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    ARIZONA COPPER CO. v. HAMMER , 250 U.S. 400 (1919)

    U.S. Supreme Court

    ARIZONA COPPER CO. v. HAMMER , 250 U.S. 400 (1919)

    250 U.S. 400

    ARIZONA COPPER CO., Limited,
    v.
    HAMMER.
    No. 20.

    SAME
    v.
    BRAY.

    No. 21.

    RAY CONSOL. COPPER CO.
    v.
    VEAZEY.

    No. 232.

    INSPIRATION CONSOL. COPPER CO.
    v.
    MENDEZ.

    No. 332.

    SUPERIOR & PITTSBURG COPPER CO.
    v.
    TOMICH.

    No. 334.

    20 and 21, Argued Jan. 25, 1918

    232, Argued Jan. 28, 1918.

    332, Argued April 25, 1919.

    334, Submitted April 24, 1919.
    Decided June 9, 1919.

    [250 U.S. 400, 402]   [Cases Nos. 20 and 21:

    Messrs. Ernest W. Lewis, of Phoenix Ariz., John A. Garver, of New York City, and William C. McFarland, of Douglas, Ariz., for plaintiff in error.

    [250 U.S. 400, 406]   Messrs. Frank E. Curley, of Tucson, Ariz., L. Kearney, of Clifton, Ariz., and Frank H. Hereford, of Tucson, Ariz., for defendants in error.

    Case No. 232:

    Messrs. William H. Kn g, of New York City, and Alex Britton, Evans Browne, and F. W. Clements, all of Washington, D. C., for plaintiff in error. [250 U.S. 400, 407]   Mr. Edward W. Rice, of Globe, Ariz., amicus curiae.

    Case No. 332:

    Messrs. Edward W. Rice, of Globe, Ariz., and Harvey M. Friend, of Washington, D. C., for plaintiff in error.

    [250 U.S. 400, 414]   Mr. Graham Foster, of New York City, for defendant in error.

    [Case No. 334:

    Mr. C. T. Knapp, of Bisbee, Ariz., for plaintiff in error.

    [250 U.S. 400, 416]   Mr. Samuel Herrick, of Washington, D. C., for defendant in error. [250 U.S. 400, 417]  

    Mr. Justice PITNEY delivered the opinion of the Court.

    In each of these cases, a workman in a hazardous industry in the state of Arizona, having received in the course of his employment a personal injury through an accident due to a condition or conditions of the occupation, not caused by his own negligence or so far as appears by that of his employer or others, brought action under the Employers' Liability Law of Arizona, and recovered compensatory damages against the employer ascertained upon a consideration of the nature, extent, and disabling effects of the injury in each particular case. And the question is raised whether the statute referred to, as applied to the facts of these cases, is repugnant to that provision of the Fourteenth Amendment which declares that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

    Article 18 of the Constitution of the state of Arizona is entitled 'Labor,' and contains, among others, the following sections:

    Pursuant to section 7 the Employers' Liability Law was enacted ( chapter 89, Laws 1912, Reg. Sess.; ArizonaR ev. Stat. 1913, pars. 3153- 3162); pursuant to section 8 a Workmen's Compulsory Compensation Law was enacted (chapter 14, Laws 1912, 1st Spec. Sess.; Arizona Rev. Stat. 1913, pars. 3163 et seq.).

    In two of the present cases the former law was sustained by the Supreme Court of Arizona against attacks based upon the Fourteenth Amendment. Inspiration Consol. Copper Co. v. Mendez, 19 Ariz. 151, 166 Pac. 278, 1183; Superior & [250 U.S. 400, 419]   Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 165 Pac. 1101, 1185. In the other three cases it was sustained by the United States District Court for that district. And the resulting judgments in favor of the injured workmen are brought under our review by writs of error.

    Some of the arguments submitted to us assail the wisdom and policy of the act because of its novelty, because of its one-sided effect in depriving the employer of defenses while giving him (as is said) nothing in return, leaving the damages unlimited, and giving to the employe the option of several remedies, as tending not to obviate but to promote litigation, and as pregnant with danger to the industries of the state. With such considerations this court cannot concern itself. Novelty is not a constitutional objection, since under constitutional forms of government each state may have a legislative body endowed with authority to change the law. In what respects it shall be changed, and to what extent, is in the main confided to the several states; and it is to be presumed that their Legislatures, being chosen by the people, understand and correctly appreciate their needs. The states are left with a wide range of legislative discretion, notwithstanding the provisions of the Fourteenth Amendment; and their conclusions respecting the wisdom of their legislative acts are not reviewable by the courts.

    We have been called upon recently to deal with various forms of workmen's compensation and employers' liability statutes. Second Employers' Liability Cases, 223 U.S. 1 , 47-53, 32 Sup. Ct. 169, 38 L. R. A. (N. S.) 44; New York Central R. R. Co. v. White, 243 U.S. 188 , 196, et seq., 37 Sup. Ct. 247, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Hawkins v. Bleakly, 243 U.S. 210 , 37 Sup. Ct. 255, Ann. Cas. 1917D, 637; Mountain Timber Co. v. Washington, 243 U.S. 219 , 37 Sup. Ct. 260, Ann. Cas. 1917D, 642; Middleton v. Texas Power & Light Co., 249 U.S. 152 , 39 Sup. Ct. 227. These decisions have established the propositions that the rules of law concerning the employer's responsibility for personal injury or death of an employe arising in the course of the employment are not beyond alteration by legislation in [250 U.S. 400, 420]   the public interest; that no person has a vested right entitling him to have these any more than other rules of law remain unchanged for his benefit; and that, if we exclude arbitrary and unreasonable changes, liability may be imposed upon the employer without fault, and the rules respecting his responsibility to one employe for the negligence of another and respecting contributory negligence and assumption of risk are subject to legislative change.

    The principal contention is that the Arizona Employers' Liability Law deprives the employer of property without due process of law, and denies to him the equal protection of the laws, because it imposes a liability without fault, and, as is said, without equivalent protection. The statute, in respect of certain specified employments designated as inherently hazardous and dangerous to workmen-and reasonably so described-imposes upon the employer, without regard to the question of his fault or that of any person for whose conduct he is responsible, a liability in compensatory damages, excluding all such as are speculative or punitive ( Arizona Copper Co. v. Burciaga, 177 Pac. 29), for accidental personal injury or death of an employe arising out of and in the course of the employment and due to a condition or conditions of the occupato n, in cases where such injury or death of the employe shall not have been caused by his own negligence. This is the substance of paragraphs 3154 and 3158, and they are to be read in connection with paragraph 3156, which declares what occupations are hazardous within the meaning of the law. By paragraph 3160, contracts and regulations exempting the employer from liability are declared to be void.

    In effect, the statute requires the employer, instead of the employe, to assume the pecuniary risk of injury or death of the employe attributable to hazards inherent in the employment and due to its conditions and not to the negligence of the employe killed or injured. In deter [250 U.S. 400, 421]   mining whether this departure from the previous rule is so arbitrary or inconsistent with the fundamental rights of the employer as to render the law repugnant to the Fourteenth Amendment, it is to be borne in mind that the matter of the assumption of the risks of employment and the consequences to flow therefrom has been regulated time out of mind by the common law, with occasional statutory modifications. The rule existing in the absence of statute, as usually enunciated, is that all consequences of risks inherent in the occupation and normally incident to it are assumed by the employe and afford no ground of action by him or those claiming under him, in the absence of negligence by the employer; and even risks arising from or increased by the failure of the employer to take the care that he ought to take for the employe's safety are assumed by the latter if he is aware of them or if they are so obvious that any ordinarily prudent person under the circumstances could not fail to observe and appreciate them; but if the employe, having become aware of a risk arising out of a defect attributable to the employer's negligence, makes complaint or objection and obtains a promise or reparation, the common law brings into play a new set of regulations requiring the employer to assume the risk under certain circumstances, the employe under others. Seaboard Air Line v. Horton, 233 U.S. 492, 504 , 505 S., 34 Sup. Ct. 635, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; s. c., 239 U.S. 595, 598 , 599 S., 36 Sup. Ct. 180, and cases cited.

    But these are no more than rules of law, deduced by the courts as reasonable and just, under the conditions of our civilization, in view of the relations existing between employer and employe in the absence of legislation. They are not placed, by the Fourteenth Amendment, beyond the reach of the state's power to alter them, as rules of future conduct and tests of responsibility, through legislation designed to promote the general welfare, so long as it does not interfere arbitrarily and unreasonably, and in [250 U.S. 400, 422]   defiance of natural justice, with the right of employers and employes to agree between themselves respecting the terms and conditions of employment.

    We are unable to say that the Employers' Liability Law of Arizona, in requiring the employer in hazardous industries to assume-so far as pecuniary consequences go-the entire risk of injury to the employe attributable to accidents arising in the course of the employment and due to its inherent conditions, exceeds the bounds of permissible legislation or interferes with the constitutional rights of the employer. The answer that the common law makes to the hardship of requiring the employe to assume all consequences, both personal and pecuniary, of injuries arising out of the ordinary dangers of the occupation, is that the parties enter into the contract of employment with these risks in view, and that the consequences ought to be, and presumably are, taken into consideration in fixing the rate of wages. Chicago, Milwaukee R. R. v. Ross, 112 U.S. 377, 383 , 5 S. Sup. Ct. 184; Northern Pacific R. R. Co. v. Herbert, 116 U.S. 642, 647 , 6 S. Sup. Ct. 590; New York Central R. R. Co. v. White, 243 U.S. 188, 199 , 37 S. Sup. Ct. 247, 61 L. d . 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Farwell v. Boston & Worcester R. R. Corp., 4 Metc. (Mass.) 49, 57, 38 Am. Dec. 339. In like manner the employer, if required-as he is by this statute in some occupations-to assume the pecuniary loss arising from such injury to the employe, may take this into consideration in fixing the rate of wages; besides which he has an opportunity, which the employe has not, to charge the loss as a part of the cost of the product of the industry.

    There is no question here of punishing one who is without fault. That, we may concede, would be contrary to natural justice. But, as we have seen, the statute limits the recovery strictly to compensatory damages. And there is no discrimination between employer and employe except such as necessarily arises from their different relation to the common undertaking. Both are essential [250 U.S. 400, 423]   to it, the one to furnish capital, organization, and guidance, the other to perform the manual work; both foresee that the occupation is of such a nature, and its conditions such, that sooner or later some of the workmen will be physically injured or maimed, occasionally one killed, without particular fault on anybody's part. See 243 U.S. 203 , 37 Sup. Ct. 247, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. The statute requires that compensation shall be paid to the injured workman or his dependents, because it is upon them that the first brunt of the loss falls; and that it shall be paid by the employer, because he takes the gross receipts of the common enterprise, and by reason of his position of control can make such adjustments as ought to be and practically can be made, in the way of reducing wages and increasing the selling price of the product, in order to allow for the statutory liability. There could be no more rational basis for a discrimination; and it is clear that in this there is no denial of the 'equal protection of the laws.'

    Under the 'due process' clause, the ultimate contention is that men have an indefeasible right to employ their fellow men to work under conditions where, as all parties know, from time to time some of the workmen inevitably will be killed or injured, but where nobody knows or can know in advance which particular men or how many will be the victims, or how serious will be the injuries, and hence no adequate compensation can be included in the wages; and to employ them thus with the legitimate object of making a profit above their wages if all goes well, but with immunity from particular loss if things go badly with the workmen through no fault of their own, and they suffer physical injury or death in the course of their employment. In view of the subject-matter, and of the public interest involved, we cannot assent to the proposition that the rights of life, liberty, and property guaranteed by the Fourteenth Amendment prevent the states from modifying that rule of the common law [250 U.S. 400, 424]   which requires or permits the workingman to take the chances in such a lottery.

    The act-assuming, as we must, that it be justly administered-adds no new burden of cost to industry, although it does bring to light a burden that previously existed, but perhaps was unrecognized, by requiring that its cost be taken into the reckoning. The burden is due to the hazardous nature of the industry, and is inevitable if the work of the world is to go forward. What the act does is merely to require that it shall be assumed, to the extent of a pecuniary equivalent of the actual and proximate damage sustained by the workman or those near to him, by the employer-by him who organizes the enterprise, hires the workmen, fixes the wages, sets a price upon the product, pays the costs, and takes for his reward the net profits, if any.

    The interest of the state is obvious. We declared in the White Case, 243 U.S. 207 , 37 Sup. Ct. 254, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629:

    And in Mountain Timber Co. v. Washington, 243 U.S. 219, 239 , 37 S. Sup. Ct. 260, 265 (61 L. Ed. 685, Ann. Cas. 1917D, 642) it was said:

    Having this interest, the state of Arizona reasonably might say:

    Whether this or similar reasoning was employed, we [250 U.S. 400, 426]   have no means of knowing; whether, if employed, it ought to have been accepted as convincing, is not for us to decide. It being incumbent upon the opponents of the law to demonstrate that it is clearly unreasonable and arbitrary, it is sufficient for us to declare, as we do, that such reasoning would be pertinent to the subject and not so unfounded or irrational as to permit us to say that the state, if it accepted it as a basis for changing the law in a matter so closely related to the public welfare, exceeded the restrictions placed upon its action by the Fourteenth Amendment.

    It is objected that the responsibility of the employer under this statute is unlimited; but this is not true except as it is true of every action for compensatory damages where the amount awarded varies in accordance with the nature and extent of the damages for which compensation is made. It is said that in actions by employes against employers juries are prone to render extravagant verdicts. The same thing has been said, and with equal reason, concerning actin brought by individuals against railroad companies, traction companies, and other corporations. In this, as in other cases, there is a corrective in the authority of the court to set aside an exorbitant verdict. And it amounts to a contradiction of terms to say that in submitting a controversy between litigants to the established courts, there to be tried according to long-established modes and with a constitutional jury to determine the issues of fact and assess compensatory damages, there is a denial of 'due process of law.'

    Much stress is laid upon that part of our opinion in the White Case, where, after citing numerous previous decisions upholding the authority of the states to establish by legislation departures from the fellow servant rule and other common-law rules affecting the employer's liability for personal injuries to the employe, we said ( 243 U.S. 201 , 37 Sup. Ct. 252, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629):

    In spite of our declaration that no opinion was intimated, this is treated as an intimation that a statute such as the one now under consideration, creating a new and additional right of action and allowing no defense (if the conditions of liability be shown) unless the accident was caused by the negligence of the injured employe, would be regarded as in conflict with the due process clause. We cannot, however regard this statute as anything else than a substitute for the law as it previously stood; whether it be a proper substitute was for the people of the state of Arizona to determine; but we find no ground for declaring that they have acted so arbitrarily, unreasonably, and unjustly as to render their action void. They have resolved that the consequences of a personal injury to an employe attributable to the inherent dangers of the occupation shall be assumed, not wholly by the particular employe upon whom the personal injury happens to fall, but, to the extent of a compensation in money awarded in a judicial tribunal according to the ordinary processes of law, shall be assumed by the employer; leaving the latter to charge it up, so far as he can, as a part of the cost of his product, just as he would charge a loss by fire, by theft, by bad debts, or any other usual loss of the business; and to make allowance for it, so far as he can, in a reduced scale of wages. And they have come to this resolution, we repeat, not in a matter of in [250 U.S. 400, 428]   difference, or upon a question of mere economics, but in the course of regulating the conduct of those hazardous industries in which human beings- their own people-in the pursuit of a livelihood must expose themselves to death or to physical injuries more or less disabling, with consequent impoverishment, partial or total, of the workman or those dependent upon him. The statute says to the employer, in effect:

    The rule being based upon reasonable grounds affecting the public interest, being established in advance and applicable to all alike under similar circumstances, there is, in our opinion, no infringement of the fundamental i ghts protected by the Fourteenth Amendment.

    Some expressions contained in our opinion in the White Case, 243 U.S. 203, 204 , 205 S., 37 Sup. Ct. 247, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, are treated in argument as if they were equivalent to saying that if a state, in making a legislative adjustment of employers' liability, departs from the common-law system of basing responsibility upon fault, it must confine itself to a limited compensation, measured and ascertained according to the methods adopted in the compensation acts of the present day. Of course nothing of the kind was intended. In a previous part of the opinion ( 243 U.S. 196 -200, 37 Sup. Ct. 247, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629) it had been shown that the employer had no constitutional right to continued immunity from liability in the absence of negligence, nor to have the fellow servant rule and the rules respecting contributory negligence and assumption of risk remain unchanged. The statutory plan of compensation for injured workmen and the dependents of those fatally injured-an additional feature at variance with the common law-was then upheld; but, of course, without [250 U.S. 400, 429]   saying that no other would be constitutional. For if, as we held in that case, the novel statutory scheme of awarding compensation according to a prearranged scale is sustainable, it follows, perhaps a fortiori, that the Arizona method of ascertaining the compensation according to the facts of each particular case-substantially the common-law method-is free from objection on constitutional grounds. Indeed, if a state recognizes or establishes a right of action for compensation to injured workmen upon grounds not arbitrary or fundamentally unjust, the question whether the award shall be measured as compensatory damages are measured at common law, or according to some prescribed scale reasonably adapted to produce a fair result, is for the state itself to determine. Whether the compensation should be paid in a single sum after judgment recovered as is required by the Arizona Employers' Liability Law just as under the common-law system in the case of a judgment based upon negligence, or whether it would be more prudent to distribute the award by installment payments covering the period of disability or of need, likewise is for the state to determine, and upon this the plaintiffs in error can raise no constitutional question.

    To the suggestion that the act now or hereafter may be extended by construction to nonhazardous occupations, it may be replied: First, that the occupations in which these actions arose were indisputably hazardous, hence plaintiffs in error have no standing to raise the question (Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 544 , 34 S. Sup. Ct. 359; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576 , 35 S. Sup. Ct. 167; Hendrick v. Maryland, 235 U.S. 610, 621 , 35 S. Sup. Ct. 140; Middleton v. Texas Power & Light Co., 249 U.S. 152, 157 , 39 S. Sup. Ct. 227): and, secondly, it hardly is necessary to add that employers in nonhazardous industries are in little danger from the act, since it imposes liability only for accidental injuries attributable to the inherent dangers of the occupation. [250 U.S. 400, 430]   To the objection that the benefits of the act may be extended, in the case of death claims, to those not nearly related to or dependent upon the workman, or even may go by escheat to the state, it is sufficient to say that no such question is involved in these records; in Arizona Copper Co. v. Burciaga, 177 Pac. 29, a case of personal injuries not fatal, the Supreme Court of Arizona interpreted the act as limiting the recovery to compensatory damages; it reasonably may be so construed in its application to death claims; and it would be improper for this court to assume in advance that the state court will place such a construction upon the statute as to render it obnoxious to the federal Constitution. Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 , 4 6, 34 Sup. Ct. 359; St. Louis S. W. Ry. v. Arkansas, 235 U.S. 350, 369 , 35 S. Sup. Ct. 99.

    It is insisted that the Arizona system deprives employers of property without due process of law and denies them equal protection because it confers upon the employe a free choice among several remedies. In Consolidated Arizona S. Co. v. Ujack, 15 Ariz. 382, 384, 139 Pac. 465, 466, the Supreme Court of the state said:

    It is said by counsel that the Compensation Act, because it limits the recovery, [250 U.S. 400, 431]   never is resorted to in practice unless the employe has been negligent, and hence is debarred of a remedy under the Liability Act. But it is thoroughly settled by our previous decisions that a state may abolish contributory negligence as a defense, and election of remedies is an option very frequently given by the law to a person entitled to an action; an option normally exercised to his own advantage, as a matter of course.

    Other points are suggested, but none requiring particular discussion.

    Judgments affirmed.

    Mr. Justice HOLMES concurring.

    The plaintiff (the defendant in error) was employed in the defendant's mine, was hurt in the eye in consequence of opening a compressed air valve and brought the present suit. The injury was found to have been due to risks inherent to the business and so was within the Employers' Liability Law of Arizona, Rev. Stats. 1913, Title 14, Ch. 6. By that law as construed the employer is liable to damages for injuries due to such risks in specified hazardous employments when guilty of no negligence. Par. 3158. There was a verdict for the plaintiff, judgment was affirmed by the Supreme Court of the State, 19 Ariz. 151, 166 Pac. 278, 1183; and the case comes here on the single question whether, consistently with the Fourteenth Amendment, such liability can be imposed. It is taken to exclude 'speculative, exemplary and punitive damages,' but to include all loss to the employe caused by the accident, not merely in the way of earning capacity, but of disfigurement and bodily or mental pain. See Arizona Copper Co. v. Burciaga, 177 Pac. 29, 33.

    The is some argument made for the general proposition

    This concurrence is in case No. 332, Inspiration Consol. Copper Co. v. Mendez. [250 U.S. 400, 432]   that immunity from liability when not in fault is a right inherent in free government and the obiter dicta of Mr. Justice Miller in [Citizen's Savings &] Loan Association v. Topeka, 20 Wall. 655, are referred to. But if it is thought to be public policy to put certain voluntary conduct at the peril of those pursuing it, whether in the interest of safety or upon economic or other grounds, I know of nothing to hinder. A man employs a servant at the peril of what that servant may do in the course of his employment and there is nothing in the Constitution to limit the principle to that instance. St. Louis & San Francisco Ry. Co. v. Mathews, 165 U.S. 1, 22 , 17 S. Sup. Ct. 243; Chicago, Rock Island & Pacific Ry. Co. v. Zernecke, 183 U.S. 582, 586 , 22 S. Sup. Ct. 229; St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U.S. 281, 295 , 28 S. Sup. Ct. 616. See Guy v. Donald, 203 U.S. 399, 406 , 27 S. Sup. Ct. 6. There are cases in which even the criminal law requires a man to know facts at his peril. Indeed the criterion which is thought to be free from constitutional objection, the criterion of fault, is the application of an external standard, the conduct of a prudent man in the known circumstances, that is, in doubtful cases, the opinion of the jury, which the defendant has to satisfy at his peril and which he may miss after giving the matter his best thought. The Germanic, 196 U.S. 589, 596 , 25 S. Sup. Ct. 317; Nash v. United States, 229 U.S. 373, 377 , 33 S. Sup. Ct. 780; Eastern States Retail Lumber Dealers' Association v. McBride, 234 U.S. 600, 610 , 34 S. Sup. Ct. 951, L. R. A. 1915A, 788; Miller v. Strahl, 239 U.S. 426, 434 , 36 S. Sup. Ct. 147. Without further amplification so much may be taken to be established by the decisions. New York Central R. R. Co. v. White, 243 U.S. 188, 198 , 204 S., 37 Sup. Ct. 247, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Mountain Timber Co. v. Washington, 243 U.S. 219, 336 , 37 S. Sup. Ct. 260, Ann. Cas. 1917D, 642.

    I do not perceive how the validity of the law is affected by the fact that the employe is a party to the venture. There is no more certain way of securing attention to the safety of the men, an unquestionably constitutional object of legislation, than by holding the employer liable [250 U.S. 400, 433]   for accidents. Like the crimes to which I have referred they probably will happen a good deal less often when the employer knows that he must answer for them if they do. I pass, therefore, to the other objection urged and most strongly pressed. It is that the damages are governed by the rules governing in action of tort-that is, as we have said, that they may include disfigurement and bodily or mental pain. Natural observations are made on the tendency of juries when such elements are allowed. But if it is proper to allow them of course no objection can be founded on the supposed foibles of the tribunal that the Constitution of the United States and the States have established. Why, then, is it not proper to allow them? It is said that the pain cannot be shifted to another. Nither can the loss of a leg. But one can be paid for as well as the other. It is said that these elements do not constitute an economic loss, in the sense of diminished power to produce. They may. Ball v. William Hunt & Sons, Ld ., [250 U.S. 400, 1912]   A. C. 496. But whether they do or not they are as much part of the workman's loss as the loss of a limb. The legislature may have reasoned thus. If a business is unsuccessful it means that the public does not care enough for it to make it pay. If it is successful the public pays its expenses and something more. It is reasonable that the public should pay the whole cost of producing what it wants and a part of that cost is the pain and mutilation incident to production. By throwing that loss upon the employer in the first instance we throw it upon the public in the long run and that is just. If a legislature should reason in this way and act accordingly it seems to me that it is within Constitutional bounds. Matter of Erickson v. Preuss, 223 N. Y. 365, 119 N. E. 555. It is said that the liability is unlimited, but this is not true. It is limited to a conscientious valuation of the loss suffered. Apart from the control exercised by the judge it is to be hoped that juries would realize that unreasonable verdicts would tend to [250 U.S. 400, 434]   make the business impossible and thus to injure those whom they might wish to help. But whatever they may do we must accept the tribunal, as I have said, and are bound to assume that they will act rightly and confine themselves to the proper scope of the law.

    It is not urged that the provision allowing twelve per cent. interest on the amount of the judgment from the date of filing the suit, in case of an unsuccessful appeal, is void. Fidelity Mutual Life Association v. Mettler, 185 U.S. 308 , 325-327, 22 Sup Ct. 662; Consaul v. Cummings, 222 U.S. 262, 272 , 32 S. Sup. Ct. 83.

    Mr. Justice BRANDEIS and Mr. Justice CLARKE concur in this statement of additional reasons that lead me to agree with the opinion just delivered by my Brother PITNEY.

    Mr. Justice McKENNA dissenting.

    I find myself unable to concur, yet reluctant to dissent. The case is of the kind that, once pronounced, will be a rule in like or cognate cases forever-indeed, may even be extended. It is said to rest on the cases sustaining the Workmen's Compensation Law of New York, 243 U.S. 203 , 37 Sup. Ct. 247, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, and its associated cases in the same volume upholding like laws of other states. The present case certainly comes after those cases and has that symptom of being their sequence. They cannot be said to have been easy of judgment against the contentions and conservatism which opposed them, and there was, at least to me, no prophecy of their extent, and therefore to me the present case is a step beyond them. I hope it is something more than timidity, dread of the new, that makes me fear that it is a step from the deck to the sea-the metaphor suggests a peril in the consequences.

    But let me in a more concrete way make application of this comment. I may assume that the purpose and principle and general extent of Workmen's Compensation Laws [250 U.S. 400, 435]   are known. I must rest on that assumption, for even an epitome of them or the reasons for them would unduly extend this dissent. The Arizona law has no resemblance to them. It is a direct charge of liability upon the employer for death or injury incurred in his employment, he being without fault. Its remedies are the ordinary legal remedies; its measure of relief, however, has in it something more than the ordinary measures of relief, certainly not those of the Compensation Laws, nor is it as considerate and guarded as they. If its validity, therefore, can be deduced from the cases explanatory of those laws, it can only be done by bringing its instances and theirs under the same generalization; that is, that it is competent for government to charge liability and exempt from responsibility according as one is employer or employe, there being no other circumstance than that relation. Of this there can be no disguise. It may be confused by argument and attempt at historical analogies and deductions, but to that comprehensive principle the case must come at last. All else is adventitious, and puts out of view the relation of the factors of production. It puts out of view that employers are as necessary to production as employes and subjects to peril the voluntary conduct of the former and leaves out of account as an element the voluntary conduct of the latter. In other words, there is a clear discrimination, a class distinction with its legal circumstances and, I may say, invidious circumstances, in view of some of the reasons adduced in its justification. And these effects cannot be concealed under any camouflage nor given the plausible and attractive gloss of public policy, justified by the different conditions of employer and employe. Unquestionably there is a difference-it constitutes the life of the relation. But the question is: Who shall compensate the injury that may result from the relation, voluntarily assumed by both, urged by their respective interests and a calculation of advantage? [250 U.S. 400, 436]   But I pass this discrimination and return to the law as a violation of the employer's rights considered absolutely and abstractly. It seems to me to be of the very foundation of right-of the essence of liberty as it is of morals-to be free from liability if one is free from fault. It has heretofore been the sense of the law and the sense of the world, pervading the regulations of both, that there can be no punishment where there is no blame; and yet the court now by its decision erects the denial of these postulates of conduct into a principle of law and governmental pl icy. In other words, it is said to be a benefit to government to put the exact discharge of duty under the menace of penalty and invert the conceptions of makind of the relation of right and wrong action. If the legislation does not punish without fault what does it do? The question is pertinent. Consider what the employer does: He invests his money in productive enterprise-mining, smelting, manufacturing, railroading-he engaged employes at their request and pays them the wages they demand; he takes all of the risks of the adventure. Now there is put upon him an immeasurable element that may make disaster inevitable. I find it difficult to answer the argument advanced to support or palliate this effect, or independently of it to justify the interference with rights. It is a certain impeachment of some rights to assume that they need justification, and a betrayal of them to make them a matter of controversy. There are precepts of constitutional law, as there are precepts of moral law, that reach the conviction of aphorisms and are immediately accepted by all who understand them, and comment is considered as confusing as unnecessary. I say this, not in dogmatism, but in expression of my vision of things, and I say it with deference to the contrary judgment of my Brethren of the majority.

    Of course, reasons may to found for the violation of rights, advantage to somebody or something in that violation. [250 U.S. 400, 437]   Tyranny even may find pretexts, and seldom boldly bids its will avouch its acts, and certainly there can be no accusation of barefaced power in the Arizona law. Its motives and purposes are worthy, and it requires some resolution of duty to resist them. It must be seen, and is seen, however, that the difference between the position of employer and employe, simply considering the latter as economically weaker, is not a justification for the violation of the rights of the former, and that individual rights cannot be made to yield to philanthropy, and therefore the welfare of the government is brought forward and displayed. The law saves the government, is the comment, from the burden of paupers, its administration and peace from the disturbance of criminals. The answer, I think, is immediate. Government, certainly constitutional government, cannot afford to infringe, indeed, betrays its purpose if it infringes, a right of anybody upon money considerations or for ease in the exercise of its faculties.

    But, granting there is something in the argument, what shall be the limits of its application? Will it extend the principle of the present case to nonhazardous employments? If not, why not? The Arizona law stops with certain occupations which it calls 'hazardous'; but it includes in the description 'manufacturing,' without qualifying words. In the New York Compensation Law passed on in New York Central Railroad v. White, 243 U.S. 203 , 37 Sup. Ct. 247, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, there were 42 groups of hazardous occupations. In 243 U.S. 219 , 37 Sup. Ct. 260, Ann. Cas. 1917D, 642, the court had quite a struggle with the provisions of the Washington Compensation Law, which was so far different from those of the other cases as to incur the dissent of members of the court. It is now, I think, of pertinent inquiry whether the quality of being hazardous is an inherent and necessary element of legality or a matter of legislative definition and policy. Besides, if there can be [250 U.S. 400, 438]   liability without fault in one occupation, and that can be a principle of legislation, why not in any other? Who is to determine the application, court or Legislature? If the latter, a court may not even express apprehension of its exercise, and yet it cannot put out of view the drift of events and in blind fatalism await their incidence when called upon to consider the legality of such exercise. We know things are in change-have changed-and a mark of it is that the drift of public opinion, and of legislation following opinion, is to alter the relation between empo yer and employe, and to give to the latter a particular distinction, relieve him from a responsibility which would seem to be, and which until lately it has been the sense of the world to be, as much upon him as upon his employer, not in dependence, not as a mark of subservience, but as an obligation of his freedom, and therefore, as a consequence, that where he has liberty of action he has responsibility for action. In a word, the drift of opinion and legislation now is to set labor apart and to withdraw it from its conditions, and from the action of economic forces and their consequences, give it immunity from the pitilessness of life. And there are appealing considerations for this drift of opinion and inevitable sympathy with it, as with many other conditions, but which the law cannot relieve by a sacrifice of constitutional rights. In what legislation the drift (it is persuasion in some) may culminate cannot now be predicted, but it is very certain that, whatever it be, the judgment now delivered will be cited to justify it. Will it not be said that, if one right of an employer can be made to give way, why not another?-made a condition 'upon economic or other grounds' of his enterprise. Indeed, may not the question be made more general, and if in supposed benefit to a particular class, and through benefit to them to the public, there may be constraint upon or the imposition of burden upon one right of a citizen, why not upon another? There is, therefore, I [250 U.S. 400, 439]   think, menace in the present judgment to all rights, subjecting them unreservedly to conceptions of public policy. If, however, this general apprehension be not justified, there is threat enough in the judgment of the court to the interest of employers generally as a result of the difference in conditions.

    A rather curious argument is used to support the Arizona law. It is said, in justification of its discrimination between employer and employe, that the employer may, in relief from it and rescue from its burdens, pass them to the consumers of his products, as he does or may do in the case of other expenses of his venture, and in the long run their incidence is, as it is said it should be, on the public, and that the Legislature in so considering was reasoning within constitutional bounds. There is attractive speciousness in the argument. The individual employer seems to be devested of grievance, and the problem the law presents to be one of economics and governmental policy-is a kind of taxation, an expense of government, the burden of which is properly laid upon the public, and over which a court can have but limited power.

    If it is intended by the argument to express no more than a tendency, while it has no relevancy, I think, upon the validity of the law, there may be no danger in it. If it is intended to be erected into a principle, there is danger in it. It is certainly facile and comprehensive. What burden can be put upon industry or the activities of men that may not be justified by it?

    Of course, there will be no production unless all of its costs be reimbursed by the price of the articles produced. And by costs, I mean as well the burdens of government as profit to the employer-his inducement to enterprise, and the wages of employes-their inducement to labor. Without such reimbursement there will be no production, and cannot be beyond a certain extent and for a certain time; and there is no way to effect it but through the consuming [250 U.S. 400, 440]   PUBLIC. BUT RECOURSE TO SUCH CONSUMPTION as a rescuE from the law is not a justification for the law, and it is very doubtful if it had any conscious influence in the enactment of the law.

    Indeed, in the present case what could have been its influence, and to what extent can it have an ameliorating effect? An employer in the indicated industries can have no relief except in the home market. If his products (where there are products) go beyond-go to other states-they will meet the competition of unburdened products. But this is obviou and needs no comment.

    The CHIEF JUSTICE, Mr. Justice VAN DEVANTER and Mr. Justice McREYNOLDS concur in this dissent.

    Mr. Justice McREYNOLDS dissenting.

    While I earnestly join in the dissent written by Mr. Justice McKENNA, it seems not inappropriate to state my own views somewhat more fully. The important and underlying question is common to the five cases. No. 232 is typical and to detail certain facts and circumstances disclosed by the record therein may aid the discussion.

    Basing his claim upon the Arizona Employers' Liability Law, Dan Veazey sued plaintiff in error in the United States District Court to recover damages for personal injuries received by him February 10, 1916, while engaged as millwright and carpenter in constructing a 'flotation system' at the company's mill or reduction works in Gila county, Ariz., 'wherein steam, electricity, or other mechanical power was then and there used to operate machinery.' He alleged that while exercising due care he 'suffered severe personal and bodily injuries by an accident arising out of and in course of such labor, service, and employment, and due to a condition or conditions of such occupation or employment,' which injuries were [250 U.S. 400, 441]   not caused by his negligence, but were sustained in the manner following:

    No charge of negligence or failure to perform any duty was made against the company. It unsuccessfully set up and relied upon invalidity of the Employers' Liability Law because in conflict with the Fourteenth Amendment; judgment went against it; and the cause is here by writ of error to the trial court. Judicial Code (Act March 3, 1911, c. 231) 237, 36 Stat. 1156 (Comp. St. 1214).

    Article 18 of the Arizona Constitution provides:

    Obeying the constitutional mandate, the Legislature enacted the 'Employers' Liability Law,' approved May 24, 1912 (chapter 89, Laws of Ariz. 1912, p. 491; Rev. Stat. Ariz. 1913, 3153-3162), which provides:

    That to protect the safety of workmen at manual or mechanical labor in many occupations declared hazardous and enumerated in section 4-among them all work in or about mines and in mills, shops, plants and factories where steam or electricity is used to operate machinery-every employer, whether individual, association, or corporation, 'shall be liable for the death or injury, caused by any [250 U.S. 400, 443]   accident due to a condition or conditions of such occupation, of any employe in the service of such employer in such hazardous occupation, in all cases in which such death or injury of such employe shall not have been caused by the negligence of the employe killed or injured.'

    Section 7 requires that questions of contributory negligence and assumption of risk shall be left to the jury. (The full text of the act is in the margin.1) [250 U.S. 400, 444]   Likewise, the Legislature enacted a Compulsory Compensation Law, approved June 8, 1912, applicable to work [250 U.S. 400, 445]   men in the same occupations as those declared hazardous by the Employers' Liability Law (Chapter 14, Laws of Ariz. [250 U.S. 400, 446]   Spec. Sess. 1912, p. 23). Material portions of it are in the margin. 2   [250 U.S. 400, 447]   In Consolidated Arizona S. Co. v. Ujack (1914) 15 Ariz. 382, 384, 139 Pac. 465, 466, the Supreme Court declared:

    In Inspiration Consolidated Copper Co. v. Mendez (July 2, 1917) 19 Ariz. 151, 157, 166 Pac. 278, 279, 281, 283, the Supreme Court specifically held that the Employers' Liability Law does not conflict with the Fourteenth Amendment, and among other things said:

    (This opinion was reaffirmed in Superior & Pittsburg Copper Co. v. Tomich [July 2, 1917] 19 Ariz. 182, 165 Pac. 1101, 1185.)

    In Arizona Copper Co. v. Burciaga (1918) 177 Pac. 29, 31, 32, 33, the Supreme Court said:

    From the foregoing it appears that we have for consideration a statute which undertakes, in the absence of fault, to impose upon all employers (individual and corporate) engaged in enterprises essential to the public welfare, not subject to prohibition by the state and often not attended by any extraordinary hazard, an unlimited liability to employees for damages resulting from accidental injuries-including physical and mental pain-which may be recovered by the injured party or his administrator for benefit of widow, children, parents, next of dependent kin or the estate. The individual who hires only one man and works by his side is put on the same footing as a corporation which employs thousands; no attention is given to probable ability to pay the award; length of service is unimportant-a minute seems enough; wages contracted for bear no necessary relationship to what may be recovered; [250 U.S. 400, 450]   and a single accident which he was powerless to prevent or provide against may pauperize the employer. And by reason of existing constitutional and statutory provisions an injured workman may claim under this act or under the Compensation Law or according to the common law materially modified in his favor by exclusion of the fellow-servant rule and otherwise. On the other hand, while the employer is declared subject to new, uncertain and greatly enlarged liability, notwithstanding the utmost care, nothing has been granted him in return.

    In such circumstances, would enforcement of the challenged statute deprive employers of rights protected by the Fourteenth Amendment? Plainly, I think, nothing short of an affirmative answer is compatible with welldefined constitutional guaranties.

    Of course, the Fourteenth Amendment was never intended to render immutable any particular rule of law, nor did it by fixation immortalize prevailing doctrines concerning legal rights and liabilities. Orderly and rational progress was not forestalled. Holden v. Hardy, 169 U.S. 366, 387 , 18 S. Sup. Ct. 383. But it did strip the states of all power to deprive any person of life, liberty or property by arbitrary or oppressive action-such action is never due process of law.

    In the last analysis it is for us to determine what is arbitrary or oppressive upon consideration of the natural and inherent principles of practical justice which lie at the base of our traditional jurisprudence and inspirit our Constitution. A legislative declaration of reasonableness is not conclusive; no more so is popular approval-otherwise constitutional inhibitions would be futile. And plainly, I think, the individual's fundamental rights are not proper subjects for experimentation; they ought not to be sacrificed to questionable theorization.

    Unitil now I had supposed that a man's liberty and property-with their essential incidents-were under the [250 U.S. 400, 451]   protection of our charter and not subordinate to whims or caprices or fanciful ideas of those who happen for the day to constitute the legislative majority. The contrary doctrine is revolutionary and leads straight towards destruction of our well-tried and successful system of government. Perhaps another system may be better-I do not happen to think so-but it is the duty of the courts to uphold the old one unless and until superseded through orderly methods.

    After great consideration in Adair v. United States, 208 U.S. 161 , 28 Sup. Ct. 277, 13 Ann. Cas. 764, and Coppage v. Kansas, 236 U.S. 1 , 35 Sup. Ct. 240 L. R. A. 1915C, 960, this court declared that the Fourteenth Amendment guarantees to both employer and employe the liberty of entering into contracts for servie subject only to reasonable restrictions. 'The principle is fundamental and vital.'

    In the first case an act of Congress prohibiting interstate carriers from requiring one seeking employment, as a condition of such employment, to enter into an agreement not to become or remain a member of a labor organization, was declared in conflict with the Fifth Amendment. In Coppage v. Kansas a state statute which declared it unlawful to require one to agree not to be a member of a labor association as a condition of securing employment was held invalid under the Fourteenth Amendment, and we said:

    In Truax v. Raich, 239 U.S. 33, 41 , 36 S. Sup. Ct. 7, 10 (60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283) an Arizona statute prohibiting employment of aliens except under certain conditions was struck down. We there said:

    The right to employ and the right to labor are correl- [250 U.S. 400, 452]   ative-neither can be destroyed nor unduly hindered without impairing the other. The restrictions imposed by the act of Congress, struck down in the Adair Case, by the Kansas statute, declared invalid in the Coppage Case, and by the Arizona statute, held inoperative in the Truax Case, viewed as practical matters seem rather trivial in comparison with the burden laid on employers by the statute before us. And the grounds suggested to support it really amount in substance to asserting that the Legislature has power to protect society against the consequences of accidental injuries, and therefore it may impose the loss resulting therefrom upon those wholly without fault who have afforded others welcomed opportunities to earn an honest living under unobjectionable conditions. As a measure to stifle enterprise, produce discontent, strife, idleness, and pauperism, the outlook for the enactment seems much too good.

    In New York Central R. R. Co. v. White, 243 U.S. 188 , 37 Sup. Ct. 247, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, and Mountain Timber Co. v. Washington, 243 U.S. 219 , 37 Sup. Ct. 260, Ann. Cas. 1917D, 642, as I had supposed for reasons definitely pointed out, we held the challenged statutes not in conflict with the Fourteenth Amendment although they imposed liability without fault and introduced a plan for compensating workmen, unknown to the common law. The elements of those statutes regarded as adequate to save their validity we specified; if such characteristics had not been found, the result, necessarily, would have been otherwise, unless we were merely indulging in harmful chatter.

    Here, without fault, the statute in question imposes liability in some aspects more onerous than either the New York or Washington law prescribed; and the grounds upon which we sustained those statutes are wholly lacking. The employer is not exempted from any liability formerly imposed; he is given no quid pro quo for his new burdens; the common-law rules have been set aside without a reasonably just substitute; the employe is relieved from [250 U.S. 400, 453]   consequences of ordinary risks of the occupation and these are imposed upon the employer without defined limit to possible recovery which may ultimately go to nondependents, distant relatives, or, by escheat, to the state; 'the act bears no fair indication of a just settlement of a difficult problem affecting one of the most important of social relations'- on the contrary, it will probably intensify the difficulties.

    The liability is not restricted to the pecuniary loss of a disabled employe or those entitled to look to him for support, but includes compensation for h ysical and mental pain and suffering; a recovery resulting in bankruptcy to an employer may benefit only a distant relative, financially independent; the prescribed responsibility is not 'to contribute reasonable amounts according to a reasonable and definite scale by way of compensation for the loss of earning power arising from accidental injuries,' but is unlimited, unavoidable by any care, incapable of fairly definite estimation in advance, and enforceable by litigation probably acrimonious, long drawn out, and expensive. While the statute is inattentive to the employe's fault, it permits recovery in excess of the employe's pecuniary misfortune, and provides for compensation, not general, but sporadic, uncertain, conjectural, delayed, indefinite as to amount, and not distributed over such long period as to afford actual protection against loss or lessened earning capacity with insurance to society against pauperism, etc.

    I am unable to see any rational basis for saying that the act is a proper exercise of the state's police power. It is unreasonable and oppressive upon both employer and employe; to permit its enforcement will impair fundamental rights solemnly guaranteed by our Constitution, and heretofore, as I think, respected and enforced.

    The CHIEF JUSTICE and Mr. Justice McKENNA and Mr. Justice VAN DEVANTER concur in this opinion.

    Footnotes

    [ Footnote 1 ] Laws of Arizona 1912, c. 89, p. 491; Rev. Stat. Ariz. Civil Code 1913, 3153-3162, p. 1051.

    act, such employer may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity or that it may have paid to the injured employe or his personal representative on account of the injury or death for which said action was brought.

    [ Footnote 2 ] Employers' Liability Law.

    Sec. 2. That compensation graduated according to average earnings and limited to $4,000 'shall be paid by his employer to any workman engaged in any employment declared and determined ... to be especially dangerous, whether said employer be a person, firm, association, company, or corporation, if in the course of the employment of said employe personal injury thereto from any accident arising out of, and in the course of, such employment is caused in whole, or in part. or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, or any of his or its officers, agents, or employe or employes, to exercise due care, or to comply with any law affecting such employment.'

    refuse to settle for such compensation (as provided in section 8 of article XVIII of the state Constitution) and chooses to retain the right to sue said employer (as provided in any law provided for in section 7, article XVIII of the state Constitution) he may so refuse to settle and may retain said right.'

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