170 Wis. 565 | Wis. | 1920
Lead Opinion
The Commission found that Heruben, who was a general helper in a restaurant, was performing work incidental to his employment while engaged in grinding meat for Hamburger steak. Plaintiff attacks this finding and urges that Heruben, whose chief employment consisted in serving tea, coffee, and milk, was not engaged in work incidental to his employment at the time he was hurt. This contention must be attributed to a lack of restaurant experience rather than to a want of knowledge of the conclusive character of findings of fact made by the Commission when based upon any competent evidence or upon the common experience of mankind. The patrons of many restaurants would unhesitatingly say that the preparation of Hamburger steak is pre-eminently the most striking example of genuine restaurant service that can be imagined.
A much more serious question is raised by plaintiff’s claim that the amendment of 1917, providing for treble compensation when a minor is employed without a permit, is unconstitutional.
It is suggested by counsel for the Industrial Commission that, since the workmen’s compensation act is elective, plaintiff cannot question the constitutionality of a law he has elected to come under and from which he can withdraw. Without deciding the question whether an employer can question the constitutionality of any provision of the compensation act contained therein when he elects to come under it, or subsequently added thereto and from which he has had an opportunity to withdraw as provided by sec. 2394 — 5, Stats. 1917, we are of the opinion that plaintiff here can question the constitutionality of this amendment because he has had no option to withdraw from it since it was enacted. Under sec. 2394 — 5 he must file with the Commission notice of withdrawal for any year beginning July 1st at least thirty days prior thereto. On June 1st this amendment was not in existence. It did not become law till July 13, 1917, when it was published, and it became effective September 1, 1917. When it became a law it'was too late for plaintiff to withdraw for the year beginning July 1, 1917, and he was compelled to accept this law for that year at least. He had no election as to whether he should remain in under it for the year specified. Not having any election as to the amendment so far as this accident is con
The argument against its constitutionality runs in substance like this: Treble compensation is a penalty and its exaction is in fact the enforcement of a penal or criminal statute, namely, that of the child-labor law, which is not in any way germane to the subject of 'compensation for industrial accidents. The right to a jury trial for the enforcement of a penalty has never been waived by employers in electing to come in under the workmen’s compensation act.
It is further argued that sec. 2394 — 9, Stats. 1917, provides full compensation for injuries sustained by employees and therefore the increased compensation is purely a punishment for violating sec. 1728a; that this is further evidenced by the fact that under sub. (7), sec. 2394 — 9, the emplpyer is mad'e primarily liable for the increased compensation and the insurer only secondarily liable, and that, since there is no relation between the injury sustained and the additional compensation, the classification of minors based upon their having or not having a permit is void because it is not based upon any real distinctions germane to the purpose of the law of which it is a-part, citing Kiley v. C., M. & St. P. R. Co. 142 Wis. 154, 125 N. W. 464, and Borgnis v. Falk Co. 147 Wis. 327, 133 N. W. 209.
The argument is not without force, and were we to justify the ainendment upon common-law principles alone, without reference to the wide departure therefrom made by the workmen’s compensation act, the task would not be an easy one. But the question is not whether it is a justifiable common-law scheme, but whether it is fairly germane to and within the.limits of the general scheme.of the workmen’s compensation act. If it is, then it is constitutional, for an employer in coming under the act waived his common-law remedies and agreed to be bound by the remedies afforded
Under the common-law scheme the employer must breach his duty to his employee in failing to exercise ordinary care, and because of such delict on his part the employee is entitled to full compensation for injuries resulting proximately therefrom.
Under the scheme of the workmen’s compensation act there need be no delict on the part of the employer, and full compensation is not given to the employee for the damage he has sustained, but only partial compensation. Thus for total disability of a person under thirty-two years of age only sixty-five per cent, of his average weekly earnings for not exceeding fifteen years is provided. Sec. 2394 — 9. It will thus be seen that under the scheme of the compensation act the loss sustained is borne by the employer, the employee, and the public who use the product of the industry in which the employee is engaged at the time of his injury. It is quite evident from the schedule in sec. 2394 — 9 that the employee usually bears the major part of the damage, even where full statutory compensation is given him. Since he gets compensation irrespective of any negligence on the employer’s part; and since it comes to him speedily and without much expense, it is perhaps as desirable as the full compensation given under the common-law scheme, though the latter averages perhaps three times the statutory compensation.
But though the workmen’s compensation act is not bottomed upon negligence, it nevertheless recognizes negligence, faults, or delicts in certain cases and gives increased or diminished compensation accordingly. Thus, where an injury is caused by the failure of the employer to comply with any statute of the state or any lawful order of the Industrial Commission, compensation and death benefits are increased fifteen per cent. Sub. (5) (h), sec. 2394 — 9.
Previous to the amendment of sub. 1, sec. 1728A Stats. 1913, by ch. 421, Laws 1915, the employment of a minor of permit age without a permit by an employer under the compensation act did not bring the employment under the compensation act, because as the law then stood only minors lawfully permitted to work came under it. Sub. (4), sec. 2394 — 7. Such employment constituted a misdemeanor,
It was no doubt a consideration of those facts that induced the legislature to permit injuries to minors of permit age employed without a permit, in direct violation of the law, to be compensated under the workmen’s compensation act upon condition that treble compensation should be paid. It was within the legislative field to prescribe reasonable conditions for permitting injuries under such employments to be so compensated. Conditions thus prescribed cannot be set aside by courts unless so severe as to be confiscatory, or to amount to a denial of due process of law. The condition
The classification made by the legislature, if any, is one of employers, not one of minors. It divides them into those who obey the law and those who violate it. Obviously this -clear-cut cleavage is one of substance and furnishes a good basis for classification. Borgnis v. Falk Co. 147 Wis. 327, 133 N. W. 209.
As before stated, delicts of both employer and employee are recognized by the act and are made the basis of difference in-the amount of compensation granted.' No violation of rights is perceived by so doing. A public policy can be effectuated through the workmen’s compensation act in connection with other public laws, and especially so where the laws involved.are of a cognate nature. We therefore conclude that the amendment is constitutional and that the judgment must be affirmed.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). The amendment to the workmen’s compensation act by ch. 624, Laws 1917, for the treble damages granted by the judgment therein, to my mind provides for a penalty and not compensation, is not germane to the purposes of the act, is violative of the plaintiff’s common-law and constitutional right to a trial by jury, and is therefore unconstitutional.
Plaintiff pays twice as much more than he otherwise would, not because the injury is greater, but because he has violated the penal provisions of a separate law regarding the employment of children, viz. sec. 1728a, Stats., a law applicable alike to those not under as to those under the compensation act.
The employer not under the compensation act but violating sec. 1728a in the manner here charged is subject to the penalty, under sub. 1, sec. 1728/i, of a fine from $10 to $200
In this case there appears to have been no dispute about the facts, but were there a dispute as to the real age of the plaintiff; whether or not there had been misrepresentations made by him or dn his behalf at the time of his employment; or on any other issue, still, under the ruling as it now stands, the defendant would be liable for these treble damages however unintentional his breach of the law may have been, or even had he been lured into it by misrepresentations on behalf of the minor. Stetz v. F. Mayer B. & S. Co. 163 Wis. 151, 157, 156 N. W. 971. This, too, upon a decision of the Industrial Commission on disputed questions of fact, a decision which must be upheld by the circuit court, or this court on review, if supported by the slightest amount of testimony, and in utter disregard of the standard which one who is prosecuted for a violation of a penal statute is entitled to have applied, namely, that the evidence must satisfy beyond a reasonable doubt.
This being .a penalty, he cannot be deprived of his right to jury trial. Wilcox v. Hemming, 58 Wis. 144, 158, 15 N. W. 435, 61 L. R. A. 410; State v. Hamley, 137 Wis. 458, 119 N. W. 114.
To recover in a tort action for injuries claimed to have been received by reason of the negligence arising from the violation of such a penal statute, it is essential that there shall be some causal connection between the two, mere coincidence being not enough. Pizzo v. Wiemann, 149 Wis. 235, 239, 134 N. W. 899; Steinkrause v. Eckstein, ante,
And moreover, plaintiff in this particular case is now held bound by such an amendment to the law from which he had no chance to escape, and for an act which was not penalized under the child-labor law until after he had become so bound, and yet it had been said by this court at the very threshold of the administration of this law that it is not coercive but free. Borgnis v. Falk Co. 147 Wis. 327, 356, 133 N. W. 209.
This court said in Anderson v. Miller S. I. Co. 169 Wis. 106, 170 N. W. 275, 171 N. W. 935:
“The -liability of the employer under the act is not based upon any wrongful conduct or negligent act of the employer. However blameless the employer may be, he is .nevertheless liable if the employee be injured and he bring himself with'in the terms of the act.” Page 110.
Again: “The liability of the employer under the compensation act is not based upon the employer’s neglect of duty and is therefore not tortious.” Page 113.
“We therefore hold that the principles which are applicable to actions ex delicto should not be applied to claims arising under the workmen’s compensation act,” etc. Page 118.
The effect of the legislative amendment now upheld by the majority opinion in this case is to engraft into the provisions of the workmen’s compensation act an additional and substantial provision for a liability which can arise only by reason of a tort of the employer. It incorporates a provision .of a nature which this court has heretofore expressly said was not within the purpose and scope of the workmen’s compensation law. It is therefore not germane to the de-
To say, as does the majority opinion, of the present situation, “The classification made by the legislature, if any, is one of employers, not one of minors. It divides them into those -who obey the law and those who violate it,” thereby expressly recognizes that the employer who may be deemed by the Industrial Commission to have violated the penal provisions of the child-labor law shall be treated differently in the awarding of compensation than he who has not violated such a law. It amounts to the statement in another form of the proposition that the workmen’s compensation act shall award under the name of compensation that which is in reality a fine for a violation of a penal statute. To base this allowance of treble damages upon what is such an apt definition of a penalty based upon a tort and then name it compensation, based upon contract, is passing strange to say the least.
The primary purpose'of the workmen’s compensation act being to secure the payment of compensation to the injured employee, it for that reason provides for the carrying of industrial insurance by the employer and makes such insurance company absolutely liable for the payment of such compensation. By the amendment in question both the employer and the insurance company are prohibited from contracting in such manner that the employer is not primarily liable for these treble damages. In other words, the legislature provides that as to this form of so-called compensation the remedies against the employer must be first exhausted and recourse cannot be had against the insurance company until and after it appears that the employer cannot pay the amount. It is pertinent to ask at this stage whether or not the judgment that may be entered upon this award is a tort judgment upon which the defendant employer against whom it is entered may be jailed in default of payment, or whether
Under the workmen’s compensation act, sec. 2394 — 35, the employer is bound to keep a record of all such accidents in a form that the industrial board may prescribe and is compelled to make monthly reports of such records to the industrial board, and the same is open at all times to the board, and the violation of such provisions is punished by the forfeiture of $50 for every such violation or neglect. And although it is provided by sec. 2394 — 38 that “any statement contained in any such record or report shall not be admissible as evidence in any action arising out of the death or accident reported,” yet nevertheless it has been held that statements made by the employer to the Industrial Commission may be considered by the Commission in determining the questions of fact before it, even though not formally offered in evidence. F. Eggers V. S. Co. v. Industrial Comm. 168 Wis. 377, 380, 170 N. W. 280; First Nat. Bank v. Industrial Comm. 161 Wis. 526, 154 N. W. 847. Such a report as bearing upon the nature of the employment of the claimant was used in this very case as against the plaintiff.
This court held in State ex rel. Schumacher v. Markham, 162 Wis. 55, 155 N. W. 917, that in an action to enforce a penalty a defendant cannot be compelled to bear witness against himself. The administration of the workmen’s compensation act under the provisions as they now stand and are being administered does in effect compel him who is now required to pay just such a penalty to furnish evidence against himself. And by sec. 2394 — 16, Stats., he can be compelled to testify or be held guilty of a misdemeanor.
Cohn v. Neeves, 40 Wis. 393, was cited on behalf of the respondent Industrial Commission to the proposition that treble damages may be lawfully assessed in a tort action.
“The evidence must satisfy the jury that’the conversion was not only against the consent of the plaintiff, but was attended by circumstances of bad faith and intentional wrong, in order to bring it within the penal provision. For, unless the conversion was wilful or wanton, the plaintiff was entitled to recover only single damages.”-
The same point is reiterated and strongly emphasized in a case involving a claim for treble damages for a violation of the public utilities act. Krom v. Antigo Gas Co. 154 Wis. 528, 535, 536, 140 N. W. 41, 143 N. W. 163. The rule there again recognized is in effect overruled by the majority opinion herein. That such penal provisions must be strictly pursued, see, also, Menasha W. W. Co. v. Winter, 159 Wis. 437, 453, 150 N. W. 526; State v. Cleveland, 161 Wis. 457, 458, 152 N. W. 819, 154 N. W. 980. The workmen’s compensation act, however, must be liberally construed. Holt L. Co. v. Industrial Comm. 168 Wis. 381, 383, 170 N. W. 366. In the future administration of the law as it is now declared to be by the majority opinion, there will be considerable difficulty in reconciling such evident clashing of rules as to strict and liberal construction in order that fairness to well grounded rights and legal principles may be shown and true justice done. .
All these distinctions above stated are wiped out by the effect of this decision, and he who has unintentionally and without the slightest negligence on his part violated the provisions of the child-labor law, whether such violation has any causal connection with the resulting injury or not, must
