Opinion of the Court.

281 U.S.

office. He took the dropper from one of the bottles and put some liquid in her right ear. She immediately suffered much pain, became dizzy and heard great noises in that ear. He then put some of the liquid in her left ear. She experienced the same sensations, became very ill and lost control of her body. Other evidence shows that she went or was taken to a bed in defendant's house and there remained for some hours and until a friend came and took her to her mother's home.

There was testimony given by plaintiff's mother and sister that, up to the time defendant treated her ears, plaintiff's hearing was good; that she never had any disease or injury of the ears; that, when she was brought from defendant's office, she was very ill, apparently suffered much pain, remained in bed for about two days and was deaf. On the Friday following defendant's last treatment she was taken to Doctor Patten, a specialist. He treated her daily for some months and two or three times a week until October, 1926. Then Doctor Morgan treated her twice a week until the time of the trial. Neither Doctor Patten nor Doctor Morgan testified at the trial. The record shows that the former could not be called, but it is silent as to the latter.

In 1923 Doctor Crisp, treating her for something else, casually examined her ears. He found the drum of the right ear broken and that of the left ear inflamed. In 1925, after the commencement of this action, at the request of the defendant, Doctor Allen was permitted to examine the plaintiff. He found both eardrums retracted and a perforation in the right but none in the left. Early in 1927, in preparation for the trial, plaintiff had Doctor Gill examine her ears. He found practically all of the right and about half of the left drum gone and that she had one-third hearing in the right and two-fifths in the left ear. He gave testimony to the effect that, if applied

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Opinion of the Court.

to them, acid would injure or destroy eardrums and would cause pain and possibly other sensations like those which plaintiff testified she suffered at the time of the treatment.

Defendant testified plaintiff told him her hearing had become impaired and that her ears had been treated. He found both eardrums perforated. On her last visit she was nauseated and complained of dizziness and roaring in her head. He dropped mineral oil into her ears with a dropper to close up the external ears in order to prevent noise from penetrating into the middle ears. The noise subsided, she became composed, went to a bed in his house and remained until taken home by a friend. He denied that he put acid in her ears and testified that he never had any in his office.

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The evidence shows that, while difficult to do, it would be possible by means of a dropper to apply acid to eardrums without allowing it to come into contact with other tissues. There was no scar or anything to indicate that acid had touched any part of the canal leading to either eardrum. Plainly it would have been impossible for defendant to have closed the external ears without allowing the liquid used for that purpose to touch the canal tissue. But plaintiff was not required specifically to show what defendant did put in her ear or that the treatment destroyed either of her eardrums or made her deaf. If the evidence was sufficient to justify a finding that defendant negligently put a harmful fluid in her ears causing her pain and injury, the motion was properly denied.

As the credibility of witnesses and the weight to be given to their testimony are for the jury, plaintiff's testimony as to the treatment and immediate effect upon her and the testimony of others as to her condition shortly afterwards constituted sufficient evidence to warrant a finding that instead of oil defendant negligently put some

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harmful liquid into her ears thereby causing her pain, suffering and some injury in and about her ears. It was not necessary for the trial court in passing upon the motion to determine, and we need not consider, whether under the rules laid down in the decisions of this court the evidence was sufficient to warrant a finding that the perforation of either eardrum or permanent deafness resulted from defendant's treatment.

Defendant seeks reversal on a number of grounds that were not mentioned in his petition for the writ. But this court is not called on to consider any question not raised by the petition. Webster Co. v. Splitdorf Co., 264 U. S. 463, 464.

No. 307. Argued March 7, 1930.-Decided March 17, 1930.

Under the Workmen's Compensation Law of New York, § 15, subdivisions 8 and 9, when an employee, in the course of his employment, suffers an injury causing death, and there are no persons entitled to compensation from the employer, the employer or his insurer shall be required by award to make payments of $500 each to the state treasurer for two special funds, which are used in furnishing additional compensation and vocational training to certain classes of disabled employees (see Sheehan Co. v. Shuler, 265 U. S. 371). These provisions are applicable where the death was due to the act of a stranger to the employment and the right of the employee's dependent to compensation under the Compensation Law was waived by collection of an equal or greater sum through settlement of an action for negligence in causing the death, brought by the decedent's personal representative, on behalf of the dependent, under § 130 of the Decedent's Estate Law. In such case, by § 29 of the Compensation Law, as amended, an insurer who has paid the

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Statement of the Case.

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awards under § 15, subdivisions 8 and 9, may obtain reimbursement in an action against the alleged wrong-doer, in which action, however, the latter is at liberty to contest both his own liability in the negligence action and the validity of the awards as against the insurer. Held:

1. That in subjecting one who has made restitution under the wrongful death statute to this added liability of indemnifying the employer's insurer for payments to the special funds, § 29 does not violate the due process clause of the Fourteenth Amendment. P. 106 et seq.

2. A State does not exhaust its power to compel redress for a wrongful death by providing for recovery of the loss sustained by the dependents or next of kin of the decedent; it may exact penalties in addition. P. 106.

3. The mode in which penalties shall be enforced and the disposition of the amounts collected are matters of legislative discretion. P. 107.

4. In this instance, there is no reason why the State may not penalize the wrong-doer by compelling him to indemnify the employer and his insurance carrier for payments properly required of them and made to the State, the liability for such payments having arisen from the wrongful act. P. 107.

5. Inasmuch as the provisions for the creation and application of the special funds, and for requiring the payments by employers and their insurance carriers to maintain them, have been sustained as an appropriate and constitutional part of the plan of the Workmen's Compensation Law, (Sheehan Co. v. Shuler, 265 U. S. 371,) an insurer thus compelled to pay because of a death caused by wrongful act is not a stranger to that act and his indemnification by the wrong-doer is a natural and reasonable requirement in consequence of that act. P. 107.

6. Section 29 does not deny equal protection of the laws, since it operates uniformly against all wrongdoers in like circumstances, i. e., whenever awards, as required by § 15, subdivisions 8 and 9, have been made against the employer, or his insurer, and have been paid to the state treasurer. P. 108.

251 N. Y. 127, affirmed.

¡APPEAL from a judgment of the Supreme Court of New York, entered on remittitur from the Court of Appeals. The case was an action by the Indemnity Company under § 29 of the Workmen's Compensation Law, begun in

Argument for Appellant.

281 U.S.

the Supreme Court by the filing of an agreed statement of facts, and submitted to the Appellate Division of that Court. The judgment of the Appellate Division, 244 App. Div. 346, was in favor of the plaintiff and was affirmed by the Court of Appeals.

Mr. Frederick H. Wood for appellant.

This case presents none of those considerations by reason of which the workmen's compensation laws have been sustained; and the particular provision under review may be sustained, if at all, only as an exercise of the power of the State to create a new cause of action for a penalty or damages for causing death by negligence.

The provision under review is neither an integral nor an essential part of the Workmen's Compensation Law, nor has it any relation to its objects and purposes.

It derives no aid from the considerations by reason of which the validity of workmen's compensation laws have been sustained. On the contrary, such considerations are persuasive that such provision is invalid. N. Y. Central R. Co. v. White, 243 U. S. 188; Arizona Employers' Lia-` bility Cases, 250 U. S. 400. Sheehan Company v. Shuler, 265 U. S. 371, and N. Y. State Railways v. Shuler, 265 U. S. 379, were decided on the authority of Mountain Timber Company v. Washington, 243 U. S. 219, in which employers' contributions to such funds were sustained as being in the nature of "occupation taxes." It will scarcely be contended that indemnification of the insurance company is in the nature of an occupation tax for those in the business of wrongfully killing others, or for the privilege of continuing such occupation.

The provision in question constitutes a mere arbitrary exaction, whereby the property of one person is taken for a purely private purpose for the benefit of another, to whom the party liable is a complete stranger and towards whom it has committed no breach of duty.