153 N.Y.S. 369 | N.Y. Sup. Ct. | 1915
The demurrer in this case raises the question whether an employee may bring an action to recover damages for injuries or is completely barred by the Workmen’s Compensation Act (Laws of 1913, chap. 816, re-enacted and amd. by Laws of 1914, chap. 41). This action is brought to "recover damages for
At the outset is is well to state that the act is legal as to all who act under it. Very few will be foolish enough, even if allowed, to bring a lawsuit for damages and run the risk and uncertainties of recovery when the allowances made by the statute may always be accepted.
It was decided in the case of Ives v. South Buffalo R. Co., 201 N. Y. 271, that the Workmen’s Compensation Law passed in 1910, which compelled the employer when not at fault to pay his servant a fixed compensation for an injury received, violated both state and federal Constitutions as taking property without due process of law, and was not within the police power of the state. The case of State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, subsequently decided, differed with our Court of Appeals and held just the other way. The subsequent amendment to our Constitution (art. 1, § 19) cannot therefore authorize the state legislature to pass a compensation law compulsory as to the employer, because the state Constitution can no more violate the federal Constitution than can the act of the legislature, and for this purpose both are upon an equality. The present law may, however, be considered as optional with the employer.
If, under the Ives case, the Workmen’s Compensation Act cannot be compulsory as to the employer, can it be compulsory as to the employee? If a compulsory act takes the property of an employer in violation of the Fourteenth Amendment, does a compulsory act also deprive the employee of property' or liberty without due process of law? In this connection it will be noted that many of the states have now adopted Workmen’s Compensation Acts and that nearly all of them, unlike the New York statute, are elective both as to the employer and employee; that is, the employer and employee have the right to choose whether they will come under the act, and it is made applicable to them only
In these cases which have just been cited it was specially noted that they did not violate the principles of the Ives case in that an election was given to both the employer and employee, and that their action thereunder was voluntary.
So we come to the question whether an employee may be compelled to accept a certain sum of money by a legislative fiat for an injury done to him through negli= gence. Can the legislature take away altogether the right to recover damages which a person sustains by reason of the failure of another individual to exercise reasonable care? Can the state deprive its citizens of all remedy for negligence? Negligence is the failure to act in a given society according to common standards, and liability for negligence is the governmental force used to keep society together, thus requiring persons to respect the safety of all other persons. A man has a
To permit others to libel, assault or falsely arrest an individual without providing a remedy for such acts- is to deprive a man of his life and of his liberty as those words have been construed. Likewise, it deprives a man of his life and his liberty within the meaning of the Constitution to permit others to negligently injure him and provide no remedy. Cooley on Constitutional Limitations (5th ed., p. 445) says that under the Fourteenth Amendment every man is entitled to a certain remedy in the law for all wrongs against his person.
The same words are as applicable to protection from another’s gross negligence or assault.
The case of Munn v. Illinois, 94 U. S. 113, quoted in Second Employers’ Liability Cases, 223 U. S. 1, says: “A person has no property, no vested interest, in any
I am strongly of the opinion, for the reasons stated, that the Workmen’s Compensation Act cannot be forced "upon employees any more than upon employers; that if there cannot be a compulsory act for the master, neither can there be a compulsory act for the servant; if the employer may elect whether he will come in under the Workmen’s Compensation Act or stand by his common law liability, so can the employee. It must be by mutual consent or the law is of no force.
• As I have above stated, all the Workmen’s Compensation Acts of the various states, with one or two exceptions, are based upon this voluntary action upon the part of the employer and the employee. These enactments or laws provide a rule of presumption, that is, the act of hiring is presumed to be under the compensation act unless a notice provided by the law is given to the contrary. This is very simple, has worked well and has obviated all constitutional objections. It is a very easy matter for the New York state
The plaintiff in this case is an infant and a question may arise as to the power of an infant to elect his remedies. Murphy v. Village of Fort Edward, 213 N. Y. 403. The legislature, however, may remove the disability of infancy so as to permit an infant old enough to go to work under our labor statutes to make an election as to whether he will work under the compensation law or the common law. Dickens v. Carr, 84 Mo. 658. By the New Jersey act the infant may exer-. cise the option through his guardian. See Sexton Case, supra. In the Borgnis Case, supra, it was said: “ There is no claim that the legislature may not endow minors with the right to make contracts otherwise lawful.”
While I have thus frankly stated my views, I must not overlook the serious consequences which may follow from the Trial Term court interfering with this act of the legislature. If the plaintiff were the only one interested I should have no hesitancy in deciding that she might maintain this action, but she is not the only one interested. . This act gives to all injured employees, irrespective of contributory negligence or their ability to maintain a common law action, certain definite sums of money when injured. Notice, however, must be given by the employee within the time prescribed by the act and other formalities complied with. Through a desire 'for more money or the persuasions of lawyers many injured employees, in reliance upon my decision, might be inclined to forego the compensation given by the statute and resort to an action for negligence. The Court of Appeals might
Demurrer overruled.