Borgnis v. Falk Co.

• Citation: 147 Wis. 327,133 N.W. 209
• Parties: BORGNIS ET AL. v. FALK CO.
• Decision Date: 22 November 1911
• Court: United States State Supreme Court of Wisconsin

147 Wis. 327

133 N.W. 209

BORGNIS ET AL.

v.FALK CO.

Supreme Court of Wisconsin.

Nov. 14, 1911.

Concurring opinions, Nov. 16, 1911.

Nov. 22, 1911.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Suit by Edward G. Borgnis and others against the Falk Company, to restrain defendant from adopting the workmen's compensation law (Laws 1911, c. 50) during the continuance of complainants' contracts of employment. From a decree in favor of complainants, defendant appeals. Reversed and remanded, with directions.

It appears by the complaint that the defendant is a manufacturing corporation in Milwaukee, employing at its shops many workmen, among whom are the plaintiffs; the plaintiff Borgnis is the superintendent of one of the departments in the defendant's establishment at a salary of $2,000 per year, under a contract extending some time in the future; the plaintiff Schumacher is an infant 17 years of age, employed under an apprenticeship contract which has yet nearly 3 years to run. The complaint further alleges that the defendant threatens to file an election to become subject to the provisions of chapter 50 of the Session Laws of 1911, known as the “Workmen's Compensation Law”; that such election will compel the plaintiffs severally to withdraw from their said contracts or to submit to the provisions of said act; and that hence said election will thus work irreparable injury to the plaintiffs, for which they have no adequate remedy at law. The prayer is that the defendant be enjoined from filing such election during the continuance of the contracts. By answer the defendant admitted the allegations of the complaint, except the allegations of irreparable injury and absence of an adequate remedy at law, which were denied, and as an affirmative defense alleged that the act in question was null and void, because it violates a number of specified articles of the Constitutions of the state and of the United States, and hence that the defendant's election to become subject to the act could not possibly work any injury to the plaintiffs. Upon motion, judgment was entered upon the pleadings enjoining the defendant from electing to become subject to the act during the continuance of the plaintiffs' contracts, and the defendant appeals.Carpenter & Poss, for appellant.

Arthur Breslauer and Michael Levin, for respondents.

L. H. Bancroft, Atty. Gen., and Russell Jackson, Deputy Atty. Gen., for the State.

C. H. Crownhart, Joseph D. Beck, and John R. Commons, Industrial Commission of Wisconsin, pro se.

WINSLOW, C. J. (after stating the facts as above).

We are not certainly advised as to the exact ground on which the decision below was reached, but we assume that it was on the theory that the law in question was a valid law; that it was retrospective in its effect, and that if the defendant elected to become subject to the act the plaintiffs would be compelled to breach their existing contracts or submit to the terms of the act, and thus lose valuable rights; and hence that equity might and should restrain their employer from electing to come under the law until their existing contracts had expired.

It seems to be true that this action might very well be disposed of without considering the question of the validity of the act in question. Ordinarily under such circumstances that course would be the proper one to pursue, for the question of the constitutionality of a statute passed by the Legislature is not one to be lightly taken up, and generally such a question will not be decided unless it be necessary to decide it in order to dispose of the case. There are circumstances here present, however, which seem to call very loudly for immediate consideration of the question of the validity of the act in question, if under any view of the case it can be considered as involved. The Legislature, in response to a public sentiment which cannot be mistaken, has passed a law which attempts to solve certain very pressing problems which have arisen out of the changed industrial conditions of our time. It has endeavored by this law to provide a way by which employer and employed may, if they so choose, escape entirely from that very troublesome and economically absurd luxury known as “personal injury litigation,” and resort to a system by which every employé not guilty of willful misconduct may receive at once a reasonable recompense for injuries accidentally received in his employment under certain fixed rules, without a lawsuit and without friction.

A considerable number of employers have accepted the terms of the act, but unquestionably many are waiting until the question of the constitutionality of the act be authoritatively settled by this court. Nor is this attitude either blameworthy or surprising. If an employer elects to accept the act and proceeds to pay out the sums which it requires for a year or more, and then the act should be declared unconstitutional, it might well be that he would have paid out considerable sums which under the former system he would not be required to pay at all, because he was not negligent, and that he would also be subject to suits to recover additional sums by those who, without contributory negligence, had suffered injury and had received compensation under the law. The situation is unquestionably one of much doubt and uncertainty among the great industries of the state, and it must remain such until this court has spoken. Many employers of labor who have not accepted the law have taken that course, not because they have chosen definitely to decline the terms of the law, but because they do not know whether they will be protected if they accept and act under it. Such a condition of uncertainty ought not to be allowed to exist, if it can be removed. This court cannot properly decide questions which are not legitimately involved in bona fide lawsuits, but it may properly decide all questions which are so involved, even though it be not absolutely essential to the result that all should be decided. The validity of the statute in question is a matter which may be legitimately considered in the decision of this case. If the statute be unconstitutional and void, then it is certain that the plaintiffs have no cause of action, because an election to accept the terms of a void statute could harm no one. Impressed with this view of our duty under the circumstances, we advanced the present case upon the calendar, and invited argument upon the main question as to the constitutionality of the statute, not only from the Attorney General on behalf of the state, but from any attorney interested in the question. In pursuance of this invitation the Attorney General and the industrial Commission filed briefs, and oral argument was made by the Deputy Attorney General. The case has been fully presented, therefore, both by brief and argument, and we are now to consider whether there be any solid foundation for the attack made upon the law. In undertaking this task it will be necessary first to set forth in some detail its fundamental provisions.

It adds 32 new sections to the statutes, the first 8 of which sections are as follows:

“Sec. 2394--1. In any action to recover damages for a personal injury sustained within this state by an employee while engaged in the line of his duty as such, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary care of the employer, or of any officer, agent, or servant of the employer, it shall not be a defense:

1. That the employee either expressly or impliedly assumed the risk of the hazard complained of.

2. When such employer has at the time of the accident in a common employment four or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of a fellow servant.

Any employer who has elected to pay compensation as hereinafter provided shall not be subject to the provisions of this section, 2394--1.

Sec. 2394--2. No contract, rule or regulation, shall exempt the employer from any of the provisions of the preceding section of this act.

Sec. 2394--3. Except as regards employees working in shops or offices of a railroad company, who are within the provisions of subsection 9 of section 1816 of the Statutes, as amended by chapter 254 of the Laws of 1907, the term ‘employer’ as used in the two preceding sections of this act shall not include any railroad company as defined in subsection 7 of said section 1816 as amended, said section 1816 and amendatory acts being continued in force unaffected, except as aforesaid, by the preceding sections of this act.

Sec. 2394--4. Liability for the compensation hereinafter provided for, in lieu of any other liability whatsoever, shall exist against an employer for any personal injury accidentally sustained by his employee, and for his death, 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 provisions of this act according to the succeeding sections hereof.

2. Where, at the time of the accident, the employee is performing service growing out of and incidental to his employment.

3. Where the injury is proximately caused by accident, and is not so caused by willful misconduct.

And where such conditions of compensation exist for any personal injury or death, the right to the recovery of such compensation pursuant to the provisions of this act, and acts amendatory thereof, shall be the exclusive remedy against the employer for such injury or death; in all other cases the liability of the employer shall be the same as if this and the succeeding sections of this act had not been passed, but shall be subject to the provisions of the preceding sections of this act.

Sec. 2394--5. The following shall constitute employers subject to the provisions of this act within the meaning of...