Ward Gow v. Krinsky/Dissent Clark McReynolds
Mr. Justice McREYNOLDS dissenting.

The New York Workmen's Compensation Law provides:

'Section 2. Application. Compensation provided for in this      chapter shall be payable for injuries sustained or death      incurred by employees engaged in the following hazardous      employments:

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'Group 45. All other employments not hereinbefore enumerated      carried on by any person, firm or corporation in which there      are engaged or employed four or more workmen or operatives      regularly, in the same business or in or about the same      establishment, either upon the premises or at the plant or      away from the plant of the employer, under any contract of      hire, express or implied, oral or written, except farm      laborers and domestic servants.'

By subdivision 4, section 3, 'employee' is defined as—

'A person engaged in one of the occupations enumerated in      section 2, or who is in the service of an employer whose      principal business is that of carrying on or conducting a      hazardous employment upon the premises or at the plant, or in      the course of his employment away from the plant of his      employer, and shall not include farm laborers or domestic      servants.'

In Europe v. Addison Amusements, Inc., et al., 231 N. Y. 105, 131 N. E. 750, the Court of Appeals construed these provisions and some quotations from the opinion will show their far-reaching effect.

'The Legislature, in section 2, has classified certain   employments as hazardous, and has given the right of   compensation to employees engaged in such hazardous   employments.

'By the amendment of subdivision 4, § 3 (Laws 1916, c. 622, §      2), an employee to be entitled to compensation is no longer      required to be himself engaged at the time of accident in      hazardous work. It is sufficient that he is an employee in      such hazardous business. Matter of Does v. Moehle      Lithographic Co., 221 N. Y. 401.

'Group 45, as above quoted, was added by the Laws of 1918, c.      634, § 2. The Legislature classified as hazardous employments      all those occupations in which there were regularly engaged      four or more workmen or operatives. It covered employments      not specified in the other subdivisions. No doubt it was      considered a risk to be in an employment where four or more      manual laborers or operatives were engaged. It is not      necessary for us finally to define or limit the words      'workmen' or 'operatives' as used in this subdivision.      Generally speaking a workman is a man employed in manual      labor, whether skilled or unskilled, an artificer, mechanic      or artisan, and an operative is a factory hand, one who      operates machinery. Webster's New International Dictionary.      There is a marked distinction between a workman and an      employee. Although in a general sense all workmen and      operatives are employees, yet all employees are not workmen      or operatives within the meaning of this law. The words      'workmen' and 'operatives' are used in their narrower      meaning. Bowne v. S. W. Bowne Co., 221 N. Y. 28.

'Europe, however, was an employee within the meaning of      section 3, subd. 4, employed in a business or enterprise      classified as hazardous, because it employed regularly four      workmen or operatives. The evidence permitted the finding      that the four men above named did manual work, consisting of      moving scenery, arranging the stage, handling baggage and      cleaning and pressing clothes.

'Why the Legislature should have extended by the second   group of subdivision 45 the hazardous employments to any   employment having four workmen or operatives is not for   us to say. The courts in construing statutes are not   concerned with the wisdom of the legislation. Wilson v.   C. Dorflinger & Sons, 218 N. Y. 84, 86.

'We do not think, however, that the Legislature has exceeded      its powers of classification by this extension of hazardous      employments. It may be, as above intimated, that a business      not ordinarily hazardous becomes such at times when manual      work is done or machinery operated in connection with its      main purpose.

'Whether or not Legislature can extend the benefits of      compensation to all employments irrespective of workmen's      hazards we are not called upon, at this time, to decide.'

Apparently former opinions of this court have upheld Workmen's Compensation Acts against the claim that they destroy the right freely to contract, and thereby deprive of property without due process of law, upon the theory that the state may charge pecuniary losses arising from personal injuries against the industry, when men are employed in hazardous occupations for gain. If 'hazardous occupations' is not a mere empty phrase, there must be real hazard-legislative declaration is not enough. And hazard is something more than the mere possibility of injury which is always present.

Opinions of the court below have so construed the challenged provisions that if a merchant, while employing 500 clerks in New York City, no one of them within the Workmen's Compensation Act, should employ 4 workmen to paint signs or nail up boxes at Buffalo, all his clerks would immediately come under the act. The occupation of a clerk stationed in New York City cannot be rendered hazardous simply because 4 workmen are employed at Buffalo. To argue that an occupation is hazardous because some one engaged therein has received personal injuries is not helpful. Many have suffered fatal accidents while eating, but eating could hardly be called hazardous. If, as suggested by the court below, 'it was considered a risk to be in an employment where 4 or more manual laborers or operatives were engaged' irrespective of anything else, then the assumption is contrary to common experience.

If the state has power to declare an employer liable whenever his employee is injured, irrespective of hazard, the discussions heretofore indulged which treated hazard as important were unfortunate and misleading. But if that element can be wholly disregarded, then consideration must be given to the classification adopted by the New York statute in its relation to the equal protection clause. As often declared, classification is permissible when rational. But what possible reason is there for imposing liability in favor of 100 employees otherwise outside of the compensation statute simply because their employer has found it desirable to hire 4 men to do manual work in a shop or dig trenches miles away from the only place where the 100 serve?

Such cases as Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 35 Sup. Ct. 167, 59 L. Ed. 364, and Middleton v. Texas Power & Light Co., 249 U.S. 152, 39 Sup. Ct. 227, 63 L. Ed. 527, are not pertinent. The classifications there approved rested upon the obvious truth 'that the negligence of a fellow servant is more likely to be a cause of injury in the large establishments, employing many in their service, and that assumed risk may be different in such establishments than in smaller ones,' or upon some other distinction declared to be 'sufficiently patent, simple and familiar.'

In the present case it is said that the plaintiff in error may be put into a peculiar group and required to compensate Krinsky solely because they employed mechanics to hammer at a bench miles away from the station where Krinsky sold papers, magazines, candy and chewing gum, and sometimes applied a little soap and water to his hands. I think both the due process and equal protection clauses of the amendment forbid.

Mr. Justice McKENNA joins in this dissent. 

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