2. That in these cases only from one-fourth to one-fifth of what it costs the employer to insure his workmen against injuries, reaches the hands of the workmen available for his relief. (New York Commission's Report, p. 31, and Report of E. E. Watson.) 3. That the dependents of married men, killed in Ohio, receive nothing in 58.3% of the cases and the 41.7% of the cases in which they receive something, they receive on an average of $1,056, 25% of which must be paid in attorney fees, leaving $792.00, and if medical attendance and funeral expenses in Cuyahoga County, Ohio, are as expensive for married employes killed in industrial accidents as they are in Buffalo, New York State (See New York Commission Report, p. 23) then we must further subtract $191.00 from $792.00 on account of medical and funeral expenses, leaving a net average of $595.00, which the dependents of married men killed receive. This sum of $598.00 is about one year's average wage of a laboring man and wholly inadequate as a compensation for a widow and dependent children. Second, that more than 80% of workmen injured and killed do not receive any compensation. Moreover, the dependents of a workman killed, whether the cause of the accident was due to his negligence or to the natural hazard of the employment, the effect on the dependents and society is the same. Therefore, the remedy based upon fault fails to compensate reasonably those whom in theory it should; it is extraordinary wasteful and fails to compensate at all the 80% of all workingmen injured and killed whom society demands shall work in dangerous employments. (b) The question whether all employers can be made liable for accidents to their employes without regard to fault (excepting malicious fault on the part of the employe and employer) can best be approached by considering the different steps which have within the last few years been taken in this regard. 1. There is no doubt but that the fellow-servant doctrine might be abol ished. The Norris Law in this state has greatly enlarged the scope of the cause of action of the plaintiff by greatly restricting the class of fellow-servants and enlarging the number of vice-principles or agents of the employer to include superintendents, foremen and superior persons. And in several states, statutes, applying to particular employments abolishing the common law defenses have been held constitutional by the United States Supreme Court. Minnesota Iron Co., v. Kline, 199 U. S., 593; Louisville R. Co. v. Molton, 30 Supr. Ct., Rp.. 676 and Cases Cited. 2. It would seem that the doctrine of assumption of risk may be constitutionally abolished, Schlemmar v. Buffalo, R. & C. R'y Co., 205 United States, 1. 3. The doctrine of contributory negligence could likewise be abolished, Schlemmar v. Buffalo, R. & C. R'y Co., above Employers' Liability Cases, 207 U. S., 463. Conn., 352. Hoxie, v. N. Y. N. H. & H. R. R. Co., 82 The Norris Law to a very great extent destroys the common law defenses and at the same time and in the same proportion enlarged the cause of action of the plaintiff. The defense of the fellow servant doctrine, so called judge made law, is not based upon fault of the plaintiff, therefore its abolishment creates a right of action for the employe not based upon the fault of the employer. (c) With the abolition of the common law defenses, we are left, therefore, with the sole question, under the existing state of facts given above, can the Legislature of Ohio under a due exercise of its police power for the protection of the workmen of the state, substitute in place of the present action for dam ages based upon fault of the employer, a plan of insurance which will reasonably compensate all injured employes, without regard to fault on the part of either employer or employe excepting malicious fault? At the same time furnish a remedy which will insure the application of all the funds which the employers contribute for the purpose of compensating the injured workmen shall be applied to that purpose and at the same time provide equal protection to all employers and equitable compensation to all employes covered by the act, especially so in case the employes contribute a portion of the fund. Further that it shall be obligatory upon the employer to pay the required premium provided by such a plan and likewise obligatory upon the employe to accept the compensation. "It has well been said by Mr. Justice Brown of the Supreme Court of the United States, writing the opinion of the Court in 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 construed as to deprive the states of the power to so amend their laws as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land." THE OBLIGATION OF THE EMPLOYERS TO PAY THE PREMIUMS (d) We agree with the conclusion of Judge E. B. King of Sandusky that it is wholly within the power of the legislature of Ohio to enact a Code making obligatory upon all employers (or all employers employing five persons or more) to compensate each employe injured in his employment, to pay premiums in proportion to his risk into a state Insurance Fund and to provide a reasonable compensation to each employe injured in his employment (without regard to the question of neglect or failure of duty of the employer) excepting where the injury was not intentionally caused by the employe for the purpose of obtaining the compensation. We quote from Judge King's brief: "Your inquiry is whether there are constitutional objections to the enacement by the legislature of Ohio. 1. "The statute providing that each employer in the state shall be directly liable to compensate each employe injured in his employment (without regard to the question of neglect or failure of duty of the employer) where the injury was not intentionally caused by the employe himself, but also providing that the compensation be limited in amount?" I can conceive of no provision of the constitution of Ohio that will be infringed by a statute requiring a limited compensation to be paid each employe injured in his employment without regard to the question of the negligence of the employer or the contributing negligence of the employe. Such a statute would not. in my judgment, infringe Sections 1 and 19 of Articles 1 of the Bill of Rights of the Constitution of Ohio, which are the sections of the constitution more often invoked to protect the rights of mankind from legislative interference with their liberty or their property. I can not row recall any other section which would interfere with the power of the legislature to pass an act so manifestly in the interests of the public welfare, especially in the interest of that part of the public engaged in labor, I am not now speaking of its terms, but the right to legislate along this line must clearly be intended to affect the enjoyment by the people of their lives and liberty and to secure happiness and safety. A great many years ago, in the absence of statutory provision, it was held that a common carrier could not by special contract procure exemption from responsibility for losses arising from its own negligence of the duties incident to its employment, 10 O. S. 65. This was amended and extended, evidently without intention as to the extension, by the Supreme Court (56 O. S. 68) when they said that a common carrier could not relieve himself from responsibility for his own negligence "nor limit his liability for losses resulting therefrom.” This is widely different from saying, as they have originally said, that they could not procure exemption from responsibility by contract, whatever reason for the conflict in the doctrine of these two cases, it can have certainly no application to the question of constitutional power to legislate and I can not bring forth from any depths of constitutional lore to which I have desolved, any reason why the legislature may not base the application upon the contract of employment, assuming it shall not be retroactive, in other words, that employment shall create the liability. It is within the range of the largest legislative power to legislate for the benefit of all the people. Known conditions surrounding these contracts envolve large loss to injured people, much expensive litigation and sometimes very unfair judgments against employer. Such legislation would tend to the benefit of both classes, the employers and the employed. It would have a wider application than this. It would largely tend to cause employers to improve the conditions and method surrounding the employment and if wisely framed, would offer no inducement of premium to the careless employe. 2. "A statute of the same purport as statute in quiry one, which shall also provide that the rights given thereunder, which shall be exclusive of all common law or all statutory rights of injured employes, to resort to the courts of law for compensation? It it were possible that the constitution would prevent the later enactment, then nothing could induce me to believe that the first ought to be enacted, for the value of such a statute to both parties concerned is the substitution of the statutory liability for that liability now understood to exist, and my answer to the first, is likewise my answer to the second" The legislature of the state of Ohio (and of every state of the Union) have by statute supplemented contracts which non-resident persons, firms and corporations, make with citizens of Ohio and which citizens of Ohio make as between themselves. For example, the insurance company doing business in Ohio must come within a specified contract as provided by the statute and even then is prohibited from including therein certain specified propositions (see New Code, Sections 9412-17 and 9420-21, and Regulation of Fire Escapes, etc.) Under a lease of improved real estate for a term of years in case the building is destroyed by fire, the lease is cancelled. The court holds that even though A has leased his property to B for five years under stipulated conditions and A holds over his term, nothing having been said by either party, that the parties have renewed the lease for one year on the terms of the original lease. As going some distance in support of the power of the Legislature to base the application of obligatory insurance on all employers of labor, upon the contract of employment, assuming that it shall be a fact that the employment shall create the liability, see Chicago, etc., R. R. Co., v. Tervecke, 183 United States, 582. Likewise the reasoning of Mr. Justice Moody is favorable to the theory that an employer may be regarded as assuming certain risks by nature of his becoming such. 210 United States, page 295. The remedy created by the compensation code, recommended by the Commission, requires a form of relief which common law courts can not give and it is constitutional to give the remedy to a court having equity powers and not have a jury. The Code provides for the right to award the compensation in installments and to diminish and increase the same, or to commute them by a lump sum, when the Board of Awards think it most wise and for broad powers in both procedure and making awards. There is no doubt but that the Legislature may create new equities by statutes, for example, bills in equity by way of attachment are allowed in many states and under these statutes cases of purely legal aspect are tried in equity; the sole ground equity jurisdiction being the necessity of equitable aid to seize property to secure the plaintiffs judgment. There is no doubt also that in regard to equitable rights, the parties have no constitutional right to trial by jury. Parker v. Eimpson, 180 Mass. 334. Lascelles v. Clark, 204 Mass. 364. Furthermore, the workman who continues in the employment with the knowledge that his employer has paid the premiums required by the proposed Code, entered into an implied contract to accept the compensation made by the State Board of Awards as provided by the proposed Code. Reckner v. Warner, 22 O. S. 275. POLICE POWER OF THE STATE, THAT THE AUTHORITY FOR THE LEGISLATURE TO ENACT THE CODE PROVIDING INDUSTRIAL INSURANCE RECOMMENDED BY THE COMMISSION COMES WHOLLY See the following: WITHIN THE POLICE POWER OF STATE. "Many things are nuisances because they threaten calamity to the persons or property of others, and thereby cause injury though the calamity feared may never befall." Cooley on Torts (1888) pp. 722-724. "The police power is as broad and plenary as the taxing power (Coe vs. Errol, 116 U. S. 517) and property within the state is subject to the operation of the former so long as it is within the regulating restrictions of the latter (Kidd vs. Peirson, 28 U. S. 1). And public charity such as aid to the unfortunate class, and matters of public health, have been held to constitute a public purpose authorizing taxation." Booth vs. Woodbury, 32 Conn. 118. "It would seem that by analogy to this p... of taxation this state might properly impose a burden upon a hazardous industry to be borne in the first instance by the owner thereof. and shifted by him to the consumer in the form of an increased price for the product, when the immediate persons engaged in carrying on such industry and their dependents are oftimes reduced to a state of pauperism, and thus made objects of public charity under the present system of compensation for industrial accidents." * * Finally, to quote from Professor Freund in his work on the Police Power: "The principle that inevitable loss should be borne, not by the person on whom it may happen to fall, but by the person who profits by the dangerous business to which the loss is incident, embodies a very intelligible idea of justice. * * The system being responsible for the loss, why should it not be constitutional to distribute the loss among the beneficiaries of the system? In a large sense the community is certainly interested in averting sudden and unexpected losses as well as the destitution following from sickness and disease, and the distribution of these losses over a large number through insurance is a legitimate end of governmental policy. There is no warrant for denying the state the power to adopt compulsory measures for the purpose." * * * * * Freund on Police Power, Sec. 435, 437. It is within the Police Power of the State to authorize the creation of a state Insurance Fund accumulated by levying a tax of one per cent and the Deposits of all of the Private and State Banks within any state, making the tax a lien against the capital of the banks for the purpose of insuring the payment in full of all depositors having deposits with the banks. The Oklahoma Statute which creates a Depositors' Guarantee Fund is constitutional and within the Police Power of the State. We cite below the Statute and the decision of the Supreme Court of United States sustaining the Statute below: DEPOSITORS' GUARANTEE FUND TO INSURE DEPOSITORS AGAINST LOSS WHEN THE BANK BECOMES INSOLVENT. SESSION LAWS OF OKLAHOMA. 1907-1908, PAGES 145 AND 146, c. 6, arts, 1, 2, 3. STATE BANKING CREATED. SECTION 1. A State banking board is hereby created, to be composed of the Governor, Lieutenant Governor, President of the State Board of Agriculture, State Treasurer and the State Auditor. A LEVY OF ONE PER CENT. AGAINST DEPOSITS TO CREATE SECTION 2. Within sixty days after the passage and approval of this act, the state banking board shall levy against the capital stock an assessment of one per cent of the banks daily average deposits, less the deposits of the State funds properly secured, for the preceding year, upon each and every bank organized and existing under the laws of this state, for the purpose of creating a depositors' guaranty fund. Said assessment shall be collected upon call of the State Banking Board. |