Prager v. W. H. Chapman & Sons Co. , 122 W. Va. 428 ( 1940 )

This is a certified case from the Circuit Court of Ohio County involving the single question of whether Sec. 8, Article 2 of Chapter 104 of the Acts of the Legislature of 1937, amending the Workmen's Compensation Act, imposes an enforceable liability upon a non-casual, non-subscribing employer for damages suffered by an employee by reason of a personal injury sustained in the course of and resulting from his employment, not caused by wrongful act, neglect or default of the employer, nor of the employee. The trial court overruled the defendant's demurrer to the plaintiff's declaration in an action of trespass on the case, and the specific points raised by the demurrer turn upon the question of whether or not the allegations contained in the declaration are sufficient to justify a recovery because of the fact that they do not allege a breach of legal duty on the part of the employer or any default committed by him in connection with the injury.

One of the sections amended by Chapter 104, above referred to, is 23-2-8, Code 1931. That section, before amendment, provided that employers failing to elect to pay into the workmen's compensation fund or defaulting in payments "shall be liable to their employees (within the meaning of this article) for damages suffered by reason of accidental personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer or any of the employer's officers, agents or employees, and also to the personal representatives of such employees where death results from such accidental personal injuries, and in any action by any such employee or personal representative thereof, such defendant shall not avail himself of the following common law defenses: The defense of the fellow-servant rule; the defense of the assumption of risk; or the defense of contributory negligence; and further, shall not avail himself of any defense that the negligence in question was that of some one whose duties are prescribed by statute."

Under this statute this Court has uniformly held that there could be no recovery against a non-contributing employer, in an action at law, without a showing of wrongdoing, neglect or default, on the part of the employer, his agent or employee, proximately contributing to the injury. Thorn v. Addison Bros. Smith, 119 W. Va. 479, 194 S.E. 771, and cases therein cited.

The section as amended by the 1937 act provides that the non-contributing or defaulting employers "shall be liable to their employees (within the meaning of this article) for all damages suffered by reason of accidental personal injuries or accidental death sustained in the course of and resulting from their employment, and in any action by any such employee or personal representative thereof, such defendant shall not avail himself of the following common law defenses: The defense of the fellow-servant rule; the defense of the assumption of risk; or the defense of contributory negligence; and further, shall not avail himself of any defense that the negligence in question was that of some one whose duties are prescribed by statute, provided no action shall lie, and no recovery shall be had, against casual employers as hereinafter defined, without allegation and proof that such accidental personal injuries or accidental death were caused by the wrongful act, neglect or default of the employer, or any of the employer's officers, agents or employees. Casual employers within the meaning hereof shall be those employing at the time of such accidental personal injuries or accidental death, in and about the operation or work in which such accidental injuries or death occurred, less than ten employees, and those employers employing more than ten employees, who have not conducted the operation or business in which accidental injuries or death occurred, for more than sixty days prior to such accidental injuries or death."

It is apparent, therefore, that under the section in question, as amended, an employer employing ten or more persons becomes liable to his employee for any accidental injury or accidental death, resulting from his employment, regardless of whether or not the accident or death resulted from any wrongful act, neglect or default of the employer. As to casual employers the section contains the same provisions as to liability as those existing as to all employers within the act before it was amended. The importance of the amendment to employers who, within their legal rights, have elected not to become contributors to the workmen's compensation fund is apparent.

The important question is that relating to the power of the legislature to impose the liability attempted to be created by the amendment, but another question presents itself which we think should be determined at this point, and that relates to the title of the act in which the amendment was made.

Sec. 30, Art. VI of the Constitution of this state provides that "No act hereafter passed shall embrace more than one object and that shall be expressed in the title." The title of the act under consideration merely recites the purpose as being to amend certain designated sections of an existing act, and ends with this language "* * * all relating to workmen's compensation and the administration of the workmen's compensation law." This language, in our opinion, conceals rather than defines the real purpose sought by the amendment to Code, 23-2-8. According to the contention of the plaintiff below, the real object and purpose of the legislature was to create a new ground of action for personal injury, not enforceable through the administration of the compensation statutes, but outside the same, and in an action at law. If this be true, the general language quoted serves to obscure this purpose. The Constitution plainly contemplates and requires that the purpose and object of the act shall be stated in the title, and nowhere in this title is there the slightest intimation that a cause of action outside of the act is to be created thereby. There are many decisions of this Court on this question, and a rule of liberality has been followed. But, following the rule reiterated in Bedford Corporation v. Price,112 W. Va. 674, 166 S.E. 380, we are of the opinion that the act in question cannot be sustained because of the defective title thereto.

The fundamental question involved is the power of the legislature to impose the liability without fault in an action at law entirely outside the workmen's compensation statute. It is contended that to create such liability would be to violate Sec. 1 of the Fourteenth Amendment to the Federal Constitution and Sec. 10, Art. III of the Constitution of this state, both inhibiting the deprivation of life, liberty or property without due process of law, and that the effect of the act in question is to create a liability against an employer, wholly without fault, merely because the business in which he may be engaged, requires the employment of laborers, one of whom may be injured. On the other hand it is asserted that under the police power of the state, the legislature had the right to enact the challenged legislation.

It is undoubtedly true that, under the police power of the state, liability without fault may be imposed through the use of workmen's compensation legislation, under which the requirement of contribution to a general fund to be administered by the state, is enforced. Workmen's Compensation Laws are of comparatively recent origin, and at the beginning doubt was expressed as to their being within the Federal and State Constitutions. Obviously, the very basis of every such law is to make employers liable for injuries to their employees engaged in industry, regardless of fault; and it was contended that such a law operated to violate the constitutional provisions securing the owners of property from being deprived thereof without due process of law. This contention was made especially to acts compulsory in character, and, on this ground, the first of such laws, enacted by the legislature of New York, was held unconstitutional. Ives v. South Buffalo Ry.Co., 201 N.Y. 271, 94 N.E. 431, 34 L.R.A. (N.S.) 162, Ann. Cas. 1912B, 156, decided in 1911. Later in the same year, a compensation law, elective in character, was upheld in Massachusetts. Opinion of Justices, 209 Mass. 607, 96 N.E. 308. Our law is founded upon the elective principle, and its constitutionality has been upheld by this Court. De Francesco v. Piney Mining Co., 76 W. Va. 756, 86 S.E. 777; Watts v. Railway Co., 78 W. Va. 144, 88 S.E. 659; Rhodes v. Coal Company, 79 W. Va. 71, 90 S.E. 796. More recent cases tend to sustain compulsory acts as a proper exercise of the police power of the state. New York Central Railway Company v.White, 243 U.S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L.R.A. 1917D, 1, Ann. Cas. 1917D, 629. In Cudahy Packing Co. v.Parramore, 263 U.S. 418, 44 S. Ct. 153, 154, 68 L. Ed. 366, 30 A.L.R. 532, it was held that "workmen's compensation legislation rests upon the idea of status, not that of implied contract; that is, upon the conception that the injured workman is entitled to compensation for an injury sustained in the service of an industry to whose operations he contributes his work as the owner contributes his capital." So that the trend of judicial opinion now favors the upholding of the right of the state, under its police power, to make participation in workmen's compensation funds compulsory.

But our legislature has attempted a different thing. It has not sought to impose liability on all employers by requiring them to become contributors to the workmen's compensation fund, and thereby provide for their employees the same protection afforded to those whose employers have elected to become contributors; but has so amended the act as to permit injured workmen of non-casual employers, not contributors to the fund, to institute actions at law, and to recover damages for accidental injuries, and extending the same right to their personal representatives in the case of accidental death, where the employer has not been guilty of any wrongdoing, neglect or default in any way contributing to the injury or death. It is one thing to say that the state has power to require employers to contribute to a fund to be administered by the state, for the purpose of compensating employees for injuries sustained in industry; it is quite another thing to require an employer to pay damages, from his own estate, for an injury sustained by one of his employees, in no wise due to any neglect, negligence or wrongdoing on the part of the employer. Conceding, as we do, that the state has the right, through workmen's compensation legislation, to require the creation of a fund, and to administer the same for the benefit of those injured in industry, we do not think the legislature, under our Constitution, can arbitrarily impose liability, enforceable in an action at law, upon an employer, in the absence of a showing of wrongdoing, neglect or default on his part, proximately contributing thereto. We do not think the police power of the state can be extended to sustain such an enactment.

The police power, an attribute of sovereignty, is the state's inherent right and authority to promote the safety, health, morals and general welfare of society. It is a public matter, and one which of necessity operates through public agencies, calling for the use and application of public authority, and cannot be extended to cover private rights as between individuals. The books are full of attempted definitions of police power, but so far as we have been able to ascertain it is confined in its application to the promotion of the safety, health, morals and general welfare of society. It operates upon the public as a whole. An interesting discussion of the objects to which the power extends may be found in 11 Am. Jur. 1014, and this Court has discussed the power in Hinebaugh v. James,Tax Commissioner, 119 W. Va. 162, 192 S.E. 177, 112 A.L.R. 59, and Nulter v. Road Commission, 119 W. Va. 312,193 S.E. 549, 194 S.E. 270.

The right to be protected in the ownership of property is guaranteed by both the Federal and State Constitutions. While the state may impose burdens upon private property, in the way of taxation, short of confiscation, and may take property for public use upon the payment of just compensation therefor, these powers must be exercised through orderly processes and with full opportunity to owners of property to assert and defend their rights therein. Subject to tax burdens and the right of eminent domain, the right to possess and use private property, so long as the same is legitimately used within the provisions of established law, is unrestricted. It would be useless for us to attempt to define due process of law, but, as to property rights, it may be stated to mean that an owner is entitled to protection thereof as against arbitrary action of any kind which tends to deprive him of the retention, use or enjoyment thereof. To our minds, one who is the owner of property and who uses the same within the regulations laid down by law, and who meets the public burden imposed thereon in the way of taxation, cannot be deprived of that property by attempted legislative action, which, in its effect, makes such property subject to claims of individuals, as distinguished from the public, which are not based upon any breach of public or private duty, wrongdoing, neglect or default of the owner. Owners of property have the right to legitimately use the same, and so long as that use does not infringe upon the rights of others or cause injury to others, they cannot be subjected to arbitrary burdens, and particularly cannot be subjected to burdens which, in effect, operate to transfer the property from one individual to another. To say that as between an employer and employee the legislature may arbitrarily impose a liability upon the employer, the effect of which may be, in case of an injury to the employee, to transfer to him the property of the employer, merely because of the relation of master and servant, and where there is no fault on the part of either, is to assert a proposition which, to our minds, is unfair and cannot be defended. Such a proposition runs counter to any conception we have ever had of the meaning of due process of law. It takes from an employer, arbitrarily, property which he has accumulated, usually through his individual effort, and for no reason involving any misdoing on his part, any neglect of duty, or misuse of his property. To do this, it seems to us would violate every element of what is termed fair play as between individuals, and we cannot give our assent thereto. That which cannot be done directly, cannot be done indirectly. The fact that the amendment in question may have been intended to have the indirect effect of compelling all employers to become subscribers to the workmen's compensation fund, and that the amendment was embodied in the workmen's compensation statute, does not make the enactment effective. If the legislature had that purpose in mind, there was open to it a plain, simple and direct way by which that purpose could have been undertaken.

The order of the Circuit Court of Ohio County is reversed and the action remanded for further proceedings.

Reversed and remanded.