# Arizona Copper Company v. Hammer Same/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions McKenna Clark McReynolds
United States Supreme Court
250 U.S. 400
Arizona Copper Company v. Hammer Same
Argued: Jan. 25, 1918. --- Decided: Jan 28, 1918
In each of these cases, a workman in a hazardous industry in the state of Arizona, having received in the course of his employment a personal injury through an accident due to a condition or conditions of the occupation, not caused by his own negligence or so far as appears by that of his employer or others, brought action under the Employers' Liability Law of Arizona, and recovered compensatory damages against the employer ascertained upon a consideration of the nature, extent, and disabling effects of the injury in each particular case. And the question is raised whether the statute referred to, as applied to the facts of these cases, is repugnant to that provision of the Fourteenth Amendment which declares that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
Article 18 of the Constitution of the state of Arizona is entitled 'Labor,' and contains, among others, the following sections:
'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' lia bility 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 such workmen 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.'
Pursuant to section 7 the Employers' Liability Law was enacted (chapter 89, Laws 1912, Reg. Sess.; ArizonaR ev. Stat. 1913, pars. 3153-3162); pursuant to section 8 a Workmen's Compulsory Compensation Law was enacted (chapter 14, Laws 1912, 1st Spec. Sess.; Arizona Rev. Stat. 1913, pars. 3163 et seq.).
In two of the present cases the former law was sustained by the Supreme Court of Arizona against attacks based upon the Fourteenth Amendment. Inspiration Consol. Copper Co. v. Mendez, 19 Ariz. 151, 166 Pac. 278, 1183; Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 165 Pac. 1101, 1185. In the other three cases it was sustained by the United States District Court for that district. And the resulting judgments in favor of the injured workmen are brought under our review by writs of error.
Some of the arguments submitted to us assail the wisdom and policy of the act because of its novelty, because of its one-sided effect in depriving the employer of defenses while giving him (as is said) nothing in return, leaving the damages unlimited, and giving to the employe the option of several remedies, as tending not to obviate but to promote litigation, and as pregnant with danger to the industries of the state. With such considerations this court cannot concern itself. Novelty is not a constitutional objection, since under constitutional forms of government each state may have a legislative body endowed with authority to change the law. In what respects it shall be changed, and to what extent, is in the main confided to the several states; and it is to be presumed that their Legislatures, being chosen by the people, understand and correctly appreciate their needs. The states are left with a wide range of legislative discretion, notwithstanding the provisions of the Fourteenth Amendment; and their conclusions respecting the wisdom of their legislative acts are not reviewable by the courts.
We have been called upon recently to deal with various forms of workmen's compensation and employers' liability statutes. Second Employers' Liability Cases, 223 U.S. 1, 47-53, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; New York Central R. R. Co. v. White, 243 U.S. 188, 196, et seq., 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Hawkins v. Bleakly, 243 U.S. 210, 37 Sup. Ct. 255, 61 L. Ed. 678, Ann. Cas. 1917D, 637; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642; Middleton v. Texas Power & Light Co., 249 U.S. 152, 39 Sup. Ct. 227, 63 L. Ed. 527. These decisions have established the propositions that the rules of law concerning the employer's responsibility for personal injury or death of an employe arising in the course of the employment are not beyond alteration by legislation in the public interest; that no person has a vested right entitling him to have these any more than other rules of law remain unchanged for his benefit; and that, if we exclude arbitrary and unreasonable changes, liability may be imposed upon the employer without fault, and the rules respecting his responsibility to one employe for the negligence of another and respecting contributory negligence and assumption of risk are subject to legislative change.
The principal contention is that the Arizona Employers' Liability Law deprives the employer of property without due process of law, and denies to him the equal protection of the laws, because it imposes a liability without fault, and, as is said, without equivalent protection. The statute, in respect of certain specified employments designated as inherently hazardous and dangerous to workmen-and reasonably so described-imposes upon the employer, without regard to the question of his fault or that of any person for whose conduct he is responsible, a liability in compensatory damages, excluding all such as are speculative or punitive (Arizona Copper Co. v. Burciaga, 177 Pac. 29), for accidental personal injury or death of an employe arising out of and in the course of the employment and due to a condition or conditions of the occupato n, in cases where such injury or death of the employe shall not have been caused by his own negligence. This is the substance of paragraphs 3154 and 3158, and they are to be read in connection with paragraph 3156, which declares what occupations are hazardous within the meaning of the law. By paragraph 3160, contracts and regulations exempting the employer from liability are declared to be void.
In effect, the statute requires the employer, instead of the employe, to assume the pecuniary risk of injury or death of the employe attributable to hazards inherent in the employment and due to its conditions and not to the negligence of the employe killed or injured. In deter mining whether this departure from the previous rule is so arbitrary or inconsistent with the fundamental rights of the employer as to render the law repugnant to the Fourteenth Amendment, it is to be borne in mind that the matter of the assumption of the risks of employment and the consequences to flow therefrom has been regulated time out of mind by the common law, with occasional statutory modifications. The rule existing in the absence of statute, as usually enunciated, is that all consequences of risks inherent in the occupation and normally incident to it are assumed by the employe and afford no ground of action by him or those claiming under him, in the absence of negligence by the employer; and even risks arising from or increased by the failure of the employer to take the care that he ought to take for the employe's safety are assumed by the latter if he is aware of them or if they are so obvious that any ordinarily prudent person under the circumstances could not fail to observe and appreciate them; but if the employe, having become aware of a risk arising out of a defect attributable to the employer's negligence, makes complaint or objection and obtains a promise or reparation, the common law brings into play a new set of regulations requiring the employer to assume the risk under certain circumstances, the employe under others. Seaboard Air Line v. Horton, 233 U.S. 492, 504, 505, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; s. c., 239 U.S. 595, 598, 599, 36 Sup. Ct. 180, 60 L. Ed. 458, and cases cited.
But these are no more than rules of law, deduced by the courts as reasonable and just, under the conditions of our civilization, in view of the relations existing between employer and employe in the absence of legislation. They are not placed, by the Fourteenth Amendment, beyond the reach of the state's power to alter them, as rules of future conduct and tests of responsibility, through legislation designed to promote the general welfare, so long as it does not interfere arbitrarily and unreasonably, and in defiance of natural justice, with the right of employers and employes to agree between themselves respecting the terms and conditions of employment.
We are unable to say that the Employers' Liability Law of Arizona, in requiring the employer in hazardous industries to assume-so far as pecuniary consequences go-the entire risk of injury to the employe attributable to accidents arising in the course of the employment and due to its inherent conditions, exceeds the bounds of permissible legislation or interferes with the constitutional rights of the employer. The answer that the common law makes to the hardship of requiring the employe to assume all consequences, both personal and pecuniary, of injuries arising out of the ordinary dangers of the occupation, is that the parties enter into the contract of employment with these risks in view, and that the consequences ought to be, and presumably are, taken into consideration in fixing the rate of wages. Chicago, Milwaukee R. R. v. Ross, 112 U.S. 377, 383, 5 Sup. Ct. 184, 28 L. Ed. 787; Northern Pacific R. R. Co. v. Herbert, 116 U.S. 642, 647, 6 Sup. Ct. 590, 29 L. Ed. 755; New York Central R. R. Co. v. White, 243 U.S. 188, 199, 37 Sup. Ct. 247, 61 L. d . 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Farwell v. Boston & Worcester R. R. Corp., 4 Metc. (Mass.) 49, 57, 38 Am. Dec. 339. In like manner the employer, if required-as he is by this statute in some occupations-to assume the pecuniary loss arising from such injury to the employe, may take this into consideration in fixing the rate of wages; besides which he has an opportunity, which the employe has not, to charge the loss as a part of the cost of the product of the industry.
There is no question here of punishing one who is without fault. That, we may concede, would be contrary to natural justice. But, as we have seen, the statute limits the recovery strictly to compensatory damages. And there is no discrimination between employer and employe except such as necessarily arises from their different relation to the common undertaking. Both are essential to it, the one to furnish capital, organization, and guidance, the other to perform the manual work; both foresee that the occupation is of such a nature, and its conditions such, that sooner or later some of the workmen will be physically injured or maimed, occasionally one killed, without particular fault on anybody's part. See 243 U.S. 203, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. The statute requires that compensation shall be paid to the injured workman or his dependents, because it is upon them that the first brunt of the loss falls; and that it shall be paid by the employer, because he takes the gross receipts of the common enterprise, and by reason of his position of control can make such adjustments as ought to be and practically can be made, in the way of reducing wages and increasing the selling price of the product, in order to allow for the statutory liability. There could be no more rational basis for a discrimination; and it is clear that in this there is no denial of the 'equal protection of the laws.'
Under the 'due process' clause, the ultimate contention is that men have an indefeasible right to employ their fellow men to work under conditions where, as all parties know, from time to time some of the workmen inevitably will be killed or injured, but where nobody knows or can know in advance which particular men or how many will be the victims, or how serious will be the injuries, and hence no adequate compensation can be included in the wages; and to employ them thus with the legitimate object of making a profit above their wages if all goes well, but with immunity from particular loss if things go badly with the workmen through no fault of their own, and they suffer physical injury or death in the course of their employment. In view of the subject-matter, and of the public interest involved, we cannot assent to the proposition that the rights of life, liberty, and property guaranteed by the Fourteenth Amendment prevent the states from modifying that rule of the common law which requires or permits the workingman to take the chances in such a lottery.
The act-assuming, as we must, that it be justly administered adds no new burden of cost to industry, although it does bring to light a burden that previously existed, but perhaps was unrecognized, by requiring that its cost be taken into the reckoning. The burden is due to the hazardous nature of the industry, and is inevitable if the work of the world is to go forward. What the act does is merely to require that it shall be assumed, to the extent of a pecuniary equivalent of the actual and proximate damage sustained by the workman or those near to him, by the employer-by him who organizes the enterprise, hires the workmen, fixes the wages, sets a price upon the product, pays the costs, and takes for his reward the net profits, if any.
The interest of the state is obvious. We declared in the White Case, 243 U.S. 207, 37 Sup. Ct. 254, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629:
'It cannot be doubted that the state may prohibit and punish self-maiming and attempts at suicide; it may proi bit a man from bartering away his life or his personal security; indeed, the right to these is often declared, in bills of rights, to be 'natural and inalienable'; and the authority to prohibit contracts made in derogation of a lawfully established policy of the state respecting compensation for accidental death of disabling personal injury is equally clear. * * * This statute does not concern itself with measures of prevention, which presumably are embraced in other laws. But the interest of the public is not confined to these. One of the grounds of its concern with the continued life and earning power of the individual is its interest in the prevention of pauperism, with its concomitants of vice and crime. And, in our opinion, laws regulating the responsibility of employers for the injury or death of employes arising out of the employment bear so close a relation to the protection of the lives and safety of those concerned that they properly may be regarded as coming within the category of police regulations' (citing cases).
And in Mountain Timber Co. v. Washington, 243 U.S. 219, 239, 37 Sup. Ct. 260, 265 (61 L. Ed. 685, Ann. Cas. 1917D, 642) it was said:
'Certainly, the operation of industrial establishments that in the ordinary course of things frequently and inevitably produce disabling or mortal injuries to the human beings employed is not a matter of wholly private concern.'
Having this interest, the state of Arizona reasonably might say:
'The rule of the common law requiring the employe to assume all consequences of personal injuries arising out of the ordinary dangers and normal conditions of a hazardous occupation, and to secure his indemnity in advance in the form of increased wages, is incompatible with the public interest because-assuming that workmen are on an equality with employers in a negotiation about the rate of wages-the probability of injury occurring to a particular employe, and the nature and extent of such injury, are so contingent and speculative that it is impracticable for either employer or employe approximately to estimate in advance how much allowance should be made for them in the wages; and even were a proper allowance made, experience demonstrates that under our conditions of life it is not to be expected that the average workingman will set aside out of his wages a proper insurance against the time when he may be injured or killed. Hence, recognizing that injuries to workmen constitute a part of the unavoidable cost of hazardous industries, we will require that it be assumed by the one in control of the industry as employer, just as he pays other items of cost; so that he shall not take a profit from the labor of his employes while leaving the injured ones, and the dependents of those whose lives are lost, through accidents due to the conditions of the occupation, to be a burden upon the public.'
Whether this or similar reasoning was employed, we have no means of knowing; whether, if employed, it ought to have been accepted as convincing, is not for us to decide. It being incumbent upon the opponents of the law to demonstrate that it is clearly unreasonable and arbitrary, it is sufficient for us to declare, as we do, that such reasoning would be pertinent to the subject and not so unfounded or irrational as to permit us to say that the state, if it accepted it as a basis for changing the law in a matter so closely related to the public welfare, exceeded the restrictions placed upon its action by the Fourteenth Amendment.
It is objected that the responsibility of the employer under this statute is unlimited; but this is not true except as it is true of every action for compensatory damages where the amount awarded varies in accordance with the nature and extent of the damages for which compensation is made. It is said that in actions by employes against employers juries are prone to render extravagant verdicts. The same thing has been said, and with equal reason, concerning actin § brought by individuals against railroad companies, traction companies, and other corporations. In this, as in other cases, there is a corrective in the authority of the court to set aside an exorbitant verdict. And it amounts to a contradiction of terms to say that in submitting a controversy between litigants to the established courts, there to be tried according to long-established modes and with a constitutional jury to determine the issues of fact and assess compensatory damages, there is a denial of 'due process of law.'
Much stress is laid upon that part of our opinion in the White Case, where, after citing numerous previous decisions upholding the authority of the states to establish by legislation departures from the fellow servant rule and other common-law rules affecting the employer's liability for personal injuries to the employe, we said (243 U.S. 201, 37 Sup. Ct. 252, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629):
'It is true that in the case of the statutes thus sustained there were reasons rendering the particular departures appropriate. Nor is it necessary, for the purposes of the present case, to say that a state might, without violence to the constitutional guaranty of 'due process of law,' suddenly set aside all common-law rules respecting liability as between employer and employe, without providing a reasonably just substitute. * * * No such question is here presented, and we intimate no opinion upon it. The statute under consideration sets aside one body of rules only to establish another system in its place,' etc.
In spite of our declaration that no opinion was intimated, this is treated as an intimation that a statute such as the one now under consideration, creating a new and additional right of action and allowing no defense (if the conditions of liability be shown) unless the accident was caused by the negligence of the injured employe, would be regarded as in conflict with the due process clause. We cannot, however regard this statute as anything else than a substitute for the law as it previously stood; whether it be a proper substitute was for the people of the state of Arizona to determine; but we find no ground for declaring that they have acted so arbitrarily, unreasonably, and unjustly as to render their action void. They have resolved that the consequences of a personal injury to an employe attributable to the inherent dangers of the occupation shall be assumed, not wholly by the particular employe upon whom the personal injury happens to fall, but, to the extent of a compensation in money awarded in a judicial tribunal according to the ordinary processes of law, shall be assumed by the employer; leaving the latter to charge it up, so far as he can, as a part of the cost of his product, just as he would charge a loss by fire, by theft, by bad debts, or any other usual loss of the business; and to make allowance for it, so far as he can, in a reduced scale of wages. And they have come to this resolution, we repeat, not in a matter of in difference, or upon a question of mere economics, but in the course of regulating the conduct of those hazardous industries in which human beings-their own people-in the pursuit of a livelihood must expose themselves to death or to physical injuries more or less disabling, with consequent impoverishment, partial or total, of the workman or those dependent upon him. The statute says to the employer, in effect:
'You shall not employ your fellow men in a hazardous occupation for gain, you being in a position to reap a reward in money through selling the product of their toil, unless you come under an obligation to make appropriate compensation in money in case of their death or injury due to the conditions of the occupation.'
The rule being based upon reasonable grounds affecting the public interest, being established in advance and applicable to all alike under similar circumstances, there is, in our opinion, no infringement of the fundamental i ghts protected by the Fourteenth Amendment.
Some expressions contained in our opinion in the White Case, 243 U.S. 203, 204, 205, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, are treated in argument as if they were equivalent to saying that if a state, in making a legislative adjustment of employers' liability, departs from the common-law system of basing responsibility upon fault, it must confine itself to a limited compensation, measured and ascertained according to the methods adopted in the compensation acts of the present day. Of course nothing of the kind was intended. In a previous part of the opinion (243 U.S. 196-200, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629) it had been shown that the employer had no constitutional right to continued immunity from liability in the absence of negligence, nor to have the fellow servant rule and the rules respecting contributory negligence and assumption of risk remain unchanged. The statutory plan of compensation for injured workmen and the dependents of those fatally injured-an additional feature at variance with the common law-was then upheld; but, of course, without saying that no other would be constitutional. For if, as we held in that case, the novel statutory scheme of awarding compensation according to a prearranged scale is sustainable, it follows, perhaps a fortiori, that the Arizona method of ascertaining the compensation according to the facts of each particular case substantially the common-law method-is free from objection on constitutional grounds. Indeed, if a state recognizes or establishes a right of action for compensation to injured workmen upon grounds not arbitrary or fundamentally unjust, the question whether the award shall be measured as compensatory damages are measured at common law, or according to some prescribed scale reasonably adapted to produce a fair result, is for the state itself to determine. Whether the compensation should be paid in a single sum after judgment recovered as is required by the Arizona Employers' Liability Law just as under the common-law system in the case of a judgment based upon negligence, or whether it would be more prudent to distribute the award by installment payments covering the period of disability or of need, likewise is for the state to determine, and upon this the plaintiffs in error can raise no constitutional question.
To the suggestion that the act now or hereafter may be extended by construction to nonhazardous occupations, it may be replied: First, that the occupations in which these actions arose were indisputably hazardous, hence plaintiffs in error have no standing to raise the question (Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 544, 34 Sup. Ct. 359, 58 L. Ed. 713; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576, 35 Sup. Ct. 167, 59 L. Ed. 364; Hendrick v. Maryland, 235 U.S. 610, 621, 35 Sup. Ct. 140, 59 L. Ed. 385; Middleton v. Texas Power & Light Co., 249 U.S. 152, 157, 39 Sup. Ct. 227, 63 L. Ed. 527): and, secondly, it hardly is necessary to add that employers in nonhazardous industries are in little danger from the act, since it imposes liability only for accidental injuries attributable to the inherent dangers of the occupation.
To the objection that the benefits of the act may be extended, in the case of death claims, to those not nearly related to or dependent upon the workman, or even may go by escheat to the state, it is sufficient to say that no such question is involved in these records; in Arizona Copper Co. v. Burciaga, 177 Pac. 29, a case of personal injuries not fatal, the Supreme Court of Arizona interpreted the act as limiting the recovery to compensatory damages; it reasonably may be so construed in its application to death claims; and it would be improper for this court to assume in advance that the state court will place such a construction upon the statute as to render it obnoxious to the federal Constitution. Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 4 6, 34 Sup. Ct. 359, 58 L. Ed. 713; St. Louis S. W. Ry. v. Arkansas, 235 U.S. 350, 369, 35 Sup. Ct. 99, 59 L. Ed. 265.
It is insisted that the Arizona system deprives employers of property without due process of law and denies them equal protection because it confers upon the employe a free choice among several remedies. In Consolidated Arizona S.C.o. v. Ujack, 15 Ariz. 382, 384, 139 Pac. 465, 466, the Supreme Court of the state said:
'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. § art. 18.'
It is said by counsel that the Compensation Act, because it limits the recovery, never is resorted to in practice unless the employe 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.
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, judgment 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 employe 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.
The is some argument made for the general proposition
This concurrence is in case No. 332, Inspiration Consol. Copper Co. v. Mendez. 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 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. 6, 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.
I do not perceive how the validity of the law is affected by the fact that the employe is a party to the venture. There is no 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. Nither 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. William Hunt & Sons, Ld., [1912] A. C. 496. But whether they do or not they are as much part of the workman's loss as the loss of a limb. The legislature may have reasoned thus. If a business is unsuccessful it means that the public does not care enough for it to make it pay. If it is successful the public pays its expenses and something more. It is reasonable that the public should pay the whole cost of producing what it wants and a part of that cost is the pain and mutilation incident to production. By throwing that loss upon the employer in the first instance we throw it upon the public in the long run and that is just. If a legislature should reason in this way and act accordingly it seems to me that it is within Constitutional bounds. Matter of Erickson v. Preuss, 223 N. Y. 365, 119 N. E. 555. It is said that the liability is unlimited, but this is not true. It is limited to a conscientious valuation of the loss suffered. Apart from the control exercised by the judge it is to be hoped that juries would realize that unreasonable verdicts would tend to make the business impossible and thus to injure those whom they might wish to help. But whatever they may do we must accept the tribunal, as I have said, and are bound to assume that they will act rightly and confine themselves to the proper scope of the law.
It is not urged that the provision allowing 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.

## Notes

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