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liable under the common law when the wife or servant had been guilty of no wrong? Would the common law have denied to the husband or master the right to provide that no tort had been committed by the wife or servant? The admiralty cases of The Osceola, 189 U. S. 158, The City of Alexandria, 17 Fed. Rep. 399, and the case of Scarff v. Metcalf, 107 N. Y. 211, seem to us equally inapplicable as authorities for the proposition that the law recognizes liability without fault. It is common knowledge that the contracts and services of seamen are exceptional in character. A seaman engages for the voyage. He is subject to physical discipline, and exposed to hardships and dangers peculiar to the sea. He is, in effect, a coadventurer with the master, and shares in the risks of shipwreck and capture, often losing his wages by casualties which do not affect workmen on land. For these and many other obvious reasons the maritime law has wisely and benevolently built up peculiar rights and privileges for the protection of the seaman which are not cognizable in the common law. When he is sick or injured he is entitled to be cared for at the expense of the ship, and for the failure of the master to perform his duty in this regard, the ship or the owner is liable. That is a right given to the seaman, and a duty enjoined upon the master, by the plainest dictates of justice, which arises out of the necessities of the case; and, because of the reason of the rule, the right and duty cease when the contract has terminated and the seaman has been returned to the port of shipment or discharge, or has been furnished with means to do so. But beyond this duty on the part of the master or owner, there seems to be no liability whatever for injuries sustained by the seaman in the course of his work. We think it may confidently be asserted that within the whole range of the maritime law there will be found no rule which renders master, owner or ship liable in damages for an injury sustained by the seaman without fault on the part of anyone, or without any fault except his own. The case of Scarff v. Metcalf, 107 N. Y. 211, was not disposed of upon any such theory, but was based upon the neglect of the master to perform the duty of caring for the injured seaman imposed by the maritime law. The legal status of seamen is clearly illustrated in the case of Robertson v. Baldwin, 165 U.S. 275, where it was held that compulsory personal service of a seaman in performance of his contract was not a violation of the thirteenth amendment to the Federal Constitution forbidding slavery or involuntary servitude. In that case the learned justice who wrote for the court suggested that enforced service under a seaman's contract was not involuntary within the Constitution, although the contract would not be enforced by the courts. But in the later case of Clyatt v. United States, 197 U. S. 207, it was held that peonage or enforced service, whether under a voluntary contract of service or not, was involuntary servitude and forbidden by the Constitution in all cases save those arising out of the exceptional relations of the seaman to his ship, the child to its parents and the apprentice to his master. In the review in Robertson v. Baldwin, supra, of the various decisions in admiralty, it is made quite clear that the courts have always regarded seamen as irresponsible to a degree which makes them incapable of fully protecting their own rights. With the power given to the employer of seamen to compel specific performance of their contracts, there are imposed certain obligations unknown to any other relation. It is a relation which rests on affirmative law and not on natural right. We can find no analogy between a case arising out of such a relation and one in which an adult of sound mind and capable of freely contracting for himself voluntarily enters upon employment from which he is at liberty to withdraw whenever he will.

Great reliance is placed upon the case of St. Louis & San Francisco Ry. Co. v. Mathews, 165 U. S. 1, in support of the contention that there

may be liability where there is no delinquency. That was an action brought by an owner of land adjoining the defendant's railroad to recover damages for the destruction of his dwelling house and other buildings, caused by fire which spread from sparks emitted by the defendant's locomotives. The action was brought under a statute of the State of Missouri which provided that each railroad corporation, owning or operating a railroad in this State, shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon the railroad owned or operated by such railroad corporation; and each such railroad corporation shall have an insurable interest in the property upon the route of the railroad owned or operated by it, and may procure insurance thereon in its own behalf, for its protection against such damages.” The statute was upheld as being within the legislative power of the State. That decision is amply supported by a number of reasons which have no application to the controversy at bar.. To begin with, the constitutíon of Missouri contained a clause, which was in force when the railroad company obtained its charter, providing that “the exercise of the police power of the State shall never be abridged, or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals, or the general well-being of the State." (Missouri const., art. 12, sec. 5.) Another ample reason is found in the fact that railroads alone “have the privilege of taking a narrow strip of land from each owner, without his consent, along the route selected for the track, and of traversing the same at all hours of the day and night, and at all seasons whether wet or dry, with locomotive engines that scatter fire along the margin of the land not taken, thereby subjecting all combustible property to extraordinary hazard of loss.' (Grissell v. Housatonic R. R. Co., 54 Conn. 447.) Then, again, the right to use the agencies of fire and steam in the movement of trains is derived from legislation of the State; and it certainly can not be denied that it is for the State to determine what safeguards must be used to prevent the escape of fire, and to define the extent of the liability for fires resulting from the operation of trains by means of steam locomotives. This is a matter within State control." (Hartford Ins. Co. v. Chi., Mil. & St. Paul Ry. Co., 62 Fed. Rep. 904.) A legislature may, if it chooses, make it a condition of the right to run carriages propelled by the agency of fire, that the corporation employing them shall be responsible for all injuries which fire may cause. (Ingersoll & Quigley v. Stockbridge & Pittsfield R. R. Co., 8 Allen 438; Grand Trunk Ry. Co. v. Richardson, 9 U. S. 454.) And, finally, these statutes are designed to protect the rights of those who have no contractual relations to the corporations which inflict the injury. In such a case, when both parties are equally faultless, the legislature may properly consider it to be just that the duty of insuring

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private property against loss or injury caused by the use of the dangerous instruments should rest upon the railroad company, which employs the instruments and creates the peril for its own profit, rather than upon the owner of the property who has no control over or interest in these instruments. Quite aside from the considerations which support such a statutory liability against railroad corporations, it may be added that it is in no sense an extension of the rule of the common law to modern conditions, but in reality a return to the original common-law doctrine under which every person who permitted fire started by him to escape beyond his house or close was liable to every one who suffered loss or injury thereby. The severity of that early English rule was moderated by numerous statutes, among which are 6 Anne and 14 Geo. III. As to these two lastmentioned statutes it has been held that they became by adoption a part of the common law of this State, under which neither individuals nor corporations are liable for escaping fire unless there is negligence. (Cases cited.] The cited cases arising out of injuries inflicted by animals of known dangerous or vicious propensities, and the liability which has often been imposed for the maintenance of private nuisances, we shall not discuss, for we think they are governed by well-settled principles which clearly have no application to the questions now before us.

In the addenda to the instructive brief of the counsel for the commission our attention is called to three decisions of the Federal Supreme Court which have been but recently decided and not yet officially reported. (Noble State Bank v. Haskell, 219 U. S. 104; Assaria State Bank v. Dolley, 219 U. S. 121, and Engel v. O'Malley, 219 U. S. 128.) These cases, it is contended, strongly support the validity of the legislation which we are condemning because, as counsel asserts, they go directly to the ultimate question: "Is the act an unreasonable regulation of the status of employment ?" We have tried to make it clear that in our judgment this statute is not a law of regulation. It contains not a single provision which can be said to make for the safety, health or morals of the employees therein specified, nor to impose upon the enumerated employers any duty or obligation designed to have that effect. It does not affect the status of employment at all, but writes into the contract between the employer and employee, without the consent of the former, a liability on his part which never existed before and to which he is permitted to interpose practically no defense, for he can only escape liability when the employee is injured through his own willful misconduct. That is a defense which needs no legislative sanction, since it would be abhorrent to the most primitive notions of justice to permit one to impose liability for his willfully self-inflicted injuries upon another who is wholly free from responsibility for them. The case of Engel v. O'Malley, supra, is so clearly distinguishable from the case at bar that we need only state the facts to mark the contrast. The Engel Case arose under a New York statute which provides that individuals and firms shall not engage in the business of receiving deposits for safe keeping or for transmission, or for any other purpose, or in the business of banking, without first obtaining from the State comptroller a license. The same statute further provides that applicants for such a license must pay a prescribed fee, give bonds and submit to other restrictions. We have already passed upon the constitutionality of certain parts of that statute (L. 1907, ch. 185) in Musco v. United Surety Co., 196 N. Y. 459, which was an action upon a bond given under it, and have held that “the regulation of the business of receiving deposits is plainly within the power possessed by the State to regulate the conduct of various pursuits when necessary for the protection of the public” (p. 465). The portion of the statute under consideration in the last cited case was plainly directed against an obvious evil which vitally affected the public welfare. The city of New York is the gateway through which this country admits each year thousands of poor and ignorant immigrants who deal with individuals and firms engaged in the business of exchanging domestic for foreign money, receiving deposits and transmitting remittances to foreign ports. It is a business which may, and probably does, attract some irresponsible and mercenary adventurers. A law designed to regulate and safeguard such a business in a way which affects no constitutional property rights, is plainly within the police power of the State. That is all that was involved in the Musco Case, and that is the extent to which this court has passed upon the constitutionality of the New York statute (L. 1907, ch. 185). It need hardly be argued that a law passed under the guise of such a purpose, but having in fact no relation to it, and accomplishing nothing to make the business of receiving deposits more safe, would be as far beyond the sphere of the police power as an amendment to the banking law requiring banks and bankers to protect their customers, to whom they pay moneys, against thefts or other physical losses thereof; or an amendment to the labor law which would compel the industrial employers to give each employee a vacation on full pay during two months of every year.

As to the cases of Noble State Bank v. Haskell, 219 U. S. 104, and Assaria State Bank v. Dolley, 219 U.S. 121, we have only to say that if they go so far as to hold that any law, whatever its effect, may be upheld because by the prevailing morality” or the strong and preponderant opinion” it is deemed to be greatly and immediately necessary to the public welfare,” we can not recognize them as controlling of our construction of our own constitution. That the business of banking in the several States may be regulated by legislative enactment is too obvious for discussion. That the extent to which such State regulation may be carried must depend upon the difference in constitutional provisions is also plain. How far these late decisions of the Federal Supreme Court are to be regarded as committing that tribunal to the doctrine that any citizen may be deprived of his private property for the public welfare we are not prepared to decide. All that it is necessary to affirm in the case before us is that in our view of the constitution of our State the liability sought to be imposed upon the employers enumerated in the statute before us is a taking of property without due process of law, and the statute is, therefore, void.

The judgment of the appellate division should be reversed and judgment directed for the defendant, with costs in all courts.

Chief Justice Cullen, concurring, said:

I concur in the opinion of Judge Werner for reversal of the judgment appealed from. I concede that the legislature may abolish the rule of fellow-servant as a defense to an action by employee against the employer. Indeed, we have decided that in upholding the so-called Barnes Act. (Schradin v. N. Y. C. & H. R. R. R. Co., 194 N. Y. 534.) I concede that the legislature may also abolish as a defense the rule of assumption of risk and that of contributory negligence unless the accident proceed from the willful act of the employee. I concede that in a work, occupation or business of such a nature that the legislature might prohibit its pursuit or exercise altogether, the legislature may prescribe terms under which it may be carried on. Plainly, this litigation does not present such a case. The legislature could not revoke the franchise it had previously given to the defendant to operate a railroad. (People v. O'Brien, 111 N. Y. 1.) I am not prepared to deny that where the effects of the work, even though prosecuted carefully, go beyond a person's own property and injure third persons in no way connected therewith, the person for whose account the work is done may be held liable for injuries occasioned thereby. I also concede the most plenary power in the legislature to prescribe all reasonable rules for the conduct of the work which may conduce to the safety and health of persons employed therein. But I do deny that a person employed in à lawful vocation, the effects of which are confined to his own premises, can be made to indemnify another for injury received in the work unless he has been in some respect at fault. I am not impressed with the argument that “the common law imposed upon the employee entire responsibility for injuries arising out of the necessary risks or dangers of the employment. The statute before us merely shifts such liability upon the employer.” It is the physical law of nature, not of government, that imposes upon one meeting with an injury, the suffering occasioned thereby: Human law can not change that. All it can do is to require pecuniary indemnity to the party injured, and I know of no principle on which one can be compelled to indemnify another for loss unless it is based upon contractual obligation or fault. It might as well be argued in support of a law requiring a man to pay his neighbor's debts, that the common law requires each man to pay his own debts, and the statute in question was a mere modification of the common law so as to require each to pay his neighbor's debts. It is urged that the legislation before us can be upheld on the decision of the Supreme Court of the United States in Noble State Bank v. Haskell, 219 U.S. 104. In support of the claim there is cited from the opinion the following: "It may be said in a general way that the police power extends to all the great public needs. (Camfield v. United States, 167 U. S. 518.). It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.” (p. 111.) It is possible that the doctrine of these two sentences would justify the statute before us and possibly any legislation, if only supported by a sufficient popular demand, but it is both unfair and unsafe to excerpt fragmentary sentences from the opinion of a court and interpret them apart from the context of the whole opinion. However that may be, the decision in the Noble Bank Case is not controlling upon this court in the construction of the constitution of our own State, and I am not disposed to accept it, at least, until it has received the approval of a majority of the court. I concur with Judge Werner that the act, as applicable to the case before us, can not be considered as an exercise of the power of the State to regulate corporations, The act is general, not confined to corporations, and even if it were, I

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