Western Indemnity Co. v. Pillsbury

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an original proceeding in certiorari, to review an award of the Industrial Accident Commission, awarding compensation to one L. Rudder for injuries claimed to have been received by him in the course of his employment by Ocean Shore Railroad Company. Western Indemnity Company, the petitioner for the writ, was a party to the hearing before the commission, and was held liable for the compensation as insurer of the railroad company. On April 12, 1914, the date of the alleged injuries to Rudder, the "Workmen's Compensation, Insurance and Safety Act" of 1913 (Stats. 1913, p. 279) had, according to its terms, gone into effect. The constitutionality of the act (commonly known as the Boynton Act) is involved here, as it is in a number of other cases under submission. In most of the cases the parties have submitted this issue upon the arguments and briefs presented inGreat Western Power Co. v. Pillsbury, ante, p. 180, [149 P. 35]. In that case we found it unnecessary to consider the validity of the main features of the enactment. Now, however, a determination of the questions presented in this behalf becomes necessary and proper.

The Boynton Act superseded the act of 1911 (known as the Roseberry Act) [Stats. 1911, p. 796], which was the basis of the rights asserted in the Great Western Power case. The most striking difference between the two laws is that the compensation provisions of the later statute are compulsory on all employers and employees coming within its terms, while the Roseberry Act gave to both employers and employees a right of election in this regard. A brief summary of the later law must precede any discussion of the points made against its validity.

Sections 1 and 2 provide a short title for the act, and define the terms used in it. Sections 3 to 11 provide for the appointment and organization of a board of three members, to be known as the Industrial Accident Commission, and declare the general powers of the board. Sections 12 to 35 deal with the subject of compensation for industrial accidents. Section 12 follows, with slight changes, the phraseology of section 3 of the Roseberry Act. It declares that: "Liability for the compensation provided by this act, in lieu of any other liability whatsoever, shall, without regard to negligence, exist against an employer for any personal injuries sustained by his employees by accident arising out of and in the course of the employment and for the death of any such employee if the injury shall proximately cause death, in those cases where the following conditions of compensation concur:

(1) Where, at the time of the accident, both the employer and employee are subject to the compensation provisions of this act.

(2) Where, at the time of the accident, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment as such.

(3) Where the injury is proximately caused by accident, either with or without negligence, and is not so caused by the intoxication or the willful misconduct of the injured employee." By the second subdivision (b) of section 12, the right to compensation under the act, where the required conditions concur, is made the exclusive remedy against the employer, except where certain delinquencies on the part of the employer have caused the injury.

Section 13 defines "employer" as including, in addition to the different governmental agencies, every person, association, or corporation "who has any person in service under any appointment or contract of hire, or apprenticeship, express or implied. . . ." By section 14 "employee" is defined to mean "every person in the service of the employer as defined by section 13 hereof under any appointment or contract of hire . . .," excluding any person whose employment is both casual and not in the usual course of the trade, business, profession or occupation of his employer, and also excluding any employee engaged in farm, dairy, agricultural, viticultural, or horticultural labor, in stock or poultry raising or in household domestic service. Section 15 contains an elaborate schedule for fixing the compensation to the injured employee, or to his dependents where death results, the scale being based in part on the earnings of the injured person. Sections 16 to 20 limit the time within which proceedings for collection may be instituted, provide methods for computing the earnings or loss of wages which are a factor in the allowance to be made, and define the dependents who are to be compensated in case of death. Sections 22 to 33 deal with the procedure to be followed on applications to the commission, and kindred matters, section 25 declaring that "after final hearing by the commission, it shall, within thirty days, make and file (1) its findings upon all facts involved in the controversy, and (2) its award, which shall state its determination as to the rights of the parties."

Sections 36 to 50 provide for the creation and administration of a "state compensation insurance fund." We shall have occasion, at a later point in the discussion, to give a more detailed statement of these provisions. The questions raised in this case make it unnecessary to go into particulars regarding sections 51 to 72, which give the commission power to make and enforce safety rules and regulations, to prescribe safety devices, and to order the reporting of accidents.

Sections 73 to 80 declare the powers of the commission with respect to procedure. Sections 81 to 83 provide for the authority of the board to grant rehearings.

Sections 84 and 85 authorize a review of the orders and awards of the commission by the supreme court or by the district court of appeal of the appellate district in which the applicant resides. The only method of review is by means of a writ ofcertiorari, and it is provided that the review "shall not be extended further than to determine whether or not:

(1) The commission acted without or in excess of its powers.

(2) The order, decision, or award was procured by fraud.

(3) The order, decision, rule, or regulation is unreasonable.

(4) If findings of fact are made, whether or not such findings of fact support the order, decision, or award under review."

It is declared in section 84 that "the findings and conclusions of the commission on questions of fact shall be conclusive and final and shall not be subject to review; such questions of fact shall include ultimate facts and the findings and conclusions of the commission."

Section 86 demands a liberal construction of the act, and provides that "if any section . . ., sentence, clause or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this act."

The concluding sections (87 to 92) have no bearing on the questions we are about to consider.

Attention should also be called to section 21 of article XX of the constitution, added by vote of the electors on October 10, 1911, prior to the enactment of the Boynton Law. This section reads: "The legislature may by appropriate legislation create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment, irrespective of the fault of either party. The legislature may provide for the settlement of any disputes arising under the legislation contemplated by this section, by arbitration, or by an industrial accident board, by the courts, or by either any or all of these agencies, anything in this constitution to the contrary notwithstanding."

Both the federal constitution and the constitution of this state are invoked in support of the assault made upon the law.

The clauses of the fourteenth amendment guaranteeing "due process of law" and "the equal protection of the laws" are, it is alleged, violated by the scheme of legislation embodied in the Boynton Act. The enactment substitutes a new system of rights and obligations for the common-law rules governing the liability of employers for injuries to their workmen. The change thus made is radical, not to say revolutionary. In place of the old action, in which the employer was liable only if he, or some one representing him, had been guilty of negligence or misconduct, the new law imposes upon the employer a liability for any accidental injuries to his employees arising out of the employment — a liability not conditioned upon any negligence of the employer, or any want of negligence on the part of the employee. All that is required is that the injury shall not have been caused by the intoxication or the willful misconduct of the injured employee. Stating the change another way, the long established doctrines of contributory negligence, of assumption of risk and of negligence of a fellow-servant are by this law swept out of existence, and are given no weight in proceedings by employees against employers on account of injuries received in the employment. It may be noted that under the particular scheme embodied in this act, the loss resulting from accidental injuries is not imposed upon the employer alone. The scale of compensation fixed by section 15 allows to the employee, in addition to medical and surgical expenses, an indemnity based upon his loss of earnings, but this indemnity covers not the whole, but only a part or a percentage of such loss. The risk of accidental injuries is thus shared by employer and employee.

Fundamental as are the changes thus made, they are not peculiar to the legislation of this state. They are the concrete expression of sentiments and beliefs that are widely prevalent, and that have exerted a compelling force in influencing similar enactments in many other states and countries. Limiting our reference to jurisdictions in which the common law has furnished the main standards of decision, it is found that statutes embodying the underlying principles of the act under review have been enacted in Great Britain, in various British colonies and in more than twenty states of the Union. (Bradbury, Workmen Compensation Law, secs. 5, 6.) Many of these laws, like the California statute of 1911 (commonly known as the Roseberry Act), are made applicable only to employers and employees electing to be bound by them. Others provide a compulsory scheme of compensation, as does the act now before us. But, whether elective or compulsory, these statutes, one and all, rest on the underlying notion that the common-law remedy by action, with the requirements of proof incident to that remedy, involves intolerable delay and great economic waste, gives inadequate relief for loss and suffering, operates unequally as between different individuals in like circumstances, and that, whether viewed from the standpoint of the employer or that of the employee, it is inequitable and unsuited to the conditions of modern industry. These considerations are elaborated in the many reports that have been made under legislative authority, and are outlined in a number of judicial decisions, some of which we shall have occasion to cite. Without undue expansion of the discussion, it may be said, in a few words, that the theory of this legislation is that the risk of injury to workmen in the industries governed by the law should be borne by the industries, rather than by the individual workman alone. As the ultimate result, the burden imposed in the first instance upon the employer, will, it is said, be distributed, as part of the cost of production, among the consuming public.

Does a statute giving effect to this theory deprive the employer of liberty or property without due process of law, or deprive him of the equal protection of the laws?

If such a law may be given force, the sanction for it must be found in that legislative authority usually termed the police power. The broad and all-pervading scope of this power makes a satisfactory definition of it impossible. Its general nature and extent are declared in a number of decisions of the supreme court of the United States. We shall not repeat the oft-quoted and familiar expressions used in these decisions. For the purposes of this discussion, the police power is, we think, adequately and well described by the supreme court of Washington in these words: "By means of it, the legislature exercises a supervision over matters affecting the common weal and enforces the observance by each individual member of society of duties which he owes to others and the community at large. The possession and enjoyment of all rights are subject to this power. Under it, the state may ``prescribe regulations promoting the health, peace, morals, education, and good order of the people, and legislate so as to increase the industries of the state, develop its resources and add to its welfare and prosperity.' In fine, when reduced to its ultimate and final analysis, the police power is the power to govern." (State v. Clausen, 65 Wn. 156, 177, [37 L.R.A. (N.S.) 466, 117 P. 1101].)

The arbitrary taking of life, liberty, or property cannot, of course, be justified by referring the act to the police power. But, if a given piece of legislation may fairly be regarded as necessary or proper for the protection or furthering of a legitimate public interest, the mere fact that it hampers private action in a matter which had theretofore been free from interference is not a sufficient ground for nullifying the act.

Statutes aiming at the same general purpose as that sought by the Boynton Act have, in a majority of the decided cases, been held good as against the attack that they violated the fourteenth amendment. Some of these cases arose under statutes which made the compensation provisions elective. (State v.Creamer, 85 Ohio St. 349, [39 L.R.A. (N.S.) 694, 97 N.E. 602];Mathison v. Minnesota St. Ry. Co., 126 Minn. 286, [148 N.W. 71];Cunningham v. Northwestern Imp. Co., 44 Mont. 180, [119 P. 554]; Borgnis v. Falk Co., 147 Wis. 327, [37 L.R.A. (N.S.) 489, 133 N.W. 209]; Hawkins v. Bleakley, 220 Fed. 378; Mackin v.Detroit-Timkin A. Co. (Mich.), 153 N.W. 49.) And while, in several of these decisions, the court was careful to point out that the validity of a compulsory compensation act was not involved, yet the general line of reasoning employed in most of the cases would, if pursued to its logical results, go far toward sustaining even such an act.

Counsel have cited but two decisions dealing directly with the validity of acts which make the scheme of compensation, irrespective of negligence, compulsory with respect to employers and employees. And in these cases opposing conclusions were reached. In Ives v. South Buffalo Ry. Co., 201 N.Y. 271, [Ann Cas. 1912B, 156, 34 L.R.A. (N.S.) 162, 94 N.E. 431], the court of appeals of New York declared that the statute of 1910, providing a system of workmen's compensation for certain employments, was in conflict with the constitution, in two respects: (a) because it deprived the employer of property without due process of law, and (b) because it deprived both employer and employee of the right to trial by jury, guaranteed by the constitution of the state. The second ground, whether well taken or not, has no application to the case at bar, for although our constitution has always contained a provision securing the right of trial by jury (art. I, sec. 7), the legislature is, as we have already pointed out, expressly authorized by section 21 of article XX, to provide for the settlement by arbitration, by a board, or by the courts, of disputes involving the liability of employers. This section, adopted in 1911, worked a repeal, pro tanto, of any conflicting provision which may have been in force theretofore.

On the other point, that of "due process," the main stress of the opinions in the Ives case is laid upon the proposition that the statute imposes a liability upon an employer who has been guilty of no fault, and who, under the pre-existing law, was under no obligation to compensate his employee for an injury. This, it is declared, is a violation of the employer's constitutional rights.

On the other hand, in State v. Clausen, 65 Wn. 156, [37 L.R.A. (N.S.) 466, 117 P. 1101], the validity of an act similar, in its main purpose, to the New York statute and to the Boynton Act, was upheld, the court handing down an exhaustive and able opinion to support its conclusion.

The essence of the decision in the Ives case is that freedom from liability on the part of an employer who has been guilty of no fault is a fundamental property right of which he cannot be deprived by mere legislative declaration. With all possible respect for the eminently learned court which pronounced this decision, we are unable to give our assent to the doctrine. The rules of the common law defining the rights and obligations of persons holding various mutual relations are not necessarily expressions of fixed and immutable principles, inherent in the nature of things. "A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will . . . of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstance." (Munn v. Illinois, 94 U.S. 113, 134, [24 L. Ed. 77]; Martin v. Pittsburg etc. R.R. Co., 203 U.S. 284, 294, [8 Ann. Cas. 87, 51 L. Ed. 184, 27 Sup. Ct. Rep. 100]; TheLottawanna, 21 Wall. 558, 577, [22 L. Ed. 654]; Western UnionTel. Co. v. Com. Milling Co., 218 U.S. 406, 417, [21 Ann. Cas. 815, 36 L.R.A. (N.S.) 220, 54 L. Ed. 1088, 31 Sup. Ct. Rep. 59].) In accordance with this view, the supreme court of the United States, in Mondou v. New York etc. R.R. Co., 223 U.S. 1, [38 L.R.A. (N.S.) 44, 56 L. Ed. 327, 32 Sup. Ct. Rep. 169], sustained the validity of the federal Employers' Liability Act, which, in the cases covered by the act, abrogated the fellow-servant rule, and greatly restricted the operation of the defenses of contributory negligence and assumption of risk. Indeed, the legislative control over some of the doctrines of law relating to this class of cases is conceded by the court in the Ives case, it being said, in the main opinion, that "the statutory modifications of the ``fellow-servant' rule and the law of ``contributory negligence' are clearly within the legislative power. These doctrines, for they are nothing more, may be regulated or even abolished." And the concession goes no further than would be necessary to avoid conflict with a strong and uniform body of authority. (Mathison v. Minnesota St. Ry. Co., 126 Minn. 286, [148 N.W. 71, 73], and cases cited; State v. Creamer, 85 Ohio St. 349, [39 L.R.A. (N.S.) 694, 97 N.E. 603]; Cunningham v. Northwestern Imp. Co., 44 Mont. 180, [119 P. 554]; Borgnis v. Falk Co., 147 Wis. 327, [37 L.R.A. (N.S.) 489, 133 N.W. 209].)

The line is sharply drawn, however, by the New York court of appeals, between the fellow-servant and contributory negligence rules, on the one hand, and the rule that fault on the part of the employer must be shown, on the other. Why this distinctions? Is the latter doctrine any more sacred or inherently necessary than either of the former? Under the common law the burden of industrial accident, where no fault was attributable to employer or workman, fell on the workman. Under the new law it falls, primarily at least, on the employer. It cannot be said that the one rule or the other is a necessary or logical result of fundamental principles of justice. The very trend of legislation exemplified by the act before us illustrates how general is the belief that an enlightened conception of justice requires that the old rule be superseded by the new. There is nothing contrary to the permanent and underlying notions of human right in the declaration that he who is conducting an enterprise, in the operation of which injury to others is likely to occur, shall respond for such injury to those who have not, by their own willful misconduct, brought it upon themselves. "The position in the line of causation which employers sustain in modern industrial pursuits is of course the basic fact on which employer's liability laws rest." (State v. Creamer, 85 Ohio St. 349, [39 L.R.A. (N.S.) 694, 97 N.E. 602, 606].) Such a change in the "law itself, as a rule of conduct" is as fairly within the scope of legislative power as is the abolition of the defense of fellow-servant or that of contributory negligence. If the lawmaking body deems such change to be needed for the furtherance of the general well-being, it is taking a view that may at least be entertained by reasonable minds, and its action is justified by the broad authority embraced within the police power.

The fourteenth amendment was "intended to prevent the arbitrary exercise of power, or undue, unjust and capricious interference with personal rights; not to prevent those reasonable regulations that all must submit to as a condition of remaining a member of society." (State v. Clausen, 65 Wn. 156, [37 L.R.A. (N.S.) 466,117 P. 1101].) The state is prohibited from taking life, liberty, or property without due process of law, whether that taking be accomplished by administrative action, by judicial decree, or through the form of enacting a statute. Laws must be framed so as to respect existing and vested property rights, and so as to operate equally upon all who are similarly situated with respect to such laws. But the laws defining rights of property, personal relations, or the obligations of individuals to their fellow-beings or to the state may, in general, be molded and altered by the states at will, if the change does not affect acts previously done, nor property rights previously acquired. Therefore, a law which disturbs no vested right of property, which is not retroactive in its operation upon the conduct of persons, but which, looking to the future, merely changes the existing rules governing the liability of masters for injuries caused by accidents occurring to their servants while in the service, does not come within the scope of the fourteenth amendment. It is simply an exercise by the state of its governmental power to pass laws regulating the ordinary private rights of persons and property. The law in question is of this character. It does not affect past transactions or previously acquired rights of person or property. It provides for a notice and a hearing as to liabilities arising under it, and it bears alike upon all affected by its provisions.

It is not to be supposed that the line of reasoning outlined by us would support any and every legislative attempt to transfer burdens from one class of persons to another, upon the theory, merely, that it is for the common welfare that such burdens be borne by the persons upon whom they are thus imposed. It is impossible to point out, in advance, the line which would separate legitimate legislative regulation from arbitrary spoliation. A change in obligations and liabilities must rest upon some substantial reason, founded on the mutual relations of persons, or their relations to the public. It would not be questioned, for example, that the law regulating the relative rights and duties of husband and wife, of parent and child, or of carriers and the public, may be radically altered by the legislature. Indeed, vital changes in these matters are of every-day occurrence. In each of these instances the relation of the parties is such as to furnish a reason and a justification for governmental regulation. The same may be said of employer and employees. The employment creates a status involving relative rights and obligations, and it is properly for the legislature, acting within the bounds of fairness and reason, to determine the nature, extent, and application of those rights and obligations. If the law-making body determines that one of the incidents of that relation shall be that the employer must compensate his employee for an accidental injury received in the service, an enactment to that end is neither arbitrary nor outside the scope of legislative authority.

The fixing of liability on one who is without fault is not new to the law. The opinion of the Washington supreme court in State v. Clausen, supra, gives numerous instances of such liability, both at common law and under statutes which have withstood attack on constitutional grounds. Some, at least, of the cases thus referred to cannot, we think, be distinguished from the case at bar, so far as the point now under discussion is concerned.

We have not overlooked the circumstance that the Boynton Act, unlike some of the other statutes to which we have referred, does not limit the newly created scheme of compensation to specially enumerated industries, selected as and declared to be extra-hazardous in character. We do not conceive that this difference has any real bearing upon the constitutional questions heretofore discussed. The legislative power to impose the liability upon an employer who is without fault does not, in the view of the courts which have dealt with the subject, rest upon the consideration that the particular employer is conducting an industry in which injury is more likely to result than in some other. If the burden may be imposed upon any employer conducting a lawful and necessary industry, it may be imposed upon all who are conducting industries in which, in the judgment of the legislature, the public welfare requires this measure of protection.

Nor do we think that any distinction, so far as constitutional objections are concerned, can be based upon the fact that this act imposes upon the employer a liability to compensate his employees for injuries actually received in the particular employment, while under other statutes — for example, that of Washington — all employers are required to contribute sums, proportioned to their pay-roll and graduated according to the nature of the industry, into a fund out of which all claims for compensation are to be paid. The essential question is whether liability for injury suffered by employees through accident may be imposed upon employers who have been guilty of no breach of duty. Once this question is answered in the affirmative, the mode of imposing the liability, whether it be by way of a proportionate contribution having some of the characteristics of a tax, or by fixing a direct liability upon each employer for each accident as it occurs, is a matter for legislative determination.

Furthermore, the Boynton Act provides for a system of compensation insurance by the state or by private insurers "for the purpose of insuring employers against liability for compensation under this act" (sec. 36), and declares that an employer who is insured against liability for the full amount of compensation payable or to become payable may be relieved from liability by giving certain notices to the parties interested. (Sec. 34.) In other words, under the California law the employer has it in his power to protect himself against personal liability by taking out the insurance provided for, paying therefor, of course, the premiums fixed in accordance with the hazards of the industry and the circumstances surrounding the particular work affected. (Sec. 40.) The employer who takes advantage of this privilege is subjected to a burden not substantially different from that imposed by the Washington statute upon all employers within the classes affected by that statute. If there be any force in the argument that the Washington scheme is a reasonable burden upon the employer, while the imposition upon him of direct liability for injuries is unreasonable and arbitrary, the contention is fully met by pointing out that under our law each employer has the option of limiting the burden within precisely the same bounds as those fixed by the system in force in Washington. In this connection it may be pointed out that the same court that decided the Ives case has, in a decision rendered within the past few weeks, sustained the validity of a statute giving to injured employees in specified industries the right to receive prescribed compensation based on earnings, the payments to be made out of a fund created from premiums paid by the employers. The employer may, under the statute, insure with corporations or associations authorized to transact such business, and is relieved from any liability beyond the compensation prescribed in the act by paying the premiums into the state fund or by paying the prescribed compensation directly or through an insurance carrier. If he does not take advantage of any of the options conferred upon him by the act, he is liable to an action for damages in which he is deprived of the defenses of contributory negligence, assumed risk, and negligence of a fellow-servant. This act became a law December 16, 1913, and was enacted pursuant to an amendment to the constitution of the state of New York adopted after the decision of the court in the Ives case. In Jensen v. Southern Pacific Co., 215 N.Y. 514, [109 N.E. 600], decided July 13, 1915, the court of appeals held that the statute in question did not violate the fourteenth amendment to the constitution of the United States.

For these reasons, which might be fortified and elaborated if considerations of space permitted, we are satisfied that the statute is not obnoxious to the provisions of the fourteenth amendment.

Various objections arising under the state constitution are also urged. These are all based on the clause excluding from the operation of the act casual employees and employees engaged in farm, dairy, agricultural, viticultural, or horticultural labor, in stock or poultry raising, or in household domestic service. It is first claimed that no exceptions are permissible under our constitutional enabling clause (art. XX, sec. 21). This clause authorizes the legislature to create a liability on the part ofall employers to compensate their employees, etc. The use of the word "all," it is claimed, takes away the power of the legislature to except any employer from the operation of the act. The only power granted is to create a liability on the part of all. But this, we think, is a strained construction of the amendment. Section 21 was adopted for the purpose of establishing the right of the legislature to pass laws on the particular subject. It was a grant of power, and the word "all" was inserted in order to make the power broad and comprehensive. The legislative authority was declared to extend over all employers. The grant was thus universal in scope, and could be exercised by the legislature to such an extent as it saw fit, provided, of course, that any exceptions made did not violate some independent provision of the constitution. In other words, on the principle that the greater includes the less, power to legislate for the whole body of employers embraces power to legislate for a part of the body.

The exceptions are claimed to make the law vulnerable as special legislation. It can no longer be necessary to cite authorities in support of the power of the legislature to make different laws for different classes of persons, provided the classification be based on some rational ground of differentiation. And the conclusion of the legislature on this point will be sustained unless it is manifestly without support in reason. That casual employees form a special class, which might fairly be regarded as not requiring the protection of the new law, is obvious enough, and is, indeed, not questioned by the petitioner. A more serious question is presented by the exclusion of employees in the various branches of agricultural pursuits and in domestic service. But here, too, in view of the very liberal rules established by our decisions on the legislative power of classification, it must be held that the law-making body might reasonably have found that the conditions of agricultural and of domestic employment were so far different from those surrounding other employments as to justify the limiting of the new compensation law to these other employments. "The legislature is not bound, in order to support the constitutional validity of its regulations, to extend it to all cases which it might possibly reach. Dealing with practical exigencies, the legislature may be guided by experience. It is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest." (Miller v. Wilson,236 U.S. 373, [59 L. Ed. 628, 35 Sup. Ct. Rep. 342]; see, also, In reMiller, 162 Cal. 687, [124 P. 427].) Unless the classification is palpably arbitrary, it must stand. The respondent suggests various grounds which might well have guided the legislature in making the exceptions complained of, as that farm laborers, and those engaged in the kindred excepted forms of work, are, as a rule, engaged in "open and detached employments," under conditions "largely created and controlled by them," and for these, and other reasons, less likely to produce injuries. Similar arguments might be applied to the case of domestic service. Finally, it may be said that the course of decision in other states supports the view that exceptions like these are an exercise of the legitimate legislative power of classification, and do not evidence an arbitrary discrimination. (Opinion of Justices, 209 Mass. 607, [96 N.E. 308]; Mathison v. Minnesota St.Ry. Co., 126 Minn. 286, [148 N.W. 71]; Dirken v. Great NorthernP. Co., 110 Me. 374, [Ann. Cas. 1914D, 396, 86 A. 320]; Mackin v. Detroit-Timkin Co. (Mich.), 153 N.W. 49.)

Accepting, then, the Boynton Act as a valid measure of the rights of the parties, we come to the merits of the particular case.

The commission first made its findings of fact in general terms. Finding No. 1 was to the effect that Rudder was injured by accident on April 12, 1914, while in the employ of Ocean Shore Railroad Company, and that said accident arose out of and happened in the course of said employment. Finding No. 2 declared that said accident happened while the injured employee was performing a service growing out of, incident to, and in the course of his employment, and was not caused by the willful misconduct or intoxication of said employee. Subsequently, on motion of the Western Indemnity Company, the commission made amended findings, amending finding No. 1 to read as follows:

"1. That L. Rudder, applicant herein, was injured by accident on the 12th day of April, 1914, while in the employment of defendant, Ocean Shore Railroad Company, and that said accident arose out of and happened in the course of said employment and in the manner following:

"a. Said Rudder was a section foreman in charge of a special gang of fifteen or twenty section hands, mainly Greeks, in the employment of the Ocean Shore Railroad Company, at or near Mussel Rock, San Mateo County, California.

"b. One George Pappas, a Greek, was not doing his work in a proper way and applicant Rudder remonstrated with him and took the shovel from his hands and showed Pappas how to do the work right, but Pappas continued to do the work in the wrong manner and Rudder told him to drop his shovel and get his time. Pappas did not drop his shovel and Rudder undertook to take it from him. Pappas resisted and struck Rudder with the flat side of the shovel, Rudder saying, ``I will make you drop that shovel,' stepped back a few paces and laid hold of a jackstick five or six feet long and as large around as one's wrist, and returned to where Pappas was. Pappas meantime had seized a rock, but, upon the approach of Rudder, dropped the rock and struck at Rudder with the shovel, missing him, whereupon Rudder struck Pappas on the side of the head with the jackstick. Falling to his knees by reason of the force of the blow, Pappas grabbed Rudder about the feet, tripped him and threw him between the rails, climbed on top of him, and, for the period of about fifteen minutes, tore the flesh on Rudder's face, hands, and arms with his teeth, inflicting severe lacerations which were followed by blood poisoning and serious and prolonged disability resulting therefrom."

The contention of the petitioner is that these findings are not sustained by the evidence. We need not here restate our views regarding the extent to which the court may, under a writ ofcertiorari, inquire into the sufficiency of the evidence to sustain findings of the jurisdictional facts underlying the power of the commission to award compensation. That question was elaborately discussed in Great Western Power Co. v. Pillsbury,ante, p. 180, [149 P. 35], recently decided. The award reviewed in Great Western Power Co. v. Pillsbury was made under the Roseberry Act, but there is no substantial difference between that law and the Boynton Act so far as this phase of the case is concerned. Under either law it is essential to the power to make an award that the injury shall have been caused by accident to an employee acting within the course of his employment. In both acts the findings of the commission on questions of fact are declared to be conclusive, and the circumstance that the Boynton Act declares in addition that "such questions of fact shall include ultimate facts," etc., does not change the rule that the power of review extends to the inquiry whether a finding of a jurisdictional fact is wholly without the support of any substantial evidence. Such inquiry, as was explained in the decision just referred to, presents a question of law.

It may be proper at this point to say a word in approval of the course adopted by the commission in amending its findings of fact so as to show specifically the occurrences which, in its view of the evidence, were shown to have taken place. While we do not question the legal power of the commission to limit the findings to the ultimate facts set forth in the statute, the practice of making specific findings will in many cases not only be fairer to the parties who may wish to seek a review of the final determination reached, but will also be helpful to the reviewing court in its effort to ascertain whether that determination may be sustained.

The main contentions of the petitioner are that there is no evidence to show either that Rudder's injuries were the result of accident, or that the injuries happened while Rudder was performing a service incidental to and in the course of his employment.

The amended first finding, like the first one, declares the ultimate fact that Rudder was injured by accident and that the accident happened in the course of his employment. Probative or specific facts are found in addition, but they are not declared to be the sole basis from which, as a matter of necessary inference and conclusion, the ultimate facts are drawn. If we apply the analogy of an appeal from a judgment, the probative facts found cannot prevail over the findings of ultimate fact, unless necessarily in conflict with such finding. (People v.McCue, 150 Cal. 195, [88 P. 899].) If the specific findings have the support of evidence, and if those findings, with the aid of fair inferences, sustain the findings of ultimate fact, the action of the commission cannot be overthrown.

We shall not stop to discuss the question whether the evidence sustains the findings of the commission regarding the particular circumstances under which the injuries to Rudder occurred. On this point it is sufficient to say that there is at the least a substantial conflict in the evidence, and that the commission in finding as it did was acting within its jurisdiction. Its disposition of the questions of fact on which the evidence was thus conflicting is final and conclusive here.

There remains the question whether, accepting as true the specific facts found, the commission erred as matter of law in holding and finding that those facts showed an injury by accident in the course of Rudder's employment. This question must be answered in the negative. The circumstance that the injury was the result of a willful or criminal assault by another does not exclude the possibility that the injury was caused by accident. (1 Bradbury on Compensation, 2d ed., 505.) In discussing the English Compensation Act, Lord Macnaghten said inFenton v. Thorley Co., Ld., (1903), A.C., 443: "The expression ``accident' is used in the popular and ordinary sense of the word, as denoting an unlooked for mishap or an untoward event which is not expected or designed." This court has defined "accident" as "a casualty — something out of the usual course of events, and which happens suddenly and unexpectedly, and without any design on the part of the person injured." (Richards v. Travelers Ins.Co., 89 Cal. 170, [23 Am. St. Rep. 455, 26 P. 762]; Price v.Occidental Life Ins. Co., 169 Cal. 800, 147 P. 1175].) Under these and other authorities, it is clear that an injury caused by the attack of a third person may be accidental so far as the injured person is concerned. On the other issue — whether the injury occurred in the course of the employment of Rudder, it must also be held that the finding of the commission was sustained by sufficient evidence. The question, simply stated, is whether the injury resulted from Rudder's undertaking to do something in the line of his duty or whether it occurred as the result of his going outside the scope of his employment and entering upon a private quarrel for reasons of his own. The facts found justify the inference that Rudder was hurt in an altercation which grew out of his justifiable efforts to maintain his authority as foreman and to protect the property of his employer entrusted to his care. There is no occasion to elaborate the discussion on this point. In its last analysis the petitioner's argument rests upon a supposed state of facts which was not established to the satisfaction of the commission, and which was not shown by evidence free from conflict.

The award is affirmed.

Lawlor, J., and Angellotti, C.J., concurred.