Arizona Employers' Liability Cases

400 1918.

Syllabus. ARIZONA EMPLOYERS’ LIABILITY CASES.1 ERROR TO COURT OF THE UNITED THE DISTRICT STATES THE

FOR OF DISTRICT ARIZONA AND TO THE SUPREME OF STATE OF THE ARIZONA. COURT 20, 21, 232, 332, Argued January 25, 1918; April 28, 24, 25, Nos. 334. 9, June 1919. Decided Employers’ Liability (Rev. The Stats., 1913, pars. Arizona Law 3154, 3156, respect 3158, 3160,) employments specified of certain rea- sonably. designated inherently dangerous hazardous to work- men, imposes upon employer, regard the or without fault any person for he responsible, liability of whose conduct in com- (not pensatory speculative punitive) damages or for the accidental injury personal any employee arising or of death out of and in the employment course the and due to a condition or conditions of occupation, employee’s but not negligence. caused own Held, infringé rights does employer^ not under.the Pp. 419, Amendment. Fourteenth seq. et New York R. Central R. White, v. 243 Co. U. S. 188. The are left a change States wide field of laws, discretion their legislation subject is not objection their constitutional ground that it is Pp. novel and unwise. 419-421. repeatedly adjudged has governing court that the rules employers or of employees death in the course subject, are

employment conduct, rules future to alteration excluding and that, arbitrary States unreasonable changes, employer may be made liable without fault and the common- law defenses be abolished. P. 419. (cid:127) instance, the effect require statute is to employee of the pecuniary instead assume risk inherent Copper titles these The docket cases are: Arizona Company, Limited, Hammer, 20, Copper Company, Limited, v. No. Arizona v. Ray Copper Bray, 21, Company Veazey, Consolidated No. v. No. the District in error to Court the United States for the District of Inspiration Copper Arizona; Company Mendez, Consolidated v. No. Pittsburg Copper Company Superior Tomich, & sometimesknown as 334, in error to the Thomas, Supreme No. Court the State of Arizona. LIABILITY ARIZONA EMPLOYERS’ CASES. Syllabus. negligence employment, to its conditions and and due injured, leaving employer, as killed risk theory employee, common law in left the to take such into besides, wages, opportunity, fixing in with the to consideration charge industry. part product a of the cost of the loss as P. 420. damages recovery strictly compensatory statute to limits

The. —ex- cluding maybe conceded would be punitive damages, which it only contrary justice such discrimination to makes natural —and necessarily employee as arises from their dif- employer between undertaking. no There is denial ferent relations to common equal P. protection the laws. 422. (cid:127) merely industry, to the cost of The statute adds no new burden existing employer recognizes part transfers to the an and in industry. nature of the due to the hazardous inevitable burden P. 424. pre- regulation, designed to may regarded police a The statute be as dependents becoming a injured employees and their

vent the regarded, not be to be and, it can said upon public; so burden arbitrary that this court should de- clearly and' unreasonable so Amendment. Id. of the Fourteenth clare violative say leaving that, to a contradiction of terms to amounts damage's to compensatory be determined of fact and issues courts, procedure of the juries according the established to process of law. P. 426. due statute violates injured compensation for a of action a State establishes If arbitrary fundamentally unjust, or grounds not workmen compensatory be award shall measured question whether the pre- law, according or common some damages measured at are result, adapted produce fair reasonably scale scribed 428. P. State to determine. single paid be sum or compensation should distrib- Whether such disability need, for the during period is likewise State uted P. 429. to determine. may be extended construction that the Arizona act objection The by parties not raised in- industries can be whose non-hazardous indisputably Id. hazardous. were dustries may extended, act be that the benefits of the objection The nearly dependent claim, not related to or death those case of a go State, may held, escheat to the workman, or even upon the n having con- construed the act as Arizona court presented, the recovery damages. compensatory P. 430. fining Argument for Plaintiff in Error Nos. U. system injured The Arizona remedies, allows the election “ permitting recovery restricted under a although law” guilty contributory he has negligence, compensatory been and full damages Employers’ Liability under the Held, Act if he has not. process equal protection not inconsistent with the clauses, due respects employers. P. 430. Concurring op opinion Holmes, J.:— voluntary That certain may constitutionally put conduct at the peril pursuing of those it finds illustrations in the criminal law and the extent to which a. master be held for acts a servant. P. 432. applying criterion of fault itself involves the external standard of prudence, and a jury. the decision of Id.

Holding directly liable accidents tends to secure atten- safety

tion to the the men, unquestionably constitutional —an object legislation. Id. allowing damages pa!n In for mutilation, and the Arizona law con stitutionally may have been on that, based the view if a business

is unsuccessful it means the enough that care does not for it if pay, and, to make it successful, public pays the the ex something penses, and more, pay, part and should of the cost producing pain what it wants, the cost of and mutilation inci production; that, throwing dent to the upon and that loss the employer instance, long in the first it is thrown in the run; justly, upon public. P. the 433. liability under this law is

The limited to a conscientious valuation the presumed loss, juries and it to be that and courts will confine it accordingly. Id. cent, urged, case, in this provision that the per It is not for 12 interest suit, the date of in from case of an appeal, unsuccessful is void.

P. 434. 151; Arizona, 182, id.

19 affirmed.

The cases are stated the opinion. Ernest W. Lewis Mr. and Mr. John A'-'Garver, with whom McFarland Mr. W. C. was on the briefs, plaintiff 20, 21: error in Nos. reaching the conclusion that the workmen’s com- liability

Arizona cases. Employers’ Argument 400. for Plaintiff in Error in. Nos.

pensation York, Washington acts New Iowa and were a valid was in- legislative power, exercise this court fluenced two a one, involving legal considerations: common-law defenses, that in principle, taking away the them, some of employer, the the- had legislature a substantial equivalent, inlimiting substituted the liability according prescribed a employer which would not be schedule, probably reasonable liability; more him than his common-law upon onerous other, the social and economic considera- involving tions, legislation that was' a valid exercise police New general welfare. York power, promoting Central R. Co. 243 U. Hawkins White, 188, 203; R. S. v. U. Mountain Timber Bleakly, S. Co. v. 210; Washing- ton, 243 U. kind is justification legislation that, hazardous society, interest should them- occupations charged of sustaining

selves be reasonable burden loss from the risks’of resulting inevitable inherent which no can business, foresight guard care or ordinary insurance should against, fund tax on business, which, created one afford substantial and hand, speedy, will injured prevent becoming employee, will object charity, and, protect on the other hand, from uncertain ruinous ver- possibly might business, bankrupt injury, dicts of all and other particular employer only him, but of society generally. employed workmen by in against is the of an insurance the The fund nature liability in which embark. The joint risk the parties to according is the regulated thé defined employer and right of to injuries sustained, and the the re- fixed, thus ceive, delay, compensation without the entire directly is Both and workman are employer established. benefited, caring many the State is relieved from Error in 250 U. for Plaintiff in Argument Nos. who otherwise become might dependent' unfortunates it. upon court legislation kind, pointed

But of this as this out, as well to the em- employer must reasonable general the welfare in so ployed. only far promotes as it from the ills society existing system. relieves those ills was the heavy One greatest burden system fostered, long which the old deferred litigation scant, person sustaining if benefits to any, to the State and to injuries, with both great expense ,with thrown liability an uncertain employer, which he could himself against protect the employer, companies whose principal insurance business only all claims combating injuries. consisted in failed to legislature completely The apply Arizona to referred court. Thé em- principles either is common-law defenses is deprived ployer is return, because workman left given nothing by the Work- reject provided the compensation free will Law. The statute men’s cause direct Compensation at for unlimited without society large; injury will effectual deterrent necessarily fault act an in industries declared be hazard- capital investment be ruined might single Men of small means ous-. would be in constant large corporations verdict; verdicts, as is obvious from excessive danger verdicts these cases. workman, Law leaves a whose Liability his own negligence, demand solely

due the- Compensation under the Workmen’s Law. compensation which only could Thus, instance.in under the complete defense Liability Law, interpose under the he to make obliged Compensa- tion Law. of this consequence Liability

A further peculiar Law is that, employer pleads negligence if the 405 LIABILITY CASES. EMPLOYERS’ ARIZONA Plaintiff in Error Nos. 21. Argument for thereby pre- he is to the injury, workman contributed not guilty that he himself was claiming vented Tomich, Co. v. negligence, Superior Pittsburg Copper & is actually guilty if Arizona, 182; employer if he is off more than lightly some he negligence, .gets case, in the former because, entirely fault, free from will between be liability apportioned dissenting to their See negligence. in proportion Co. v. opinion Ross, Pittsburg Copper & J., Superior Tomich, supra. is that' of this Law Liability

A feature further peculiar even where death, in the case there may recovery be way dependent who was any there is no one in existence next of kin may though and even decedent, even Nation, though he of the State and be enemies kin. Workmen’s next of no ascertainable have may com- injured benefits to the limit the laws should pensation upon him; this actually dependent or those person in this and other universally recognized been has principle countries. to ascertain, we been able so far as have State,

No other in this Arizona the extreme extent shown gone has ever unlimited liability subjecting employers legislation, without com- fault on' their part, without any workmen. on the obligation part pensating farce, is a Law mere Compensation Workmen’s Arizona concerned; and the employer so any protection far as own con- when his the workman only to by is resorted in an action at law. his recovery barred effectually duct has recog- have in which the courts cases certain There are fault; they without liability that there nized under our liability rule of the general are exceptions in no appli- way conditions which are on depend law and on the are based them situation. Some cable to carriers, innkeepers and "liability ancient insurer’s which has been to the strict others relate while Error in Argument for Plaintiff in No. 232. 250 U. caused damages by- on in relation railroads imposed latter are really to cattle. The injuries fire liability usually without as the fault, cases of liability a failure to comply where there has been imposed only fencing requirement, with reasonable some instance of the simply of This is right way. railroad’s failure obligation, to create a new legislature power of to be the basis wrong which is a sufficient to observe liability. Kearney, Li with whom and Mr. Curley Frank E.

Mr. briefs, for defendants was on the Frank H. Mr. Hereford 20, in Nos. error Alexander Brit- whom Mr. King, Mr.- William H. W. on Mr. F. Clements were Mr. Evans Browne and ton, error in No. 232: brief, for plaintiff U. White, Co. v. York Central R. R. In New York the New Workmen’s court considered it a held that was Act, specifically Compensation' employees to compensate devised system, substituted hazard- in certain injuries received their dependents based damages being of the measure occupations, ous to the having' regard pre- earning of power, loss upon of disability, and duration the character wage vious according depend- of benefits death, and in case wife, husband, surviving of etc. ency Law of does not relieve Arizona Liability Employers’ measured damages, from responsibility employer “the him to It does not “require standards.” common-law reasonable, a reason- amount, according to a contribute for loss scale, compensation by way definite able substituted assur- system, It is not a earning power.” com- easily ascertained “a employee ing definite is not to assume required employee and the pensation,” scale.” prescribed beyond loss “any ARIZONA EMPLOYERS' CASES. LIABILITY Argument, for Plaintiff in Error No. 332. im- recognized powey abuses the “the State to. pose upon making the absolute a employer duty moderate and definite every in money disabled ... in lieu of the common-law to cases negligence,” by permitting confined amount, of an unlimited not for disability recovery alone, Case, White but for physical suffering as in the also. It is not losses sustained in a mutual composition joint (as Pitney reasons), adventure Justice in which is inevitable and is expected, accidental places loss, all without limitation, one “co-adventurers,” to-wit, the employer.

It not of all only practically deprives the known to the common law, defenses but takes him the to defend of by showing guilty that he was no other’words, fault. the of legislation is all in favor the and the is no chance to employer given escape employee, imposed. unlimited action is com- liability When the act, this the no menced under has alternative. employer the act or relegate employee He cannot other mode the one which him- procedure, except And im- damages selected. when have been self has law, pursuance provisions under posed employer stated the is deprived the conditions before process law, without due and denied his property law. equal protection for in error defendant in No. appeared

No counsel Mr, Rice, Edward W. leave of filed a brief court, amicus curios No. 232. M. Harvey with whom Mr. Rice, Edward W.

Mr. brief, for error in No. 332: plaintiff on the Friend was a em- regulation dangerous in no sense law is This n upon eirtployer new duty No the' ployments. imposed 408 F,rror

Argument for Plaintiff in No. 332. and he subjected to no liability failure discharge duties, new or old. The merely law imposes new pecuniary liability that cannot be foreseen or .injuries prevented by care. This cannot any degree increase the care of the employer protect employee from injury. seeks on merely new em impose It. It is devoid of all of ployers. the features that characterize measures which seek to justice by attain social regulating in the interest of the relation of public private master and servant out of which losses from industrial accidents are bound to arise. Our that this conclusion is is merely a labor law confined and liabilities of rights the em and not a ployee measure in police which has an interest. Consequently question of its should be determined validity principles govern which affecting rights distinguished laws priváte from those which police measures enacted primarily to safeguard the tested. public are This court, throughout its has how career, recognized, firmly the fab ric of rests government inviolability of pri free right. vate of individual preservation liberty and protection private property right of contract essential to all private government. are free 135; Fletcher v. 6 Peck, Cranch, 87, Chicago, Burlington Quincy & R. Co. U. S. Chicago, 237; R. v. 166 Citi 226, Savings & Loan zens’ Association Topeka, Wall. U. 665; v. Hardy, 389; Holden New York Central White, 188, R. R . Co. v. 243 U. 202. fact must private right

From the that be subordinated welfare, does not follow that in public those cases welfare does not require where the surrender right legislature, merely as between private of individ- distribution of uals, arbitrary private make may losses. York, New 198 U. S. Lochner v. the case of a slightest law exaction beyond labor would be mere Mountain Timber power. Co. v. Wash- the legislative EMPLOYERS’ LIABILITY CASES. ARIZONA Error in Argument for Plaintiff in No. 332. ington, of negligence 240. The law that an individual It is reasonable founded reason. his to another causing from should refrain for in- make recompense that he should negligence, and that the establish- it is self-evident caused, so jury without fault liability of of ment a rule unlimited would merely of responsibility rule individual governing a new non-liability of for the old natural law substitute This is arbitrary power. and irresponsible, tyranny law to do. attempts Arizona what the precisely damages to respond of the individual obligation The from liability immunity negligence those among obligations at fault are thus when not It is because government. inhere in free rights have persisted character they fundamental their been made our have legal history. Changes throughout neg- of the law time in the administration from time to charged one in the defenses available relieve ligence, as duties assumed of the extent with negligence, negli- of which shall constitute breach or imposed, cases, but the rules of evidence in such and in the gence, injury, personal basis individualistic in the ab- immunity responsibility its converse liability, have of individual as. rules negligence, sence Nothing in their broad outlines. unchanged remained justice requires or natural in free government inherent allowed to with should be charged negligence that one contributory neg- risk, assumption the defenses urge duties, fellow-servant, conception or that the ligence negligence,, should of which constitute the breach people. industrial life unfolding deyelop declared, these repeatedly as this court has Therefore, new abrogated modifie'd may entirely defenses be created. duties between is both clear and fundamental distinction defenses, of thése that, regardless proposition

410 1918.

Argument for Plaintiff in Error in No. 332. S. 250 U. employer shall be liable in for damages his negligence, personal either properly imputed him, and the fur- ther proposition that he shall be liable as for negligence when he is no fault. sense at Under the first proposi- tion the of still question negligence remains, and on this fundamental the defendant question has right to de- fend. Under the second proposition, liability practi- cally If to defend prejudged. cannot thus be taken of away indirectly by a conclusive presumption Mobile, Jackson &c. R. R. Co. negligence, v. Turnipseed, 219 U. 35, S. it cannot be taken away a directly by departure negligence from the of principle as the basis for injury. of individual Middleton v. Texas liability 96, 107. Light Co., Texas, Power & There are cer- which are liability of sometimes tain instances cited without fault. liability of examples Chicago, Rock Ry. Zernecke, Co. 183 U. S. 582, Island & 586; Pacific York White, New Central R. R. Co. v. 243 U. will But when be found furnish no sub- analyzed they or in for the support legis- stantial basis in reason law as that in this case. presented By lation the ancient deodands, a man innocent property wholly law was confiscated the Crown under the false wrong religion. admiralty, ship itself is cloak treated answerable wrongdoer, only wrong a for the The maxim of of her. charge agency “quifddt those per se,” which is the real per foundation aliumfadt that of master, as well as liability husband’s involves in cases the relation of parties fault imputed .where foundation justice some the imposition furnishes is there, The fault but it liability. not be the per- person charged fault of the with responsibility sonal common-law the carrier and of inn- it. The course, did not arise out of a mere personal rela- keeper, public pursue calling, charged one Both tion. interest, therefore subject to peculiarly regu- ARIZONA EMPLOYERS’ LIABILITY CASES. Argument for' Plaintiff in Error No. 332. lation It public. the interest was never the law, far as know, private private so we carriers or board- ing-house who are free to whom keepers, will, serve they make, under such contracts .they may please as were patrons hable as insurers to their The guests. analogy for responsibility dangerous between the agencies and accidents in .liability industry inevitable as between the joint pursuing industry adventurers their mutúal is so remote as to no aid profit furnish real solution the. of the present problem.

Statutes requiring railroad companies to fence their rights of way and upon their failure do so imposing upon them liability for stock killed have been upheld. In such cases the liability is for breach of duty validly Gulf, imposed, Colorado & Santa Fe Ry. Ellis, Co. v. U. 150, S. 158; short, a liability for negligence. Black. Law, Constitutional ed., 2d p. 351. Laws imposing lia for stock bility killed without requiring of way to be on fenced, the other hand, create a liability without fault. Such laws have been universally condemned.

It is indeed significant that in the whole legal history liability individual has there been such a consistent aver- sion to the establishment of a liability without fault. It cannot be accounted for upon other theory than that itself principle repugnant is to the fundamental rights on which liberty our property institutions are founded. This rule of individual is one of the which rules the legislature is “prevented by constitu- tional limitations” from changing at its whim. Munn 94 U. Illinois, v. S. 113. It seems plain, therefore, that this is a mere labor law, law concerned only with the rights of individuals, and that as such it is clearly void. power the State is police not without limitation. Steele, 133, 137. Lawton 152 U. S. v. The first inquiry here is the law deals subject-matter whether with a of public from private distinguished concern; the second

Argument for Plaintiff in. Error in No. 332. S. 250 U. whether the reasonably necessary appro measure priate achieve the end Mountain Tim public sought. ber Co. 219, 243 U. S. New York Washington, 238; Central White, R. R. Co. v. 207. Not subject-matter law with every that deals a proper police regulation police is to be construed as a measure or is to be York, held valid súch. Lochner v. New 198 U. 57:

The compensation considered systems court in Hawkins Mountain Timber Company White, Cases, regulate in a most thoroughgoing maimer and in in- subject-matter terest the whole compensa- for industrial death. The Arizona law tion has in common these nothing laws. does not regulate aptly As remarked anything. by Justice Ross case, in his dissent in this “Ours is not a system a lawsuit.” seems to us Arizona law is in no sense a the if treat it However, measure. we as such

police simply subject it deals with a which may because be regulated interest of the follows from public, what the court (New York Centra R. R. Co. v. White, has said 243 U. S. it must be set aside as invalid 188, 206), that unless it can' appropriate proper as an and be exercise of supported power. police n extent of the interest public The must mark the ex limit of permissible treme interference with the private The parties. regulation of rights relation of servant and of and the compensation master to be paid in case of injury are the servant matters of conceivably that, for the reason if concern, public the burden of in to fall on is the workman, losses jury injured man and certain, are in his a considerable dependents number to be instances, pauperized and to be driven into vice and York New R. R. White, Co. v. crime. Central. is public concerned, The in place, first LIABILITY CASES.

ARIZONA EMPLOYERS’ Argument for Plaintiff in Error No. 332. is secured, the end compensation which method promptly paid, and with- that it shall be estimated fairly friction between employer out and expenses burdensome public concerned place, and In the second employee. so that the award shall with the amount of his dependents the workman and be sufficient protect This two-fold its evils. against attendant poverty expression must find appropriate of the public interest regulation. as police can be sustained which any'law abolishing only by litigation first can be achieved The of compensation. just system establishing concern public as it is second a matter place, pauperism award be sufficient to its prevent shall ,that the award shall it-is of concern not evils, equal necessary what the work- reasonably protect exceed respects. man these dependents injured hurt be borne person; must physical it cannot York Central R. R. Co. be shifted. New White, can the hurt physical U. S. 203. Neither A law which money. measured terms of authorizes an’- suffering and kindred ele- damages award pain It does, interest. how- public ments does serve the verdicts, wide which ever, open speculative door or to the interest public pecu- bear no true relation to man. can injured Neither loss sustainéd niary in saddling concern be any suggestion there employer, a an upon particular upon industry, unlimited a to. estate deceased workman. his dependent upon labors, who no one has left who has loss no one suffered pecuniary therefore death. court, in compensation cases, expressly has

This legal limits of specifying permissible refrained compensation Nevertheless, under laws. compensátion it clear make that compensation must be decisions earnings, specula- cannot be for allowed upon based 414

Argument for Plaintiff in Error in .No. 334. tive as damages elements such are included in the awarded under the Arizona law. It is manifest from equally these decisions that must compensation rate be certain or ascertainable on some definite basis and that it must be limited in amount. These restrictions follow logically from the court’s conception system disregarding ,the as immediate cause of the accident and for treating employment as itself which employer and are as jointly responsible the true cause of the injury.

The Arizona law is inconsistent with this conception is the common law. relieves the none law, him of the evils the common saddles upon according damages new lawsuit common-law stand- utmost he has exercised the human ards, care, and, where cent, 12 him addition, penalizes per jury’s award fails on appeal. if he Graham for defendant in error No. Foster,

Mr. Mr. M. Foster-and Mr. F. Hugh George Sen- submitted. the brief. ner on were T. error in No. Knapp-, plaintiff

Mr. Cleon submitted: justification for the

If there enactment must found in the This court police power. it a law be. recognized difficulty of exactly defining repeatedly has It is óf generally recognized as the that power. legislate general for its welfare and betterment. State to which dependent exercised The extent it industrial and social conditions. Each ex largely Noble Bank be measured itself. State must ercise States, U. v. United U. 104; Haskell, Camfield S. 518 arbitrary cannot be used power poliete man- rights. one of deprive private While calculated

ner, 415 LIABILITY CASES. ARIZONA EMPLOYERS’ in Error in 334. Argument for Plaintiff No. 400. those public needs” same to all great public “extends its valid exercise. The rule upon a limitation place needs California, Hurtado v. 110 U. applied. must be reason 68; 120 U. S. Missouri Missouri, v. 516; Hayes S. Pacific 146 205; Hallinger Davis, 127 U. S. v. Ry. v. Mackey, Co. U. Barbier Hardy, 169 S. 366; U. Holden v. 314; S. cannot be used as an power 27. The Connolly, 113 U. S. legislation. Davidson unjust oppressive excuse Yick Wo v. 118 97; Hopkins, U. S. Orleans, v. New 96 U. is this is whether law then presented

The question And test to needs. benefit calculated but whether in practice wording, the mere is not applied object beneficial to actually accomplish it would York, welfare. Lochner v. New health, safety general U. S. 45. no Liability way Law is in Arizona Employers’ health, general either safety to benefit designed health and designed If it benefit the were welfare. it would to public be-beneficial wel- employees safety in If it removed ills existing present it is not. But fare. in it Arizona, or economic conditions industrial, social, circumstances, be beneficial to certain pub- under might, not. ills. existing But it does adds lic welfare. it law, can be found for the must be justification If any compulsory supporting legality reasons com- grounds And it solely upon acts. pensation its Supreme attempted justify Court that the Arizona legality. that the court the White, decisions

We assume Cases Company Mountain Timber cover the Hawkins, of compensation justification field enactment law§. law, for this justification must be found And if there given. The decisions those cases there the reasons that the legislature the consideration are influenced laws substituted of those a substantial the enactment Argument for Plaintiff in Error in No. 334. Our

equivalent. the quarrel Arizona law is not so that abrogates much the common-law rules of that it absolutely fails'-to set up something adequate in their It justified stead. cannot be of upon any the grounds the supporting of legality compensation acts. It not of is a “method compensation.” It is a suit for damages. It the preserves of system awarding jury in an damages unlimited amount, and should the em- ployer presumptuous enough is appeal, he what might fined, -be called by being assessed interest on the at cent. judgment per New The York was not law pronounced arbitrary and unreasonable, the reason the compensation was moderate and Under definite. this its law, judged by the history, awards will never be moderate never definite. It provides for damages not for loss of- earning alone power, but for suffer- pain, mental ing, physical anguish, and humiliation, and the is jury quick consider all such elements. evil upon

No attendant the old personal injury litiga- has been removed. tion delay, law’s court ex- large attorney fee, the oft-times miscarriage pense, justice by inadequate verdicts, and more often by exces- verdicts, sive bitterness growing from litigation; all many more still these and are attendant trail law. reason Every prompting the enactment laws lacking to support it. is not de- in the remotest signed way to protect or health, safety welfare. It is not valid exercise police power. Supreme The Arizona Court vainly searched for authori- justify the constitutionality ties to of the law, was its entirely upon base decision forced given reasons in White Case upholding New York Compensation Law. Herrick,

Mr. Samuel for defendant in error in No. submitted. CASES.

ARIZONA LIABILITY EMPLOYERS’ Opinion the Court. Pitney of the court. opinion Mr. Justice delivered the hazardous indus- in a cases, In each a workman these in the course Arizona, having received State of try through an accident of his injury employment personal occupation, due to a conditions condition appears so far as negligence caused his own under of his action others, brought Em- employer or compen- recovered Arizona, and ployers’ Law Liability upon a ascertained satory damages against disabling effects extent, and nature, consideration question case. And particular in each applied to, referred raised the statute whether of provision to cases, facts of these is repugnant that, no State declares Fourteenth which Amendment or with- life, liberty, property of any shall deprive person within its person out nor to process law, deny any due of of laws. jurisdiction protection the equal of the State Arizona of the constitution of XVIII Art. among others, “Labor,” and contains, is entitled following sections: of fellow serv- The common law doctrine

“Section 4. for in- of a master affects the liability as it ants, so far or resulting from the acts omissions juries to his servants common master or servants other servant any abrogated. forever negligence or of contributory The defense 5.

“Section be shall, whatsoever, of risk in all cases of assumption to the jury. left shall, times, at all be of fact and question damages recover right The action to “Section and the amount' abrogated, be shall never injuries limitation. not subject any be statutory recovered shall in employees all safety 7. To protect “Section manufactur- smelting, occupations, mining, in hazardous or other any or street transportation, ing, railway railroad Employers’ Lia- shall industry Legislature enact an Opinion of the Court.

bility law, by terms of which any employer, whether or association, individual, corporation shall be liable for the death or injury, by caused due any accident to a or condition conditions occupation, such em- any in the service such ployee .such hazardous in all occupation, cases which such death or have, employee such shall been caused the negli- by or gence injured. killed Legislature 8. “Section shall enact a Workmen’s Compulsory Compensation law applicable workmen or engaged manual mechanical labor in such employ- Legislature

ments as the determine be especially dangerous, which by compulsory shall be required paid to be to any such workman em- the course of if in such in- ployer, employment personal such workmen from accident jury any any arising out of, of, course such is caused in employment or or in whole, part, contributed to, by risk necessary danger such or a employment, or risk or necessary inherent or danger thereof, nature failure of or of his or its employer, any officers, such or em- agents, care, exercise due or to employees, ployee, comply affecting such employment; Provided, [law?] it shall with said optional settle for employée compensation, retain the to sue said employer Constitution.” provided -to the Pursuant 7 Law Employers’ was Liability § 89, Reg. Laws (c. 1912, enacted Sess.; Rev. Stats. Arizona 3153-3162); to pursuant 1913, pars, Workmen’s §8 Compensation Law was enacted (c. 14, Laws Compulsory Spec. Sess.; Arizona Rev. Stats. 1912, 1st 1913, pars. el seq.). the present

In of the two cases former law was sustained Court of the Arizona attacks Supreme against by based Fourteenth the Amendment. Inspiration Consoli Arizona, 151; Co. Mendez. 19 Copper Superior dated & v. CASES. ARIZONA LIABILITY EMPLOYERS’ Opinion of the Court. 400. In the Tomich, 19

Pittsburg Arizona, Co. v. Copper three other cases was the United States it sustained resulting judg- District Court for that District. And the injured brought ments in favor of under the workmen are our of error. review writs to

Some the submitted assail the wis- arguments us dom and of its policy novelty, the act because because de- its the one-sided efféct depriving return, (as said) nothing fenses giving while him damages unlimited, giving leaving to not obviate option remedies; tending several danger with litigation; pregnant and as promote industries the State. considerations With not a constitu- Novelty not itself. court can concern gov- forms of tional under constitutional since objection; endowed legislative body ernment have a each State change respects the law. what authority main con- changed, extent, shall what is in be it is to States; presumed fided the several understand their chosen legislatures, being people, are left needs. The States their correctly appreciate notwithstanding with a range legislative discretion, wide and their Amendment; Fourteenth provisions legislative acts wisdom of their conclusions respecting are the courts. not reviewable by various deal with upon recently have been called

We liabil employers’ forms of workmen’s y 223 U. S. Cases, Second ity Employers’ statutes. Liabilit White, 243 U. S. v. York Central R. R. Co. New 47-53; 210; Moun Bleakly, et U. S. 188, 196, seq.; Hawkins Middleton v. S. 219; tain Timber Co. v. 243 U. Washington, decisions Co., Texas Power & These Light rules of law propositions have established in concerning personal employer’s responsibility course employee arising jury death are employment legislation beyond alteration by TERM,- 420 Opinion of the Court. U. 250 the public interest; person that no a vested has entitling him to have other .any these more than rules law unchanged remain for his ex- benefit; that, and if we clude and unreasonable changes, arbitrary liability may. imposed without employer fault, and rules his respecting responsibility one employee for. negligence of another and respecting neg- contributory ligence and of risk are assumption subject legislative change. contention principal the Arizona Employers’

Liability Law deprives employer without property due to him law, and denies process equal protection of the laws, because a imposes liability without fault, as is without and, said, equivalent The stat protection. of certain ute, respect specified employments designa ted as hazardous inherently dangerous and workmen— so reasonably imposes upon the employer, described — regard without his question fault or that of any person whose conduct he is responsible, liability compensatory all damages excluding such as are specu — or (Arizona lative punitive Copper v.Co. 177 Burciaga, Rep. 29) Pac. accidental personal or death injury —for arising out of employee course the employ due to condition or ment conditions of the occupa cases where or tion, injury death the employee not have been shall caused negligence. own This n isthe substance of pars. arid are to be they connection with read in par. 3156, which declares what are hazardous within the occupations meaning the law. regulations contracts and By par. exempting are declared to be void. effect, statute requires employer, instead of employee, assume the risk of pecuniary of the employee death attributable to hazards inherent employment due to its conditions and not to the negligence injured. killed In deter LIABILITY CASES. ARIZONA EMPLOYERS’ Opinion the Court. of from the previous mining departure whether this rule is with the rights or inconsistent fundamental arbitrary so of the to render the law to as the employer repugnant it is to be borne in Amendment, Fourteenth mind that of risks of assumption the matter of the the employment to flow regula the therefrom has been and- consequences the common law, of mind by ted time out occasional existing The rule modifications. statutory ab enunciated, of is that statute, sence all usually conse the of inherent in occupation risks and quences normally the incident to it are assumed by employee and afford him or no of those by claiming action under ground him, negligence of the by in the absence employer; and even from increased the failure of arising by risks the em to ought to the care he take take for ployer. the em the are assumed latter if safety he is ployee’s aware of so obvious that they them or if are prudent ordinarily circumstances could under the not fail to person observe if them; appreciate and employee, having be arising of risk out of a defect come aware attributable negligence, makes to the employer’s complaint objec of a promise tion and obtains reparation, the common a new set of play into brings regulations, law requiring the risk finder to assume certain employer circumstances, others. Seaboard Air Line employee Ry. v. under U. 492, 504, 505; Horton, 233 U. S. 595, 598, 599; cited. cases and no are more than

But these rules of law, deduced just, under as reasonable courts conditions our in view the relations civilization, existing between em- in the absence employee ployer legislation. They Fourteenth placed, are Amendment, beyond to power the State’s alter reach them, as rules and tests of conduct future responsibility, through legis- promote general designed lation welfare, long so interfere it does not arbitrarily unreasonably, OCTOBER-TERM,

Opinion of the Court. defiance of natural with the justice, employers to agree between themselves employees respecting the terms and of employment. conditions are unable to the Employers’

We say Liability in¡ of Arizona, Law requiring hazardous industries assume —so far as pecuniary consequences go entire risk attributable employee —the arising accidents in the course the employment and due to its inherent exceeds the bounds of conditions, legislation or with the permissible interferes constitutional that the common rights The answer employer. law makes hardship requiring as sume all both consequences, personal of pecuniary, of injuries out of the the arising dangers ordinary occupa tion the into is that enter the contract of parties employ ment view, with these risks in and that the consequences to ought be, and taken into are, consideration presumably in fixing wages. the rate of Milwaukee Chicago, & St. Paul Co. v. 112 Ry. Ross, 383; U. Northern 377, S. Pacific R. R. Co. v. Herbert, 647; U. S. New York 116 Central R. R. White, Co. v. U. Farwell 188, 199; 243 v. Boston & Worcester R. R. Metc. like Corp[., manner if the he is employer, required statute in some —as assume the occupations loss pecuniary arising from —to to the such injury employee, take this into con fixing sideration rate besides wages; which he has an which the opportunity, has not, charge loss as a part the cost of product of the industry. is no

There here of question punishing one who is without fault. we That, may concede, would be contrary justice. But, natural as we have seen, statute lim- its the recovery strictly damages. compensatory And no discrimination between employer there is and employee arises from necessarily such their except different re- common undertaking. lations Both are essential LIABILITY CASES. EMPLOYERS’ ARIZONA Opinion of the Court. it, organization, guidance, the one to capital, furnish both foresee work; the other manual perform such, and its conditions occupation nature, physi- some of workmen will be that sooner or later killed, one without maimed, occasionally cally injured 203.) (See 243 U. S. part. particular anybody’s fault.on paid shall statute requires because the injured dependents, workman his falls; loss and that upon them that the first brunt he takes the it shall because employer, be paid reason gross enterprise, of the common receipts adjustments of control can make such position made, way ought to be and can be practically increasing selling price reducing wages liability. for the statutory to allow product, order for a basis discrimina- could be no more There rational no there is denial it is clear that in this tion; and .the of the laws.” “equal protection clause, ultimate conten- process” Under the “due to employ right, tion is indefeasible that men have an where, as under conditions all their fellow men to work to time some the workmen know, time parties injured, nobody but where will be killed or inevitably which particular know in advance men or or can knows will victims, the or how serious be the how will be many can compensation and hence no be injuries, adequate them thus with wages; employ in the and the included making wages above their object profit of legitimate well, with loss if immunity particular if all goes with workmen no of through the fault things go badly suffer or physical injury death own, they their employment. subject-mat- In view the course of their of interest ter, public involved, and of the we cannot assent rights life, that the of the proposition liberty, prop- by the Fourteenth Amendment erty guaranteed prevent that modifying the States from rule the common law Opinion of the Court. U. S. which requires permits or workingman to take the chances in lottery. such a assuming, as we it must, that be justly ad- act —

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

The interest of the State is We obvious. declared in the White (243 Case U. S. 207): “It cannot doubted that the State may prohibit punish self-maiming and attempts suicide; at a man from may prohibit barter- ing his life away personal security; indeed, right to these is often in bills declared, rights, to be 'natural and inalienable’; and the authority prohibit contracts made in derogation of a lawfully established policy the State respecting accidental death or disabling is personal clear. . . injury equally This statute not concern with does itself measures of pre- vention, which are presumably embraced other laws. But the interest of the not confined to these. One of the its grounds concern with continued life its earning power individual interest prevention of concomitants of its pauperism, vice our And, and crime. opinion, regulating laws the re- sponsibility death employers of em- out bear so ployees arising employment close a re- lation to the of the lives protection safety those

ARIZONA LIABILITY EMPLOYERS’ CASES. Opinion the Court. concerned that they may regarded coming be properly the of police cases.) within category regulations.” (Citing And Timber v. Washington, in Mountain Co.

219, 239, it said: the of indus- “Certainly, operation was things ordinary trial establishments that course inevitably produce mortal frequently disabling is not human a matter of injuries beings employed concern.” wholly private interest, reasonably this the State of Arizona

Having rule law “The of the common might say: requiring injuries all of personal to assume consequences normal con- ordinary dangers out of arising his in- secure occupation, of a hazardous ditions wages, form of increased in advance in the demnity interest assuming with incompatible because — equality employers, are on an a that workmen probability wages rate about negotiation —the employee, to a and the particular nature occurring so contingent specula- are injury, and extent or em- it either impracticable that tive in advance how much estimate ployee approximately the wages; for them in should be nude allowance made, demon- experience allowance proper were a even it to' of life is not be that our conditions under strates will aside out workingman set average that expected when against time he insurance wages proper of his in-' recognizing injured Hence, or killed. be unavoidable part workmen constitute juries to we will industries, require hazardous cost of employer, industry the one control assumed shall pays other so that he cost; items he just as while leav- of. employees labor take a profit of those whose ones, and the dependents injured ing to the conditions through accidents due lost, lives are public.” to be a burden occupation, we was reasoning employed, similar Whether Opinion of the Court. 250 U. S.- have no if knowing; means of whether, employed, it ought to accepted have been convincing, is for us to decide. It being incumbent upon opponents the law to that it demonstrate is unreasonable clearly arbitrary, it declare, is sufficient us to do, we that such would reasoning pertinent be to subject the and not so unfounded or irrational as to to permit us that say if it State, it a accepted as basis for changing the law in a

matter so related to closely public welfare, exceeded the restrictions placed upon its action the Fourteenth Amendment.

It objected is of responsibility the employer under this is statute is unlimited; not true ex- it cept as of every true action for compensatory damages where amount awarded varies accordance with the nature and damages extent for which compensation made. is said that in actions by employees against juries are to employers prone render extravagant verdicts. has The same thing said, been and with equal reason, con- actions cerning brought by individuals against railroad traction companies, companies, and other corporations. In as in other this, cases, there is a corrective the author- to of the court ity set aside an exorbitant verdict. And it to amounts a contradiction of terms to say that in sub- a controversy mitting litigants between established courts, there according long-established tried modes and with constitutional to determine jury fact and assess issues compensatory damages, there is process denial “due law.” is laid Much stress part opinion our where, citing White Case after previous numerous deci- authority sions the States to upholding establish departures from the legislation fellow-servant rule and rules other common-law affecting employer’s liability injuries said employee, (243 we U. personal “It is true that 201): case the statutes thus ARIZONA EMPLOYERS’ LIABILITY CASES. Opinion of the Court. sustained rendering were the particular there reasons pur- for the necessary, Nor is departures appropriate. that a State poses case, say might, with- present process out ‘due guaranty violence to the constitutional of law,’ respecting all common-law rules set aside suddenly pro- without employee, as between and. substitute; ., ques- '. viding a No just reasonably it. no opinion upon tion is here we intimate presented, body of aside one The statute under consideration sets its etc. place,” rules only system establish another inti- that no was opinion of our declaration spite intimation that a statute this treated as an mated, a new consideration, creating such as the now under one allowing (if no defense and additional of.action shown) be unless the accident of liability the conditions injured, negligence employee, caused was as in conflict with the due regarded process be would as cannot, however, regard this statute .clause. We a for the law as else than substitute it previously anything it be substitute proper. whether a was stood; to but we find determine; State Arizona people declaring have acted they no arbitrarily, so ground to their as render unjustly action void. unreasonably, consequence's personal resolved a have They dan- inherent to an attributable injury assumed, shall gers occupation wholly by whom the personal upon injury, particular employee hap- of a to the extent in fall, but, compensation money pens according a tribunal in thé judicial ordinary awarded assumed law, by- shall be the employer; processes far charge up, can, to' it so as the latter he a leaving just of his as he charge of the cost would part product, bad or theft, debts, other a usual fire, by loss by to make business; and allowance for so it, loss of the far of wages. in a reduced scale can, he And have they resolution, not in a repeat, come to we matter of in-

Opinion of the Court. difference, upon a question economics, mere but in the course of regulating the conduct those hazardous industries in which human beings own people —their —in pursuit a livelihood must expose themselves death or to physical injuries more or less disabling, with consequent impoverishment, partial of the work- total, man or those dependent upon him. The statute says to in effect: “You employer, shall not employ your fellow men in a hazardous occupation for in gain, you being a position to a reap reward in money through selling the product of their toil, unless come under an you obligation to make appropriate in money case of their death or due conditions of the occupa- tion.” The rule being based upon grounds reasonable affecting interest, being established advance applicable all alike under similar circumstances, there in our no is, opinion, infringement of the fundainental rights protected Fourteenth Amendment. expressions

Some contained in our opinion the White (243 Case U. S. 204, 205,) are treated in argument as equivalent if were they that if saying State, making legislative adjustment of employers’ liability, departs from the common-law system basing responsibility fault, must confine itself to a limited compensation, and ascertained measured according to the methods adopted compensation acts of the present Of day. course of the kind nothing was intended. In a previous of the opinion (pp. 196-200) it part had been shown that had no constitutional right continued from in liability the absence immunity nor negligence, tfie fellow-servant have rule and the rules respecting negligence contributory assumption risk remain unchanged. statutory plan compensation and the dependents workmen injured of'those fatally, additional feature at injured variance with the —an then law—was upheld; but, of course, common without ARIZONA EMPLOYERS’ LIABILITY CASES. 429 Opinion Court. if, no other would be constitutional. For that saying case, the novel statutory that scheme of held award- we according to a prearranged scale is sus- ing compensation fortiori, that tainable, follows, perhaps it the Arizona ascertaining the compensation according method com- of each particular substantially the facts case— method —is free on constitutional objection mon law or establishes a recognizes if a State grounds. Indeed, to injured workmen action unjust, arbitrary grounds upon fundamentally com- shall be measured as whether the award question common law, measured at damages are pensatory adapted prescribed reasonably scale according some to deter- for the State itself result, a fair produce paid should be the compensation mine. Whether as is recovered, required judgment after single sum under Law. just Liability Employers’ Arizona of a based judgment upon in the case common law system more to dis- prudent it would be or whether negligence, covering the payments instalment the award tribute is for the or of State need, likewise period disability in error can raise determine, plaintiffs question. no constitutional may be or hereafter suggestion that act now

To occupations, to non-hazardous construction extended in which first, occupations replied: it may hence hazardous, indisputably arose were these actions to raise the standing question have no in error plaintiffs 531, 544; Pennsylvania, Co. v. Coal (Plymouth Hendrick 571, 576; U. S. Blagg, Co. v. 235 Jeffrey Mfg. Power Middleton v. Texas 621; U. S. Maryland, hardly it 157); secondly, U. S. Co., & Light in- non-hazardous employers to add is necessary danger act, imposes little from the since dustries are injuries for accidental attributable only of the occupation. dangers inherent 430

Opinion of the Court. 250Ü.S. To the the benefits of the act objection may claims, the case death extended, those not nearly related to or dependent upon workman, even may it is go State, escheat sufficient to by that no say in these involved question records; Arizona 177 Pac. Copper Burciaga, Rep. 29, Co. v. a case of per- fatal, Supreme sonal Court injuries Arizona of. limiting the act as interpreted recovery compen- it so damages; reasonably may be satory construed claims; death and it application its would be improper to assume in for this court advance that the state court upon such a construction place will statute as to render to the Federal it obnoxious Constitution. Plymouth Coal U. S. Pennsylvania, 531, 546; Co. v. 232 St. Louis South- U. Arkansas, western Co. v. Ry. 350, 369. is' insisted that the Arizona system em deprives without due property process law

ployers and denies because it them confers equal protection the em upon among free choice several remedies. ployee Consol Arizona Co. Ujack, idated Smelting Arizona, 382, 384, Court said: Supreme State "Under the laws who is Arizona, injured in the course of his to him has three open employment avenues redress, he one which may pursue facts according are: They (1) of his case. The common-law re of the fellow-servant defense and in lieved which the negligence contributory defenses of risk assumption to be left to the are questions jury. Const., 4, 5, secs. Employers’ art. 18. which (2), liability law, applies where occupations or death is not hazardous his own negligence. caused sec. art. Const., (3) compulsory compensation- Jaw, applicable dangerous occupations, which re he especially without fault compensation part cover sec. Const., art. 18.” It is said counsel employer. act, because limits the that the recovery, LIABILITY CASES. 'ARIZONA EMPLOYERS’ 431 Holmes, J., 400. concurring. unless the has

never is in practice employee resorted of a under remedy been hence debarred negligent pre- settled our thoroughly act. But liability contributory State abolish may vious decisions a is an remedies defense; and election negligence as to a en- the law person option given very frequently exercised titled, action; to an option normally course. own as a matter of advantage, requiring partic- none points are but suggested, Other ular discussion.

Judgments affirmed. concurring.1 Mr. Holmes Justice in (the error) employed The defendant in was plaintiff in consequence was hurt in mine, eye the defendant’s present brought air valve compressed opening risks in due to was found to have been suit. herent, to the business and so was within Employers’ c. 6. 1913, 14, Title Arizona, Rev. Stats. Law Liability damages is liable law construed By em risks hazardous specified to such due injuries Par. 3158. negligence. of no when guilty ployments was judgment verdict for the plaintiff, There was a Arizona, State, Court 19 Supreme affirmed by single on question case comes here 151, and the Amendment, with the Fourteenth whether, consistently to exclude imposed. can is taken liability but to damages,” exemplary punitive “speculative, accident, caused include all loss earning of dis merely Vc.y capacity, Arizona bodily-or pain. mental See figurement 29, 177 Burciaga, Rep. Co. v. Pac. Copper general proposi- made argument There is some 1 viz, concurring cases, was delivered one five This opinion Company Inspiration Copper Consolidated v. Mendez. No. J.,

Holmes, concurring. tion that when not immunity in fault is a right inherent in free the obiter government dicta of Mr. Justice Miller Loan Savings Associa [Citizens’ &] tion v. Topeka, are referred to. But if it is Wall. thought to be put certain con policy voluntary duct at the of those in peril pursuing it, whether in the terest safety upon economic other I know grounds, nothing hinder. A man a servant at the employs peril of what that servant do in the course of his employment and there is in the Constitution nothing limit the principle to that instance. Louis & San St. Francisco Ry. Co. v. U. S. Mathews, 1, Chicago, 165 22. Rock Island & Ry. 582, Co. v. U. S. Zernecke, 183 Pacific Louis, 586. St. Iron Mountain & Southern Co. v. Ry. Taylor, 210 U. S. S. 295. See v. U. 281, Guy Donald, 203 399, There 406. are cases in which the criminal law even to requires a man know facts at his the Indeed, peril. criterion thought which is be free from constitutional objection, the criterion of is the of an fault, application external the conduct of man in the standard, a prudent that cases, .known in doubtful circumstances, is, opinion which defendant jury, satisfy has at his he after the matter peril giving which miss may his best The U. Nash thought. Germanic, 589, S. 596. v. 229 U. 377. Eastern Retail States, 373, United S. States Lumber Dealers’ Association v. United 234 U. S. States, Strahl, 426, Miller v. 239 U. S. 434. Without 610. much estab further so be taken be amplification may R. R. lished the decisions. New York Central Co. v. Timber 243 U. Mountain Co. v. White, 188, 198, Washington, 336 I how the of the law is affected perceive do validity that the venture. party the fact no attention to way securing is more certain There men, constitutional ob- unquestionably safety legislation, by^ holding than liable employer ject of LIABILITY ARIZONA EMPLOYERS’ CASES. J., concurring. Holmes, to which I the crimes have referred for accidents. Like good deal less often when happen will probably they he answer for them if that must do. they knows to the other and most objection urged therefore, I pass, the damages governed It is that are strongly pressed. action tort —that as we have is, governing rules include disfigurement bodily may that said, they are on Natural observations made pain. mental when such elements are allowed. But juries tendency no them course can be objection to allow if it is proper foibles the tribunal on the supposed founded the United States and the States have Constitution it not them? then, is to allow Why proper established. cannot be shifted another. Nei- pain is said can leg. of a But one for as well paid can the loss ther elements not consti- It is said that these do as the other. loss, sense diminished power tute an economic Sons, Ball William Hunt & They may. produce. they But whether do or not A. C. 496. they Ltd., [1912], of a loss as the loss workman’s as much part are busi- have reasoned thus. If a legislature limb. that the does not care it means unsuccessful ness is If it is successful the to make it pay. public for it enough more. It is something its expenses pays reasonable producing cost of the whole pay should that public muti- of that cost is pain a it and part what wants that loss throwing to production. By lation incident it .upon we throw the first instance the employer If a legislature is just. run long in the it and act seems accordingly in this way should reason bounds. Erickson constitutional is me that it within is un- said that Y. is N. 365. Preuss, limited to a conscien- true. It is is not limited, but con- from the Apart loss suffered. tious valuation juries hoped to be judge trol exercised tend would verdicts that unreasonable would realize McKenna, J., dissenting.

make the business impossible and thus tó injure those whom they might to help. wish But whatever they may we accept do must I tribunal, said, have and are bound to assume that will act they rightly and confine themselves to the proper scope the law.

It is not urged that provision allowing twelve per cent, interest on the judgment amount of the from the date filing suit, case an unsuccessful appeal, void. Fidelity Mutual Association v. Mettler, 185 U. S. Life 308, 325-327. Consaul v. Cummings, 222 U. S. Justice Brandéis and Mr. Justice Clarke con-

Mr. in this statement of cur additional reasons that lead me' agree with the opinion just delivered my brother Pitney. Mr. Justice McKenna dissenting. myself find unable to

I concur, reluctant yet dissent! is of the case kind once that, will pronounced, be a cognate like or rule cases forever, indeed, may even — It is extended. said rest on be the cases sustaining the workmen’s law New York, -243 U. S. its associated cases the same volume uphold- laws of other like States. The ing case present certainly after those comes cases and has that symptom being cannot sequence. their They have been easy said judgment against the contentions and conservatism opposed them, which and there was, at least to me, no of thfeir extent, and therefore to me prophecy the present step beyond case is I them. it is hope something more dread of timidity, new, than that makes me fear that step it is a the deck to the sea —the metaphor sug- gests peril consequences. me in let a more

But concrete make way application I this comment. assume that the puipose princi- general extent of ple and workmeh’s compensation laws ARIZONA EMPLOYERS’ LIABILITY CASES. J., dissenting. McKenna, I are known. must rest on that assumption for even an of them the reasons them

epitome would unduly extend this dissent. The Arizona has law no resemblance to them. It is a direct charge liability upon the em- for death or incurred in his ployer injury employment, he being without fault. Its remedies are ordinary legal- its remedies; measure of relief, however, has it some- ordinary thing more than the of relief, measures certainly not those the compensation laws, nor as consider- guarded and as If they. ate its validity, therefore, can deduced from the cases of those explanatory laws, it be done only by bringing can its instances and theirs under same that generalization, that it is is, competent for government charge and from exempt responsi- bility according employer as or employee, there one being no other circumstance than that relation. Of this no disguise. can be there be confused may by argument analogies at historical attempt deductions, that comprehensive the case must principle come at last. else is adventitious and out of puts All view the factors, of the It puts relation out of production. view as are employers necessary production employ- subjects peril conduct for- ees, voluntary out of an element mer the voluntary leaves account words, other there is latter. a clear .conduct its class circum- discrimination, legal distinction —a and, I say, circumstances, stances invidious view may justification. adduced its And some the reasons these under nor camouflage given be concealed effects cannot gloss justified and attractive policy, plausible conditions employee. the different there is a difference —it constitutes the Unquestionably shall com- question-is, life the relation. But the Who pensate relation, result urged both, their respective assumed voluntary advantage? a calculation of interests and (cid:127) 436

McKenna*, J., dissenting. But I to the law pass this discrimination and return of abso violation considered employer’s rights as lutely very and It seems to me of the be abstractly. as of ¿right foundation of essence of it is liberty —of is morals —to be free from if one free fault. of the law and the sense It has heretofore been thé sense of regulations both, that there world, pervading no blame; where there is and yet can be no punishment its of thése court now decision erects denial of govern of conduct into a law and principle postulates other it is said to a benefit words, policy. mental . discharge duty the exact of under put to. government of and invert the of man conceptions the menace penalty of right, wrong of relation and action. If the kind fault does not without what it do? punish does legislation is "Consider what the pertinent. employer question in productive enterprise— invests money does: he smelting, manufacturing, railroading engages mining, —he wages them the at their and request pays they employees of of Now all the risks the adventure. demand, he'takes element him an immeasurable that may is put upon there difficult, I find it tb answer the inevitable. make disaster palliate advanced effect argument support rights. of it to interference with justify independently rights of that some assume It is a certain impeachment' of make betrayal and them justification need they are precepts a matter of There controversy.. them are of moral as there precepts constitutional law law. and are immedi aphorisms reach conviction comment who understand them, all ately accepted I confusing say this, considered unnecessary.. expression my things, vision dogmatism, with deference judgments I contrary say2,it of the majority. brethren iny \ reasons be found the violation course, may Of in that viola- advantage something to somebbdy-or rights, LIABILITY ARIZONA EMPLOYERS’ CASES. J., dissenting. McKenna, pretexts find seldom boldly tion. even Tyranny can certainly its will its there be no acts, bids avouch the Arizona law. power accusation bare-faced Its and it motives and are some requires purposes worthy It must tó resist them. be seen and resolution duty position the difference between the seen, however, considering the latter employee, simply justification is not a for the weaker, as economically viola- that former, rights the of and individual rights tion of the to to and yield philanthropy, cannot be made therefore government brought of the is forward welfare and the com- government, The law saves is displayed. of its from the burden administration and ment, paupers, of criminals. The answer, from the disturbance peace Government, certainly I is immediate. constitu- think, to cannot afford infringe, indeed, government, tional if of infringes, upon it a anybody it's purpose betrays of ease in exercise its considerations money faculties. something is argument, that there granting

But it application? limits of its extend be the Will what shall case of the to non-hazardous em present the principle not? The Arizona law not, stops If why ployments? it “hazardous,” which calls occupations with certain “manufacturing” without the description it includes in compensation In New York law words. qualifying White, York R. R. v. 243 U. Central Co. S. on in New passed of occupations. hazardous forty-two groups were there Timber Washington, In Mountain Co. of with the struggle provisions a

court had quite so which was far different law, Washington of cases as to incur the dissent the other from those of of think, court. is I now, pertinent members is an in being of hazardous quality whether inquiry legality of a matter of necessary element herent and if can Besides, and there legislative policy. definition be. J., ü. dissenting. McKenna, and can occupation, in one liability without fault not in other? Who legislation, why a of principle of legislature? court If to determine the application, is of express apprehension even a court not latter, it out view drift put its and cannot exercise, yet when blind fatalism await their incidence events to consider the such exercise. legality called We upon a mark things change changed know are —have —and and of opinion, legislation of it is that the drift the relation between following opinion, alter give particular latter a dis- him from which would responsibility reheve tinction, been lately which until it has the sense of be, seem much him as his be, upon world employer, a mark but as an subservience, not in dependence, as a freedom, and, therefore obligation consequence, has he has action he liberty responsibility where legislation the drift word, opinion action. to set it con- labor and withdraw from its apart now ditions and from the action of economic forces and their from the give immunity pitilessness consequences, considerations life. there are this appealing And it drift of and inevitable as with opinion sympathy other the law cannot conditions, but which relieve rqány rights. legislation sacrifice of constitutional what by a some) in culminate (it may the drift cannot persuasion is that, is whatever it predicted, very now be certain will cited to the now delivered be it. be, judgment justify that if of an can right it not be said one be employer Will not condition why made to. another? —made a give way, or In- grounds” economic other his enterprise. “upon not the made more geneial, be. and deed, may question through to and particular class, if in benefit supposed constraint them to there be public, may benefit upon of burden one upon imposition therefore, not There I upon is, another? why citizen, ARIZONA LIABILITY CASES. 439 EMPLOYERS’ J., dissenting. McKenna, rights, to all judgment in the think, present menace conceptions public subjecting unreservedly them be general apprehension If, however, policy. of the enough judgment threat there is justified, as a result generally employers court interest difference conditions.* used to support A rather is argument curious of its discrimina- It said, justification law. Arizona employer that and employee, tion between pass burdens from it and rescue in relief may its. as he does may products, them to the consumers venture, of his do in the case other expenses be, it is said it should on is, their incidence long-run considering in- was so legislature the public; There is bounds. attract- within reasoning constitutional em- The individual argument. ive speciousness a*d the grievance problem to be devested seems ployer and governmental one economics .of presents the law of government, taxation, expense kind of is a policy; laid upon of which is properly the burden can have but limited power. a court over which no more argument express If it is intended think, I upon it has no relevancy, while than a tendency, in it. If danger be xo law,.'there may validity danger there into a principle, be erected it is intended What comprehensive. is. facile certainly in it. of men or the activities put industry can be burden it? justified by not be of its unless all no production there will be course, Of produced. of the articles price reimbursed costs be of government as well the burdens I mean costs And to enterprise, inducement the employer as profit —his to labor. inducement of employees the wages —their be no there will reimbursement Without production— extent and a certain a certain beyond and cannot be the coii- through it no to effect is time; way there and McReynolds, dissenting. J., IT. But recourse such suming public. consumption as a not a justification law, law is for the rescue from and it if had influence in doubtful conscious very any. law. enactment case what could been its present in have

Indeed, extent have ameliorating what can it influence and an can indicated industries have effect? An the home market. If his except products no relief States, go to other are (where products) beyond go there — competition products.. meet the unburdened will —they and needs no comment. But this is obvious Mr. and Van Devanter Justice, Justice The Chief McReynolds Mr., in this dissent. concur Justice McReynolds Mr, dissenting. Justice written join I the dissent Mr. Jus- earnestly While McK>una, inappropriate tice it seems state my more fully. important somewhat own views common the five cases. question Number underlying facts and and to. detail certain typical 232 is circumstances therein aid the disclosed record discussion. his, Basing Employers’ claim Arizona Liability in error in the plaintiff Dan sued Law, Veázey United damages for personal recover District Court States 10, 1916, him while injuries February engaged received by millwright carpenter constructing “flotation mill reduction company’s at works in system” steam, electricity' Gila Arizona “wherein County, then and there to operate mechanical was usted power other alleged exercising that while due He machinery.” care bodily injuries severe personal he “suffered arising labor, of arid in course out accident service (cid:127) due to condition or conditions and employment, were occupation employment,” injuries which supb

ARIZONA EMPLOYERS’ LIABILITY CASES. J., dissenting. McReynolds, 400. negligence

not but were in the by caused sustained “Plaintiff in the due of his following: manner course said standing upon was labor, employment service and in ‘flotation incorporated certain timber or said joist engaged bolting fastening in together system’ or That the which joist upon thereof. said timber timbers standing then and there was then and there was plaintiff or floor of said mill or reduction ground elevated above of while wórks a distance ten. feet. That approximately engaged aforesaid, so said timber plaintiff slipped great or ground fell to the . ... with force joist and injured and violence . . ,” permanently . was , will forever lame and sick, sore, remain crippled. No or charge negligence perform any duty of failure was made set againgt unsuccessfully up the company. Liability of the invalidity Employers’ relied upon Amendment; Law conflict with the Fourteenth because in it; judgment against cause is here writ went (Jud. 237). of error the trial court Code, § of the provides: XVIII Constitution Article Arizona common of The law doctrine fellow serv- “Section 4. of a master for in- far as affects ants, so resulting from the acts or juries omissions to his servants common of or master other servant servants any abrogated. is forever The or contributory’negligence defense

“Section.5. in cases be shall, whatsoever, risk all assumption be left to the shall, times, fact and at all jury. question damages recover “Section 6. action and the abrogated, never be amount re- injuries shall subject any statutory limitation. covered shall To in protect safety employees all “Section smelting, occupations, mining, manufac- hazardous or transportation, street or railway any railroad turing, Legislature shall enact an industry Employer’s other law, by terms- which Liability any-employer, —the- McReynolds, dissenting. J., 250 IT. S. whether Individual, association, corporation shall be for the hable or injury, death caused accident any due to a condition conditions of such occupation, or. of such employee service such hazardous all cases which such death occupation, not have been caused the negli- shall killed or gence injured. of the employee enact .Legislature 8. The shall a Workmen’s “Section law applicable workmen Compulsory Compensation. or mechanical labor in in manual such engaged employ- determine to Legislature may ments as be especially compulsory, compensation which shall be dangerous, by such to be workman required paid any employer, by personal of such employment if in the course injury any arising accident out of, workman any such is in employment whole, caused or of, course such in the or contributed'to, risk by necessary, danger in or part, risk or necessary danger or in- employment, such or failure of thereof, by the nature such employer, in herent or, or em- officers, or agents, employee, or of his its any or to care, comply any to exercise due ployees, [law] .with Provided, it shall be such employment; affecting to settle such employee compensa- with said optional to sue said provided retain the employer or tion, the Constitution.” by mandate, legislature the constitutional

Obeying “Employers’ Law,”, approved Liability enacted Laws of Ariz., 491;.-Rev. 1912, (c. 89, 1912, p. Máy which l9l3, 3153-3162) Ariz., pars. provides: Stats. of workmen manual or safety at protect That labor hazardous occupations in many mechanical declared or among them all work in about in § enumerated 4— shops, factories mills, plants mines and where. is used to operate machinery every or steam electricity — or corporation association individual, whether employer; by any the death or baused injury, liable for “shall be ARIZONA EMPLOYERS’ LIABILITY CASES. J., dissenting. McReynolds, occupa- accident or ©fsuch due to a condition conditions of such tion, any employee service such in all cases in which such occupation, hazardous death or of such shall been employee haye injury of the killed or negligence employee injured.”, caused course of work in of the em “Sec. 6. any When enumerated in 4 of this Act, or Sec. ployments occupations arising or death accident out of personal injury by any and in labor, the course such service employment, or conditions occupation due to a condition such or caused to or workman- employment, suffered or in all cases in which such death engaged. therein, shall not'have been caused such employee killed then the em injured, negligence employee in damages shall be liable employee such ployer [the] or, ensues, case death injured, personal of the deceased for the benefit the sur representative and children of such viving employee;. widow husband then to and, if if and, none, employee’s parents; to the next of kin dependent upon then such em none, none, personal representative, if then ployee, for the of the estate the deceased.” benefit Section 7 of contributory that questions negligence and requires of risk shall be left (The assumption jury. full ) margin.1 of the act text Chap. 89, p. 491; Rev. Arizona, Stats., Ariz. Laws of Civil 3153-3162, p. 1051. Code, 1913, pars. Act is and shall be declared to Employer’s be an That

“Sec. 1. in Sec.. 7 of Article XVIII prescribed of the Liability law State Constitution. ... safety employees protect That all hazardous “See. 2. smelting, manufacturing, occupations mining, railroad, or street any industry, provided railway, transportation, or in said other any Constitution, of the State employer, Article XVIII Sec. 7 of corporation, individual, association, or shall be liable for the whether any by accident due to a injury, caused condition or death or condi- any employee in occupation, service of em- tions such such- -444 J., dissenting.

McReynolds, Likewise, the legislature Com- Compulsory enacted to work- pensation Law, approved applicable June 8,1912, ployer in occupation, such hazardous in all cases in which such death employee by negli- or of such shall not been caused have gence injured. killed or The labor

“Sec. 3. and services of at mechan- workmen manual and labor, employment any association, ical in the person, firm, com- pany, corporation, occupations or enumerated in Sec. 4 of this hereby are Act declared and determined to be service in hazardous occupation meaning within the of the terms of Sec. 2 of this Act.

“By of, reason of the nature and conditions and means used and doing provided in, occupations, the work espe- said such service is cially dangerous therein, and hazardous to the workmen because of occupations and hazards which are inherent in such and which risks are unavoidable workmen therein. “ occupations hereby The Sec. 4. declared and determined to be hazardous, meaning within of this Act are as follows: operation steam,'railroads, The electrical railroads, street rail- “1.. roads, locomotives, motors, any or cars of engines,'trains, pro- kind by steam, electricity, pelled cable or other mechanical power, including repair machinery, plant, use or tracks, switches, construction^ bridges, roadbeds, upon, over, railway which business operated. using making, necessitating dangerous work when or prox- “2. All blasting imity gunpowder, compressed powder, dynamite, air, or explosive. any other “3, any bridge, building erection or demolition of or structure The jn is, plans specifications or require, there which iron in which frame work. or steel operation elevating elevators, of all

“4. machines or derricks hoisting apparatus any bridge, used within or on the outside or conveying building or other structure for materials in connection with building bridge, or demolition of such or structure. erection- any twenty on ladders or scaffolds of kind All work elevated “5. ground (20) erection, or more above the or floor beneath in the feet painting construction, repair, building, bridge, alteration of work in the same or other which are used. structure construction, operation, repair alteration or All work “6i where switchboards, apparatus machinery or other cables, are in wires, electrical charged with current. use; in the construction, alteration, repair pole or All Work lines “7. telephone or other purposes. telegraph,

for CASES. LIABILITY EMPLOYERS’ ARIZONA .443 J., dissenting. McReynolds, 400. hazardous those declared occupations in the same

men Ariz., Laws (c. 14, Law Employers’ by open mines, open pits, cuts, ore quarries, All in or about work “8. and smelters. works reduction sub-ways repair tunnels, construction All work in “9. and viaducts. “ yards, plants works, and factories shops, mills, All work in power any mechanical is used to other electricity, or steam, where premises. in and about such machinery appliances operate individual, association, firm, Every employer, whether “Sec. occupation, of workmen in such employing company corporation, or (cid:127) instructions, by regulations, or rules, through agent, shall itself or occupations as to the duties and restric- employees in such inform all safety of protecting em- to the end employment, of their tions employment. ployees in such any of the or of work in the course 6. When employments “Sec. Act, personal injury or death in Sec. 4 of this

occupations enumerated labor, arising in the course of such service out of and by any accident occupa- conditions of such to a condition or and due employment, by any engaged to or suffered is caused workman employment, or tion employee or death of such such in which therein, in all cases employee by negligence of the killed been caused shall not have employee shall be liable in dam- employer of such injured, then ensues, personal case death injured, or, ages surviving benefit of the widow for the of the deceased representative and, none, if then to employee; such of such and children or husband dependent of kin none, then to the next and, if employee’s parents; representative none, personal then to his and if employee, upon such of the deceased. the estate the benefit brought against any such actions hereafter all 7. In “Sec. any provisions of this Act to recover dam- virtue under or injuries any employee, or where such injuries to have ages personal employee may question whether the have death, resulted in contributory negligence, risk, or has assumed the shall guilty of been jury, pro- be shall at all times left to the of fact and question be a XVIII of the State Constitution. of5 Article vided in Sec. rule, regulation, any contract, whatsoever, or device 8. That “Sec. any employer to enable of which shall be or intent purpose any liability Act, created this or itself from shall exempt himself action, any brought against void; provided, extent provisions employer under virtue any 446 1918. J., dissenting.

McReynolds, 250II. S. Spec. Sess. 1912, 23). p. Material of it are in the portions margin.1

Act, such employer may any set off therein sum it has contributed or paid any insurance, benefit, indemnity relief or or that may have [it] paid injured employee personal his representative or ac- on injury count or brought. death which said action was damages “Sec. brought 9. In all actions for provisions under the Act,-, plaintiff obtaining this if the be successful in judgment; if and the appeals court; plaintiff defendant to a and if the ;higher the lower again successful; judgment court be of the lower court is sus- by higher courts; then, tained or court plain- event the judgment tiff shall added to the have amount of higher such such cent, courts, court or per per interest at the rate of 12 annum on the judgment filing amount such from the date of the of the suit in the instance, judgment first paid. until full amount of such “Sec. 10. No action shall be maintained under this Act unless years day commenced within two from the cause action accrued. parts “Sec. 11. All Acts and hereby Acts conflict herewith are repealed. the State Constitution commands the enactment of

“Whereas, Employers’ Liability Legislature an law the at its session; first Act'being Employers’ Liability said ; law is imme- “Whereas, diately necessary preservation peace, health and hereby emergency exist, declared to safety, an this Act shall be force, passage from and its approval by and effect after and its in full hereby exempt Governor, operation and is from the the Referen- provision of the State Constitution.” dum 1 Compulsory Compensation Law. Workmen’s. graduated according average earnings 2. That Sec. any $4,000.00, paid employer “shall be his work- and limited ' , any employment declared and determined engaged in . . man dangerous, person, firm, whether said be a especially to be company, corporation, employ- or if in the course of the association, any employee personal thereto from accident ment said of, employment whole, such is caused in in the course arising of, and out necessary danger to, by risk or of such is contributed or part, or in danger necessary risk or inherent-in the nature or a employment, any employer, officers, or of his or its of such by failure thereof, or care, comply or to employees, to exercise due employee or agents, affecting employment.” any law vdth representative his employee personal shall In case such “Sec. ARIZONA LIABILITY CASES. EMPLOYERS' J., McReynolds, dissenting. Arizona Smelting Ujack, (1914) In Consolidated Co. Arizona, Court declared: —‘-Under 382, 384, upreme is injured laws of who Arizona, to him has three open course avenues employment he which pursue according one of to. redress, are: They (1) of his common-law the facts case. of the fellow-servant defense arid in relieved negligence contributory which the defenses assump to be left to the questions jury. Const., tion of. risk are which 4, (2) liability law, art. 18. 5, Employers’ secs. where' the or occupations to hazardous applies negligence. his own sec. Const., 7, death is not caused by law, (3) compulsory compensation applicable art. 18. dangerous which he re occupations, by may to especially without fault the of the cover compensation upon part sec. art. 8, 18.” employer. Const., Mendez, Consolidated Co. v. Inspiration Copper 2,1917) Arizona, Supreme the (July 151, 154, 157, 161, the held that Law Employers’ Liability specifically Court and, with the Fourteenth Amendment, not conflict does . ‘That the statute must things, liability other said:—‘ among (as provided in Sec. -8 Article for such settle refuse to Constitution) right and chooses to retain the to State XVIII provided for in provided in law (as Sec.' employer said sue may Constitution) he so refuse to settle and the State XVIII Article doctrine, of common-law no right.” “Sec. 6. The may said retain to abro- hereby declared and determined be fault liability without to sought applied to the. acci- be be as far as shall gated in Arizona - Provided, if, . “Sec. 14.- . mentioned.” hereinbefore dents shall refuse to the workman or accident, either the after the or proceed-under this or accept compensation under Act make other'may pursue relief, for then the hereof rely provisions upon the existing statutes, the State defense under other remedy his or make as his law, except provided, as common the” Constitution, or herein brought by Any the workman exist. suit time rights at the remedy exclu- ‘pursue an election to such recovery held as a shall sively.” J., U. S.

McReynolds, dissenting. .250 be construed one creating for accidents re- liability in sulting in injuries engaged workmen hazardous due to the occupations risks and hazards inherent in such occupations, without em- regard negligence ployer, negligence understood common law of in other liability; words, such statute creates a liability arising accident from the risks and hazards in inherent occupation regard without to the negligence fault the employer. ... In other words, creates statute of master damages suffered from any accident his servant befalling while engaged performance dangerous duties occupations negligence without requiring master be shown right as an element to recover; and it likewise takes right from the master his away common-law of defense assumption of ordinary risk the servant, and leaves master defend grounds that the servant assumed the ordinary risks other than risks occupation.” This inherent opinion was reaffirmed & Pittsburg Co. Superior Copper Tomich, (July 19 1917) Arizona,

In Arizona Co. v. Copper (1918) Burciaga, Rep. Pac. 32, the 29, 33, Supreme in 31, Court said: —“As clearly by this court in timated Inspiration Consolidated Copper Mendez, 151; Co. 19 Arizona, 278, 166 Pac. the 1183, Law liability designed is to ac Employers’ give right of injured tion to accident employee by from occurring and hazards inherent risks and occupation with to negligence out on the regard' part employer. import Such clear of the said is Employers’ Liability Law. ...

“The liability by from a employer personal incurre^ sustained by employee injury, accident aris- opt of and in the course of labor, service, and employ- ing hazardous occupations specified in the. statute, ment to a condition or and conditions of due such occupation LIABILITY

ARIZONA CASES. EMPLOYERS’ J., dissenting. McReynolds, shall not have been caused from employment, if such is an amount as negligence employee, of such such by will for sustained compensate employee injuries him to such . . ‘Lia- accident. directly attributable of title 6, ble in used c. damages,’ paragraph Stat. of Ariz. has Liability Law, Rev. 14, Employers’ obli- becomes (cid:127)reference and means gated to in an accident while employee injured pay hazardous, occurring in an declared engaged occupation all loss to the without the employer, fault is the accident the amount actually by which caused course, Of which is ascertainment. ... susceptible suffering the employee experienced by mental and physical (cid:127) resulting accident, from the injured, proximately working employee, time lost by value reasonable the treatment of injuries for necessary expenditures earning power diminished employee’s for the from the other re- resulting injury, perhaps directly loss, are matters of actual loss and as direct causing sults such recoverable.” for consider- foregoing

From the we have appears undertakes, fault, the absence ation a which statute (individual corporate) all impose employers welfare, essential engaged enterprises often not attended State and subject prohibition hazard, an unlimited extraordinary in- accidental resulting from damages employees and mental juries including pain physical — —which or his administrator the injured party recovered dependent next of children, widow, parents, benefit man hires one only The individual who kin or the estate. cor- as a footing on the same' his side put works by thousands; given no attention poration employs which of service length to ability award; probable pay wages contracted unimportant enough; is minute seems —-a be re- may to what relationship necessary for bear no McReynolds, J., dissenting. U.S. single covered; and accident which he was powerless or prevent provide against may pauperize employer. existing And reason constitutional and statutory injured workman provisions claim under or act under the or Compensation Law according common law materially modified his favor exclusion the, of the fellow-servant rule and otherwise. other On hand, while the subject new, un- declared enlarged certain and greatly liability, notwithstanding him nothing granted the utmost has been care, in return. circumstances, would enforcement of the chal- lenged deprive employers statute rights protected by the Fourteenth Amendment? I Plainly, think, nothing short an'affirmative answer is compatible well- guarantees. defined constitutional Of course the Fourteenth Amendment was in- never tended render immutable any particular rule of law nor did by fixation immortalize prevailing doctrines concerning legal rights and liabilities. Orderly and ra- progress tional was not forestalled. Holden v. Hardy, 169 S.366, But it U. did strip States power all person life, deprive any liberty property by arbi- trary oppressive action is action —such never due of law. process last

In the it is for us to analysis determine what is ar- or oppressive bitrary upon consideration of the natural and inherent of practical principles justice which lie at the of our base traditional jurisprudence and inspirit our legislative A declaration reasonable- Constitution. ness is not conclusive; no so more approval— pppular otherwise, would futile. And constitutional inhibitions think, plainly,.! individual’s rights.are fundamental subjects not proper experimentation;: :,ought they to be to questionable sacrificed theorization.' I now Until had supposed that a man’s liberty their property essential incidents —were under the' —with CASES. ARIZONA EMPLOYERS’ 451 LIABILITY J., dissenting. McReynolds, not subordinate to whims or charter our protection who happen of those ideas day or fanciful caprices majority. doc- legislative contrary constitute the towards straight and leads destruc- is revolutionary trine government. system of our well-tried and successful tion not be better —I do happen another Perhaps system uphold of the courts to duty is the old think so—but it through orderly methods. superseded until one unless and in Adair v. United States, consideration 208 great After Kansas, U. S. 1, 236 this court 161, and Coppage U. S. guarantees Fourteenth Amendment declared the liberty entering into both subject only reasonable restric for service contracts and vital.” is fundamental principle tions. “The Congress prohibiting an act inter- first case In the seeking one employment, from requiring carriers state to enter into an agree- employment, of such a condition member of a labor organ- or remain a to become not ment Fifth with the in conflict Amendment. declared was ization which declared it statute state v. Kansas Coppage In to be agree a member one to require unlawful securing employment condition as a labor association Amendment and the Fourteenth under invalid held was so serious as liberty interference said: “An we disturbing so of equal- consideration, under that now unless it be to be arbitrary, deemed must be of right, ity of the police power exercise reasonable as a supportable U. S. an Ari- 33, 41, Raich, Truax v. the State.” - except of aliens employment prohibiting zona statute there struck down. We was conditions under certain right to show that 'argument no “It requires said: of the com- occupations common living work for a of the freedom personal essence very is of munity the purpose was [Fourteenth] opportunity to secure.” Amendment to labor are correl- and the to employ

The right OCTOBER TERM. McReynolds, J., dissenting. can

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

In New Central R. R. Co. v. White, and Mountain Co. Washington, Timber U. I 219, as had for reasons supposed definitely pointed out, we held the challenged statutes not in conflict with the Fourteenth although Amendment they imposed liability without and introduced a for fault plan compensating workmen, unknown the common law. The elements those regarded statutes to save their we adequate validity if such characteristics specified; found, had not been result, necessarily, would have been otherwise unless we indulging in merely were chatter. harmful without Here, fault, statute in question imposes in some liability aspects more than onerous either the York or Washington New law prescribed; and the grounds upon which we sustained those statutes are wholly lacking. The is not employer exempted any liability formerly he given is imposed; no quid pro, quo his new burdens; the common-law rules have been set aside without a just reasonably substitute; is relieved from LIABILITY ARIZONA EMPLOYERS’ CASES. 453 J., McReynolds, dissenting. risks of the consequences occupation and these ordinary without defined limit to imposed are go which non- may ultimately possible recovery relatives, or, by escheat, dependents, State; distant just no a settlement of “the act fair indication a bears affecting one the most important difficult problem it will in- contrary social probably relations” —on the difficulties. tensify riot restricted loss pecuniary to look to him for sup- or those entitled

disabled employee physical mental compensation but includes port, resulting in recovery bankruptcy suffering; pain relative, a distant financially only benefit an employer is not “to prescribed responsibility independent; to a reasonable according reasonable amounts contribute for the loss definite by way scale injuries,” accidental arising from earning power care, fairly incapable unavoidable unlimited, by litiga- and enforceable in advance definite estimation long expensive. drawn out and acrimonious, tion probably fault employer’s is inattentive statute While the pecuniary of the in excess employee’s permits recovery not general, for compensation, provides and misfortune; indefinite as conjectural, uncertain, delayed, but sporadic, long period over such distributed amount and earning loss or lessened protection against to afford actual against etc. insurance to society pauperism, capacity saying rational to see basis I am unable power. police exercise State’s proper the act is a both oppressive is unreasonable funda- impair enforcement its will permit employee; our Constitution guaranteed mental solemnly rights I enforced. think, respected heretofore, Justice, Mr. The11 Justice McKenna Chief concur in this opinion. Devanter Mr. Justice Van

Case Details

Case Name: Arizona Employers' Liability Cases

Court Name: Supreme Court of the United States

Date Published: Jun 9, 1919

Citation: 250 U.S. 400

Docket Number: 20, 21, 232, 332, 334

Court Abbreviation: SCOTUS