any workman arisholding that the act could not be 327, 38 LRANS 44) Ives v. South ing out of and in the course of the referred to the police power, was un

Buffalo R. Co., 201 N. Y. 271, 94 employment which is caused in reasonable, discriminatory, in excess

NE 431, 34 LRANS 162, AnnCas whole or in part, or is contributed of the power conferred by the state

1912B 156, should be modified in its to, by a necessary risk or dånger

In constitution, and in violation of the

limitations of the police power. of the employment or one inherent fourteenth amendment to the federal

such a case the result would be that in the nature thereof, except that constitution); Jensen Southern all such employees would have lost there shall be no liability in any Pac. Co., 215'n. Y. 514, 524, 109 NE forever all rights under the Compen case where the injury is caused in 600, LRÀ1916 A 403 and note, AnnCas

sation Act and also would be barred whole or in part by the serious and from

action 1916B 276 (In this case the court dis

for damages. In willful misconduct of the injured tinguished L. (1914) c 41, which it

other words, all their rights might workman. It is conceded that this be

corupheld from L. (1910) c 674, which

made to depend upon the is a liability unknown to the comwas held invalid in Ives vSouth

rectness of the view of one judge"). mon law and we think it plainly

See also Western Metal Supply Co. constitutes a deprivation of liberty Buffalo R. Co., 201 N. Y, 271, 94 NE 431, 34 LRANS


v. Pillsbury, (Cal.) 156 P 491 (where and property under the Federal and

the court sustained the Boynton Act 156, as follows: "The two acts are

State Constitutions, unless its imas to the allowance of death benefits position can essentially and fundamentally differ

be justified under the ent. That involved in the Ives Case

and adhered to its former decision police power which will be discussed made the employer liable in a suit

the constitutionality of the act under a separate head. In arriving in general).

at this conclusion we do not overfor damages though without even imputable fault and regardless of

[a] Deprivation of remedy.-"It look the cogent economic and sociothe fault of the injured employee ployee is deprived of all remedy for is not accurate to say that the em- logical arguments which are urged


the support of

statute. There short of serious and willful miscon

He is given a can a wrongful injury.

be no doubt as duct.

to the theory This act protects both em

To be sure, the compensaremedy.

of this law. ployer and employee.

It is based upon the former from wasteful suits and extravagant

tion or recovery is limited, and that proposition that the inherent risks in a sense

of verdicts, the latter from the expense,

may possibly constitute an employment should in jusuncertainties and delays of litigation

a taking; but if so, it is his con- tice be placed upon the shoulders

tribution to an insurance scheme of the employer, who can protect in all cases and from the certainty designed for his benefit, and may himself against loss by insurance of defeat if unable to establish a

be justified on precisely the same case of actionable negligence.

and by such an addition to the price Both

grounds as the contribution exacted of his wares as to cast the burden acts are said to have been based on of the employer has been. When ultimately upon the consumer: that the proposition that the risk of acci

he enters into the contract of em- indemnity to an injured employee dental injuries in a hazardous em- ployment, he is now assured of a should be as much a charge upon ployment should be borne by the definite compensation for an acci- the business as the cost of replacbusiness and that loss should not

dental injury occurring with or with-ing or repairing disabled or defecfall on the injured employee and his out fault imputable to the employer tive machinery, appliances or tools; dependents, who are unable to bear and is afforded a remedy, which is that, under our present system, the it or to protect themselves against it. prompt, certain and inexpensive. In loss falls immediately upon the emThat act made no attempt to dis- return for those benefits he is re- ployee who is almost invariably untribute the burden, but subjected the quired to give up the doubtful privi- able to bear it, and ultimately upon employer to a suit for damages. lege of having a jury assess his the community which is taxed for This act does in fact as well as in damages,

a considerable part

of the support of the indigent; and theory distribute the burden equi- which, if recovered at all after long that our present system is uncertably over the industries affected. | delay, must go to pay expenses and tain, unscientific and wasteful, and It allows compensation only for loss lawyers' fees.' Jensen v. Southern fosters a spirit of antagonism beof earning power, but by the crea- Pac. Co., 215 N. Y. 514, 526, 109 NE tween employer and employee which tion of a state insurance fund, or 600. LRA1916A 403, AnnCas1916B it is to the interests of the state to by the substitute methods provided, ' 276.

remove. We have already admitted





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the New York court in the view that it imposed lia- fault;28 but this decision appears contrary to the bility on the employer for an injury not due to his trend of the subsequent authorities.29 The elective the strength of this appeal' to a of justice to permit one to impose duty committed by the employer, it recognized and widely prevalent sen- liability for his willfully self-in- would have been void. Such a law timent, but we think it is an ap- flicted injuries upon another who is would have amounted to a legislapeal which must be made to the wholly free from responsibility for ture forfeiture of property rights, people and not to the courts. The them").

regardless of the holding of any right of property rests not upon 29, Cunningham V. Northwestern court upon the question"). philosophical or scientific specula- | Impr. Co., 44 Mont. 180, 119 P 554 [a] Criticism of Ives case-"The tions nor upon the commendable im- (holding that L. (1909) c 67, pro- essence of the decision in Ives V. pulses of benevolence or charity, nor viding for indemnity and benefits South Buffalo R. Co., 201 N. Y. 271, 94 yet upon the dictates of natural jus- to injured persons engaged in coal NE 431, 34 LRANS 162, AnnCas1912B tice. The right has its foundation mining, to be paid from a fund col- 156 is that freedom from liability in the fundamental law. That can lected from an assessment levied on on the part of an employer who has be changed by the people, but not both employer and employee is not been guilty of no fault is a fundaby legislatures. In

a government unconstitutional, because it does not mental property right of which he like ours theories of public good differentiate between a careful and cannot be deprived by mere legislaor necessity are often so plausible a careless employer); State v. Clau- tive declaration. With all possible or sound as to command popular sen, 65 Wash. 156, 176, 117 P 1101, respect for the eminently learned approval, but courts are not per- 37 LRANS 466 (where the court said court which pronounced this decimitted to forget that the law is the of the Washington Compulsory In- sion, we are unable to give our asonly chart by which the ship of surance Act: "The argument (against sent to the doctrine.

The state is to be guided."

“The the act] is based on two funda- line is sharply drawn, however, by argument that the risk' to an em

mental ideas: The one, that the act the New York court of appeals, beployee should be borne by the em- creates a liability without fault; and tween the fellow-servant and conployer because it is inherent in the the other, that it takes the property tributory negligence rules, on the employment, may be economically of one employer to pay the obliga- one hand, and the rule that fault on sound, but it is at war with the tions of another. It must be con- the part of the employer must be legal principle that no employer can ceded that these contentions have a shown, on the other. Why this disbe compelled to assume a risk which basis in fact, and that they, on first tinction? Is the latter doctrine any is inseparable from the work of the impression, constitute a persuasive more sacred or inherently necessary employee, and which may exist in argument against the validity of the than either of the former? Under spite of a degree of care by the em- act. Since there is exacted from the common law the burden of inployer far greater than may be ex- every employer of labor engaged in dustrial accident, where no fault was acted by the most drastic


one or more of the industries termed attributable to employer or workIves v. South Buffalo R. Co., 201 hazardous 'a certain fixed sum based man, fell on the workman. Under N. Y. 271, 293, 296, 94 NE 431, 34 upon his pay roll, which is to be the new law it falls, primarily at LRANS 162, AnnCas1912B 156. used to compensate employees work- least, on the employer. It cannot be

[b] Rejection of rule:-“We have ing in such hazardous employments said that the one rule or the other not referred to the decision of the who receive personal injuries, re- is a necessary or logical result of court of appeals of the state of New gardless of the question whether fundamental principles of justice. York in the case of Ives v. South the injury was because of the fault The very trend of legislation exemBuffalo R, Co., 201 N. Y. 271, 94 NE of the employer or of the negligence plified by the act before us illus431 34 LRANS 162, AnnCas1912B of the employee, it can be said that trates how general is the belief that 156.

The act the court there some part of the sum so collected an enlightened conception of justice had in review is dissimilar in many will be paid out on injuries in which requires that the old rule be superrespects to the act before us, and is the employer is without fault; and, seded by the new. There is nothing perhaps less easily defended on eco- furthermore, since every such em- contrary to the permanent and unnomic grounds. The principle em- ployer is liable to make the pay- derlying notions of human right in bodied in the statutes is, however, ments whether or not any of his the declaration that he who is conthe same; and it must be conceded own workmen are injured, and since ducting an enterprise, in the operathat the case is direct authority an employer is liable under the com- tion of which injury to others is against the position we have here mon law for an injury to his own likely to occur, shall respond for taken. We shall offer no criticism workmen only, it can also be said such injury to those who have not, of the opinion. We will only say that by this act one employer is by their own willful misconduct, that, notwithstanding the decision held liable for the obligations of brought it upon themselves. "The comes from the highest court of the another"). Compare Western In- position in the line of causation first state of the Union, and is sup- demn. Co. y. Pillsbury, 170 Cal. 686, which employers sustain in modern ported by a most persuasive argu- 151 P 398 (where while three of the industrial pursuits is of course the ment, we have not been able to yield seven judges upheld the right to basic fact on which employer's liaour consent to the views there impose liability without fault bybility laws rest.' (State v. Creamer, taken.' State v. Clausen, 65 Wash. a provision for direct compensation, 85 Oh. St. 349, 97 NE 602, 39 LRANÁ 156, 211, 117 P 1101, 37 LRANS 466. three others voted to sustain the act 694.) Such a change in the law

[C] Limitation of decision.--"With because of its insurance features, itself, as a rule of conduct' is as the public policy of New York now and seventh

judge dissented); fairly within the scope of legislative so definitely aligned on the side of Hunter Colfax Cons. Coal Co., power as is the abolition of the decompensation legislation, it at least (Iowa) 154 NW 1037, 1046 (where fense of fellow-servant or that of seems reasonable to regard the de- the court said, in considering an contributory negligence. If the lawcision in Ives v. South Buffalo R. Co., elective act: "We have no occa- making body deems such change to 201 N. Y. 271, 94 NE 431, 34 LRANS sion to decide, and therefore express be needed for the furtherance of the 162, AnnCas1912B 156, as hereafter no opinion on, whether making the general well-being, it is taking a applicable only to the precise mat- master liable absolutely is within view that may

at least be enterter before the court in that case, the power of the Legislature. All tained by reasonable minds, and its viz., a statute imposing liability on we do is to point out that, in the action is justified by the broad authe employer 'without his consent light of the cases to which we have thority, embraced within the police and without his fault. Wasilewski referred, it was, at the time when power' (per Sloss, J.). Western

Warner Sugar Refining Co., 87 the lowa Legislature acted, at least Indemn. Co. V. Pillsbury, 170 Cal. Misc, 156, 160, 149 NYS 1035.

a matter for a reasonable difference 686, 696, 151 P 398. 28. Ives v. South Buffalo R. Co., of opinion whether holding the em- [b] Precedents for the imposi201 N. Y. 271, 315, 94 NE 431, 34ployer to respond when wholly free tion of liability without fault may LRANS 162 and note, AnnCas1912B from blame is a valid exercise of be found in the law of deodands; 156 (where the court said: "We legislative power"). But see Mid- the personification of the ship in have tried to make it clear that in dleton Texas Power,

Co., admiralty; the liability of the husour judgment this statute is not a (Tex.) 185 SW 556, 559 (where the band for the torts of the wife; the law of regulation. It contains not court said of an elective insurance liability of a master for the acts of a single provision which can be said act: “A legislature may in proper his servants; the federal tax on vesto make for the safety, health 01 instances prescribe duties and penal- sels for the marine hospital service; morals of the employees therein ize their breach through an authori- taxes on fire insurance agents for specified, nor to impose upon the zation for the recovery of consequent benefit of a fund for sick and inenumerated employers any duty or damages. But it is wholly without jured firemen; statutes imposing liaobligation designed to have that any power to deny the citizen the bility on a carrier for injuries suseffect. It does not affect the status right of making any defense when tained by a passenger, imposing liaof employment at all, but writes sued in the courts, There is no bility on a landlord for damages into the contract between the em- such thing in this country as taking from intoxication caused by sale of ployer and employee, without the one man's property without his con- liquor by his lessee, and imposing consent of the former, a liability sent and giving it to another by liability on railroads for fires set on his part which never existed be- legislative edict. That is nothing by engines; and a depositors' guarfore and to which he is permitted less than confiscation hy legislative anty law, "which authorizes the asto interpose practically no defense, decree. If this Act, therefore, had sessment and collection of a certain for he can only escape liability when declared an employer not consenting per centum on the daily average dethe employee is injured through his to its provisions absolutely liable in posit of each and every bank organown willful misconduct. That is a damages at the suit of an employee ized under the laws of the state as defense which needs no legislative

for any

injuries sustained by the a fund to pay the losses caused desanction, since it would be abhor- latter in the employment, without positors by failing and insolvent rent to the most primitive notions reference to any wrong or breach of banks," State v. Clausen, 65 Wash.






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acts have never been held invalid on this account, for injuries to the employee, worked by the com

32 even though construed to impose liability, where a pensation acts, they are not for that reason invalid, diseased bodily condition is accelerated to the point for there is no vested right in any remedy for a where it constitutes a personal injury by reason of tort yet to happen,33 and except as to vested rights the strain or exertion of the employment.

the legislature has power to change or to abolish [11] 3. Change in Remedies and Rules of Evi- existing · common-law or


remedies.34 ce. Notwithstanding the changes in funda- Nor is a compensation act invalid for the reason mental doctrines, as to the liability of the employer that it creates a new remedy85 or abrogates an ex156, 183, 117 P 1101, 37 LRANS 466. competent for the Legislature, by tion which has accrued under exist

30, Wheeler v. Contoocook Mills this Act, to change both the common ing laws for personal injuries conCorp., 77 N. H. 551, 94 A 265; Herkey law rule of defenses and the com- stitutes a vested right or interest, V. Agar Mfg. Co., 90 Misc. 457, 153

mon law rule of liability with re- there is nothing in the section which NYS 369; State v. Creamer, 85 Oh. spect to accidental injuries sustained interferes with such right or inSt. 349, 97 NE 602, 39 LRANS 694; by an employee in the course of his terest"), Middleton v. Texas Power, etc., Co., employment, requiring the employer,

[a] tilustration,-Workmen's com(Tex.) 185 SW 556.

if he elects to come under the Act, pensation act (St. [1911] c 751) pt 1 31. In re Madden, 222 Mass. 487, to provide, according to its plan, a § 5, requiring an employee at the 497, 111 NE 379, LRA1916D 1000 fixed compensation to be paid the time of entering employment to no(when the court said of a contention employee, or his beneficiaries if his tify his employer that he claims that the employer was thereby com- | injury results in death, and denying his common-law rights of action, pelled to part with property for to the employee of an employer sub- affects existing property right, causes for which he was nowise re- / ject to the Act, or his beneficiaries, but merely a situation which antesponsible: "In its essence that is the right of recovery therefore ac- dates

any property right arising an attack upon the act as a whole, cording to common law rules.” Mid- out of tort. Young v. Duncan, 218 for in none of its ordinary aspects dleton V. Texas Power, etc., Co., Mass. 346, 106 NE 1. does the payment required by the (Tex.) 185 SW 556, 561. (2) "In the 34. Mackin

Detroit-Timkin act depend upon fault, and it may way modern undertakings are con- Axle Co., 187 Mich. 8, 153 NW 49; be required in many cases where the ducted it is rarely possible to trace Sexton V. Newark Dist. Tel. Co., 84 employer was wholly free from fault. personal fault to the employer, but N. J. L. 85, 86 A 451 (aff 86 N. J. L.

The workmen's compensation he has been held liable for wrongs 701, 91 A 1070]; Middleton v. Texas aci is elective and not compulsory. of others under the doctrine of re- Power, etc., Co., (Tex.) 185 SW 556. It is wholly optional with the em-spondeat superior. That doctrine has [a] Substitution of different remployer, as it is with the employee, been developed by the courts to edy --"A vested right of action whether he comes under the provi: make the principal accountable for given by the principles of the comsions of the act or stays outside and the conduct of his affairs, though it mon law is a property right, and is stands on his legal rights. The con- must be remembered that it does not protected by the Constitution as is nection between the employment and rest on the doctrine of agency. No other property. The Act, however, the injury in the case at bar is the one has a vested right under the rloes not profess to deal with rights same in kind in the manifold Constitution to the maintenance of of action accruing before its passage. other instances where the personal that common-law doctrine, which un- That which is withdrawn from the injury to the employee is caused by doubtedly may be extended or cur- employee is merely his right of aca definite physical blow wholly with- tailed by the legislature. No one tion against the employer, as deterout fault of the employer").

doubts that the doctrine of assump- mined by the rules of the common 32. Hunter V. Colfax Cons. Coal tion of risk and the fellow-servant law, in the event of his future inCo., (Iowa) 157 NW 145; Mackin v. doctrine, also developed by the jury. This is nothing more or less Detroit-Timkin Axle Co., 187 Mich. 8, courts under different conditions ihan a denial to him by the Legisla- . 153 NW 49; Jensen v. Southern Pac. than those now prevailing, may be ture of certain rules of the common Co., 215 N. Y. 514, 109 NE 600, LRA limited or entirely abrogated by the law for the future determination of 1916A 403, AnnCas1916B 276; Mid- legislature. Acts having that effect the employer's liability to him for dleton Texas Power, etc., Co., have been sustained by repeated de- personal injuries incurred in the lat(Tex.) 185 SW 556.

cisions of this court. The power to ter's service, and, in the plan of (a) Discussion of rule.-(1) "In limit or take away must also in- compensation provided, the substidenying the employee of a subscrib- volve the power to extend. At the tution by the Legislature of another ing employer, or his beneficiaries, common law the servant was held

law governing such liability and proany cause of action for accidental to assume by implied contract the viding a different remedy. Middleinjuries, this Act simply changes the ordinary risks of the employment, ton v. Texas Power, etc., Co., (Tex.) common law rule of liability upon including the risk of a fellow-serv- 185 SW 556, 560. the subject. It in effect declares ant's negligence, and even of negli- [b] Accidental as distinguished that such employers shall no longer gence imputable to the master if from intentional wrong. It is there

liable under that rule, but the danger was obvious, with fore not to be doubted that the Legisshall be liable according to the rule knowledge of it the servant volun- lature is without the power to deny prescribed by the Act. If the Legis-tarily continued in the employment. the citizen the right to resort to the jature in the performance of its It would not be a great extension of courts for the redress of any intenfunction of declaring what the law that doctrine for the legislature to tional injury to his person by anshall be, is authorized to change and provide that the employee should as- other. Such a cause of action may repeal the rules of the common law sume the risk of all accidental in- be said to be protected by the Conupon other subjects, as is undoubted juries, and if that can be done, it stitution and could not be taken and has been done in numerous and is certainly competent for the legis- away; nor could the use of the notable instances, wherein is its lature to provide by the creation of courts for its enforcement be depower to change this common law an insurance fund for a limited com- stroyed. This Act does not affect rule to be denied ? If it may


to the employee for all the ight of redress for that class tirely abrogate the common law rule accidental injuries, regardless of of wrongs. The injuries, or wrongs, of contributory negligence, thus re- whether there was a cause of ac- with which it deals are accidental lieving the employee of all conse- ton for them at common law." Jen- | injuries or wrongs. What we know quence of his negligence, and trans- sen v. Southern Pac. Co., 215 N. Y. and denominate as the cause of acferring it, in effect, to the employer, ( 514, 527, 109 NE 600, LRA1916A 403, tion arising from an accidental inwhat is there, as a matter of purely AnnCasi916B 276.

jury is purely the creation of the legislative authority, to prevent its [b] Application of rule.-The common law. It is a common law relieving the employer of the con- fourteenth amendment to the fed liability founded upon the common sequence of his negligence and, in eral constitution is not violated by law doctrine of negligence; and but particular,


negligence of his the rule of pleading that in an ac- for the rule of the common law, servants, and determining that he tion under the workmen's compensa- sometimes also expressed in statshall compensate his employee for tion act against an employer who utes,—there would be no liability for accidental injuries received in his

has rejected the act the employer such an injury, and hence no cause service according to a different rule, must plead in defense or mitigation of action for it." Middleton v. Texas through another remedy, and in its that no negligence of his was the Power, etc., Co., (Tex.) 185 SW 556, judgment by a better plan? If, in proximate cause of the injury, that 560. a word, it may declare that contribu- the servant was willfully negligent, 35. Ives v. South Buffalo R. Co., tory negligence shall no longer be a or negligent as the result of intoxi- 201 N. Y. 271, 298, 94 NE 431, 34 defense, may it not also declare, as cation, and that the


LRANS 162, AnnCas1912B 156. to purely accidental injuries, that guilty of contributory negligence. "So far as the statute merely crenegligence shall no longer be ас- Hunter V. Colfax Cons. Coal Co., ates a new remedy in addition to tionable? If it may change de- (Iowa) 157 NW 145.

those which existed before it is not fensive common law rules, may 33. Young v. Duncan, 218 Mass. invalid. The state has complete conit not also change a common law 346, 106 NE 1: Mackin v. Detroit- trol over the remedies which it offers rule of liability? The power

of Timkin Axle Co., 187 Mich. 8, 153 to suitors in its courts even to the the Legislature cannot exist in the NW 49; Sayles v. Foley, (R. I.) 96 A point of making them applicable to one instance and not in the other. 340. See Inre Opinion of Justices, rights or equities already in existIn virtue of its authority to enact 209 Mass. 607, 610, 96 NE 308 (where ence. It may change the common laws, and, in doing so, to supersede the court said: "The act expressly law and the statutes so as to create common law rules where it deems provides that it shall not apply to duties and liabilities which never such action wise, it exists in both: injuries sustained before takes existed before." "Ives v. South Bufand it was in our opinion therefore effect. If, therefore, a right of ac- falo R, Co., supra.








isting statutory right of action.36

[$ 12] 4. Abrogation of Common-Law Defenses. Change in rules of evidence. It is within the Compensation acts are not invalidated by the fact province of the legislature to change existing rules that they abrogate or restrict the defenses of conas to presumptions and burden of proof;37 hence a tributory negligence, assumed risk, and negligence statute is not invalid for the reason that it places of a fellow servant," the reason being that there the burden on the employer to show that the injury is no vested interest in a mere rule of the common was not the result of his negligence,38 or for the rea- law2 and that these defenses being based merely son that it creates a presumption as to the accept- on judicial decisions are within the power of the ance of its terms39 or as to the fact that a claim legislature to abolish or to modify.43 While by the comes within the provisions of the act.40

great weight of authority the three defenses men36. Meese v. Northern Pac. R. Co., Mass.-In re Opinion of Justites, dleton V. Texas Power, etc., Co., 206 Fed. 222 [rev on other grounds 209 Mass. 607, 96 NE 308 (where, (Tex.) 185 SW 556; Consumers' Lig211 Fed. 254, 127 CCA 622 (rev 239 however, the court confined its deci. nite Co. v. Grant, (Tex. Civ. A.) 181 U, S. 614, 36 SCt 223)) (action for sion to the validity of the statute SW 202; Watts v. Ohio Valley Elecdeath by wrongful act).

as meaning contributory negligence tric R. Co., (W. Va.) 88 SE 659, 661. 37. Hunter v. Colfax Cons. Coal or negligence on the part.of a fel- "A person


no property, no Co., (Iowa) 154 NW 1037; McQueeney low servant falling short of the seri- vested" interest, in any rule of the V. Sutphen, 167 App. Div. 528, 153 ous or willful misconduct which un- common law. That is only one of NYS 554.

der the statute would deprive an em- the forms of municipal law, and is 38. Hunter v. Colfax Cons. Coal ployer of compensation).

more sacred than any other, Co., (Iowa) 154 NW 1037.

Mich.- :-Wood v. Detroit, 155 NW Rights of property which have been 39. Sexton v. Newark Dist. Tel. 592.

created by the common law cannot Co., 84 N. J. L. 85, 95, 86 A 451 [aff Minn.-Mathison v. Minneapolis St. be taken away without due process; 86 N. J. L, 701, 91 A 1070).

R. Co., 126 Minn, 286, 148 NW 71, but the law itself, as a rule of con"Perhaps the real complaint of the LRA1916D 412.

duct, may be changed at the will, or prosecutor is that the legislature by N. H.-Wheeler v. Contoocook Mills even at the whim, of the Legislature, paragraph 9 has created a presump- Corp., 77 N. H. 551, 94 A 265.

unless prevented by constitutional tion that, with respect to contracts N. J.-Sexton v. Newark Dist. Tel. limitations. Indeed, the great office of hiring made after the act becomes Co., 84 N. J. L. 85, 86 A 451 [aff 86 of statutes is to remedy defects in effective, the parties are acting un- N. J. L. 701, 91 A 1070).

the common law as they are develder the second section, if one or the Oh.-State v. Creamer, 85 Oh. St.oped, and to adapt it to the changes other does not then or before the 349, 97 NE 602, 39 LRANS_694.

of time and circumstances." Watts accident expressly elect to operate Or.-Evanhoff v. State Industrial v. Ohio Valley Electric R. Co., supra under the first. It cannot be doubted Acc. Commn.. 78 Or. 503, 154 P 106. [quot Mondou v. New York, etc., R. that under our industrial conditions R. I.--Sayles v. Foley, 96 A 340. Co., 223 U. S. 1, 50, 32 Sct 169, 56 and in order to avoid much confu- Tex.- Middleton v. Texas Power, L. ed. 327, 38 LRANS 44, which sussion and unproductive litigation, it etc., Co., 185 SW 556; Consumers' tained the federal employers' liabilmay well have been considered Lignite Co. V. Grant, (Civ. A.) 181 ity act which denied the same proper to establish some presump- SW 202.

fenses to an interstate carrier). tive rule as to an election between Wash.-State v. Clausen, 65 Wash. 43, Hawkins v. Bleakley, 220 Fed. section 1 and section 2 of the act. 156. 117 P1101, 37 LRANS 466. 378; Deibeikis v. Link-Belt Co., 261 It can make no practical difference W. Va.- Watt's v. Ohio Valley Elec- Ill. 454, 104 NE 211, AnnCas1915 A whether the presumption is that the tric R. Co., 88 SE 659; De Francesco 241; In re Opinion of Justices, 209 contract of hiring is subject to sec- v. Piney Min. Co., 86 SE 777.

Mass. 607, 610, 96 NE 308; Borgnis tion 1 or to section 2, or whether Wis. --Borgnis Falk Co., 147 V. Falk Co., 147 Wis. 327, 133 NW both employer and employe are re- Wis. 327, 133 NW 209, 37 LRANS 209, 37 LRÁNS 489. quired to enter into some express 489.

"The rules of law relating to concontract accepting one or the other "That the defenses mentioned may tributory negligence and assumption of the statutory alternatives. The he entirely abolished, or abolished of the risk and the effect of neglilatter course would naturally involve as to certain classes of employments gence by fellow servant were a very great amount of labor and only, is too well settled to require established by the courts, not by trouble, especially on the part of argument." Mathison v. Minneapolis the Constitution, and the Legislaemployes. The legislature has seen St. R. Co., 126 Minn. 286, 290, 148 ture may change them or do away fit to adopt a presumptive rule, leav- NW 71, LRA1916D 412.

with them altogether as defenses (as ing the parties to overcome the pre- [a] Establishment of changed it has to some extent in the employsumption by their own act, if they public policy:-"At a time when in- ers' liability act) as in its wisdom desire to do so. It has also seen fit dustries of all kinds were compara- in the exercise of powers entrusted to adopt the presumption in favor of tively simple and free from danger, to it by the Constitution it deems section 2, no doubt because it was when employees of a common master will be best for the 'good and welthought that that offered the fairest were few in number and generally fare of this Commonwealth.''

In re basis for both employer and employe. acquainted with each other, and Opinion of Justices, supra. It would have been quite as compe- when a personal injury action was a [a] "Each of these defenses first tent

for the legislature to have rarity, it was thought not to be un crept into the law by slight recog; adopted either of the other alterna- reasonable that an employee should nition and then grew and developed tives suggested, but in its wisdom assume those simple risks which by judicial decisions without the aid it has not seen fit to do so. Really, were plainly before him, and should of legislation. And it cannot be so the matter comes down to a ques- not be heard to complain if he were that, simply because such became tion of presumption or burden of injured by the careless act of a fel- recognized as the law by judicial deproof, which it is entirely within low-workman by whose side he had cisions, they cannot be abridged or the control of the legislature to regu- continued


work when he must denied by legislation. The same is late so long as the parties are left have well known the nature and hab- true of the doctrine of fellow serventirely free to make whatever con- its of the man. The precedent once ants. That doctrine never was aftract they choose, as they are in made was generally followed, until firmed by legislation except imthis case. We are, therefore, of the it became buttressed by a multitude pliedly, and impliedly only because opinion that, as against the objec- of decisions in practically all of the of legislative action denying such a tion (depriving employer of prop- jurisdictions whose jurisprudence is defense as to railroads and some erty without due process of law] founded upon the English common other hazardous employments. All stated, section 2 is constitutional.” law. But, as has been pointed out lawyers know that the court-made Sexton v. Newark Dist. Tel. Co., earlier in this opinion, the conditions rule in Iowa, for a long time mainsupra.

surrounding employer and employed tained but against the decided 40, McQueeney v. Sutphen, 167 have vastly changed during the last weight of authority, is that the InApp. Div. 528, 153 NYS 554.

half century, and now the legisla- jured person must show that he was 41. U. S.-Hawkins v. Bleakley, ture having become convinced that without fault or negligence, Most 220 Fed. 378 (sustaining Iowa L. new conditions call for a change in of the appellate courts hold other[1913) c 147).

the rules of liability, have declared wise, holding that it is a defense Ill.–Strom Postal Tel. Cable that such a change shall be made. only. United States courts sitting in Co., 271 Ill. 544, 111 NE 555; Dietz They have changed the rule estab- Iowa, as well as in all the other v. Big Muddy Coal, etc., Co., 263 Ill. lished by the courts because they states, hold that it is defensive only 480, 105 NE 289; Crooks v. Tazewell deem another rule better fitted to and requires the defendant to show Coal Co., 263 1. 343, 105 NE 132. deal with the problems of the time, by a preponderance of testimony AnnCas1915C 304; Deibeikis v. Link or, in other words, because they that the injured man or deceased Belt Co., 261 11. 454, 104 NE 211, deem it best to establish a changed contributed to the injury. For a long AnnCas1915A 241.

public policy." Borgnis v. Falk Co., time many of the states had the Iowa.--Hunter v. Colfax Cons. Coal 147 Wis. 327, 352, 133 NW 209, 37 rule of comparative negligence, and Co., 154 NW 1037 (Iowa act takes LRANS 489.

now in some instances Iowa has such away only defenses of assumption of 42. Mathison v. Minneapolis St. R. a rule. But in none of these matters risk and fellow servant). Co., 126 Minn, 286, 148 NW 71, LRA is there any

vested right for or Kan.-Hovis V. Cudahy Refining 1916D 412; Sexton v. Newark Dist. against any of these defenses or burCo.. 95 Kan. 505, 148 P 626 (L. [1911]| Tel. Co., 84 N. J. L. 85, 86 A 451 dens placed upon the plaintiff. They c218 8 46).

(aff 86 N. J. L. 701, 91 A 1070]; Mid- I closely belong to or inhere in police



tioned have been regarded as on the same basis, and have been discussed together,44 the attention of the courts has been specifically directed to the defense of assumption of risk in some instances, and it has, been held that this defense is subject to the legislative control to a more limited degree than the others. 46

Nonhazardous industries. The power of the legislature to abrogate the defenses under discussion is not confined to the more hazardous industries, but may be lawfully exercised as to 'those which are less hazardous in their nature. 47

[6 13 5. Absence of Notice of Hearing. The fact that an administrative board is allowed to

take testimony relative to a claim for compensation without notice to either party is not a denial of due process of law. 48

[ý 14] D. Class Legislation and Equal Protection of Laws - 1. Unjust Classification. The discretion of the legislature as to the persons and the occupations to which a compensation act shall extend will not be interfered with by the courts so long as the classification is not arbitrary or unreasonable.49 Primarily, the fundamental classification common to all of the elective acts, making a distinction between those employers who elect to come within the operation of the act and those who choose to remain without, has been sustained ;50

regulations for the preservation of ings. The proceedings before such

| The

rules governing classification life and limb and are within the boards are not expected to be as are familiar and are in brief as follegislative powers of the state, and formal and cumbrous as the proceed- lows: It must be based on substanin interstate commerce matters ings of courts; indeed, the greater tial distinctions which make real difwithin the powers of Congress." Alexibility which such bodies must ferences; it must be germane to the Hawkins v. Bleakley, 220 Fed. 378, possess if they are to discharge their purposes of the law; it must not be 381.

duties seems to demand greater free- limited to existing conditions only; 44. See cases supra note 41.

dom of action. If notice, either and must apply equally to each mem45. Strom V. Postal Tel. Cable actual or constructive, of the com- ber of the class. It seems to us Co., 271 nl. 544, 111 NE 555; Hunter mencement of the proceedings before that this classification fully meets v. Colfax Cons. Coal Co., (Iowa) 154 such a body be required to be given these requirements. Certainly there NW 1037, 1066.

to the parties interested and they be will be very real differences between "As to the elimination by the act | given full and free opportunity to be the situation of the employer who of various defenses resting on risks heard and present evidence, it is gen- elects to come under the law and the assumed by the employé the taking erally held sufficient, even though employer who does not. If the conof such defenses has been generally notice of intermediate steps in the senting employer only employs workheld to be within the power of the proceeding be not required or given. men who also elect to come under Legislature." Hunter v. Colfax Cons. Schintgen v. La Crosse, 117 Wis. 158, the law, he can never be mulcted in Coal Co., supra.

94 NW 84. In case of a board like heavy damages, and will know when46. Ives v. South · Buffalo R. Co., the present, which only acts on the ever an employee is injured practi201 N. Y. 271, 289, 94 NE 431, 34 rights of parties who have consented cally just what must be paid for the LRANS 162, AnnCas1912B 156. But that it may so act, the reason of the injury. Surely this is a different see Jensen v. Southern Pac. Co., 215 rule is far stronger.' Borgnis v. situation from the situation of the N. Y. 514, 527, 109 NE 600, LRA Falk Co., supra.

man who is liable to be brought into 1916A 403, AnnCas1916B 276 (where 49, Jeffrey Mfg. Co. v. Blagg, 235 court by an injured employee at any the court in sustaining the later New U. S. 571, 35 SCt 167, 59 L. ed. 364; time and obliged to defend commonYork act, L. [1914] c 41, said: "No Hunter V. Colfax Cons. Coal Co., law actions upon heavy claims unone doubts that the doctrine of as- (Iowa) 154 NW 1037, 1053; Greene v. liquidated in their character, the outsumption of risk and the fellow- Caldwell, 170 Ky. 571, 186 SW 648; come of which actions none can foreservant doctrine

developed | Middleton v. Texas Power, etc., Co., tell. On the other hand, if, as seems by the courts under different condi- (Tex.) 185 SW 556. See American quite likely, the greater part of the tion than those now prevailing, may Coal Co. V. Allegany County Comrs., consenting employer's workmen conbe limited or entirely abrogated by 128 Md. 564,98 A 143 (sustaining an sent, but some do not, and these the legislature").

act for the establishment of a fund latter are still retained in the em"Statutory modifications of the for the relief of employees injured in ployment, the same considerations 'fellow-servant' rule and the law of coal and clay mining in two counties will apply with somewhat less force. 'contributory negligence' are clearly of the state).

On the one hand there is a class of within the legislative power.

These "The power

to classify is pri- consenting employers employing doctrines, for they are nothing more, marily in the Legislature, that the wholly or largely consenting workmay be regulated or even abolished. courts accord it the widest latitude men, and having definite and fixed This is true to a limited extent as in performing this function, and that obligations to their workmen in case to the assumption of risk by the a classification adopted by it will be of injury. On the other hand is a employee." Ives y. South Buffalo R. sustained unless it is so palpably class of

nonconsenting employers Co., supra.

arbitrary as that there is no room who have no such fixed obligations [a] Against weight of authority. for doubt that discretion has been in case of injury to their workmen, - As to the right to abolish the abused by indulging in an unjusti- but choose to meet every such workdefense of assumption of risk, it is fiable discrimination." Hunter man in court and fight out the quesenough to say here that the great Colfax Cons. Coal Co., supra.

tion of liability. There seems a very weight of authority is against the [a] Police regulations.-"It is robust difference between these two New York position" (as announced well settled that neither the clause classes. But after all there is anin Ives v. South Buffalo R Co., 201 of the state constitution prohibiting other distinction which seems perN. Y. 271, 94 NE 431, 34 LRANS 162, class legislation, nor the clause of haps more satisfactory: the consentAnnCas1912B 156). State v. Creamer, the fourteenth amendment to the ing employer has done his share, and 85 Oh. St. 349, 396, 97 NE 602, 39 constitution of the United States re- it must be considered a considerable LRANS 694.

lating to the equal protection of the share, in rendering successful the Contractual and voluntary assump- | laws, takes from the state the power legislative attempt to meet and solve tion of risk distinguished see infra to classify in the adoption of police a difficult social and economic prob$ 159.

regulations. The limitations imposed lem. Even if it be true (which, as 47. Borgnis v. Falk Co., 147 Wis. admit of a wide discretion in this before stated, is not decided) that he 327, 353, 133 NW 209, 37 LRANS respect, and avoid only what is done may not be compelled under our con489.

without any reasonable basis; that stitutions, state and national, to "There may be a less persuasive is, such regulations as are in their assist in the solution of this probreason for the change in the case of nature arbitrary." State v. Clausen, lem, still does not his voluntary act the latter class of industries, but 65 Wash. 156, 196, 117 P 1101, 37 in giving that assistance constitute a this does not deprive the legislature LRANS 466.

substantial distinction, making a real of the power to make it." Borgnis [b] Class legislation.-Some de- difference of situation between him v. Falk Co., supra.

cisions relying on other authorities and the employer who refuses his Borgnis v. Falk Co., 147 Wis. have declared statutes good aid-a difference which justifies a 327, 363, 133 NW 209, 37 LRANS 489. against the objection that they were difference in treatment?").. Compare

"Objection is made to those clauses discriminatory or class legislation Sayles v. Foley, (R. I.) 96 A 340, of sec. 2394-16 which provide for without specific discussion. Young 345 (where the court, in discussing the giving of notice of claim by v. Duncan, 218 Mass. 346, 106 NE 1; the changes in the right of action mail, and allow testimony to be Memphis Cotton Oil Co. v. Tolbert, and the defenses resulting from the taken without notice to either party, (Tex. Civ. A.) 171 SW 309.

choice of the employer or the emand the claim is made that this is 50. Mathison v. Minneapolis St. ployee as to coming under the act, not 'due process of law.' Were the R. Co., 126 Minn, 286, 148 NW 71, said: "The respondents treat the Commission a court these objections LRA1916D 412; Borgnis v. Falk Co., differences in situation thus resulting would probably deserve serious con- 147 Wis. 327, 353, 133 NW 209, 37 as a classification by the law itself. sideration, especially the latter one. LRANS 489 (where the court, in dis- Some courts have so treated it. But, as we have seen, the Commis- cussing the abolition of the defenses question the correctness of this. sion is

an administrative board of assumption of risk and negligence Without, however, definitely passing merely. It is common knowledge of a fellow servant by L. (1911] on the point, it will at present suffice that such boards are frequently givenc 50, said: "The two defenses are pre- to call attention to the fact that power to investigate and determine served intact to employers who elect whatever of inequality results as to facts without notice to the parties of to come under the law and taken different employés arises from the each successive step in the proceed- away from those who do not so elect. fact that the abolishing of the three

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