(2) Employers' Liability Law, which applies to It is said by counsel that the Compensation Act, because it limits the recovery, *never is resorted to in practice unless the employé has been negligent, and hence is debarred of a remedy under the Liability Act. But it is thoroughly settled by our previous decisions that a state may abolish contributory negligence as a defense, and election of remedies is an option very frequently given by the law to a person entitled to an action; an option normally exercised to his own advantage, as a matter of course. Other points are suggested, but none requiring particular discussion. Judgments affirmed. Mr. Justice HOLMES concurring.t the principle to that instance. St. Louis & San Francisco Ry. Co. v. Mathews, 165 U. S. 1, 22, 17 Sup. Ct. 243, 41 L. Ed. 611; Chicago, Rock Island & Pacific Ry. Co. v. Zernecke, 183 U. S. 582, 586, 22 Sup. Ct. 229, 46 L. Ed. 339; St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281, 295, 28 Sup. Ct. 616, 52 L. Ed. 1061. See Guy v. Donald, 203 U. S. 399, 406, 27 Sup. Ct. 63, 51 L. Ed. 245. There are cases in which even the criminal law requires a man to know facts at his peril. Indeed the criterion which is thought to be free from constitutional objection, the criterion of fault, is the application of an external standard, the conduct of a prudent man in the known circumstances, that is, in doubtful cases, the opinion of the jury, which the defendant has to satisfy at his peril and which he may miss after giving the matter his best thought. The Germanic, 196 U. S. 589, 596, 25 Sup. Ct. 317, 49 L. Ed. 610; Nash v. United States, 229 U. S. 373, 377, 33 Sup. Ct. 780, 57 L. Ed. 1232; Eastern States Retail Lumber Dealers' Association v. McBride, 234 U. S. 600, 610, 34 Sup. Ct. 951, 58 L. Ed. 1490, L. R. A. 1915A, 788; Miller v. Strahl, 239 U. S. 426, 434, 36 Sup. Ct. 147, 60 L. Ed. 364. Without further amplification so much may be taken to be established by the decisions. New York Central R. R. Co. v. White, 243 U. S. 188, 198, 204, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Mountain Timber Co. v. Washington, 243 U. S. 219, 336, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642. [14] I do not perceive how the validity of the law is affected by the fact that the em The plaintiff (the defendant in error) was employed in the defendant's mine, was hurt in the eye in consequence of opening a compressed air valve and brought the present suit. The injury was found to have been due to risks inherent to the business and so was within the Employers' Liability Law of Arizona, Rev. Stats. 1913, Title 14, Ch. 6. By that law as construed the employer is liable to damages for injuries due to such risks in specified hazardous employments when guilty of no negligence. Par. 3158. There was a verdict for the plaintiff, judg-ployé is a party to the venture. There is no ment was affirmed by the Supreme Court of the State, 19 Ariz. 151, 166 Pac. 278, 1183; and the case comes here on the single question whether, consistently with the Fourteenth Amendment, such liability can be imposed. It is taken to exclude "speculative, exemplary and punitive damages," but to include all loss to the employé caused by the accident, not merely in the way of earning capacity, but of disfigurement and bodily or mental pain. See Arizona Copper Co. v. Burciaga, 177 Pac. 29, 33. There is some argument made for the general proposition that immunity from liability when not in fault is a right inherent in free government and the obiter dicta of Mr. Justice Miller in [Citizen's Savings &] Loan Association v. Topeka, 20 Wall. 655, 22 L. Ed. 455, are referred to. But if it is thought to be public policy to put certain voluntary conduct at the peril of those pursuing it, whether in the interest of safety or upon economic or other grounds, I know of nothing to hinder. A man employs a servant at the peril of what that servant may do in the course of his employment and there is nothing in the Constitution to limit more certain way of securing attention to the safety of the men, an unquestionably constitutional object of legislation, than by holding the employer liable for accidents. Like the crimes to which I have referred they probably will happen a good deal less often when the employer knows that he must answer for them if they do. I pass, therefore, to the other objection urged and most strongly pressed. It is that the damages are governed by the rules governing in action of tort-that is, as we have said, that they may include disfigurement and bodily or mental pain. Natural observations are made on the tendency of juries when such elements are allowed. But if it is proper to allow them of course no objection can be founded on the supposed foibles of the tribunal that the Constitution of the United States and the States have established. Why, then, is it not proper to allow them? It is said that the pain cannot be shifted to another. Neither can the loss of a leg. But one can be paid for as well as the other. It is said that these elements do not constitute an economic loss, in the sense of diminished power to produce. They may. Ball v. Wil This concurrence is in case No. 332, Inspiration Consol. Copper Co. v. Mendez. 433 $434 1919) (39 Sup.Ct.) 561 liam Hunt & Sons, Ld., [1912] A. C. 496. | hope it is something more than timidity, But whether they do or not they are as much dread of the new, that makes me fear that it part of the workman's loss as the loss of a is a step from the deck to the sea-the metalimb. The legislature may have reasoned phor suggests a peril in the consequences. But let me in a more concrete way make apI may assume thus. If a business is unsuccessful it means that the public does not care enough for it plication of this comment. to make it pay. If it is successful the public that the purpose and principle and general It extent of Workmen's Compensation Laws *are pays its expenses and something more. is reasonable that the public should pay the known. I must rest on that assumption, for even an epitome of them or the reasons for whole cost of producing what it wants and a part of that cost is the pain and mutila- them would unduly extend this dissent. The tion incident to production. By throwing that Arizona law has no resemblance to them. It loss upon the employer in the first instance is a direct charge of liability upon the emIts we throw it upon the public in the long run ployer for death or injury incurred in his and that is just. If a legislature should rea- employment, he being without fault. son in this way and act accordingly it seems remedies are the ordinary legal remedies; its measure of relief, however, has in it someto me that it is within Constitutional bounds. Matter of Erickson v. Preuss, 223 N. Y. thing more than the ordinary measures of 365, 119 N. E. 555. It is said that the liabil- relief, certainly not those of the Compensaity is unlimited, but this is not true. It is tion Laws, nor is it as considerate and guard. limited to a conscientious valuation of the ed as they. If its validity, therefore, can be loss suffered. Apart from the control exer- deduced from the cases explanatory of those cised by the judge it is to be hoped that laws, it can only be done by bringing its injuries would realize that unreasonable ver- stances and theirs under the same generalizadicts would tend to make the business im- tion; that is, that it is competent for governpossible and thus to injure those whom they ment to charge liability and exempt from reBut whatever they sponsibility according as one is employer or might wish to help. may do we must accept the tribunal, as I employé, there being no other circumstance have said, and are bound to assume that than that relation. Of this there can be no they will act rightly and confine themselves disguise. It may be confused by argument and attempt at historical analogies and deto the proper scope of the law. It is not urged that the provision allow-ductions, but to that comprehensive principle ing twelve per cent. interest on the amount of the judgment from the date of filing the suit, in case of an unsuccessful appeal, is void. Fidelity Mutual Life Association v. Mettler, 185 U. S. 308, 325-327, 22 Sup. Ct. 662, 46 L. Ed. 922; Consaul v. Cummings, 222 U. S. 262, 272, 32 Sup. Ct. 83, 56 L. Ed. 192. Mr. Justice BRANDEIS and Mr. Justice CLARKE concur in this statement of additional reasons that lead me to agree with the opinion just delivered by my Brother PITNEY. Mr. Justice MCKENNA dissenting. I find myself unable to concur, yet reluctant to dissent. The case is of the kind that, once pronounced, will be a rule in like or cognate cases forever-indeed, may even be extended. It is said to rest on the cases sustaining the Workmen's Compensation Law of New York, 243 U. S. 203, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, and its associated cases in the same volume upholding like laws of other states. The present case certainly comes after those cases and has that symptom of being their sequence. They cannot be said to have been easy of judgment against the contentions and conservatism which opposed them, and there was, at least to me, no prophecy of their extent, and therefore to me the present case is a step beyond them. I 39 SUP.CT.-36 the case must come at last. All else is ad- *But I pass this discrimination and return to the law as a violation of the employer's rights considered absolutely and abstractly. It seems to me to be of the very foundation of right-of the essence of liberty as it is of morals-to be free from liability if one is free from fault. It has heretofore been the sense of the law and the sense of the world, pervading the regulations of both, that there can be no punishment where there is no blame; and yet the court now by its #435 decision erects the denial of these postulates [tion "manufacturing," without qualifying of conduct into a principle of law and governmental policy. In other words, it is said to be a benefit to government to put the exact discharge of duty under the menace of penalty and invert the conceptions of mankind of the relation of right and wrong action. If the legislation does not punish without fault what does it do? The question is pertinent. Consider what the employer does: He invests his money in productive enterprise mining, smelting, manufacturing, railroading -he engages employés at their request and pays them the wages they demand; he takes all of the risks of the adventure. Now there is put upon him an immeasurable element that may make disaster inevitable. I find it difficult to answer the argument advanced to support or palliate this effect, or independently of it to justify the interference with rights. It is a certain impeachment of some rights to assume that they need justification, and a betrayal of them to make them a matter of controversy. There are precepts of constitutional law, as there are precepts of moral law, that reach the conviction of aphorisms and are immediately accepted by all who understand them, and comment is considered as confusing as unnecessary. I say this, not in dogmatism, but in expression of my vision of things, and I say it with deference to the contrary judgment of my Brethren of the majority. Of course, reasons may be found for the violation of rights, advantage to somebody or something in that viola*tion. Tyranny even may find pretexts, and seldom boldly bids its will avouch its acts, and certainly there can be no accusation of barefaced power in the Arizona law. Its motives and purposes are worthy, and it requires some resolution of duty to resist them. It must be seen, and is seen, however, that the difference between the position of employer and employé, simply considering the latter as economically weaker, is not a justification for the violation of the rights of the former, and that individual rights cannot be made to yield to philanthropy, and therefore the welfare of the government is brought forward and displayed. The law saves the government, is the comment, from the burden of paupers, its administration and peace from the disturbance of criminals. The answer, I think, is immediate. Government, certainly constitutional government, cannot afford to infringe, indeed, betrays its purpose if it infringes, a right of anybody upon money considerations or for ease in the exercise of its faculties. But, granting that there is something in the argument, what shall be the limits of its application? Will it extend the principle of the present case to nonhazardous employments? If not, why not? The Arizona law stops with certain occupations which it calls "hazardous"; but it includes in the descrip words. In the New York Compensation Law passed on in New York Central Railroad v. White, 243 U. S. 203, 37 Sup. Ct. 247, 61 L Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, there were 42 groups of hazardous occupations. In 243 U. S. 219, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642, the court had quite a struggle with the provisions of the Washington Compensation Law, which was so far different from those of the other cases as to incur the dissent of members of the court. It is now, I think, of pertinent inquiry whether the quality of being hazardous is an inherent and necessary element of legality or a matter of legislative definition and policy. Besides, if there can be *liability without fault in one occupation, and that can be a principle of legislation, why not in any other? Who is to determine the application, court or Legislature? If the latter, a court may not even express apprehension of its exercise, and yet it cannot put out of view the drift of events and in blind fatalism await their incidence when called upon to consider the legality of such exercise. We know things are in change-have changedand a mark of it is that the drift of public opinion, and of legislation following opinion, is to alter the relation between employer and employé, and to give to the latter a particular distinction, relieve him from a responsibility which would seem to be, and which until lately it has been the sense of the world to be, as much upon him as upon his employer, not in dependence, not as a mark of subservience, but as an obligation of his freedom, and therefore, as a consequence, that where he has liberty of action he has responsibility for action. In a word, the drift of opinion and legislation now is to set labor apart and to withdraw it from its conditions, and from the action of economic forces and their consequences, give it immunity from the pitilessness of life. And there are appealing considerations for this drift of opinion and inevitable sympathy with it, as with many other conditions, but which the law cannot relieve by a sacrifice of constitutional rights. In what legislation the drift (it is persuasion in some) may culminate cannot now be predicted, but it is very certain that, whatever it be, the judgment now delivered will be cited to justify it. Will it not be said that, if one right of an employer can be made to give way, why not another?-made a condition "upon economic or other grounds" of his enterprise. Indeed, may not the question be made more general, and if in supposed benefit to a particular class, and through benefit to them to the public, there may be constraint upon or the imposition of burden upon one right of a citizen, why not upon another? There is, therefore, I *think, menace in the present judgment to all rights, subjecting them unreservedly to conceptions of public policy. If, however, this general apprehen *439 $438 #440 (39 Sup.Ct.) sion be not justified, there is threat enough in | what more fully. The important and underthe judgment of the court to the interest of lying question is common to the five cases. employers generally as a result of the differ- No. 232 is typical and to detail certain facts ence in conditions. and circumstances disclosed by the record therein may aid the discussion. A rather curious argument is used to support the Arizona law. It is said, in justification of its discrimination between employer and employé, that the employer may, in relief from it and rescue from its burdens, pass them to the consumers of his products, as he does or may do in the case of other expenses of his venture, and in the long run their incidence is, as it is said it should be, on the public, and that the Legislature in so considering was reasoning within constitutional bounds. There is attractive speciousness in the argument. The individual employer seems to be devested of grievance, and the problem the law presents to be one of economics and governmental policy-is a kind of taxation, an expense of government, the burden of which is properly laid upon the public, and over which a court can have but limited power. If it is intended by the argument to ex. press no more than a tendency, while it has no relevancy, I think, upon the validity of the law, there may be no danger in it. If it is intended to be erected into a principle, there is danger in it. It is certainly facile and comprehensive. What burden can be put up on industry or the activities of men that may not be justified by it? Of course, there will be no production unless all of its costs be reimbursed by the price of the articles produced. And by costs, I mean as well the burdens of government as profit to the employer-his inducement to enterprise, and the wages of employés-their inducement to labor. Without such reimbursement there will be no production, and cannot be beyond a certain extent and for a certain time; and there is no way to effect it but through the con*suming public. But recourse to such consumption as a rescue from the law is not a justification for the law, and it is very doubtful if it had any conscious influence in the enactment of the law. Indeed, in the present case what could have been its influence, and to what extent can it have an ameliorating effect? An employer in the indicated industries can have no relief except in the home market. If his products (where there are products) go beyond-go to other states-they will meet the competition of unburdened products. this is obvious and needs no comment. But The CHIEF JUSTICE, Mr. Justice VAN DEVANTER and Mr. Justice McREYNOLDS concur in this dissent. Mr. Justice McREYNOLDS dissenting. While I earnestly join in the dissent written by Mr. Justice McKENNA, it seems not inappropriate to state my own views some Basing his claim upon the Arizona Employers' Liability Law, Dan Veazey sued plaintiff in error in the United States District Court to recover damages for personal injuries received by him February 10, 1916, while engaged as millwright and carpenter in constructing a "flotation system" at the company's mill or reduction works in Gila county, Ariz., "wherein steam, electricity, or other mechanical power was then and there used to operate machinery." He alleged that while exercising due care he "suffered severe personal and bodily injuries by an accident arising out of and in course of such labor, service, and employment, and due to a condition or conditions of such occupation or employment," which injuries were not caused by his negligence, but were sustained in the manner following: "Plaintiff in the due course of his said labor, service, and employment was standing upon a certain timber or joist incorporated in said 'flotation system,' engaged in bolting and fastening together the timbers thereof. That the said timber or joist upon which plaintiff was then and there standing was then and there elevated above the ground or floor of said mill or reduction works a distance of approximately 10 feet. That while so engaged as aforesaid, plaintiff slipped from said timber or joist and fell to the ground * * with great force and violence, was permanently injured, and will forever remain sick, sore, lame, and crippled. * No charge of negligence or failure to perform any duty was made against the company. It unsuccessfully set up and relied upon invalidity of the Employers' Liability Law because in conflict with the Fourteenth Amendment; judgment went against it; and the cause is here by writ of error to the trial court. Judicial Code (Act March 3, 1911, c. 231) 237, 36 Stat. 1156 (Comp. St. § 1214). Article 18 of the Arizona Constitution provides: "Section 4. The common-law doctrine of fellow servant, so far as it affects the liability of a master for injuries to his servant resulting from the acts or omissions of any other servant or servants of the common master, is forever abrogated. "Section 5. The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury. "Section 6. The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation. "Section 7. To protect the safety of employés in all hazardous occupations, in mining, smelting, manufacturing, railroad or street railway transportation, or any other industry the Leg *442 islature shall enact an Employers' Liability Law, | if none, then to the next of kin dependent upon by the terms of which any employer *whether in- such employé, and if none, then to his personal dividual, association, or corporation shall be representative, for the benefit of the estate of liable for the death or injury, caused by any acthe deceased." cident due to a condition or conditions of such occupation, of any employé in the service of such employer in such hazardous occupation, in all cases in which such death or injury of such employé shall not have been caused by the negligence of the employé killed or injured. "Section 8. The Legislature shall enact a Workmen's Compulsory Compensation Law applicable to workmen engaged in manual or mechanical labor in such employments as the Legislature may determine to be especially dangerous, by which compulsory compensation shall be required to be paid to any such workman by his employer, if in the course of such employment personal injury to any such workman from any accident arising out of, and in the course of such employment is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, or any of his or its officers, agents, or employé, or employés, to exercise due care, or to comply with any law affecting such employment: Provided, that it shall be optional with said employé to settle for such compensation, or retain the right to sue said employer as provided by this Constitution." Obeying the constitutional mandate, the Legislature enacted the "Employers' Liability Law," approved May 24, 1912 (chapter 89, Laws of Ariz. 1912, p. 491; Rev. Stat. Ariz. 1913, §§ 3153-3162), which provides: That to protect the safety of workmen at manual or mechanical labor in many occupations declared hazardous and enumerated in section 4-among them all work in or about mines and in mills, shops, plants and factories where steam or electricity is used to operate machinery-every employer, whether individual, association, or corporation, "shall be liable for the death or injury, caused by any accident due to a condition or conditions of such occupation, of any employé in the service of such employer in such hazardous occupation, in all cases in which such death or injury of such employé shall not have been caused by the negligence of the employé killed or injured." "Sec. 6. When in the course of work in any of the employments or occupations enumerated in section 4 of this act, personal injury or death by any accident arising out of and in the course of such labor, service and employment, and due to a condition or conditions of such occupation or employment, is caused to or suffered by any workman engaged therein, in all cases in which such injury or death of such employé shall not have been caused by the negligence of the employé killed or injured, then the employer of such employé shall be liable in damages to the employé injured, or, in case death ensues, to the personal representative of the deceased for the benefit of the surviving widow or husband and children of such employé, and, if none, then to such employe's parents; and, Section 7 requires that questions of contributory negligence and assumption of risk shall be left to the jury. (The full text of the act is in the margin.1) Laws of Arizona 1912, c. 89, p. 491: Rev. Stat. Ariz. Civil Code 1913, §§ 3153-3162, p. 1051. "Section 1. That this act is and shall be declared to be an Employers' Liability Law as prescribed in section 7 of article XVIII of the state Constitution. "Sec. 2. That to protect the safety of employés in all hazardous occupations in mining, smelting, manufacturing, railroad, or street railway, transportation or any other industry, as provided in said section 7 of article XVIII of the state Constitution, any employer, whether individual, association, or corporation, shall be liable for the death or injury, caused by any accident due to a condition or conditions of such occupation, of any employé in the service of such employer in such hazardous occupation, in all cases in which such death or injury of such employé shall not have been caused by the negligence of the employé killed or injured. "Sec. 3. The labor and services of workmen at manual and mechanical labor, in the employment of any person, firm, association, company, or corporation, in the occupations enumerated in section 4 of this act are hereby declared and determined to be service in a hazardous occupation within the meaning of the terms of section 2 of this act. "By reason of the nature and conditions of, and the means used and provided for doing the work in, said occupations, such service is especially dangerous and hazardous to the workmen therein, because of risks and hazards which are inherent in such occupations and which are unavoidable by the workmen therein. "Sec. 4. The occupations hereby declared and determined to be hazardous within the meaning of this act are as follows: "1. The operation of steam railroads, electrical railroads, street railroads, by locomotives, engines trains, motors, or cars of any kind propelled by steam, electricity, cable or other mechanical power, including the construction, use or repair of machinery, plant, tracks, switches, bridges, roadbeds, upon, over, and by which such railway business is operated. "2. All work when making, using or necessitating dangerous proximity to gunpowder, blasting powder, dynamite, compressed air, or any other explosive. "4. The operation of all elevators, elevating machines or derricks or hoisting apparatus used within or on the outside of any bridge, building or other structure for conveying materials in connection with the erection or demolition of such bridge, building or structure. "5. All work on ladders or scaffolds of any kind elevated twenty (20) feet or more above the ground or floor beneath in the erection, construction, repair, painting or alteration of any building, bridge, structure or other work in which the same are used. "6. All work of construction, operation, alteration or repair where wires, cables, switchboards, or other apparatus or machinery are in use charged with electrical current. "7. All work in the construction, alteration, or repair of pole lines for telegraph, telephone or other purposes." "8. All work in or about quarries, open pits, open cuts, mines, ore reduction works and smelters. |