81 Miss. 507 | Miss. | 1902
delivered the opinion of the court.
We are clearly of the opinion that the stepladder furnished the deceased employe, John W. Ballard, was a wholly unsafe and dangerous appliance; but it is equally clear that he had knowledge of its dangerous character. Under the common law his suit would, therefore, fail; but he sués under the provisions of the act of 1898 (Laws of 1898, p. 85, ch. 66). Section 1 is amendatory of ch. 87 of the laws of 1896 (Laws of 1896, p. 97), which itself is amendatory of § 3559 of the code of 1892, which is a mere rescript of sec. 193 of the constitution of 1890.
Section 193 is in these words: “Every employe of any railroad corporation shall have the same rights and remedies, for any injury suffered by him from the act or omission of said corporation or its employes, as are allowed by law to other persons not employes, where the injury results from the negligence of a superior agent or officer; or of a person having the right to control or direct the services of the party injured; and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured, or of a fellow servant on another train of cars, or one engaged about another piece of work. Knowledge by any employe injured of the defective or unsafe character or condition of any machinery, ways, or appliances, shall be no defense to an action for injury caused thereby, except as to conductors, or engineers, in charge of dangerous or unsafe cars, or engines voluntarily operated by them. Where death ensues from any injury to employes, the legal or personal representatives of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons. Any contract or agreement, express or implied, made by an employe to waive the benefit of this section, shall be null and void ; and this section shall not be construed to deprive any employe of a corporation, or his legal or personal representative, of any legal right or remedy that he
Section 1 of the act of 1898 (Laws 1898, p. 85, ch. 66) is as follows: “Section 1. Be it enacted by the legislature Of the state of Mississippi, that § 3559 of the annotated code of 1892 be amended so that the same shall read as follows, to wit: Every employe of any corporation shall have the same rights and remedies for an injury suffered by him from the act or omission of the corporation or its employes as are allowed by law to other persons not employes, where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured; and also when the injury results from the negligence of a fellow-servant engaged in another department of labor from that of the party injured, or of a fellow-servant on another train or cars, or one engaged about a different piece of work. Knowledge by an employe injured of the defective or unsafe character or condition of any machinery, ways or appliances, or of the improper loading of cars, shall not be a defense to an action for injury caused thereby, except as to conductors or engineers, in charge of dangerous or unsafe cars, or engines voluntarily operated by them. When death ensues from an injury to an employe an action may be brought in the name of the widow of such employe for the death of the husband, or by the husband for the death of his wife, or by the parent for the death of a child, or in the name of the child for the death of an only parent, for such damages as may be suffered by them respectively by reason of such death, the damages to be for the use of such widow, husband or child, except that in case the widow should have children the' damages shall be distributed as personal property of the husband. The legal or personal representative of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons. In every such action the
The only effect of the amendment of §3559 of the code of 1892 is to substitute the words ‘£ any corporation, ” in sec. 1 of said act of 1898, for the words ££a railroad,” in §3559, and to add, in sec. 1 of the act of 1898, this clause, “ or of the improper' loading of cars. ’ ’
Section 193 of the constitution of 1890 was adopted after the decision of the United States supreme court in Missouri R. R. Co. v. Mackey, 127 U. S., 205 (8 Sup. Ct., 1161; 32 L. Ed., 107), in 1888, and was manifestly intended to authorize legislation along the lines held constitutional in that case — that is to say, to abolish the fellow-servant- rule in the case of employes of railroad corporations whose business was known to be inherently dangerous — and the purpose of the last clause of sec. 193 was to extend the remedies therein provided for to any other class of employes of corporations or persons whose business was, like -that of railroads, inherently dangerous, or whose business was so different from the business of other corporations or persons as to furnish the basis for a classification of the businesses of such corporations or persons, under which their employes might be permitted to sue without reference to the fellow servant rule, while the employes of corporations, or persons not having that sort of business, could not so sue; in other words, to permit a classification based on £ £ some difference bearing a reasonable and just relation to the act in respect to which the classification is proposed. Ellis’ case, 165 U. S., 150 (17 Sup. Ct., 255; 41 L. Ed., 666). The use of the word ££ class,” in the last clause of sec. 193 of the constitution of 1890, clearly indicates that it was not the
The act of 1898, under review, is assailed as violating the fourteenth amendment of the constitution of the United States, because it denies, as alleged, to corporations the equal protection of the laws in two respects: First, in that it applies to the employes of all corporations, without reference to any differences in the respective businesses of the corporations; second, because it discriminates between employes of natural persons and of corporations — and the argument is put briefly thus by way of illustration: “ Suppose one man has an independent fortune, and has a large body of pine land, say in Clarke county, Mississippi, and being desirous of converting the timber upon these lands into lumber, and recognizing that the sawmill business is hazardous and likely to impose large liability upon
Multiplied citations from the United States supreme court could be made, but the thought running through them all, as we understand them, clearly is that the classification is not to be made, except upon the basis of some difference between the business of those favored and the business of those not favored —a substantial difference warranting the classification. We have read critically all the decisions cited in the briefs from the United States supreme court without finding any decision hold
In Holden v. Hardy, 169 U. S., 393 (18 Sup. Ct., 388; 42 L. Ed., 780), the court says: £ £ While the business of mining-coal and manufacturing iron began in Pennsylvania as early as 1716, and in Virginia, North Carolina and Massachusetts even earlier than this, both mining and manufacturing were carried on in such a limited way and by such primitive methods that no special laws were considered necessary, prior to the adoption of the constitution, for the protection of the operatives; but in the vast proportions which these industries have since assumed it has been found that they can no longer be carried on with disregard of the safety and health of those engaged in them, without special protection against the dangers necessarily incident to those employments. In consequence of this, laws have been enacted in most of the states designed to meet these exigencies, and to secure the safety of persons peculiarly exposed to those dangers. Within this general category are ordinances providing for fire escapes for hotels, theaters, factories, and other large buildings, a municipal inspection of boilers and appliances designed to secure passengers upon railways and steamboats against dangers necessarily incident to these methods of transportation. In states where manufacturing is carried on to a large extent, provision is made for the protection of dangerous machinery against accidental contact; for the cleanliness and ventilation of working rooms; for the guarding of well holes, stairways, and elevator shafts, and for the employment of sanitary appliances. In others, where mining is the principal industry, special provision is made for the shoring up of dangerous walls, for ventilation shafts, bore holes, escapement shafts, means of signaling the surface for supply of
All the instances set forth here illustrate the principle that the discrimination in' favor of certain employes is always based upon some distinctive difference in the business about which they are employed — a difference inhering in the very nature of the business.
In the case of Smith v. Louisville & Nashville R. R. Co., 75 Ala., 449, the court says : “This statute creates an entirely new cause of action — one theretofore unknown. Before its enactment, February 24, 1872, neither the father nor the mother could recover damages for such killing. Not only does the statute create a new cause of action, but it confines the right to maintain such a suit to the father, if living, and, if not, to the mother. If neither be living, no one else can maintain the suit. And the statute is highly penal in its' terms, and must be construed as a penal statute. Is the act copied above constitutional? It will be observed that under the statute the action lies only against certain classes — corporations and private associátions of persons. These are held accountable for the wrongful acts and omissions of their officers and agents. Individuals engaged in the same business, having the same description of officers or agents, may cause the death of a minor child by the wrongful act or omission of such officer or agent, and there will be no liability for such death. To illustrate: Manufacturing establishments, in all their extensive variety, mining enterprises, cotton compresses, mills, steam vessels, and even railroads, may be owned and operated without incor
We must confess that the argument upholding the constitutionality of the statute before us is exceptionally able, and presents many objections to the view we have stated, but objections all of which we think answerable. For example, it is said, first, that, since the act of 1898 is amendatory of § 3559 of the code, the court would be warranted in limiting the words “any corporation” to such corporations as, like railroads, are engaged in a hazardous business. The argument is that, since § 3559 applies alone to railroads, and since the only pertinent amendment is the change of the words ‘ £ a railroad ’ ’ into the words ‘£ any corporation, ’ ’ the act retaining bodily the language used in § 3559 as applicable to railroads only, the act of 1898 must mean, in the use of the words “ any corporation,” any corporation ejusdem generis with railroad corporations — corporations of that kind, whose business is hazardous. But the complete answer to this very ingenious suggestion is that the method of amending a statute has been changed by sec. 61 of the constitution, so as to make the whole of the law on the subject appear in the amendment; so that the only form in which we have § 3559 is in sec. 1 of said act of 1898. The language is that “§ 3559 of the code of 1892 be amended so that the same shall read as follows, to-wit: Every employe of any corporation,” etc. Section 3559 does not exist in the body of our law, except as set out in sec. 1 of the act of 1898. Another objection to this view is that it would have been extremely easy, if such had been the legislative purpose, to have said, £ £ Every employe of any corporation whose business is inherently dangerous.” We think we must read the language as the legislature has written it, and, so read, the legislature clearly meant to extend the
2. In respect to the cases of Pittsburg, C., C. & St. L. R. Co. v. Montgomery, 152 Ind., 1 (49 N. E., 582; 71 Am. St. Rep., 301), and Tullis v. Lake R. R., 175 U. S., 348 (20 Sup. Ct., 136; 44 L. Ed., 192), it is very earnestly insisted that the Tullis case, 175 U. S., 350 (20 Sup. Ct., 136; 44 L. Ed., 192), upholds the view that a statute like this, applicable to all corporations, is not unconstitutional; and it is said that these two cases further uphold the view that the court may, by a process of judicial inclusion and exclusion, look to the evidence in each case to determine in that way — from the evidence, showing the nature of the business — whether any particular corporation falls within or without the constitutional line of demarkation. This argument for appellant is put with such clearness and power that we do not think the presentation could be improved upon, and so we quote it entire. Says learned counsel:
‘£ The mere fact that natural persons are not included in the act does not render it obnoxious to the provisions of the fourteenth amendment. If so, why does the supreme court, in the case of Tullis v. Lake R. R. Co., 175 U. S., 348 (20 Sup. Ct., 136; 44 L. Ed., 192), uphold almost a similar statute as to railroads ? The language of the Indiana act was £ Railroad and other corporations. ’ It did not include individuals. There are a number of individuals in the United States who have the means to operate railroads, and doubtless there are instances where railroads are owned and operated by individuals; yet the supreme court of the United States, in the above cited case, holds such legislation as is under consideration now not in contravention of the constitution. The illustration of opposing counsel will apply just as forcibly to an individual operating a railroad as it does to a sawmill and commercial corporation. The case of Tullis v. Lake R. R. Co., 175 U. S., 348 (20 Sup. Ct., 136; 44 L. Ed., 192), is, we think, in point to up
We, however, think the meaning of the TulUs case is distinctly that, if the Indiana statute had not had in it, on its face, the words ‘‘railroad corporations,” it would have been held by the supreme court of the United States unconstitutional. It is true the objection in that case was made that it was unconstitutional because the language, “railroad corporations and other corporations,” was exactly equivalent to the words, “ all corporations,” which would present a statute just like ours. But it is to be distinctly noted that the Indiana supreme court held, and the United States supreme court counted on that holding, that that objection could not be made by a railroad company; in other words, the Indiana supreme court declined to entertain the objection, since the party making the objection was a railroad corporation, and the supreme court of the United States accepted the state supreme court’s construction of its state’s statute. The words ‘ ‘ railroad corporation ’ ’ appearing also on the face of the statute, as to the objection that individuals own railroads, and that consequently the supreme court of the United States, in Tullis case, supra, must be assumed to have held that such legislation is valid, though applying to corporations owning railroads, and not to individuals owning railroads, although both are in exactly the same business, we must confess that it is extremely difficult to make answer for the supreme court of the United States. It may be that the instances of individual ownership of interests so vast as railroad interests usually are, are so very rare as not to have been thought worthy by the supreme court of the United States of special consideratibn, though this surely ought not to affect the principle. At all events, it is too plain for debate that in all the decisions of the federal supreme court the ground on which such legislation as this has been - vindicated in some essential
3. But the most difficult proposition to answer, made by-learned counsel for appellant, is this: that the supreme court of the United States, in Chicago R. R. Co. v. Pontius, 157 U. S., 209 (15 Sup. Ct., 585; 39 L. Ed., 675), held that, in severing the unconstitutional from the constitutional parts of a statute, a court may, although the language of the statute clearly embraces all corporations, affect such severance, by looking to the evidence in each particular case, and thus “judicially excluding or including” a particular corporation, according as the evidence in each case may show that the business of such corporation does, or does not, bring it within the purview of the statute. The statute of Kansas in that case is as follows: “ Every railroad company organized or doing business in this state shall be liable for all damages done to any employe of such company, in consequence of any negligence of its agents, or by any mismanagement of its engineers, or employes, to any person sustaining such damages.” And the court said: “ It is now contended that the plaintiff was a bridge builder; that this legislation only applied to employes exposed to the peculiar hazards incident to the use and operation of railroads; that the railroad could not be subjected to any greater liability to its employes who were engaged in building its bridges than any other, private individual or corporation engaged in the same business; and that the statute had been so construed in this case as to make the company liable to its employes when engaged in building its bridges, notwithstanding bridge building was not accompanied, and had not been treated by such legislation as accompanied, by peculiar perils, thus discriminating against the particular corporation, irrespective of the character of the employment, in contravention of the fourteenth amendment. But the difficulty with the argument is that the supreme court found upon the facts that,
It is certainly true that in the cases cited from Kansas, as also the case we have heretofore referred to of Deppe, supra, and also in the two cases of McAunich and Ney v. R. R. Co., 20 Iowa, 338, 347, the court did look to the evidence to see whether the person suing was or was not an employe, and further, whether, though an employe, he was such an employe as was actually engaged at the time in the operative service of the railroad — that is, service ' connected with the running of the cars. It might be said that the thing which distinguishes that
We have said that above line of thought might be indulged in for .the purpose of supporting the decisions of the supreme courts of Kansas and Iowa in the construction of their statutes. And we may say that that line of thought might also be invoked in the hope of supporting the following cases: Leep v. St. Louis, I. M. & S. R. R. Co., 58 Ark., 407 (25 S. W., 75; 23 L. R. A., 264; 41 Am. St. Rep., 109) and St. Louis, etc., v. Paul, 64 Ark., 83 (40 S. W., 705; 37 L. R. A., 504; 62 Am. St. Rep., 154), and also Minneapolis & St. L. R. R. Co. v. Herrick, from Minnesota, affirmed, 127 U. S., 210 (8 Sup. Ct., 1176; 32 L. Ed., 109), and Chicago R. R. v. Pontius, 157 U. S., 209 (15 Sup. Ct., 585;
That we have stated the true test clearly appears from two decisions of the United States supreme court: The first, United States v. Reese, 92 U. S. 214, 23 L. Ed., 566, where the court say, as to the test of severance of a statute, ‘ ‘ the proposed effect is not to be attained by striking out, or disregarding the words that are in the section, but by inserting those which are not now there. The question, then, to be determined, is whether we can introduce words of limitation into a penal statute, so as to make.it specific, when, as expressed, it is general only. It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside, and say who could be rightly detained, and who could be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. ’ ’ And consult carefully the cases cited, referring to the Reese case, set out in Rose’s notes at p. 789. The other case, not referred to by any of the counsel is the case of Baldwin v. Franks, 120 U. S., at pp. 685-690 (7 Sup. Ct., 656, 763; 32 L. Ed., 766), to which we call critical attention. The court say: “In United States v. Harris, 106 U. S., 629 (1
This language is decisive of the unsoundness of the view taken by the supreme courts of Iowa, Kansas, Arkansas, and Ohio, cited above. But, it may be said, were not all these cases affirmed by the supreme court of the United States ? Certainly. But why? That is made extremely plain by the supreme court of the United States in Tullis v. R. R., 175 U. S. 348, 44 L. Ed., at page 194, and Waters-Pierce Oil Co. v. Texas, 177 U. S., 28 (20 Sup. Ct., 518; 44 L. Ed., 657). Chief Justice Fuller in the former says the supreme court of the United States accepted the construction of the Arkansas supreme court “because that court had so decided,” and also distinctly says that the decision of the supreme court of Indiana in Pittsburg, C., C. & St. L. R. Co. v. Montgomery, 152 Ind., 1 (49 N. E., 582; 71 Am. St. Rep., 301), was affirmed because the supreme court of the United States was bound, to accept the construction put upon an Indiana statute by the supreme court of Indiana. The very point expressly argued in the Tullis case was that the supreme court of the United States should hold the Indiana statute unconstitutional, notwithstanding the decision on the Kansas, Iowa, and Ohio statutes, because of the particular phraseology of the Indiana statute; but Chief Justice Fuller said that that view asked the United States supreme court “to disregard the interpretation of a state statute by the court of last resort of a state, and, by adverse construction, to decide that the state law was repugnant to the constitution of the United States. But,” said the Chief Justice, '“the elementary rule is that this court accepts the interpretion of a statute of a state affixed by the court of last resort thereto. ’ ’ And so, in Waters-Pierce Oil Co. v. Texas, the court was asked to apply the doctrine of the Reese, Harris, and Franks’ cases to the Texas statute, and hold it violative of the fourteenth amendment. This statute provided: “Every foreign corporation
It is perfectly obvious to our minds, from the Reese ease, and Harris case, and the Franks ease, on the penal and criminal side of the law, as well as from Keokuk Packet Co. v. City of Keokuk, 24, 95 U. S. 80, L. Ed., 377, and the many cases referred to in Judge Rose’s not§s in the appendix to that volume, citing the
We wish to call special attention to the further fact that we are not alone in the criticisms we have indulged in, as to certain courts above. Mr. Freeman, perhaps the profoundest law analysist living, in a most able note to St. Louis R. R. Co. v. Paul, 62 Am. St. Rep., at top of p. 181, distinctly states it as his view that the Leep case, supra, and other like cases, cannot be upheld. His criticism seems to be rather of the supreme court of the United States for affirming those decisions; but, as said in the first part of this opinion, his criticism should not have been of that court, but of the state supreme courts, for the construction placed by them upon the statutes of their respective states. As pointed out in the Tullis case, and the Waters-Pierce Oil Co. case, supra, the United States supreme court was helpless, being bound by the construction adopted by the said state supreme courts, and, as we have pointed out, took special pains to say that it affirmed the cases simply because’it was so bound. It is said, and correctly, that if we were to place upon this statute the construction that the legislature only meant such corporations as had a business inherently dangerous, the supreme court of the United States would be bound to accept that construction, and, accepting it, would undoubtedly affirm our judgment. But we must carefully ascertain, and fearlessly uphold, in every case, the conclusion which, on our consciences, we think clearly right, without reference to results in a higher tribunal. This court neither ‘ seeks affirmance, nor fears reversal, at the hands the United States supreme court. It is concerned alone to
But, fourth, it is objected that in the Mackey case the supreme court of the United States distinctly held that it was exclusively within legislative discretion whether these liabilities ‘ ‘ should be applied to common carriers by canal and stage coach, and to persons and corporations using steam in manufactories;” and it is said that there is nothing inherently dangerous in the business of a canal carrier, or of a stage coach. Whether this is true as applied to canals is not so clear. It does seem difficult to find any inherent danger in the business of stage coaching; but, as we have heretofore remarked, we do not understand the dangerousness of a business to be the only-distinctive difference on which such statutes may be upheld.
5. It is objected, that the United States supreme court decisions would uphold this statute upon the ground that it is perfectly competent to confer upon the employes of all corporations these remedies and rights, whilst denying them to natural persons, because, and only because, of the fact that they are corporations, the creatures of the state, existing and drawing all their vast privileges from the state. It is said that these considerations constitute such, a great difference between the natural person and the corporation' as to uphold such .legislation. And the Ellis case, 165 U. S., 150 (17 Sup. Ct., 255; 41 L. Ed., 666), is cited; the court saying there £4 that it was a sufficient answer, in that case, to the argument that the act would be valid if it extended the penalties to all corporations, and that as a matter of fact that statute did not so extend the penalties to all corporations.” But this is far from decision to that effect. It is a mere comment arguendo.
Again, it is said that in Pac. Express Co. v. Seibert, 142 U. S., 352 (12 Sup. Ct., 250; 35 L. Ed., 1035), it was held that 4 4 the constitution is not violated by special legislation, applied equally to artificial bodies;” and numerous cases are cited from Judge Bose’s notes on this case to sustain this proposition. But the perfect answer to this is that all these are cases as to the power of taxation, a subject wholly different from that under investigation here. And this distinction is clearly pointed out in Connelly v. Union Pipe Co., 184 U. S., 562 (22 Sup. Ct., 440; 46 L. Ed., 679), where the court says: 44 It is
Finally, in aid of our view, we refer to the fact that chapter 65, p. 82, of the acts of 1898, which consolidated the rights of action given by § 663 of the code of 1892, expressly uses, as it ought to have done, the words £ £ person or corporation. ’ ’ It provides: ££ Whenever the death of any person shall be caused by any wrongful or negligent act or omission, or by such unsafe character, ways or appliances, as would, if death had not ensued, have entitled the party injured or damaged thereby to. maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children, or both, or husband, or father, or mother, or sister, or brother, the person or corporation, ’ ’ etc.
Our conclusion, after the most careful and protracted consideration, is that section 1 of the act of 1898 (acts 1898, p. 85, ch. 66), violates the fourteenth amendment of the constitution of the United States in that it imposes restrictions upon all corporations, without reference to any difference arising out of the natures of their businesses, which are not imposed upon natural persons, and thus denies to corporations the equal protection of the law. We are, therefore, constrained to declare the said act unconstitutional. The legislature, soon to meet, can readily frame an appropriate act not open to these objections.
Affirmed.
