against it. In the absence of evidence rebutting this presumption, it was not necessary for the defendant to offer evidence that it had complied with the law. Numerous courts have expressed themselves in various ways under the different Employers' Liability Acts as to what constitutes casual employment, but none of the cases that we have examined throw any light upon the situation developed by the facts in this case. As we view it. the employment of the plaintiff was not casual, but was regular and in the usual course of the business of the employer. This being true, both parties surrendered their rights to any other method of determination of the amount of compensation than that provided for under the Employers' Liability Act. The plaintiff was not entitled to maintain this action, but should have submitted his claim for compensation. Taking this view of it, we shall not consider whether or not there was actionable negligence on the part of the defendant. For the reasons herein stated, the judgment of the lower court is reversed, and the cause remanded for further proceedings. Reversed. COMBINATION RUBBER MFG. CO. v. COURT OF COMMON PLEAS IN AND FOR ESSEX COUNTY ET AL. (No. 20.) (Court of Errors and Appeals of New Jersey. September 23, 1921.) 115 Atlantic Reporter 138. (Syllabus by Parker, J.) 1. MASTER AND SERVANT-COMPENSATION AS FÖR TOTAL PERMANENT DISABILITY PROPERLY AWARDED FOR LOSS OF SOLE EYE. A workman having already lost one eye at the time of entering on a new employment, sustained an acident arising out of and in the course of such employment which caused the loss of his remaining eye, and thereby rendered him totally blind. Held, that an award as for total and permanent disability was justified by paragraph 11 of the Workmen's Compensation Act of 1911, as amended by chapter 174 of the Laws of 1913 (P. L. p. 302). (For other cases, see Master and Servant, Dec. Dig. § 385[114].) 2. MASTER AND SERVANT-COMPENSATION ACT LIBERALLY CONSTRUED. - The Workmen's Compensation Act is to be treated as a remedial statute and should be liberally construed like other statutes of that character. (For other cases, see Master and Servant, Dec. Dig. § 343.) Appeal from Supreme Court. Proceeding by Richard Obser and others under the Workmen's Compensation Law, and from an award thereunder the Combination Rubber Manufacturing Company employer, brought certiorari to the court of common pleas of Essex County, and John H. Scott, clerk thereof, and the Supreme Court affirmed the judgment, and the Company appeals. Affirmed on opinion of Supreme Court. The following is the opinion of Parker, J., in the Supreme Court: [1, 2] The question is whether the trial court properly awarded compensation as for total and permanent disability for the loss of petitioner's remaining eye, he having already lost one eye before entering prosecutor's employ. The relevant provisions of paragraph 11 of the act, as amended in 1913 (P. L. p. 302) are as follows: "For the loss of an eye, 50 per centum of daily wages during 100 weeks.". * * (b) "For disability total in character and permanent in quality, 50 per cent of the wages received at the time of injury. * The compensation shall be paid during the period of such disability, not, however, beyond 400 weeks." "The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof, shall constitute total and permanent disability, to be compensated according to the provisions of clause (b). "In all other cases in this class, or where the usefulness of a member or any physical function, is permanently impaired, the compensation shall bear such relation to the amounts stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule." It is claimed for prosecutor that what the employee lost by the accident was "an eye," and inasmuch as the act prescribes specific compensation for the loss of an eye, that clause should be applied. But this we conceive to be too literal an application of the letter of the statute, with results quite inconsistent with its spirit. That the act is remedial in character appears by the entire trend of decision in this state in cases arising under it, of which it is sufficient for present purposes to cite Jensen v. F. W. Woolworth Co., 92 N. J. Law, 529, 106 Atl. 808, a very recent decision of the Court of Errors and Appeals. As a remedial act it should be liberally construed; and, applying this rule, we are clear that as respects major injuries, like the loss of an eye, an arm, or a leg, the Legislature was dealing with a situation in which the other eye, arm, or leg would still be available. The case of Bateman Mfg. Co. v. Smith, 85 N. J: Law, 409, 89 Atl. 979, is not at variance with this view; for, in that case, the claim was for loss of one of two legs plus nervous shock caused by the injury. We think this is not parallel with a case in which a one-legged man is deprived of his only remaining leg, or a one-eyed man of his sole eye. Such cases come within the general clause of subdivision (c) of paragraph 11, as amended in 1913, already quoted. "In all other cases in this class, or where * physical function is permanently impaired.” The petitioner had eyesight when he entered on his employment. That eyesight was a physical function; it was destroyed utterly. True, the word "impair," taken literally, does not cover total destruction of a function; but here again the spirit should not be killed by the letter. The compensation prescribed by the clause is the same proportion of that provided for loss of both eyes (involving total blindness) as the disability produced by the injury in question (total blindness) bears to that produced by the loss of both eyes, i. e.. the same. Such a view was enunciated by the Supreme Court of Massachusetts under the statute of that state. In re Branconniers, 223 Mass. 273, 111 N. E. 792. * * any The trial judge was manifestly entitled to find that petitioner had suffered a total loss of the function of vision, and that this entitled him to the same compensation as a disability produced by the loss of both eyes. This was the method applied in Vishney v. Empire Steel & Iron Co., 87 N. J. Law, 481, 95 Atl. 143, Orlando v. Ferguson, 90 N. J. Law, 553, 102 Atl. 155, and Purcell v. International Motor Co., 91 N. J. Law, 707, 103 Atl. 860, 104 Atl. 894, all of which cases arose after the amendment of 1913 The judgment will be affirmed. Lindabury, Depue & Faulks, of Newark, for appellant. PER CURIAM. The judgment under review herein should be affirmed for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court. PEOPLE v. DONNELLY. (New York Supreme Court, Appellate Division, Second Department October 28, 1921.) 190 New York Supplement, 502. MASTER AND SERVANT — VIOLATION OF COMPENSATION LAW NOT PUNISHABLE AS MISDEMEANOR UNDER PENAL LAW. Under Workmen's Compensation Law, § 52, as amended by Laws 1916. c. 622, § 9, providing that failure to secure the payment of compensation "shall constitute a misdemeanor and have the effect of enabling" claimant to maintain suit for damages under section 11, depriving employer of the common-law defenses, an employer guilty of such misdemeanor is not punishable under Penal Law, § 1937, prescribing punishment for misdemeanors when not otherwise fixed by statute, since the law itself fixes the punishment, consisting of the deprivation of the defenses specified. (For other cases, sec Master and Servant, Dec. Dig. § 3911⁄2, New. vol. 7A Key-No. Series.) Jaycox, J., and Blackmar, P. J., dissenting. Appeal from Court of Special Sessions. Albert E. Donnelly was convicted of a violation of Workmen's_Compensation Law, § 52, and from an order arresting judgment the People appeal. Affirmed. Argued before Blackmar, P. J., and Mills, Rich, Jaycox, and Manning, JJ. Harry G. Anderson, Asst. Dist. Atty., of Brooklyn (Harry E. Lewis, Dist. Atty.. of Brooklyn, and Floyd H. Wilmot, Asst. Counsel Workmen's Compensation Commission, of New York City, on the brief), for the People. William G. Cooke, of New York City, for respondent. RICH, J. The respondent was charged in the information with the crime of failure to secure compensation to an employee, in that on October 5, 1918, being an employer of labor, engaged in the business of painting, a hazardous employment, as defined in group 42 of section 2 of the Workmen's Compensation Law (Consol. Laws, c. 67), he failed to secure compensation to an employee. It was conceded at the trial that the respondent carried no compensation at the time the employee was injured. The employee instituted an action against the respondent and recovered judgment for $2.000. At the close of the trial the court denied defendant's motion to dismiss the information and found the respondent guilty, but made an order arresting judgment. This appeal is from that order. The law as it was enacted in 1914 provided (section 52) that failure to secure the payment of compensation should have the effect of enabling the injured employee, or his dependents in the event of his death, to maintain an action for damages in the courts, as provided in section 11 of the Act. By chapter 622, Laws 1916, section 52 was amenied so as to provide as follows: "Sec. 52. Effect of Failure to Secure Compensation. Failure to secure the payment of compensation shall constitute a misdemeanor and have the effect of enabling the injured employee, or, in case of death, his dependents or legal representatives, to maintain an action for damages in the courts, as prescribed by section eleven of this chapter." The penalty originally prescribed for failure to secure compensation was $1 for every day for each employee during which the failure continued. This section was later amended to provide a penalty of an amount equal to the pro rata premium which would have been payable for insurance in the state fund, for the period of noncompliance. The employee's alternative remedy (section 11) also provided that, in the event of the employer's failure to secure the payment of compensation, the employee might elect to maintain an action for damages in the courts, in which the employer would be precluded from pleading as a defense that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his employment, or that tee injury was due to contributory negligence. It is respondent's contention that, inasmuch as the words contained in section 52, "shall constitute a misdemeanor and have the effect." etc., show that the Legislature's purpose was simply to further describe and denounce the act, for which the employer was penalized by. being deprived of his common-law defenses; that the use of the expression "shall have the effect," in connection with the granting to the employee of a purely civil remedy, is incompatible with the idea that the misdemeanor referred to was one to be punished under section 1937 of the Penal Law (Consol. Laws, c. 40). It is also urged by respondent that judgment was properly arrested, because no violation of the statute was alleged or proved. The district attorney maintains that the information properly and sufficiently charged the respondent with failing to secure compensation, a misdemeanor under section 52, an offense which the trial court had jurisdiction to try, and, inasmuch as the section fixes no punishment, the punishment therefor must be found in section 1937 of the Penal Law. People v. Stevens, 13 Wend. 341, 342, enunciates the principle that, where a statute creates a new offense by making an act unlawful which was lawful before, and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced. In that case Judge Sutherland, writing for the court, pointed out that the Legislature had seen fit to declare, in the act under consideration, "that all offenses against the provision of this title shall be deemed misdemeanors, punishable by fine and imprisonment.". In that case, although the defendant had been sued by the overseers of the poor, and the penalty prescribed by the statute recovered from him, it was held that the defndant was, in addition, properly indicted and fined. In the instant case, however, the statute provides that failure to secure the payment of compensation "shall constitute a misdemeanor and shall have the effect of" enabling the injured employee or, in case of death, his dependents or legal representatives, to maintain action for damages in the courts, as prescribed by section 11 of the act. The distinction is obvious. The presen statute does not provide, as it did in the Stevens Case, that the penalty shall be fine and imprisonment, in addition to the deprivation of the employer's ordinary common-law defenses in an action by the employee, and, as a penalty, an amount equal to the pro rata premium which would have been payable for insurance in the state fund for such period of noncompliance (section 51). While it terms the act a "misdemeanor," the language immediately following, to which it is connected by the conjunction "and," without punctuation, indicates, I think, that the failure to secure compensation shall have the effect of enabling the injured employee to maintain his action for damages as provided in section 11 of the act, which section penalizes the employer to the extent of depriving him of his commonlaw defenses. The statute created an offense which was not such at common law; and the legislative intent was to term it a misdemeanor and prescribe the penalties, viz., deprivation of the employer's common-law defenses in the action which the employee is permitted to bring in the event his employer fails to secure compensation, and the mon tary penalties recoverable under section 51. The authorities cited by the district attorney are distinguishable. The Stevens Case was one where the statute prescribed a penalty, but also expressly authorized "fine and imprisonment"; in Behan v. People, 17 N. Y. 516, the act complained of was unlawful prior to the statute; in People v. Meakim, 133 N. Y. 214, 30 N. E. 828, no penalty was prescribed by the statute. It follows, therefore, that the order must be affirmed. JAYCOX, J. (dissenting). I cannot concur in the decision about to be handed down. The statement of facts contained in the prevailing opinion is sufficient to indicate the question presented. That question, presented in its narrowest compass, is: Does section 52 of the Workmen's Compensation Law make the' failure of an employer to secure compensation a misdemeanor punishable under section 1937 of the Penal Law. Prior to the enactment of chapter 622 of the Laws of 1916, section 52 of the Workmen's Compensation Law reads as follows: "Sec. 52. Effect of Failure to Secure Compensation. Failure to secure the payment of compensation shall have the effect of enabling the injured employee or his dependents to maintain an action for damages in the courts, as prescribed by section eleven of this chapter." By said chapter this section was amended to read as follows: "Sec. 52. Effect of Failure to Secure Compensation. Failure to secure the payment of compensation shall constitute a misdemeanor and have the effect of enabling the injured employee, or, in case of death, his dependents or legal representatives, to maintain an action for damages in the courts, as prescribed by section eleven of this chapter." The principal change made in this section was to declare that the failure to secure compensation should constitute a misdemeanor. By this amendment I think the Legislature intended to make some change in the law upon this subject. I cannot believe that this amendment was inserted in the statute for the mere purpose of denouncing the act for which it had previously prescribed penalties. If a change was intended, then the only change possible was to make the act complained of a misdemeanor punishable under section 1937 of the Penal Law. In Behan v.: People, 17 N. Y. 516, it was held that the construction of a statute imposing penalties was merely a question of legislative intent. In that case the act under consideration was chapter 628 of the Laws of 1857. Section 13 of that act provided:: "Whoever shall sell any strong or spirituous liquors or wines in quantities less than five gallons at a time, without having a license, therefor, granted as herein provided, shall forfeit fifty dollars for each offense." |