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liability created has no reference to negligence25 or contractual29 or quasi contractual,30 although it has tort,26 and the compensation awarded is intended been said that critically considered it is more propneither as a charity27 nor as a penalty.28 The trend erly placed in a class by itself.31 of authority is toward regarding the obligation as

II. PURPOSE AND HISTORY OF LEGISLATION [ 0 5] The compensation acts, as was well said tion, and every employee not guilty of willful misin one of the earlier opinions on the constitutional conduct might receive at once a reasonable recomquestions involved, form a legislative response to pense for injuries accidentally received in his an emphatic, if not a peremptory, public demand employment under certain fixed rules and without that a system be afforded whereby employers and friction. The principles of the common law, govemployed might escape from personal injury litiga- erning the right of an employee to recover against the employer of liability for anything to be compensated for an injury has to provide a speedy and inexpensive for which he might reasonably be element of bounty or charity method by which compensation might made answerable on the ground that about it. No part of the fund (ex- be made to them or those dependent he ought to have foreseen and pre-cept such part as it pays for the pro- upon them without the delay of long vented it." Haldane, L. C., in Trim tection of its own employes) is con- and tedious litigation, and at a miniJoint Dist. School v. Kelly, supra. tributed by the state.' State v. In- mum of costs; and secondly, to sub25. American Ice Co. v. Fitzhugh,dustrial Commn., supra.

stitute a more uniform scale of com128 Md. 382, 97 A 999; West Jersey 28. In re Cripp, 216 Mass. 586, 104 pensation in cases of accident than Trust Co. v. Philadelphia, etc., R. Co., NE 565, AnnCas1915B 828; Milwaukee could be obtained from the varying 88 N. J. L. 102, 95 A 753; Ives v. V. Miller, 154 Wis. 652, 144 NW 188, and often widely divergent estimates South Buffalo R. Co., 201 N. Y. 271, LRA1916A 1.

of juries, and also to avoid the ap94 NE 431, 34 LRANS 162, AnnCas


De Biasi v. Normandy Water plication of certain well established 1912B 156; Shinnick v. Clover Farms Co., 228 Fed. 234; Wood v. Camden rules of law, which in some cases Co., 169 App. Div. 236, 154 NYS 423; Iron Works, 221 Fed. 1010; Berton v. have seemed to be harsh in their Winfield v. New York Cent., etc., R. Tietjen, 'etc., Dry Dock Co., 219 Fed. operation." Brenner

Brenner, Co., 168 App. Div. 351, 153 NYS 499; 763; Kennerson v. Thames Towboat | supra.. Middleton v. Texas Power, etc., Co., Co., 89 Conn. 367, 94 A 372, LRA "It is founded on the basic princi(Tex.) 185 SW 556.

1916 A 436; West Jersey Trust Co. v. ple that certain defined industries, “This rule of liability, stated in Philadelphia, etc., R. Co., 88_N. J. L. called in the act extra hazardous, another form, is that the employer | 102, 95 A 753; Inter-state Tel., etc., should be made to bear the financial is responsible to the employee for


v. Public Service Electric Co., losses sustained by the workmen enevery accident in the course of the 86 N. J. L. 26, 90 A 1062; Post y gaged therein through personal inemployment, whether the employer is Burger, 216_N. Y. 544, 111' NE 351, juries, and its purpose is to furnish at fault or not, and whether the em- AnnCas1916B 158.

a remedy that will reach every injury ployee is at alt or not, except when [a] Part of payment for services sustained by a workman engaged in the fault of the employee is so grave or wages.-"Whether the economists any of such industries, and make a as to constitute serious and willful are right or not in their view of the sure and certain award therefor, misconduct on his part. The radical final incidence of the cost of the bearing a just proportion to the loss character of this legislation is at statutory compensation, it is certain sustained, regardless of the manner once revealed by contrasting it with that the intent of the act was to in which the injury was received." the rule of the common law, under secure compensation to workmen for State v. Clausen, 65 Wash, 156, 175, which the employer is liable for in- the perils of their employment, the 117 P 1101, 37 LRANS 466. juries to his employee only when risk of which it had been previously [a] Reason for demand.-(1) "In the employer is guilty of

thought they assumed as a part of this state the affirmative defenses of act or acts of negligence which the contract of employment, for contributory negligence and assumpcaused the occurrence out of which which they were supposed rightly or tion of risk, including in the latter the injuries arise, and then only wrongly to be compensated in their the negligence of a fellow-servant, when the employee is shown to be wages. In any event the right to the are still generally available to the free from any negligence which con- statutory compensation is a part of employer. The result is that in many tributes to the occurrence." Ives V.

the compensation of the employe for cases the maimed employee, and, in South Buffalo R. Co., 201 N. Y. 271, services rendered, for which the em- case of his death, his dependents, are 285, 94 NE 431, 34 LRANS 162, Ann | ployer receives a quid pro quo. If obliged to bear the whole burden of Cas1912B 156.

it were not so, the employer would misfortune. He or they may suffer 26. De Biasi v. Normandy Water cease to employ. The compensation the humiliation of becoming public Co., 228 Fed. 234; Berton v. Tietjen, is no more a loss to him than other charges, with the consequent addietc., Dry Dock Co., 219 Fed. 763; wages paid for work done, and it is tional expense to the taxpayer. The Powers v. Hotel Bond Co., 89 Conn. none the less compensation for labor injury or death may have been the 143, 145, 93 A 245; Post v. Burger, done because the statute directs that result of inevitable accident in the 216 N. Y. 544, 550, 111 NE 351, Ann its payment shall be distributed over course of the employment, in which Cas1916B 158.

a certain number of weeks in the event the workman is the sole vic"The modern theory of the law of future. It is one of the necessary tim. Whatever may be the reason torts makes the fault of the

expenses of the business against therefor, actions for damages for ployer a prerequisite to a recovery of which the employer must protect personal injury and death have indamages by injured workman. himself by a higher price for his creased enormously in number in the Workmen's Compensation Acts such product or lower regular wages for past few years. It is notorious that as ours are founded upon the theory his employes." Inter-state Tel., etc., but a small proportion of the moneys of a contract existing between work- Co. v. Public Service Electric Co., 86 forced from the employer in these man and employer, an implied con- N. J. L. 26, 28, 90 A 1062.

cases finds its way into the pockets sideration of which is provision for 30. American Radiator Co. V. of the plaintiff. The remainder is compensation for injury to the work- Rogge, 86 N. J. L. 436, 437, 92 A 85, frittered away in payment of counsel man arising in the course of his em- 94 A 85.

fees, witness fees, court costs, and ployment and not through his inten- "The liability is indeed contractual other necessary expenses of litigational or wilful misconduct. Fault in character by force of

the very

tion. The records of this court disis the foundation of the tort action: terms of the statute, but it is not close that our best and most highcompensation for the injury regard- the result of an express agreement minded lawyers have, as was their less of the fault, of the Compensa- between the parties; it is an agree-duty, advocated the cause of the tion Acts." Powers v. Hotel Bond ment implied by the law, of a class plaintiff in many of these

cases; Co., supra.

now coming to be called in the more nevertheless, the fact remains that "The act does not purport to pro- modern nomenclature of the books the solicitor of personal injury cases vide compensation for a wrong. The 'quasi contracts.' American Radi- is a hateful reality, and much compensation is given without res- ator Co. v. Rogge, supra.

necessary and ill-advised litigation ervation and wholly regardless of 31. Berton v. Tietjen, etc., Dry results from his activities. These any question of wrong doing of any Dock Co., 219 Fed. 763.

cases are prolific of perjury and subkind.' Post V. Burger, supra.

32. Borgnis v. Falk Co., 147 Wis. ornation of false swearing. They 27. State V. Industrial Commn., 327, 133 NW 209, 37 LRANS 489. also add a great weight to the bur92 Oh. St. 434, 452, 111 NE 299, LRA To same effect American Coal Co. v. den of the taxpayer. Some plain1916D 944; Milwaukee v. Miller, 154 Allegany County Comrs., 128 Md. 564, tiffs have lost meritorious causes, Wis. 652, 144 NW 188, LRA1916A 1. 98 À 143; Brenner V. Brenner, 127 and many defendants, especially pub

Again, this law was passed not in Md. 189, 193, 96 A 287; In re Gould, lic service corporations, have been a spirit of 'charity' but only simple 215 Mass. 480, 102 NE 693, AnnCas mulcted in heavy damages in justice. The fund it provides is 1914D 372; Post v. Burger, 216 N. Y. tions where the great preponderance called, and is in fact, an 'insurance' 544, 111 NE 351, AnnCas1916B 158. of the evidence was in their favor. fund, from which payments are to be "While the legislation of this char- Jurors in some communities are, made, and is in no sense a pension acter is of recent growth in this unconsciously perhaps, prejudiced fund. and never, so far as we are country the end sought to be accom- against corporations, as such. In aware, has it been contended that plished is thoroughly well under- practical application.

present injured employes and their depend-stood. The object and

purpose of system does not afford the equal ents were not entitled to compensa- such legislation has been two-fold: protection of the laws to certain tion as a matter of right. The right first, in cases of injury to employees' defendants. It is impossible not to






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his employer for personal injuries, are the out- fault either to the employer or to the employee. 36 growth of the conditions surrounding the small From this fact and from the further fact that the shop and the use of simple or no machinery.33 employee's right to recovery is often, in addition, Under modern industrial conditions requiring the restricted by the defenses of contributory neglicoöperation of many employees and the extensive gence, assumed risk, and negligence of a fellow use of powerful and dangerous mechanical appli- servant, the view has been more and more generally ances, these principles, even as amended by the taken that too much of the burden of the economic legislation known as the employers' liability acts, loss entailed by the personal injuries necessarily in many cases leave an injured employee remedi- accompanying modern industrial operations is imless, since they predicate the employee's right to posed on the employee.37 The great object of the recovery entirely on the existence of actionable neg- workmen's compensation acts is to shift the burden ligence, and in perhaps the majority of occupa- of such economic waste from the employee to the tional injuries it is impossible directly to impute industry, in order that it may ultimately be borne recognize the fact that the defend-, 327, 133 NW 209, 37 LRANS 489. judgments of which half was opposant's ability to pay is often used as [a] Harshness of common-law | ing lawyers' booty, the workmen a basis for calculating the compen- rules."If we were permitted to con- through the old defenses of exhaussation due the plaintiff. Personal sider the reasons which actuated the tion in wasteful litigation. Both injury cases breed class hatred, as Legislature in passing this act, they wanted peace. The master, in between capital and labor, in its might easily be found in the gener- | change for limited liability, most virulent form." Cunningham v. ally conceded harshness of the com- willing to pay on some claims in Northwestern Impr. Co., 44 Mont. 180, mon law rules governing the liability future, where in the past there had 204, 119 P 554. (2) "The originators of employers to employes injured been no liability at all. The servant of these Acts also believed that they while engaged in service, which was was willing, not only to give up trial would lessen accident. Some of the forcibly stated by Chief Justice by jury, but to accept far less than considerations behind them were eco- Winslow, of the Supreme Court of he had often won in court; provided nomic: the hardship and difficulty Wisconsin, in deciding Driscoll v. he was sure to get the small sum involved in proving the workman's Allis-Chalmers Co., 144 Wis. 451, without having to fight for it. All case, the great waste in procuring a 468, 129 NW 401, where he said: agreed that the blood of the workrecovery, the delay in obtaining the 'It gives me no pleasure to state man was the cost of production, that relief, the uncertainty oftentimes in these long established principles of the industry should bear the charge." determining the cause of the acci- the law of negligence. I have no Stertz V. Industrial Ins. Commn., dent, the vastly increased dangers fondness for them.

If I

were to (Wash.) 158 P 256, 258. . and the impossibility of personal su- consult my feelings alone, I would 36. Lewis, etc., County v. Induspervision by the employer under mod- far prefer to let the case pass in trial Acc. Bd., (Mont.) 155 P 268. ern conditions of employment, and silence. No part of my labor

37. Cal.-Western Indemn. Co. v. the necessity of the workman accept- this bench has brought such heart- Pillsbury, 170 Cal. 686, 151 P 398. ing employment under conditions of weariness to

that ever- Kan.- McRoberts v. National Zinc increased danger or suffering loss of increasing part devoted to the con- Co., 93 Kan. 364, 144 P 247. livelihood. Some considerations were sideration of personal injury actions Ky.-Kentucky State Journal Co. v. moral: the prevention of the ten- brought by employes against their Workmen's Compensation Bd., 161 dency of some workmen to press un- employers. The appeal to the emo- Ky. 562, 170 SW 437, 1166, LRA1916A founded claims and of others to ex- tions is so strong in these cases, the 389, AnnCas1916B 1273. aggerate just claims, and the ten- results to life and limb and human N. Y.-Ives v. South Buffalo R. Co., dency of some employers to defend happiness so distressing, that the at- 201 N. Y. 271, 94 NE 431, 34 LRANS by means of questionable fairness."tempt to honestly administer cold, 162, AnnCas1912B 156. Powers v. Hotel Bond Co., 89 Conn. hard rules of law which either deny R. 1.-Sayles v. Foley, 96 A 340. 143, 146, 93 A 245.

relief entirely or necessitate a new Wis.---Minneapolis, etc., R. Co. v. [b] Žvils of personal injury Iti- trial, make draughts upon the heart Industrial Commn., 153 Wis. 552, 141 gation.-"The time of the courts is and nerves which no man can appre- NW 1119, AnnCas1914D 655; Borgnis consumed in listening to the harrow-ciate who has not been obliged to v. Falk Co., 147 Wis. 327, 133 NW ing stories, sometimes of truth and meet the situation himself. If it 209, 37 LRANS 489. sometimes of perjury. Claim agents be said that some of these rules are "Whether elective or compulsory, are busy from the hours of death or archaic and unfitted to modern indus- these statutes, one and all, rest injury in locating and preserving the trial conditions, I do not disagree; the underlying notion that the comtestimony that the corporation may in fact, that has been my own opin- mon-law remedy by action, with the be protected. The friends and law- ion for long. Upon reflection it requirements of proof incident to that yers and agents of the dead and in- seems that this could not be other- remedy, involves intolerable delay jured are equally industrious. We wise. Principles which

first and great economic waste, gives inoften see advertisements in the press laid down in the days of the small adequate relief for loss and sufferof 'witnesses wanted to the occur- shop, few employes and simple ma- ing operates unequally as between rence. We have new words in the chinery, could hardly be expected to different individuals in like circumdictionary, but the

words apply with justice to the industrial stances, and that, whether viewed 'snitches' and 'ambulance chasers' conditions which now surround us'" from the standpoint of the employer are of the simple and well-known (dissenting opinion of Miller, J.). that of the employee, it is inlanguage. Verdícts must be for twice Kentucky State Journal Co. v. Work- equitable and unsuited to the conthe fair amount to be awarded as men's Compensation Bd., 161 Ky. 562, ditions of modern industry." Westdamages, so as to allow the 'contin- 576, 170 SW 437, 1166, LRA1916 A 389, ern Indemn. Co. v. Pillsbury, 170 Cal. gent fee' or the injured man, his AnnCas1916B 1273.

686, 693, 151 P 398. widow, or children, must accept half 34. Lewis, etc., County v. Indus- "In the enactment of the compenthe sum justly due. And these re- trial Acc. Bd., (Mont.) 155 P 268; sation law the legislature recognized sults are only obtained after years Ives v. South Buffalo R. Co., 201 that the common-law remedies for of litigation. Sickness, unavoidably N. Y. 271, 94 NE 431, 34 LRANS | injuries sustained in certain hazardout of town, urgent business in other 162. AnnCas1912B 156; Borgnis v. ous industries were inadequate, uncourts, prolong the litigation. When Falk Co., 147 Wis. 327, 133 NW 209, scientific and unjust, and therefore a judgment is at last obtained in favor 37 LRANS 489.

substitute was provided by which a of the one side or the other, appeals, 35. Lewis, etc., County v. Indus- more equitable adjustment of such certiorari, mandamus, and wșits of trial Acc. Bd., (Mont.) 155 P 268. loss could be made under a system error, one or all, are sought, and [a] "Experience demonstrated that which was intended largely to elimthen sometimes reversals, and then more than one-half of all industrial | inate controversies and litigation and other delays. Sometimes verdicts injuries resulted from inevitable ac- place the burden of accidental inare returned, and later on it is as- cident or from the risks of the busi-juries incident to such employments certained that the testimony was to ness for which no one could be held upon the industries themselves, or meet the law of the

Some- responsible; that neither the common rather upon the consumers of the times the verdicts are returned for law nor employers' liability statutes products of such industries." Mconly part of the sum that should furnished any measure of relief to Roberts v. National Zinc Co., 93 Kan. have been awarded, and sometimes more than 12 or 15 per cent. of the 364, 366, 144 P 247. the verdict is followed by getting injured, and that further appreciable [a] "No movement in any age has well so speedily as to be termed al- | improvement from the modification made more for the elimination of most miraculous. So that, regard- of existing laws could not be ex- waste and the economical application less upon which side the greater pected so long as the element of of personal injury cost of producwrongs occur, a question no one can negligence was the foundation of tion and distribution of those things decide, all ought to concede that legal liability." Lewis, etc., County which are necessary for or adminwhich is the truth, that the best v. Industrial Acc. Bd., (Mont.) 155 ister to legitimate human desires, the courts can do in many cases is P 268, 270.

where it belongs, and to where it frailty itself" (per McPherson J.). [b] "Our act came of a great com- must inevitably go as a final resting Hawkins v. Bleakley, 220 Fed. 378, promise between employers and em- place, than laws of which the one 379.

ployed. Both had suffered under the in question is a distinguished type,33. Borgnis v. Falk Co., 147 Wis. old system; the employers by heavy a crystallization has been said









by the consumer as a part of the necessary cost all of the European countries, with the exception of production.38 Other important considerations of Turkey, have adopted it, as have Great Britain leading to the enactment of the compensation and many of her colonies, including the Canadian legislation are a desire to lessen the expense to the provinces,48 the first act in Great Britain being that state of numerous and prolonged litigations,3o to of August 6, 1897, which was followed by that of lessen the temptation to perjury in courts of jus- July 1, 1900, and is now replaced by that of Detice,40 to protect the employer from unjust and cember 21, 1906, in effect July 1, 1907. In the excessive verdicts resulting from the hardships of United States in 1908 the theory of compensation particular cases, and to secure to the employee legislation was adopted as to certain classes of govhaving a just claim the full amount of compensation ernment employees by a federal enactment.44 This awarded him without diminution by reason of the was followed by the Montana Coal Miners' Act of expense of litigation.2

1909.45 Since that time laws have been enacted in Historical. While the principle had been earlier more than one half of the states and for Alaska, recognized as to particular industries, the first na- Hawaii, and Porto Rico,46 while the operation of the tional compensation act was that of Germany in federal act has been extended to all civil employees 1884. From that time the idea has spread until of the United States.* before, into legal obligation of moral | legislature might have employed that Colo.-L. (1915) c 179 p. 515. duty and economic truth." Minne- would make its purpose and intent Conn.-Pub. Acts (1913) C 138, apolis, etc., R. Co. Industrial more ascertainable than that made amended by Pub. Acts (1915) Commn., 153 Wis. 552, 555, 141 NW use of in the first section of the act. 288. 1119, AnnCas1914D 655.

To say, with appellant, that the in- Hawaii.-Act No. 221, April 28, 38. Cal.--Western Indemn, Co. v. tent of the act is limited to the abol- 1915. Pillsbury, 170 Cal. 686, 151 P 398. ishment of negligence as a ground Ill.--Act June 28, 1913, amended

Mass. In re Madden, 222 Mass. of action against an employer only, by L. (1915) p 400 (repealing L.
487, 111 NE 379, LRA1916D 1000; is to overlook and read out of the [1911] p 314).
Young v. Duncan, 218 Mass. 346, 106 act and its declaration of principles Ind.-L. (1913) C 333 p 897; L.
NE 1.

the economic thought sought to be (1915) cc 106, 392.
Mont.--Lewis, etc., County V. In-crystalized into law-that the indus- Iowa.-Acts (1913) c 147.
dustrial Acc, Bd., 155 P 268.
try itself was the primal cause of Kan.-L. (1911) c 218


382, N. Y.-Moore v. Lehigh Valley R. the injury and, as such, should be amended by L. (1913) C 216 p 385. Co., 169 App. Div. 177, 154 NYS 620; made to bear its burdens. The em- Ky.-L. (1916) c 33. Rheinwald v. Builders' Brick, etc., ployer and employee as distinctive La. --Acts (1914), p 44, amended by Co., 168 App. Div. 425, 153 NYS 598; producing causes are lost sight of in Acts (1916), Act No. 243. Kenny v. Union R. Co., 166 App. Div. the greater vision that the industry Me.-L. (1915) C 295. 497, 152 NYS 117; Martucci v. Hills itself is the great producing cause, Md.-L. (1912) c 837 p 1624; L. Bros. Co., 156 NYS 833.

and that the cost of an injury suf- (1914) c 800, amended by Acts (1916) Oh.-State v. Industrial Commn., fered in any industry is just as much cc 86, 368, 379, 597. 92 Oh. St. 434, 111 NE 299, LRA1916D a part of the cost of production as Mass.- Pub. Acts (1911) C 751 p 944,

the tools, machinery, or material 928, amended and supplemented by R. I.-Jillson v. Ross, 94 A 717. that enter into that production, rec- Acts (1912) c 172 p 116, c 571 p 577,

Wash.-State v. Clausen, 65 Wash. ognizing no distinction between the C 666 P 729, c 721 P 812; Acts (1913) 156, 117 P1101, 37 LRANS 466. injury and destruction of machinery c 445 p 368, c 448 P 371, c 568 p 487,

Wis.-Besnys v. Herman Zohrlaut and the injury and destruction of C 696 P 637, c 746 p 710, c 807 p 890, Leather Co., 157 Wis. 203, 147 NW men in so far as each is a proper c 813 p 900; Acts (1914) c 338 p 37: Milwaukee v. Miller, 154 Wis. charge against the cost of produc- 307, c 636 P 603, c 708 p 731; Acts 652, 144 NW 188, LRA1916A 1.

tion. The legislature in this act (1915) c 132 p 116, c 183 p 165, c 236 "The theory upon which the com- was dealing, not so much with causes p 232, c 244 P 255, c 287 P 339; Acts pensation law is based (which is now of action and remedies, as with this (1916) 29 p 21, C 72 p 53, 90.p. 66, generally accepted) is that each time great economic principle that has ob- C 200 p 179, C 307 p 336, c 308 p 337. an employe is killed or injured there tained recognition in these later Mich.-Pub. Acts (Ex. Sess. 1912) is an economic loss which must be years, and it sought, in the use of No. 10 p 20, amended by Pub. Acts made up

compensated in some language it deemed apt, to embody (1913) Nos. 60, 79. 156, 259: Pub, Acts way, that most accidents are attrib- this principle into law." Peet (1915) Nos. 104, 153, 170, 171, utable to the inherent risk of em- Mills, 76 Wash. 437, 439, 136 P 685, Minn.-L. (1913)c 467 p 675, ployment that is, no one is directly LRA1916 A 358, AnnCas1915D 154. amended by L. (1915) c 193 P 258, at fault--that the burden of this eco- 39. Cunningham v. Northwestern c 209 p 285. nomic loss should be borne by the Impr. Co., 44 Mont. 180, 119 P 554. Mont.---L. (1915) C 96. industry rather than by society as 40. Hawkins v. Bleakley, 220 Fed. Nebr.-L. (1913) C 198 p 578. a whole, that a fund should be pro-378; Cunningham Northwestern Nev.-St. (1911), c 183 362; St. vided by the industry from which a Impr. Co., 44 Mont. 180, 119 P 554; (1913) c 111 P 137, amended by St. fixed sum should be set apart as Borgnis v. Falk Co., 147 Wis. 327, | (1915) c 190. every accident occurs to compensate 133 NW 209, 37 LRANS 489.

N. H.-L. (1911) c 163 p 181. the person injured, or his dependents, 41. Cunningham V. Northwestern N. J.-L., (1911). c 95 p. 134, L. for his or their loss." State v. In- | Impr. Co., 44 Mont. 180. 119 P 554. (1913) C 145 P 230, amended by L. dustrial Commn., 92 Oh. St. 434, 450, 42. Borgnis v. Falk Co., 141 wis: (1913 114; L. isnamen 244. 111 NE 299, LRÁ1916D 944.

327. 133 NW 209, 37 LRANS 489. N. Y.-L. (1914) p 157 (L. (1913) "Workingmen's insurance and com- 43. Bulletin No. 126 United States c 816, reënacted and amended by 2. pensation laws are the products of Bureau of Labor Statistics.

[1914] c 41, Consol. L. c 67), amended the development of the social and “The economic loss from voca- by L. (1915) cc 615, 674, L. (1916) economic idea that the industry tional disease, industrial accident, in- C 622; L. (1909) c 36 art 14, amended which has always borne the burden validity, old age, and unemployment by L. (1910) c 352, L. (1916) c 674. of depreciation and destruction of

a subject of serious inquiry Oh.-L. (1911), p 524; L. (1913) pp the necessary machinery shall also among the constituent German states 72, 396; L. (1914) p 193. bear the burden of

repairing the before the days of the empire, but Okl.-L. (1915) C 246 p 471. efficiency of

the human machines the credit for crystallizing the senti- Or.-Gen. L. (1913) c 112, amended without which the industry itself ment into workable laws will always by L. (1915) C 271 p 391. could not exist." Lewis, etc., County remain with Bismarck. From the en- Pa.-Acts (1915) No. 338. v. Industrial Acc. Bd., (Mont.) 155 P actment of the sick insurance stat. Porto Rico.--Acts (1916), Act No. 268, 270.

ute in Germany in 1883, and the fun- 19. “The conclusion is evident that, in damental law in 1884, the idea of R. 1.--Acts (1912) C 831

p 204, the enactment of this new law, the compensation based only upon the amended by Acts (1913) c 936 p 52, legislature declared it to be the pol- risks of the business and the im- c937 p 53, Acts (1915) c 1268 p 257. icy of this state that every hazard- pairment of earning efficiency spread Tex.-L. (1913) c 179 p 429. ous industry within the purview of to other European states, and finally Vt.-Pub. Acts (1915) No. 164 p the act should bear the burden aris- penetrated to this country." Lewis, 275. out of injuries to its etc., County v. Industrial Acc. Bd., Wash.-L. (1911)


р 345, ployees; and that it was the further (Mont.) 155 P 268, 270.

amended by L. (1913) C 148 p 467, policy of the state to do away with 44. Act May 30, 1908 (35 U. S. amended by L. (1915) c 188 p 674. the recognized evils attaching to the St. at L. 556).

W. Va.-Acts (1913) C 10 p 64, remedies under existing forms of law

45. L. (1909) c 67 p 81.

amended by L. (1915) c9, L. (Ex. and to substitute a new remedy that 46. Alaska.-L. (1915) c 71.

Sess. 1915) c 1. should be ample, full, and complete, Ariz.-L. (1912) c 14 p 23; L. Wis.-L. (1911) c 50 p 43, amended reaching, every injury sustained by (1913) c 7.

by L. (1913) c 599 p 711, c 707 p 986, any workman while employed in any Cal.-L. (1913) c 176, amended by L. (1915) cc 121, 241, 316, 368, 378, such industry, regardless of the L. (1915) cc 541, 607, 662 (orig. act 462, 582. cause of the injury or the negligence L. (1911) c399).

Wyo.-L. (1915) c 124 p 172. to which it might be attributed.

Canal Zone. - Executive Order, 47. Act Sept. 7, 1916 (39 U. S. St. can conceive of no language the March 20, 1914,

at L. 742).









III. CONSTITUTIONALITY AND VALIDITY OF STATUTES [0 6] A. In General. As perhaps fairly to be passing on elective statutes have intimated that an anticipated from the novel, and in a sense revolu- elective statute would be sustained when a compultionary, character of compensation legislation, the sory one might not be,so they have, where the quesconstitutionality of the various statutes has been tion has been directly presented, almost without attacked on grounds as numerous and varied as exception sustained both electivel and compulsory52 have suggested themselves to the ability, and in acts. Where a compensation act is reasonably sussome instances ingenuity, of counsel. 48 While the ceptible of two interpretations, by one of which it courts have frequently laid stress on the distinction would be unconstitutional and by the other valid, between elective and compulsory statutes, 49 and in that construction will be adopted which will favor

See Hunter v. Colfax Cons. | ering New Jersey law, Acts (1911) | for the benefit of other people, is a Coal Co., (Iowa) 154 NW 1037, 1048 c95).

violation of the above Section

241 (where the court said: "It is the 51. U. S.-Hawkins v. Bleakley, of the Constitution. The Legislatendency of argument asserting that 220 Fed. 378 (Iowa act).

ture has no right to limit the damlegislation is violative of Constitu- Ill.--Victor Chemical Works V. ages recovered, for the death of an tions to be hypercritical, and the one State Industrial Bd., 274 Ill. 11, 113 employe negligently killed, to his at bar is not exceptional in this NE 173; Devine v. Delano, 272 Ill. dependents. Nor do think the regard"); Evanhoff v. State Indus- | 166, 111 NE 742; Richardson v. Sears, Legislature has the right to take trial Acc. Commn., 78 Or. 503, 512, 271' 111. 325, 111 NE 85; Przykopenski what is due the estate of one 154 P 106 (where the court said: V. Citizens' Coal Min. Co., 270 Ill. and give it to another. While the "The

complaint and the able and 275, 110 NE 336; Dragovich v. Iro- Legislature may say how the recove ingenious brief of counsel for plain- quois Iron Co., 269 Ill. 478, 109 NE ery may go and to whom it shall be. tiff point out 19 specific violations of 999; Dietz v. Big Muddy Coal, etc., long, it cannot say this recovery may the Constitution of this state, all Co., 263 Ill. 480, 105 NE 289; Crooks be had from the employer, then in committed within the compass of a V. Tazewell Coal Co., 263 ml. 343, 103 the next breath give it to this fund. single act, and then, piling Pelion on NE 132, AnnCas1915C 304; Deibeikis It then necessarily follows that such Ossa, specifies four alleged violations V. Link-Belt Co., 261 Ill. 454, 104 NE parts of this act under consideration of the Constitution of the United 211, AnnCas1915A 241 and note. as give to this Board of CompensaStates, perpetrated by means of the Iowa:-Hunter v. Colfax Cons. Coal tion, without the voluntary contract same statute. It would be, indeed, Co., 154 NW 1037.

of the employe the right to recover a reflection upon republican govern- Kan.-Shade v. Ash Grove Lime, from the employer for the death of ment if a bill which is so permeated etc., Co., 93 Kan. 257, 144 P 249. the employe leaving no dependents, with the rottenness of unconstitu- Mass. - Young v. Duncan, 218 Mass. and such other parts of the act as tionality could pass both houses of 346, 106 NE 1; In re Opinion of Jus- coerce the employe to consent or to the legislature with only three dis- tices, 209 Mass. 607, 96 NE 308. make a contract that such compensenting votes, and thereafter be in- Mich.-Mackin Detroit-Timkin sation shall be paid into this comdorsed by the people upon a referen- Axle Co., 187 Mich. 8, 153 NW 49. pensation fund, are unauthorized and dum by a majority of more than two Minn.-State V. Meeker County void”). (2) The act of 1916, L. (1916) to one"); Middleton v. Texas Power, Dist. Ct., 128 Minn. 221, 150 NW

c 33, has been upheld, however, as etc., Co. (Tex.) 185 SW 556, 557 623; Mathison v. Minneapolis St. R. against the objections urged against (where the court said: "Apparently Co., 126 Minn. 286, 148 NW


the prior act. Greene v. Caldwell, every possible constitutional ques- LRA1916D 412.

170 Ky. 571, 186 SW 648. tion suggested by the act has been Mont.-Lewis, etc., County v. State [b] The leading cases on constiembraced in the certificate, includ- Industrial Acc. Bd., 155 P 268.

tutional questions in the several ing some which the appellant was in N. H.-Wheeler v. Contoocook Mills jurisdictions are Deibeikis v. Linkno position to raise"). Corp., 77 N. H, 551, 94 A 265.

Belt Co., 261 Ill. 454, 104 NE 211, 49. Mass.-In re Opinion of Jus- N. J.-Sexton v. Newark Dist. Tel. AnnCas1915A 241; Hunter v. Colfax tices, 209 Mass. 607, 96 NE 308. Co., 84 N. J. L. 85, 86 A 451 [aff 86 Cons. Coal Co., (Iowa) 154 NW 1037 Mich.-Mackin V. Detroit-Timkin N. J. L. 701, 91 A 1070).

(L. 1913 Thirty-Fifth Gen. Assembly Axle Co., 187 Mich. 8, 153 NW 49. Oh.-Jeffrey Mfg. Co. v. Blagg, 90 c 147); In re Opinion of Justices,

Minn.-Mathison v. Minneapolis St. Oh. St. 376, 108 NE 465; State 209 Mass. 607, 96 NE 308; Mackin v.
R. Co., 126 Minn. 286, 148 NW 71, Creamer, 85 Oh. St. 349, 97 NE 602, Detroit-Timkin Axle Co., 187 Mich. 8,
LRA1916D 412.
39 LRANS 694.

153 NW 49; Mathison v. Minneapolis N. J.--Troth Millville Bottle Or.-Evanhoff v. State Industrial St. R. Co 126 Minn. 286, 148 NW 71. Works, 86 N. J. L. 558, 91 A 1031. Acc. Commn., 78 Or. 503, 154 P 106. LRA1916D 412; Sexton v. Rewark

Or.-Evanhoff v. State Industrial R. I.-Sayles v. Foley, 96 A 340. Dist. Tel. Co., 84 N. J. L. 85, 86 A Acc. Commn., 78 Or. 503, 154 P 106. Tex.–Middleton v. Texas Power, 451 (aff 86 N. J. L. 701, 91 A 1070]; R. 1.–Sayles V. Foley, 96 A 340. etc., Co., 185 SW 556.

State v. Creamer, 85 Oh. St, 349, 97 Tex.--Middleton V. Texas Power, W.

-Watts V. Ohio Valley NE 602, 39 LRANS 694; Evanhoff etc., Co., 185 SW 556.

Electric R. Co., 88 SE 659; De Fran- v. State Industrial Acc. Commn., 78 W. Va.-Watts V. Ohio Valley cesco V. Piney Min. Co., 86 SE 777. Or. 503, 154 P 106; Sayles v. Foley, Electric R, Co., 88 SE 659.

Wis.---Borgnis v. Falk Co., 147 Wis. (R. I.) 96 A 340; Middleton v. Texas See Western Indemn. Co. v. Pills- 327, 133 NW 209, 37 LRANS 489. Power, etc., Co., (Tex.) 185 SW 556; bury, 170 Cal. 686, 695, 151 P 398 (a) In Kentucky (1) an act (L. Borgnis v. Falk Co., 147 Wis. 327, (where the court said: "While, in (1914) c 73) although elective in 133 NW 209, 37 LRANS 489. several of these decisions, the court terms, was construed as in fact com- 52. U. S.-Raymond v. Chicago, was careful to point out that the pulsory as to both employer and em- etc., R. Co., 233 Fed. 239 (Washingvalidity of a compulsory compensa-ployee' (see supra § 2 notes 17, 18) ton act); Stoll v. Pacific Coast SS. tion act was not involved, yet the and as such in violation of Const. Co.. 205 Fed. 169 (Washington act). general line of reasoning employed § 54 providing that the general as- Cal.-Massachusetts Bonding, etc., in most of the cases would, if pur-sembly shall have no power to limit Co. v. Pillsbury, 170 Cal. 767, 151 P sued to its logical results, go far the amount to be recovered in case 419; Western Indemn. Co. v. Pillstoward sustaining even such

of injuries resulting in death, or for bury, 170 Cal. 686, 151 P 398. act"); Kentucky State Journal Co, injuries to person or property, and

N. Y.-Jensen v. Southern Pac. Co., v. Workmen's Compensation Bd., 162 § 241 providing that in case of death 215 N. Y, 514, 109 NE 600, LRA1916A Ky. 387, 388, 172 SW 674. LRA1916 A from negligence or wrongful act 403, AnnCas1916B 276; Moore 402 and note (where the court, on damages may be recovered, the ac- Lehigh Valley R. Co., 169 App. Div. rehearing. said of L. (1914) Ċ 73 tion for which, until otherwise pro- 177, 154 NYS 620. which it held unconstitutional in its vided by law, shall be prosecuted by Oh.-Porter v. Hopkins, 91 Oh. St. entirety: "Any employe coming the personal representatives of the 74, 109 NE 629 (where, however, within the provisions of the act may deceased person, and the recovery only the question of discrimination voluntarily agree to accept its pro- for which shall form part of the

in 103 Oh. L. 72 between the state visions fixing and limiting' his personal estate of the deceased per- and its subdivisions and private emcovery in case of injury.


State Journal Co. Work- / ployers was considered). may likewise voluntarily accept the men's Compensation Bd., 161 Ky, 562, Wash.-Peet v. Mills, 76 Wash. 437, provisions of the act fixing the 571, 170 SW 437, 1166, LRA1916 A 136 P 685, LRA1916A 358, AnnCas amount that shall be recovered in 389, AnnCas1916 B 1273 and note, 162 1915D 154; State v. Mountain Timber the event of his death, and said sum Ky, 387, 172 SW 674, LRA1916A 402 Co., 75 Wash. 581, 135 P 645; State should be paid to his dependents if (the court saying on the latter point v. Seattle, 73 Wash. 396, 132 P 45; he leaves any, and if not, to his per- of the sections of the act providing State v. Clausen, 65 Wash. 156, 117 sonal representatives. The Legisla- for payments into the general com- P 1101, 37 LRANS 466 and note. ture has no power to direct that this pensation fund where there are

[a] The leading cases on constisum shall in any event be paid into dependents: "It seems clear to us tutional questions in the several the compensation fund").

that such parts of this act as take jurisdictions are Western Indemn. Elective and compulsory acts dis- from the personal representative or Co. v. Pillsbury, 170 Cal. 686, 151 P tinguished see supra g 2.

estate of a deceased' employe, who 398; Jensen v. Southern Pac. Co., 215 50. Mathison v. Minneapolis St. R. left no dependents surviving him, N. Y. 514, 109 NE 600, LRA1916 A Co., 126 Minn. 286, 148 NW 71, any part of the compensation due 403, AnnCas1916 B 276; Ives v., South LRA1916D 412; Albanese v. Stewart, such representative or his estate, and Buffalo R. Co., 201 N. Y, 271, 94 NE 78 Misc. 581, 138 NYS 942 (consid- directs its payment into this fund 431, 34 LRANÁ 162 and note, AnnCas









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its validity,53 and, although counsel place an errone- on the part of all employers to compensate their ous construction on the statute, the court should not employees for injury is broad enough to authorize for that reason hold it unconstitutional if the act a provision for the payment of compensation, in properly construed is constitutional.54

case of the fatal injury of an employee, to his deEnabling amendments. Objections to the consti- pendents. Further, the reference to “ all ” emtutionality of compensation acts so far as the state ployees in such a provision does not deprive the constitutions are concerned have been forestalled in legislature of the power to except certain classes

59 several of the states by constitutional amendments of employment from the operation of the act. permitting the enactment of such legislation,55 al- Presentation of constitutional questions. Owing though this course obviously cannot remove objec- to the importance of securing an early decision as tions based on the federal constitution.56 Such to the validity of a compensation act as a whole, amendments, being intended to enlarge the power the court may pass on all objections urged to it, of the legislature or to remove doubts concerning although not essential to the disposition of the its power to legislate on a given subject, are not cause. There are several cases, however, in which to be given too strict and literal an interpretation. the courts have refused to consider specific objecFor example, an authorization to create a liability tions in advance of necessity therefor. 61 A dis1912B 156 and note (holding original 1 57. Western Metal Supply Co. v. the word 'all,' it is claimed, takes New York act unconstitutional); Pillsbury, (Cal.). 156 P 491, 494

away the power of the legislature to State v. Clausen, 65 Wash, 156, 117 (where it was said of Const. art 20 except any employer from the operP1101, 37 LRANS 466 and note. § 21 authorizing the legislature to ation of the act. The only power

(b) In Maryland the act of 1910 "create and enforce a liability granted is to create a liability on the C 153, as amended by Acts (1912) C the part of all employers to compen- part of all. But this, we think, is 445, for the creation of a fund known sate their employés for any injury strained construction of the as the “Miners' and Operators' Co- incurred by the said employés in the amendment. Section 21 was adopted operative Relief Fund, for the re- course of their employment": "In for the purpose of establishing the lief and sustenance of employees in- view of the general trend of legisla- right of the legislature to pass laws jured in coal and clay mining in tion on this subject, we think the on the particular subject. It was a Allegany and Garrett counties, and language of the constitutional grant of power, and the word 'all' of the dependents of employees in- amendment was not inapt to de- was inserted in order to make the jured or killed in such mining, has scribe a scheme of liability which power broad and comprehensive." been sustained as a valid exercise should include the entire field em- Western Indemn. Co. v. Pillsbury, of the police power of the state braced within the prior laws").

supra. as against various constitutional ob- [a] Limitation to employers.

60. Hunter v. Colfax Cons. Coal jections. This act is local in its (1) A power conferred on the legis- Co., (Iowa) 154 NW 1037; Borgnis character and is distinct from the lature to create and enforce a lia- v. Falk Co., 147 Wis. 327, 337, 133 general compensation act of April bility on the part of all employers NW 209, 37' LRANS 489. 16, 1914, in effect Nov. 1, 1914. to compensate their employees does [a] Reason for decision.-"A conAmerican Coal Co. V. Allegany not authorize it to commit to a com- siderable number of employers have County Comrs., 128 Md. 564, 98 Å mission the settlement of liabilities accepted the terms of the act, but 143, 144.

against persons not employers, as, unquestionably many are waiting 53. Carstens v. Pillsbury, (Cal.) for example, against principals or until the question of the constitu158 P 218; Victor Chemical Works owners for injuries to employees of tionality of the act be authoritatively v. State Industrial Bd., 274 111. 11, subcontractors. Carstens Pills- settled by this court. Nor is this at113 NE 173; Hunter v. Colfax Cons. bury, (Cal.) 158 P 218. (2) The titude either blameworthy or surCoal Co., (Iowa) 154 NW 1037.

same reasoning applies to the lia- prising. If an employer elects to 54. Grand Rapids Lumber Co. v. bility of the contractor to employees accept the act and proceeds to pay Blair, (Mich.) 157 NW 29.


subcontractors. Sturdivant V. out the sums which it requires for 55. See constitutional provisions; Pillsbury, (Cal.) 156 P 491.

a year or more, and then the act and Western Metal Supply Co.

58. Western Metal Supply Co. v. should be declared unconstitutional, Pillsbury, (Cal.) 156 P 491; Western Pillsbury, (Cal.) 156 P 491.

it might well be that he would have Indemn. Co v. Pillsbury, 170 Cal. 68 [a] "Compensation means more paid out considerable sums which 151 P 398; Jensen v. Southern Pac.

than a mere cash payment to an under the former system he would Co., 215 N. Y. 514, 523, 109 NE 600, individual. Compensation to em- not be required to pay at all, because LRA1916 A 403, AnnCas1916B 276 ployés for injuries incurred by them he was not negligent, and that he (where L. (1914] c 41 was sustained may fairly be said to mean, not only would also be subject to suits to and the court, in speaking of the money payment to th employé recover additional sums by those contrary decision on L. (1910) c 674, himself, but provision or indemnit. who, without contributory negligence, said: "Much reliance is placed on cation for the various elements of had suffered injury and had the decision of this court in Ives v. loss which may be the direct result ceived compensation under the law. South Buffalo R. Co., 201 N. Y. 271, of his injury. It includes, for ex- The situation is unquestionably one 94 NE 431, 34 LRANS 162, AnnCasample, the obligation to provide of much doubt and uncertainty 1912B 156. In that case Judge Wer- medical and surgical treatment among the great industries of the ner, referring to the appeal on eco- (section 15, subd. a)an obliga- state, and it must remain such until nomic and sociologic grounds and


which does not necessarily this court has spoken. Many emspeaking for the court, said: We involve payment in cash to the ployers of labor who have not achave already admitted the strength employé himself. It may equally be cepted the law have taken that of this appeal to a recognized and said to cover some provision for course, not because they have chosen widely prevalent sentiment, but those who had been entitled to look definitely to decline the terms of the think it is an appeal which must to the employé for their support and law, but because they do not know be made to the people and not to who by his death are deprived of whether they will be protected if the courts.' That decision was made that support. If the law provided they accept and act under it. Such in March, 1911. Following that sug- that while an injured workman was a condition of uncertainty ought not gestion, the legislature provided in disabled payments should be made to be allowed to exist if it can be the orderly way prescribed hy the to his family during the period of removed. This court cannot propConstitution for the submission to the disability, this would be one formerly decide questions which are not the people of a proposed constitu- of compensation to the workman. It legitimately involved in bona fide tional amendment and in due time would hardly be claimed that such lawsuits, but it may properly decide that amendment was adopted on No- a provision was beyond the scope of all questions which are so involved, vember 4th, 1913, and became

the constitutional authorization. On even though it be not absolutely tion 19 of article 1 of our State similar reasoning, it may fairly be essential to the result that all Constitution. It is unnecessary to said that, where a workman is killed, should be decided." Borgnis v. Falk set that amendment forth in ex- the requirement that payment Co., 147 Wis. 327, 337, 133 NW 209, tenso, but it suffices to say that so shall, for a given period, be made to 37 LRANS 489. far as the due process clause or any his dependents for their support, is

61. Cal.-Great Western Power other provision of our State Con- also a provision for compensation to Co. v. Pillsbury, 170 Cal. 180, 119 P stitution is concerned the amendment the workman within the meaning of 35 (compensation provisions of the amply sustains the act"): McQueeney section 21 of article 20." Western Boynton Act (St. (1913) p 279] in a v. Sutphen, 167 App. Div. 528, 153 Metal Supply Co. v. Pillsbury, (Cal.) claim governed by the Roseberry NYS 554; Herkey v. Agar Mfg. Co., 156 P 491, 494.

Act (St. (1911) p 796]). 90 Misc. 457, 153 NYS 369; Porter 59. Western Indemn. Co. v. Pills- Iowa.-Hunter Colfax Cons. V. Hopkins, 91 Oh. St. 74, 109 NE bury, 170 Cal. 686, 701, 151 P 398. Coal Co., 154 NW 1037 (impairment 629.

"It is first claimed that no excep- of an existing contract). [a] For example, this course has tions are permissible under our con- Ky.-Greene v. Caldwell, 170 Ky. been pursued California, New stitutional enabling clause (art. XX. 571. 186 SW 648 (discrimination York, Ohio, Oklahoma, Pennsylvania, sec. 21). This clause authorizes the against aliens and against Americans Vermont, and Wyoming.

legislature to create a liability on the in favor of foreign labor). 56. Herkey V. Agar Mfg. Co., 90 part of all employers to compensate N. Y.-Ives v. South Buffalo R. Misc. 457. 153 NYS 369.

their employees, etc. The use of | Co., 201 N. · Y. 271, 94 NE 431, 34







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