Arizona Copper Company v. Hammer Same/Dissent Clark McReynolds
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 somewhat more fully. The important and underlying question is common to the five cases. No. 232 is typical and to detail certain facts and circumstances disclosed by the record therein may aid the discussion.

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 employes in all      hazardous occupations, in mining, smelting, manufacturing,      railroad or street railway transportation, or any other      industry the Legislature shall enact an Employers' Liability      Law, by the terms of which 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 employe      in the service of such employer in such hazardous occupation      in all cases in which such death or injury of such employe      shall not have been caused by the negligence of the employe      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 suchw orkman 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      employe, or employes, to exercise due care, or to comply with      any law affecting such employment: Provided, that it shall be      optional with said employe 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 employe in the service of such employer in such hazardous occupation, in all cases in which such death or injury of such employe shall not have been caused by the negligence of the employe 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 employe shall not      have been caused by the negligence of the employe killed or      injured, then the employer of such employe shall be liable in      damages to the employe 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      employe, and, if none, then to such employe's parents; and,      if none, then to the next of kin dependent upon such employe,      and if none, then to his personal representative, for the      benefit of the estate of the deceased.'

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. ) Likewise, the Legislature enacted a Compulsory Compensation Law, approved June 8, 1912, applicable to work men in the same occupations as those declared hazardous by the Employers' Liability Law (Chapter 14, Laws of Ariz. Spec. Sess. 1912, p. 23). Material portions of it are in the margin. 

In Consolidated Arizona S.C.o. v. Ujack (1914) 15 Ariz. 382, 384, 139 Pac. 465, 466, the Supreme Court declared:

'Under the laws of Arizona, an employe who is injured in the      course of his employment has open to him three avenues of      redress, any one of which he may pursue according to the      facts of his case. They are: (1) The common-law liability      relieved of the fellow servant defense and in which the      defenses of contributory negligence and assumption of risk      are questions to be left to the jury. Const. §§ 4, 5, art.      18. (2) Employers' Liability Law, which applies to hazardous      occupations where the injury or death is not caused by his      own negligence. Const. § 7, art. 18. (3) The Compulsory      Compensation Law, applicable to especially dangerous      occupations, by which he may recover compensation without      fault upon the part of the employer. Const. § 8, art. 18.'

In Inspiration Consolidated Copper Co. v. Mendez (July 2, 1917) 19 Ariz. 151, 157, 166 Pac. 278, 279, 281, 283, the Supreme Court specifically held that the Employers' Liability Law does not conflict with the Fourteenth Amendment, and among other things said:

'That the liability statute must be construed as one creating a liability for accidents      resulting in injuries to the workmen engaged in hazardous      occupations due to the risks and hazards inherent in such      occupations, without regard to the negligence of the      employer, as such negligence is understood in the common law      of liability; in other words, such statute creates a      liability for accident arising from the risks and hazards      inherent in the occupation without regard to the negligence      or fault of the employer. * * * In other words, this statute      creates a liability of the master to damages suffered from      any accident befalling his servant while engaged in the      performance of duties in dangerous occupations without      requiring the negligence of the master to be shown as an      element of the right to recover; and it likewise takes away      from the master his common-law right of defense of assumption      of ordinary risk by the servant, and leaves to the master the      right to defend upon the grounds that the servant assumed the      ordinary risks, other than risks inherent in the occupation.'

(This opinion was reaffirmed in Superior & Pittsburg Copper      Co. v. Tomich [July 2, 1917] 19 Ariz. 182, 165 Pac. 1101,      1185.)

In Arizona Copper Co. v. Burciaga (1918) 177 Pac. 29, 31, 32, 33, the Supreme Court said:

'As clearly intimated by this court in Inspiration      Consolidated Copper Co. v. Mendez, 19 Ariz. 151, 166 Pac.      278, 1183, the Employers' Liability Law is designed to give a      right of action to the employe injured by accident occurring      from risks and hazards inherent in the occupation and without      regard to the negligence on the part of the employer. Such is      the clear import of the said Employers' Liability Law. * * *

'The liability incurred by the employer from a personal      injury sustained by his employe from an accident arising out      of and in the course of labor, service, and employment in      hazardous occupations specified in the statute, and due to a      condition or conditions of such occupation or employment, if such shall not have been caused from the      negligence of such employe, is such an amount as will      compensate such employee for the injuries sustained by him      directly attributable to such accident. * * * 'Liable in      damages,' as used in paragraph 3158, c. 6, of title 14,      Employers' Liability Law, Rev. Stat. of Ariz. 1913, has      reference to and means that the employer becomes obligated to      pay to the employe injured in an accident while engaged in an      occupation declared hazardous, occurring without fault of the      employer, all loss to the employe which is actually caused by      the accident and the amount of which is susceptible of      ascertainment. * * * Of course, mental and physical suffering      experienced by the employe injured, proi mately resulting      from the accident, the reasonable value of working time lost      by the employe, necessary expenditures for the treatment of      injuries and compensation for the employe's diminished      earning power directly resulting from the injury, and perhaps      other results causing direct loss, are matters of actual loss      and as such recoverable.'

From the foregoing it appears that we have for consideration a statute which undertakes, in the absence of fault, to impose upon all employers (individual and corporate) engaged in enterprises essential to the public welfare, not subject to prohibition by the state and often not attended by any extraordinary hazard, an unlimited liability to employees for damages resulting from accidental injuries-including physical and mental pain-which may be recovered by the injured party or his administrator for benefit of widow, children, parents, next of dependent kin or the estate. The individual who hires only one man and works by his side is put on the same footing as a corporation which employs thousands; no attention is given to probable ability to pay the award; length of service is unimportant-a minute seems enough; wages contracted for bear no necessary relationship to what may be recovered; and a single accident which he was powerless to prevent or provide against may pauperize the employer. And by reason of existing constitutional and statutory provisions an injured workman may claim under this act or under the Compensation Law or according to the common law materially modified in his favor by exclusion of the fellow-servant rule and otherwise. On the other hand, while the employer is declared subject to new, uncertain and greatly enlarged liability, notwithstanding the utmost care, nothing has been granted him in return.

In such circumstances, would enforcement of the challenged statute deprive employers of rights protected by the Fourteenth Amendment? Plainly, I think, nothing short of an affirmative answer is compatible with welldefined constitutional guaranties.

Of course, the Fourteenth Amendment was never intended to render immutable any particular rule of law, nor did it by fixation immortalize prevailing doctrines concerning legal rights and liabilities. Orderly and rational progress was not forestalled. Holden v. Hardy, 169 U.S. 366, 387, 18 Sup. Ct. 383, 42 L. Ed. 780. But it did strip the states of all power to deprive any person of life, liberty or property by arbitrary or oppressive action-such action is never due process of law.

In the last analysis it is for us to determine what is arbitrary or oppressive upon consideration of the natural and inherent principles of practical justice which lie at the base of our traditional jurisprudence and inspirit our Constitution. A legislative declaration of reasonableness is not conclusive; no more so is popular approval-otherwise constitutional inhibitions would be futile. And plainly, I think, the individual's fundamental rights are not proper subjects for experimentation; they ought not to be sacrificed to questionable theorization.

Unitil now I had supposed that a man's liberty and property with their essential incidents-were under the protection of our charter and not subordinate to whims or caprices or fanciful ideas of those who happen for the day to constitute the legislative majority. The contrary doctrine is revolutionary and leads straight towards destruction of our well-tried and successful system of government. Perhaps another system may be better-I do not happen to think so-but it is the duty of the courts to uphold the old one unless and until superseded through orderly methods.

After great consideration in Adair v. United States, 208 U.S. 161, 28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764, and Coppage v. Kansas, 236 U.S. 1, 35 Sup. Ct. 240, 59 L. Ed. 441 L. R. A. 1915C, 960, this court declared that the Fourteenth Amendment guarantees to both employer and employe the liberty of entering into contracts for servie  subject only to reasonable restrictions. 'The principle is fundamental and vital.'

In the first case an act of Congress prohibiting interstate carriers from requiring one seeking employment, as a condition of such employment, to enter into an agreement not to become or remain a member of a labor organization, was declared in conflict with the Fifth Amendment. In Coppage v. Kansas a state statute which declared it unlawful to require one to agree not to be a member of a labor association as a condition of securing employment was held invalid under the Fourteenth Amendment, and we said:

'An interference with this liberty so serious as that now      under consideration, and so disturbing of equality of right,      must be deemed to be arbitrary, unless it be supportable as a      reasonable exercise of the police power of the state.'

In Truax v. Raich, 239 U.S. 33, 41, 36 Sup. Ct. 7, 10 (60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283) an Arizona statute prohibiting employment of aliens except under certain conditions was struck down. We there said:

'It requires no argument to show that the right to work for a      living in the common occupations of the community is of the      very essence of the personal freedom and opportunity that it      was the purpose of the [Fourteenth] Amendment to secure.'

The right to employ and the right to labor are correlative-neither can be destroyed nor unduly hindered without impairing the other. The restrictions imposed by the act of Congress, struck down in the Adair Case, by the Kansas statute, declared invalid in the Coppage Case, and by the Arizona statute, held inoperative in the Truax Case, viewed as practical matters seem rather trivial in comparison with the burden laid on employers by the statute before us. And the grounds suggested to support it really amount in substance to asserting that the Legislature has power to protect society against the consequences of accidental injuries, and therefore it may impose the loss resulting therefrom upon those wholly without fault who have afforded others welcomed opportunities to earn an honest living under unobjectionable conditions. As a measure to stifle enterprise, produce discontent, strife, idleness, and pauperism, the outlook for the enactment seems much too good.

In New York Central R. R. Co. v. White, 243 U.S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, and Mountain Timber Co. v. Washington, 243 U.S. 219, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642, as I had supposed for reasons definitely pointed out, we held the challenged statutes not in conflict with the Fourteenth Amendment although they imposed liability without fault and introduced a plan for compensating workmen, unknown to the common law. The elements of those statutes regarded as adequate to save their validity we specified; if such characteristics had not been found, the result, necessarily, would have been otherwise, unless we were merely indulging in harmful chatter.

Here, without fault, the statute in question imposes liability in some aspects more onerous than either the New York or Washington law prescribed; and the grounds upon which we sustained those statutes are wholly lacking. The employer is not exempted from any liability formerly imposed; he is given no quid pro quo for his new burdens; the common-law rules have been set aside without a reasonably just substitute; the employe is relieved from consequences of ordinary risks of the occupation and these are imposed upon the employer without defined limit to possible recovery which may ultimately go to nondependents, distant relatives, or, by escheat, to the state; 'the act bears no fair indication of a just settlement of a difficult problem affecting one of the most important of social relations'-on the contrary, it will probably intensify the difficulties.

The liability is not restricted to the pecuniary loss of a disabled employe or those entitled to look to him for support, but includes compensation for h ysical and mental pain and suffering; a recovery resulting in bankruptcy to an employer may benefit only a distant relative, financially independent; the prescribed responsibility is not 'to contribute reasonable amounts according to a reasonable and definite scale by way of compensation for the loss of earning power arising from accidental injuries,' but is unlimited, unavoidable by any care, incapable of fairly definite estimation in advance, and enforceable by litigation probably acrimonious, long drawn out, and expensive. While the statute is inattentive to the employe's fault, it permits recovery in excess of the employe's pecuniary misfortune, and provides for compensation, not general, but sporadic, uncertain, conjectural, delayed, indefinite as to amount, and not distributed over such long period as to afford actual protection against loss or lessened earning capacity with insurance to society against pauperism, etc.

I am unable to see any rational basis for saying that the act is a proper exercise of the state's police power. It is unreasonable and oppressive upon both employer and employe; to permit its enforcement will impair fundamental rights solemnly guaranteed by our Constitution, and heretofore, as I think, respected and enforced.

The CHIEF JUSTICE and Mr. Justice McKENNA and Mr. Justice VAN DEVANTER concur in this opinion. 

Notes

Sec. 2. That compensation graduated according to average earnings and limited to $4,000 'shall be paid by his employer to any workman engaged in any employment declared and determined * * * to be especially dangerous, whether said employer be a person, firm, association, company, or corporation, if in the course of the employment of said employe personal injury thereto 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 employe or employes, to exercise due care, or to comply with any law affecting such employment.'

'Sec. 4. In case such employe or his personal representative shall

refuse to settle for such compensation (as provided in section 8 of article XVIII of the state Constitution) and chooses to retain the right to sue said employer (as provided in any law provided for in section 7, article XVIII of the state Constitution) he may so refuse to settle and may retain said right.'

'Sec. 6. The common-law doctrine of no liability without fault is hereby declared and determined to be abrogated in Arizona as far as it shall be sought to be applied to the accidents hereinbefore mentioned.'

'Sec. 14. * * * Provided, if, after the accident either the employer or the workman shall refuse to make or accept compensation under this act or to proceed under or rely upon the provisions hereof for relief, then the other may pursue his remedy or make his defense under other existing statutes, the state Constitution, or the common law, except as herein provided, as his rights may at the time exist. Any suit brought by the wr kman for a recovery shall be held as an election to pursue such remedy exclusively.'