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The Legal Statute and Constitutionality of:

1. Workmen's Compensation Act applicable to a class of hazardous employments—the injured employee having the riglit to choose to accept the compensation provided by the act or to sue at law, without regard to the negligence of the employer or employee, excepting the willíul negligence of either.

II. An act which provides for a reasonable compensation of workingmen for the impairment of wages arising out of industrial accidents and makes it obligatory upon the employer to insure against said obligation and the injured workingman to accept the compensation provided in the act, without regard to begligence on the part of either, excepting for willful negligence.


The Employers' Liability Commission of New York State cited the following summary of authorities in its report of March 10, 1910, to sustain their recommendation, to the legislature of New York State, of the enactment of the compensation act which is now a statute of that state and the text of which is given in Appendix III, p 33.

Adopted Feb. 2, 1911.


1. A statute is not necessarily unconstitutional because it places an absolute or insurer's liability upon persons engaged in certain occupations. Bertholf v. O'Reilly, 74 N. Y. 509; Marvin v. Trout, 199 U. S. 212; Chicago, R. I. & Pacific R. Co. v. Zernecke, 183 U. S. 582; St. Louis & San Francisco Railroad (ni Mathew's, 165 U. S. I; Jones v. Brim, — U. S. 180 .1916 see Jones " Great Southern Hotel Co., 86, Feb. 370.

2. A statute is not unconstitutional because it changes the common law or imposes a liability unknown to the common law. Bertholf v. O'Reilly, 74 X Y 009: Vunn v. Illinois, 94 U. S. 113; Rhodes v. Sperry, 193 X Y 223; Idair vi L'. S., 208 U, S. 161; Missouri Pacific Railway Co. v. Mackey. 127 U. S. 2015; Ivy v. ll'estern Union Telegraph Co., 165 Fed. 391. And see the Employers' Liability Case, 207 l. S. 163; Martin v. Pittsburg & Lake Eria Railroad Co. 2013 '. S. 281: St. Louis & San Francisco Railroad Co. v. Mathews, 165 US 1; Johnstone v. Fargo, 181 X. Y, 379. 3.

not necessarily inconstitutional because it restrains the oferty of contract, McLean v. State of Arkansas, 211 ( S. .30: Wilmington


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v. Fulton, 205 U. S. 60; Knoxville Iron Co. v. Harrison, 183 U. S. 13; Holden v. Hardy, 109 U. S. 366; Vroom v. N. Y. C. & H. R. R. Co. 129 App. Div. 858. But see the Employers' Liability Case, 207 U. S. 463 (Dissenting opinion of Moody, J); Adair v. United States, 208 U. S. 161; Lochner v. New York, 198 U. S: 45; Allegeyer v. Louisiana, 165 U. S. 578; Goldfield Consolidated Mines Co. v. Goldfield, 159 Fed. 560. ,

4. Provision in a statute inposing liability upon employers and making void all contracts between employers and employees by which the latter would be deprived of the benefit of the statute, does not seem to be unconstitutional. Employers' Liability Case, 207 U. S. 463 ; Vroom v. N. Y. C. & H. R. R. Co. 129 App. Div. 858; Minnesota Iron Co. v. Kline, 199 U. S. 503.

5. A statute is not unconstitutional merely because it applies to large employers and not to small employers. McLean v. Arkansas, 211 U. S. 539; St. 'Louis Consolidated Coal C. v, Illinois, 185 U. S. 203.

6. The courts seem to have some slight tendency to recognize the inequality of employees with their employers in regard to contracts. Knoxville Iron Co. v. Harrison, 183 U. S. 13; Johnstone v. Fargo, 184 N. Y. 379. But see Adair v. United States, 208 U. S. 161; People v. Williams, 189 N. Y. 131.

7. Statute restricting the number of hours of labor are not unconstitutional if they are a proper exercise of the police power, as in the case of (a) MinesHolden v. Hardy, 169 U. S. 366. (b) Laundries-Soon Hing v. Crowley, 113 U. S. 70. (c) Railways-People v. Phyfe, 136 N. Y. 554. (d) Bakeries(Contra) Lochnew v. New York, 189 U. S. 45.

8. Statutes are not unconstitutional because they require persons engaged in certain occupations to take out license if they are a proper exercise of the police power. People, etc. v. Warden, etc., 144 N. Y. 520; Gundling v. Chicago, 177 U. S. 183; Grainger. v. Douglas Park Jockey Club, 1.18 Fed. 513. But see Bossetts v. People, 62, N. E. 215.

9.- A contract by which an employee exempts his employer from legal liability for injuries sustained is void as against public policy. Johnstone v. Fargo. 184 N. Y. 379.

For the first time in the history of Jurisprudence in United States, in September 1910, Justice Pound of Buffalo, Erie County, New York State, passed upon the legal status of a law which provided for the payment to workmen and their dependents, in proportion to the impairment of the earning power of the workmen, injured in the due course of their employment in hazardous occupations, without regard to negligence or fault of the employer or employee excepting where the fault or negligence of both was malicious. Justice Pound has held that such a law is constitutional and that it is wholly within the police power of the state to enact such a law. His opinion is given in full below :





September, 1910.
Eirl Ives, plaintiff, v. The South Buffalo Railway Company, defendant.

Demurres to defendant's answer.

Thomas C. Burke for plaintiff; Charles B. Sears for defendant. POUND, J.--The answer challenges the constitutionality of Chapter 674, Law's -910, entitled "An Act to amend the Labor Law in relation to workmen's

compensation in certain dangerous employments." This chapter applies only to workmen engaged in manuel machanical labor in certain employments declared by the act to be dangerous by reason of inherent, necessary or substantially unavoidable risks to life or limb, in which it deemed necessary to establish a new system of compensation for accidents to workmen. (Sec.21.5.)

AMONG SUCH EMPLOYMENTS IS INCLUDED: 6. “The operation on steam railroads or locomotives, engines, trains, motors or cars propelled by gravity of steam, electricity, or other mechanical power, or the construction or repairs of steam railroad tracks and roadbeds over which such locomotives, engines, rains, motors or cars are operated.” (Sec. 215.)

Plaintiff brings himself squarely under tlie provisions of this act by alleging sacts that establish, as admitted by the answer, tliat, while employed by defendant as a switchman, he was injured in the prosecution of his work, without negligence on the part of the defendant, and "Without serious or wilful misconduct" on his part, but solely by reason of a necessary risk or danger of his employment, or one inherent in the nature thereof. (Sec. 217.)

Prior to the enactment of the State above cited he would have been without remedy. Dy virtue of its provisions he is entitled to recover according to a fixed scale of compensation, without establishing that the employer is at fault in any way. (Sec. 219a.)

The plaintiff demurrs to the answer on the ground that it is insufficient in law on its face.

This act is based on the Workmen's Compensation Act of England, and its enactment is due to the fact that the common law atford no available remedy for injuries occasioned by industrial accidents not attributable to the negligence of the employer.

Defendant maintains that, under our system of constitutional government, the incorporation into our law of the English law of workmen's compensation is beyond the powers of the legislature. First, because the act in question deprives the defendant of liberty and property without due process of law, and denies it the equal protection of the laws in contravention of the Fourteenth Amendment of the United States Constitution, and Article 1, Section 6, of the constitution of this state. Second, because it violates the right of trial by jury guaranteed by article 1, section 2, of the constitution of this state. Third, because it limits the amount recoverable in actions to recover damages for injuries resulting in death in contravention of article 1, section 18, of the constitution of this state.

It has well been said by Mr. Justice Brown of the Supreme Court of the United States, writing the opinion of the Court of Holden v. Hardy (169 U. S., 366, at p. 387), that "while the cardinal principles of justice, are immutable, the methods by which justice is administered are subject to constant fluctuation, and the Constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment should not be so construed as to deprive the states of the power to so amend their laws as to make them conform to the wislies of the citizens as they may deern best for the public welfare without bringing them into conflict with the supreine law of the land.”

It is well established that statutes applicable solely to railroads do not deny to railroads the equal protection of the laws. A classification of “dangerous employinents” for the purposes of the act nust be upheld (Missouri R’y v. Mackay, 127 L'. S., 20.5.)

But the act is attacked chiefly because it imposes liability without fault. Our jurisprudence offers examples of legal liability without fault, and the deprivation 0., coperty without fault being attributable to its owner. The law of deodands was such an example. The personification of the ship in marine law is another. Other examples are offered in the common law liability of the husband for the torts of the wife, or liability of the master for the acts of his servant. (The Osceola, 189 U. S., 158 :) (Chicago, R. I. & P. R’y v. Zernecke, 183 U. S., 582).

In the case last cited a statute making railroad companies liable for all damages inflicted upon the person of passengers while being transported orer its road, except in cases where the injury arose through the criminal negligence of the person injured, was upheld, primarily on the ground that the railroad company being a domestic corporation of Nebraska accepted with its incorporation the liability so imposed by the laws of the state and could not complain of it. But the court in its opinion cites with approval the opinion of the Supreme Court of Nebraska. That court said: "The legislation is justifiable under the police power of the state, so it has been held. It was enacted to make railroad companies insurers of the safe transportation of their passengers as they were of baggage and freight; and no good reason suggested why a railroad company should be released from liability for injuries received by a passenger while being transported over its line while the corporation must respond for any damages to his baggage or freight."

The Legislature may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies and foster responsibility for injuries upon persons against whom the common law gives no remedy. (Bertholf v. O'Reilly, 74 N. Y., 501.)

It would seem to follow that it might make those who employ workmen in dangerous callings insurers to some extent of the safety of such workmen. The common law imposed upon the employee entire responsibilities for injuries arising out of the necessary risks or dangers of the employment. The statute before us merely shists such liability upon the employer. That the Legislature has the power to deal with the question of employers' liability on a basis other than fault is not clear beyond peradventure, but every presumption is in favor of the constitutionality of the act, nor do I find its constitutionality so doubtful as to war.. rant this court in holding that such action is not within the constitutional powers of the Legislature.

I have examined the authorities cited by the learned counsel for the defendant. They merely point out the shifting character of the border line between statutes which are upheld by the court as being a legitimate exercise of the legislative power to pass all manner of necessary and wholesome acts for the protection and well-being of the public, although such acts may interfere with personal liberty and the right to do what one will with his own and statutes which are held by the courts to interfere without warrant with the privilege of pursuing an ordinary trade or calling, and therefore to be unconstitutional and void.

In the case of Lockner v. New York (189 U. S., 45) the prevailing and dissenting opinions contain a full discussion of the principles of underlying the decision of such cases. The court held in that case that there is no reasonable ground on the score of health for interfering with the liberty of the person or the right of free contract by determining the hours of labor in the occupation of a baker. The same court had already held in Holden v. Hardy (supra) that there was reasonable ground on the score of health for interfering with the liberty of the person and the right of free contract in determining hours of labor in the occupation of workingmen in smelters. In the former case the public good did not, in the judgment of the court, require the restrictive legislation; in the latter case it did.


In the latter case Mr. Justice Brown says triat “This court has not failed to recognize the fact that the law is to some extent a progressive science. Classes of persons, particularly those engaged in dangerous or unhealthful employments, have been found to be in need of additional protection.”

As to the obiections to the statute that it limits the amount recoverable in death cases, it is enough to say that it is for the plaintiff to make the claim of unconstitutionality in this regard, as it is the plaintiff alone who is prejudiced thereby, and it does not lie in the mouth of the defendant to raise this objection to the state.

Demurrer overruled, with costs, and judgment absolute for the plaintiff directed on the pleadings, with costs.


By James Harrington Boyd, Chairman.

INTRODUCTION. We assum", in proceeding to the legal argument given below, that the following conclusions of fact relating to the compensation of workmen for impairment of earning power in the due course of their employment arising out of indu-trial accidents or operations in Ohio, have been established beyond controTerms by the report of the investigation of your commission to the Legislature of the state of Ohio, on Employers' Liability. (See Report of E. E. Watson on Fatal Accidents.)

I That only a small proportion of workmen injured by accidents of employment get sub-tantial compensation, and, therefore, as a rule, they and their dependents are forced to a lower standard of living, and often become burdens upon the state through public or private charity (payments of any amount are made from one payment to eight injured to six payments to one hundred injured.)

That the system is wasteful, being costly to employers and the state, and of small benefits to the victim of accident (That less than 25% of what it costs employers to insure against their liability reaches the hands of the injured employe: that dependents of married employes killed in Ohio in industrial accidents reccive on an average less than $750.00 and that 58% of married workmen

3. That the system is slow in operation, involving of necessity, great delay in the settlement of cases (Litigation of personal injury suits are in court from

4. That the operation of the law breeds continually inereasing antagonism between emploser and employees. These conclusions have likewise been established by the reports of the commissions of New York, Illinois, Wisconsin and

killed receive nothing).

six months to ten years.)



IS, IN ITS INHERENT VITURE, EQUITIBLE RELIEF. tai First, the stati-tical investigations show: action at law, that is in less than 2016 of the cases, is the cause of injury attribThat less than 20% of workinging injured and killed have a

cause of utable to the negligence of the employer.

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