1935 Constitution, and the Legislature may modify them or abolish them entirely, if it sees fit to do so. Nor does the abrogation of the common law defenses in the opinion of the U. S. Supreme Court, violate the "due process of law" amendment. In Mondou v. N. Y., N. H. & H. R. R. Co., 223 U. S. 1, on page 50, 32 Sup. Ct. 169, on page 175, Mr. Justice Van Devanter, speaking for the court, said: "Of the objections to these changes, it is enough to observe: First, 'A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property, which have been created by the common law cannot be taken without due process, but the law itself, as a rule of conduct, may be changed at the will of the legislature, unless prevented by constitutional limitations. Indeed the great office * * of statutes is to remedy defects in the common law, as they are developed and to adapt it to the changes of time and circumstances.' It has also been held that state legislatures "cannot be deemed guilty of arbitrary classifications in making one rule for larger and another for small establishments, as to these defenses." In other words the fact that employers of more than five employees are deprived of their common law defenses, if they reject the act, and those having less than five employees are not so penalized, which is also true of employers of casual em 36 104 N. E. 211, 5 N. C. C. 112 N. E. 311; Wheeler v. 265; Sadowski v. Thomas 35. Deibeikis v. Link Belt Co., 261, Ill. 454, A. 401; Bell v. Toluca Coal Co., 272 Ill. 576; Contoocook Mills Corp., 77 N. H. 551, 94 Atl. Furnace Co., 157 Wis. 443, 146 N. W. 770; Strem v. Postal Telegraph Cable Co., 271 Ill. 514, 111 N. E. 555; Dooley v. Sullivan, 218 Mass. 597, 106 N. E. 604; Pope v. Haywood Bros. & W. Co., 221 Mass. 143, 108 N. E. 1059; Cavanaugh v. Morton Salt Co., 152 Wis. 375; Puza v. C. Hennecke Co., 158 Wis. 482, 149 N. W. 223; Boody v. K. & C. Mfg. Co., 77 N. H. 208, 90 Atl. 859; Arizona Copper Co. Ltd. v. Hammer U. S. Sup. Ct. (1919) 4 W. C. L. J. 321; Crooks v. Tazewell Coal Co., Ill. 105 N. E. 132, 5 N. C. C. A. 410; State ex rel. Yaple v. Cramer, 85 Ohio St. 349, 1 N. C. C. A. 30; Sharp v. Sharp, 213 Ill. 236; People v. Binns, 191 Tex. Civ. App. casual employees. 185 S. W. Thompson v. Ill. 68; City of Chicago v. Sturgis, 222 U. S. 313. 36. Hodges v. Swastika Oil Co., 369. Defenses available as against Twiss, 90 Conn. 444, 97 Atl. 328; Fidelity & Casualty Co. of N. Y. v. Llewelyn Iron Works, Cal. App. 184 Pac. 402, 4 W. C. L. J. 694. 39 37 ployees, and certain other excepted employments,38 does not make this provision of the various compensation acts unconstitutional. Neither do the different modes by which employer and employee may indicate their election constitute an unjust discrimination against either.40 41 It is held in New Jersey that the doctrine of assumption of such risks as are virtually incident to the employment itself, cannot be attributed to a minor employed in violation of the law. It has been held by the Supreme Judicial Court of Massachusetts that an employer who had rejected the compensation act may defend a case on the theory of contractual assumption if risk, which is necessarily incident to the employment itself, even though such employment may be dangerous.42 This risk, it distinguishes from the assumption of risk that grows out of the negligence of the employer in reference to some matter outside the risks assumed under the employee's contract of employment, such as the failure 37. American Steel Foundries v. Ind. Board, 284 Ill. 99, 119 N. E. 902 2 W. C. L. J. 463; Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328. 38. Miller v. United Fuel Gas Co., 419; Page v. New York Realty Co., W. Va. (1921), 106 S. E. (1921), 196 Pac. 871. 39. Jeffery Mfg. Co. v. Blagg, 235 U. S. 571, 59 Law Ed. 364, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570, 209 Mass. 607; 96 N. E. 308, 1 N. C. C. A. 557; Marshall Field & Co. v. Indus. Comm. of Ill., 285 Ill. 333, 120 N. E. 773, 3 W. C. L. J. 105; Memphis Cotton Oil Co. v. Tolbert, Tex. Civ. 40. Shea v. North Butte Mining Co., 55 Mont. 522 (1919), 179, Pac. 499, 3 W. C. L. J. 768. 41. Lesko v. Liondale Bleach, Dye and Print Works, 107 Atl. 275, 4 W. C. L. J. 525. N. J. 42. Ashton v. Boston & Maine R. R. Co., 222 Mass. 65; 109 N. E. 820, 12 N. C. C. A., 837. Discussed and criticised in Bay State Ry. Co. v. Rust, 3 W. C. L. J. 1; As to pleading this defense see Murch v. Thomas Wilson's Sons Co., 168 Mass. 408; Gleason v. Smith, 172 Mass. 50; Boston etc. Ry. v. Baker, 150 C. C. A. 158, 236 Fed. 896; A1 W. C. L. J. 48; Besnys v. Herman Zohrlant Leather Co., 157 Wis. 203, 147 N. W. 37, 5 N. C. C. A. 282; Bernabeo v. Kaulback, 226 Mass. 128, 115 N. E. 279, 17 N. C. C. A. 521; See, also, Acklin Stamping Co. v. Kutz, 98 Ohio St. 61, 120 N. E. 229, 17 N. C. C. A. 607; Crosse v. Boston M. R. R., 223 Mass. 144, 111 N. E. 676, 17 N. C. C. A. 522; International Cotton Mills Co. v. Pernod, 244 Fed. 723 A1. W. C. L. J., 51; Louis v. SmithMcCormick Const. Co., W. Va. 92 So. 249, B 1, W. C. L. J. 1637. 43 of the employer to furnish the employee with ordinarily safe and suitable tools and appliances. This latter form of assumption of risk, it was held, could not be set up by the employer as a defense. This decision was affirmed in a later Massachusetts case, wherein the court stated that, while the Act takes away some of the defenses from an employer, who has rejected it, it does not transform conduct which was theretofore lawful on the part of the employer into negligence." A like ruling has been made in West Virginia." Nor is the employee entitled to recover from an employer who has rejected the act in the absence of the latter's negligence,40 and the burden of proving it is on the employee.47 43. Zinn v. Cabot, W. Va. (1921), 106 S. E. 427; Puza v. C. Hennecke Co., 158 Wis. 482, 149 N. W. 223; Bay State St. R. Co. v. Rust 253 Fed. 43, 3 W. C. L. J. 3; Kieler v. Fred Miller Brewing Co., 44. 889; Wis. —, 161 N. W. 739, B 1. W. C. L. J. 1683. Walsh v. Turner Center Dairying Ass'n, 223 Mass. 386, 111 N. E. Mammoth v. Worcester Consol. St. Ry. Co., 228 Mass. 282, 117 N. E. 336, 1 W. C. L. J. 83. See Contra, Mitchell v. Phillips Min. Co. (Inc.) 165 N. W. 108, 1 W. C. L. J. 190; Pope v. Heywood Bros. & Wakefield Co., 221 Mass. 143, 108 N. E. 1058, 17 N. C. C. A. 513; West Kentucky Coal Co. v. Smithers, 211 S. W. 580, 4 W. C. L. J. 198. 45. Ky. App. Louis v. Smith-McCormick Const. Co., 80 W. V. 159, 92 S E. Antonio DeFrancesco v. Piney Mining Co., 76 W. Va. 756, 86 S. E. 777. 249; 46. Gerthung v. Stambough-Thompson Co., 1 Ohio App. 176; Hunter v. Colfax Corsol. Coal Co., 175 Ia. 275, 154 N. W. 1037 Amended 157 N. W. 145, 11 N. C. C. A. 886; Ann. Cas. 1917E 803; Linde-Bauer v. Weiner, 94 Misc. Rep. 612, 159 N. Y. S. 987; Watts Ohio Valley E. R. Co., 78 W. Va. 144, 88 S. E. 659; Louis v. Smith-McCormick Const. Co. (W. Va.) 92 S. E. 249; Walsh v. Turner Center Dairying Ass'n, 223 Mass. 386, 111 N. E. 889; Strom v. Postal Tel. Cable Co., 200 Ill. App. 431; Salus v. Great Northern R. Co., 157 Wis. 546, 147 N. W. 1070; Price v. Cloverleaf Mining Co., 188 Ill. App. 27, 17 N. C. C. A. 519; Spivok v. Indep. Sash and Door Co., 173 Cal. 438, 160 Pac. 565, 17 N. C. C. A. 519; Pope v. Heywood Bros. & Wakefield Co., 221 Mass. 143, 108 N. E. 1058, 17 N. C. C. A. 521; Lydman v. De Haas, 185 Mich. 128, 151 N. W. 718, 8 N. C. C. A. 649; Wilkin v. Koppers Co., W. Va. (1919), 100 S. E. 300, 4 W. C. L. J. 755; Stornelli v. Duluth S. S. & Ry. Co., 160 N. W., 415; A 1 W. C. L. J. 1023; Miller v. United Fuel Gas Co., 419-; Zinn v. Cabot, Mich. W. Va. W. Va. - (1921), 106 S. E. (1921), 106 S. E. 427. 47. Stornelli v. Duluth, etc. R. Co., 193 Mich. 674, 160 N. W. 415; See Though it is held in other jurisdictions that there is a presumption of negligence on the part of the employer and the burden of rebutting this presumption rests upon him.48 When the employee rejects the act, he is not entitled to recover when the injury is due to his own negligence, but when he does recover he is not limited to the rate of compensation fixed by the act,50 though he is so limited in some states.51 49 In construing the Louisiana Act the Supreme Court of that state said: "Section 28 of Act No. 20 of 1914, which reads, "That no compensation shall be allowed for an injury caused (3) by the injured employee's deliberate failure to use an adequate guard or protection against accident, provided for him,' finds no application in a case where no guard or protection has been provided against a danger, the assumption of the risk of which has caused the accident, and where such risk has been assumed, not deliberately, but under conditions which rendered it necessary for the employee to decide instanter as between two courses, either of which, so far as he was informed, he was free to choose, the more efficiently, as he conceived to perform his duty to his em ployer." 52 Hunter v. Colfax Consol. Coal Co., 175 Ia. 245, 154 N. W. 1037 (placing 48. Mitchell v. Phillips Mining Co. 181 Iowa 600, 165 N. W. 108, 17 N. C. C. A. 529; Mitchell v. Des Moines Coal Co., 182 Iowa 1072, 165 N. W. 113, 17 N. C. C. A. 531; Gay v. Hocking Coal Co. 184 Iowa 949, 169 N. W. 360, 17 N. C. C. A. 531; O'Brien v. Las Vegas & T. R. Co., 155 C. C. A. 438, 242 Fed. 850, 17 N. C. C. A. 532. 49. Watts v. Ohio Valley Elect. R. Co.. 78 W. Va. 144, 88 S. E. 659. 50. Dick v. Knoperbaum (App. Div), 157 N. Y. S. 754. 51. Mahowald v. Thompson-Starrett Co., 134 Minn. 113, 158 N. W. 913, But see Hode v. Simmons, 132 Minn. 344, 157 N. W. 506. 52. Farris v. Louisiana Long Leaf Lumber Co., 86 So. 670, 7 W. C. L. J. 292. La. (1920), § 14. Election by Minors and Minors Generally.-Section 7 of the Missouri Act contains the following typical provision: "The word employee shall also include all minor employees, and all such minor employees are hereby made of full age for all purposes under, in connection with or arising out of this act." By this wording the legislature has apparently expressed the intention to abolish the distinction between minors and persons of full age, so far as the Compensation Act is concerned, whether it be as to matters of election or rejection of the act or settlements under its provisions. The legislature has the power for this purpose to declare minors of full age." 53 "The appellants also contend that because Fuller was a minor when the accident occurred he was not bound by the provisions of the law making the statute applicable to employes who filed no notice of an election to the contrary. Kan. Gen. Stat. 1915, Sec. 5939; Laws 1917, c. 226 Section 24. The argument is that the matter is contractual and that a minor is not bound by his contracts. The Compensation Act by various references to minor workmen fairly shows an intention to bring them within its provisions. It is competent for the Legislature to place upon minors the obligation of an affirmative election not to come within the Compensation Act in order not to be subject to its provisions (Young v. Sterling Leather Works, 91 N. J. L. 289, 102 Atl. 395), and this it appears to have done." 54 For the purpose of electing the acts, a number of states make minor employees, of legal working age, sui juris.55 Other acts require the employer to deal with the minor and the latter with the employer, through the parents or guardian. "The act provides for no suit by a parent for compensation per quod; and we held at the last term that the parent could not recover at commcn 53. Dickens v. Carr, 84 Mo. 658; Herkey v. Agar Mfg. Co., 90 Misc. 457, 153 N. Y. Supp. 369; Green v. Caldwell, 170 Ky. 571, 180 S. W. 648. 54. Chicago R. R. & P. Ry. Co. v. Fuller, 105 Kan. 608, (1919), 186 Pac. 127; Scott v. Nashville Bridge Co., Tenn. (1920), 223 S. W. 844, 6 W. C. L. J. 580. 55. California, Colorado, Illinois, Maryland, Michigan, Minnesota, Nebraska, Kentucky, Ohio, Oregon, Rhode Island, Washington. The Alabama Act specifically states that it applies to minors even though employed contrary to laws regulating minors. |