In none of the cases cited by appellants' counsel was the operation anything more than a minor operation for a trifling injury. We think the cases clearly distinguishable from the instant case, which involved a major operation of a serious nature. None of the testimony in the case goes to the length of showing that Jendrus's life would have been saved had the operation been submitted to at 8 o'clock on the evening of February 14th, which was the first time that Dr. Hutchings had reached the conclusion that an operation was necessary. Peritonitis had already set in, and the vomiting had commenced, and vomitus of a fecal nature was then being expelled. That it was the injury which caused the peritonitis is not questioned; that it was the peritonitis which cause the vomiting of fecal matter is not questioned; that it was the taking of fecal matter into the lungs which caused the pneumonia is claimed by all the surgeons who testified. There is testimony that he might have recovered without any operation, although that result could not have been reasonably expected.

Tutton v. The Majestic (C. A. 1909) 100 | case of Hay's Wharf v. Brown, 3 B. W. C. L. T. 644, 2 B. W. C. C. 346. It was there C. 84, to the effect that the burden is upon held that a workman injured by an acci- the employer to show that the refusal of dent arising out of and in the course of the workman was unreasonable. his employment within the meaning of the act, who refuses, on the advice of his own doctor, to submit to the surgical operation which, in the opinion of such medical man, involved some risk to his life, is not act ing unreasonably in such refusal, and is not thereby precluded from claiming compensation from his employer under the act in respect of his continued disability to work. There the court said: "The test is not really whether on the balance of medical opinion the operation is one which might reasonably be performed. The test is whether the workman, in refusing to undergo the surgical operation, acted unreasonably. I altogether decline to say that, in a case of an operation of this kind, a workman can be said to act unreasonably in following the advice of an unimpeached and competent doctor, even though on the balance of medical evidence given at a subsequent date the learned county court judge might hold that the operation was in its nature one which might reasonably and properly be performed." Here the applicant was a sailor on board the steamship Majestic, and met with an accident which Under all the circumstances of the case, resulted in double rupture. He went to including the fact that Jendrus was a forthe hospital at Southampton, where the eigner, unable to speak or understand the doctor advised an operation. The appli- English language, that he was suffering cant then consulted another surgeon, who great pain on the evening of the 14th, that advised him not to undergo an operation, he was unacquainted with his surroundings, as he was suffering from Bright's disease and that he did consent to, and did submit of the kidneys, which would. in his opinion, to, an operation within fifteen or sixteen render it dangerous for him to have an an-hours after it was first found necessary, in esthetic administered; the physician say the judgment of the surgeons, we cannot ing that it would be barbarous for him to hold, as matter of law, that the conduct undergo an operation without an anesthetic. of Jendrus was so unreasonable and perWith kidney disease an anesthetic would be sistent as to defeat the claim for compensaa risk to his life. tion by his widow. Neither can we hold that Jendrus, by his conduct in the premises in causing a delay in the operation, was guilty of intentional and wilful misconduct. We cannot say, as matter of law, that the Industrial Accident Board erred in its con

The appellee has called our attention to the case of Marshall v. Orient Steam Nav. Co. [1910] 1 K. B. 79, 79 L. J. K. B. N. S. 204, [1909] W. N. 225, 101 L. T. N. S. 584, 26 Times L. R. 70, 54 Sol. Jo. 50, 3 B. W. C. C. 15, to the effect that, where an inclusions of law in affirming the action of jured party refuses to undergo a surgical operation, the employer has the burden of showing that the operation would have accomplished its purpose.

the committee on arbitration. No other questions of law are presented by the record. The judgment and decision of the said Board is therefore affirmed, with costs

Attention is also called by appellee to the against appellants.

Annotation-Refusal of injured workman to have operation performed as bar to compensation under workmen's compensation act.

As to application and effect of workmen's compensation acts generally, see annotation, ante, 23.

The courts very generally agree with

JENDRUS v. DETROIT STEEL PRODUCTS CO. in holding that whether or not a workman who has been injured should submit to an operation in order to avoid se

rious consequences of the injury, is a question of fact, dependent upon the varying circumstances of the individual

case.

It has been stated by the Massachusetts court that if a workman is not to be subjected to unusual risks and danger arising from the anesthetic to be employed, or from the nature of the proposed operation, it is his duty to submit to it if it fairly and reasonably appears that the result of such operation will be a real and substantial physical gain. Floccher v. Fidelity & Deposit Co. (1915) Mass., 108 N. E. 1032. In the same case it was held that it would be unreasonable to require an injured workman to submit to an operation upon his hand where, according to the expert testimony, it would be "pretty close to being permanently incapacitated for use even after this operation," and there was doubt as to the time within which some uncertain and indeterminate degree of benefit reasonably might be expected.

The New Jersey court has held that the refusal of an employee to submit to an operation cannot be said to be unreasonable where it appears that a risk of life is involved, although such risk is very slight. McNally v. Hudson & M. R. Co. (1915) N. J. L. 95 Atl. 122 (peril to life was about 48 chances in 23,000).

And the same court has also held that it is error for the trial court to make an award as for temporary disability upon the theory that the injury may be cured by an operation, and that it is the duty of the employee to undergo such operation. Feldman v. Braunstein (1915) N. J. L. —, 93 Atl. 679; McNally v. Hudson & M. R. Co. (N. J.) supra.

53 Sol Jo. 134, 78 L. J. K. B. N. S. 332, 100 L. T. N. S. 12 2 B. W. C. C. 350 (operation not serious, and likely to remove incapacity); Paddington Borough Counsel v. Stack (1909) 2 B. W. C. C. (Eng.) 402 (operation trivial and advised by workman's own doctor); Walsh v. Lock & Co. (1914) 110 L. T. N. S. (Eng.) 452, [1914] W. C. & Ins. Rep. 95, 7 B. W. C. C. 117 (operation not attended with much pain or risk, and would in all probability restore workman's capacity).

And a workman may be found to be unreasonable in refusing to undergo an operation although two doctors said that it would not remove the incapacity, where three other doctors gave as their opinion that the operation would remove the incapacity, and the advice against having the operation performed was based solely upon the ground that it would not be successful, and not upon the ground of the risk or pain involved in having the operation performed. O'Neill v. John Brown & Co. [1913] S. C. 653, [1913] W. C. & Ins. Rep. 235, 50 Scot. L. R. 450, 6 B. W. C. C. 428.

But compensation will not be denied because of the workman's refusal to submit to a serious operation. Rothwell v. Davies (1903) 19 Times L. R. (Eng.) 423 (operation would be attended with a certain amount of risk).

Nor will compensation be refused upon the ground of the workman's refusal to have an operation performed, where it is questionable whether the operation would benefit him. Hawkes v. Coles (1910) 3 B. W. C. C. (Eng.) 163; Marshall v. Orient Steam Nav. Co. [1910] 1 K. B. (Eng.) 79, 79 L. J. K. B. N. S. 204, [1909] W. N. 225, 101 L. T. N. S. 584, 26 Times L. R. 70, 54 Sol. Jo. 50, 3 B. W. C. C. 15; Braithwaite v. Cox (1911) 5 B. W. C. C. (Eng.) 77.

Sess. Cas. 5th series, 972, 40 Scot. L. R. 731, 11 Scot. L. T. 279; Tutton v. The Majestic [1909] 2 K. B. (Eng.) 54, 78 L. J. K. B. N. S. 530, 100 L. T. N. S. 644, 25 Times L. R. 452, 53 Sol. Jo. 447, 2 B. W. C. C. 346; Moss v. Akers (1911) 4 B. W. C. C. (Eng.) 294.

Under the English act the cases very generally hold that a workman will be denied compensation where he unrea- Nor will a workman be compelled to sonably refuses to undergo an opera- submit to an operation on the peril of tion of a minor character which would, losing his right to compensation, where in the opinion of medical men, restore his own doctor advises against it. Sweehis earning capacity. Donnelly v. Wil-ney v. Pumpherston Oil Co. (1903) 5 Sc. liam Baird & Co. [1908] S. C. (Scot.) 536, 45 Scot. L. R. 394, 1 B. W. C. C. 95 (operation of a simple character, not attended with appreciable risk or serious pain, and likely to restore to the workman, in a large measure or altogether, the use of his injured hand); Anderson v. Baird (1903) 5 Sc. Sess. Cas. 5th series, 373, 40 Scot. L. R. 263 (simple operation not attended with serious risk or pain); Warncken v. Richard Moreland & Son [1909] 1 K. B. (Eng.) 184 [1908] W. N. 252, 25 Times L. R. 129,

A workman cannot be claimed to be unreasonable in refusing to undergo an operation where there is no evidence that the operation would lessen the amount of compensation payable by the employers. Molamphy v. Sheridan [1914] W.

C. & Ins. Rep. 20, 47 Ir. Law Times, 250, | 528, 100 L. T. N. S. 740, 25 Times L. R. 7 B. W. C. C. 957. 451, 53 Sol. Jo. 430; Dolan v. Ward [1915] W. C. & Ins. Rep. (Eng.) 274, 8 B. W. C. C. 514.

W. 262; Clarey v. Union Cent. L. Ins. Co. | Steel & I. Syndicate, 20 Ky. L. Rep. 1211, 143 Ky. 542, 33 L.R.A. (N.S.) 881, 136 S. W. 1014; Travelers' Ins. Co. v. Henderson Cotton Mills, 120 Ky. 218, 117 Am. St. Rep. 585, 85 S. W. 1090, 9 Ann. Cas. 162; Louisville R. Co. v. Raymond (Louisville R. Co. v. Taylor) 135 Ky. 738, 27 L.R.A. (N.S.) 176, 123 S. W. 281.

Howard v. Hunter, 126 Ky. 685, 104 S. W. 723; Linck v. Louisville & N. R. Co. 107 Ky. 370, 54 S. W. 184; Passamaneck v. LouisThe act is not a valid exercise of the ville R. Co. 98 Ky. 195, 32 S. W. 620, 11 Am. police power of the state.

Mr. Elmer C. Underwood, amicus Street R. Co. 109 Ky. 41, 58 S. W. 439; curiæ:

The act violates § 60 of the Kentucky, different in state and Federal courts sitting Constitution in that it creates a system of in the same territory. jurisprudence taking effect upon an authority other than the general assembly.

Western & S. L. Ins. Co. v. Com. 133 Ky. 292, 117 S. W. 376; Columbia Trust Co. v. Lincoln Institute, 138 Ky. 804, 29 L.R.A. (N.S.) 53, 129 S. W. 113.

The act violates the 14th Amendment in that it denies due process of law to both employer and employee, and in that it gives the same protection to the careless employer and the careless employee that it gives to the careful employer and the careful employee.

Ives v. South Buffalo R. Co. 201 N. Y. 271, 34 L.R.A. (N.S.) 162, 94 N. E. 431, Ann. Cas. 1912B, 156, 1 N. C. C. A. 517; Campbellsville v. Odewalt, 24 Ky. L. Rep. 1739, 60 L.R.A. 723, 72 S. W. 314.

Messrs. James Garnett, Attorney General, and Robert T. Caldwell, Assistant Attorney General, for appellee:

Baltimore & O. R. Co. v. Baugh, 149 U. S. 387, 37 L. ed. 781, 13 Sup. Ct. Rep. 914. The action of the Board is under the supervision of the courts.

Board of Prison Comrs. v. De Moss, 157 Ky. 289, 163 S. W. 183; Wilson v. Com. 141 Ky. 341, 132 S. W. 557.

Dorsey, Special Judge, delivered the opinion of the court:

This case was brought to this court by appeal from a judgment of the Franklin circuit court to test the constitutionality of an act generally known as the workmen's compensation act, passed by the legislature and approved by the governor, March 21, 1914 (Laws 1914, chap. 73). By the provisions of this act, a board of commissioners is created, composed of the attorney general, the commissioner of insurance, and the commissioner of agriculture, labor, and statis

The title of the compensation act is suf- tics, and to be known as the "Workmen's ficient.

Compensation Board." This act creates a

Thompson v. Com. 159 Ky. 8, 166 S. W. workmen's compensation fund, which is

623. The coveries.

legislature has not limited re

maintained by the various classes of employers mentioned in the act, and such other employers who, together with their employees, shall apply for the benefits and protection of the act. This fund is created by fixing a rate or premium, during the first year, of not to exceed $1.25 on each $100 of the gross annual pay roll of each employer in any class of employers coming within the purview of the act. The Compensation Board has charge of this fund, and may increase the rate if deemed necessary. All persons, firms, and corporations regularly employing six or more persons for profit for the purpose of carrying on the class of business designated in the act in which such person, firm, or corporation is engaged are employers. And persons in the service of such employers, for the purpose of carrying on such class of Mr. Otto Wolff, also for appellee: business, are employees within the meaning Section 7 of the Constitution is not of the act. It is made the duty of such emviolated.

Murphy v. Com. 1 Met. (Ky.) 365; Taylor v. Com. 9 Ky. L. Rep. 316; Pierce v. Somerset R. Co. 171 U. S. 641, 43 L. ed. 316, 19 Sup. Ct. Rep. 64; Borgnis v. Falk Co. 147 Wis. 327, 37 L.R.A. (N.S.) 489, 133 N. W. 209, 3 N. C. C. A. 649; Opinion of Justices, 209 Mass. 607, 96 N. E. 308, 1 N. C. C. A. 557; State ex rel. Yaple v. Creamer, 85 Ohio St. 349, 39 L.R.A.(N.S.) 694, 97 N. E. 602; Sexton v. Newark Dist. Teleg. Co. 84 N. J. L. 85, 86 Atl. 451, 3 N. C. C. A. 569; Deibeikis v. Link-Belt Co. 261 Ill. 465, 104 N. E. 211, Ann. Cas. 1915A, 241, 5 N. C. C. A. 401; Mathison v. Minneapolis Street R. Co. 126 Minn. 286, L.R.A.—, —, 148 N. W. 71, 5 N. C. C. A. 871; Hawkins v. Bleakley, 220 Fed. 378.

i

ployers to report to the Board the place of M'Cord v. Johnson, 4 Bibb, 531; Ewing v. their business, the number of their emDirectors of Penitentiary, Hardin (Ky.) 6; ployees, the amount of their pay roll, and Wells v. Caldwell, 1 A. K. Marsh. 441; such other information desired by the Board, Harrison v. Chiles, 3 Litt. 195; Harris v. by filling out blanks furnished by the Board, Wood, 6 T. B. Mon. 641; Murry v. Askew, and returning the same to the Board. These 6 J. J. Marsh. 27; Wills v. Lochnane, 9 blankets were furnished by the Board to the Bush, 547. appellant, the State Journal Company, who The act is an exercise of the police power. was the defendant in the court below. Silva v. Newport, 150 Ky. 781, 42 L.R.A. (N.S.) 1060, 150 S. W. 1024, Ann. Cas. 1914D, 613.

The act does not affect the right to sue and recover for wrongful act, and the definition of actionable negligence is variable by the legislature and the courts, and is

But

the appellant refused to fill out or return said blanks, and further refused to furnish the Board with any information touching the place of its business, the amount of its pay roll, the number of men in its service, or anything else. Whereupon the appellee brought this suit in the form of a man