Bedford Quarries Co. v. Bough

Citation80 N.E. 529,168 Ind. 671
Decision Date01 March 1907
Docket Number20,489
PartiesBedford Quarries Company v. Bough
CourtSupreme Court of Indiana

Rehearing Denied June 25, 1907.

From Orange Circuit Court; William C. Utz, Special Judge.

Action by Martin S. Bough against the Bedford Quarries Company. From a judgment on a verdict for plaintiff for $ 2,000, defendant appeals.


F. M Trissal, Brooks & Brooks and W. T. Abbott, for appellant.

East & East, for appellee.


Monks, J.

This action was brought by appellee to recover for injuries received by him while working for appellant in its stone mill. The complaint was in three paragraphs. Appellant's demurrer for want of facts to each paragraph of the complaint was overruled, and a trial of the cause resulted in a verdict, and, over a motion for a new trial, a judgment in favor of appellee.

The assignment of errors calls in question the action of the court in overruling the demurrer to each paragraph of the complaint and the motion for a new trial.

The first and second paragraphs of complaint are based upon the alleged negligence of appellant in not providing a safe place for appellee to work, and the third paragraph, upon the second subdivision of § 7083 Burns 1901, being section one of the employers' liability act (Acts 1893, p. 294).

Appellee insists that no question is presented as to the court's ruling on the demurrer to each paragraph of the complaint because the exception to the same was "in gross," citing Noonan v. Bell (1902), 159 Ind. 329 64 N.E. 909, and Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L. R. A. 460, 68 N.E. 262. The record shows that appellant filed a separate demurrer to each paragraph of the complaint, and recites the ruling thereon as follows: "Come also the parties, and the demurrer to the complaint and to each paragraph thereof heretofore filed is by the court overruled, to which ruling of the court the defendant at the time severally excepts." This shows a several exception to the ruling on the demurrer as to each paragraph of the complaint. Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 88, 69 N.E. 669. Whitesell v. Strickler (1907), 167 Ind. 602, 78 N.E. 845, expressly disapproved the cases cited by appellee on this point.

The portion of § 7083, supra, upon which the third paragraph of the complaint is based reads as follows: "That every railroad or other corporation, except municipal, operating in this State, shall be liable for damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: * * * Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform." It is urged by appellant that said employers' liability act, except as applied to railroads, is in violation of the fourteenth amendment of the Constitution of the United States, and therefore void, for the reason that it imposes burdens upon private corporation employers that are not imposed on individual and copartnership employers in the same business and under the same circumstances and conditions, and gives a right of action to the employes of private corporations that is not granted to the employes of individuals and copartnerships under like conditions.

Appellee insists that the legislature has the power of classification for legislative purposes, and that the classification in said act was proper. The legislature may make a classification for legislative purposes, but it must have some reasonable basis upon which to stand. It is evident that differences which would serve for a classification for some purposes would furnish no reason for a classification for legislative purposes. Such legislation must not only operate equally upon all within the class, but the classification must furnish a reason for and justify the making of the class; that is, the reason for the classification must inhere in the subject-matter, and rest upon some reason which is natural and substantial, and not artificial. Not only must the classification treat all brought under its influence alike, under the same conditions, but it must embrace all within the class to which it is naturally related. Neither mere isolation nor arbitrary selection is proper classification. Dixon v. Poe (1902), 159 Ind. 492, 60 L. R. A. 308, 95 Am. St. 309, 65 N.E. 518, and authorities cited; School City of Rushville v. Hayes (1904), 162 Ind. 193, 200-204, 70 N.E. 134; Street v. Varney Electrical Supply Co. (1903), 160 Ind. 338, 61 L. R. A. 154, 98 Am. St. 325, 66 N.E. 895; Town of Longview v. City of Crawfordsville (1905), 164 Ind. 117, 121-124, 73 N.E. 7868 L. R. A. 622, and cases cited; McKinster v. Sager (1904), 163 Ind. 671, 681-687, 68 L. R. A. 273, 106 Am. St. 268, 72 N.E. 854, and cases cited; Sellers v. Hayes (1904), 163 Ind. 422, 433-437, 72 N.E. 119, and cases cited; Ballard v. Mississippi, etc., Oil Co. (1902), 81 Miss. 507, 34 So. 533, 95 Am. St. 476, 62 L. R. A. 407; Slocum v. Bear Valley Irrigation Co. (1898), 122 Cal. 555, 55 P. 403, 68 Am. St. 68; Johnson v. Goodyear Mining Co. (1899), 127 Cal. 4, 59 P. 304, 78 Am. St. 17, 47 L. R. A. 338; Lavallee v. St. Paul, etc., R. Co. (1889), 40 Minn. 249, 41 N.W. 974; Johnson v. St. Paul, etc., R. Co. (1890), 43 Minn. 222, 45 N.W. 156, 8 L. R. A. 419; Cotting v. Kansas City Stock Yards Co. (1901), 183 U.S. 79, 107-112, 22 S.Ct. 30, 46 L.Ed. 92; Connolly v. Union Sewer Pipe Co. (1902), 184 U.S. 540, 560-564, 22 S.Ct. 431, 46 L.Ed. 679; Cooley, Const. Lim. (7th ed.), pp. 560-562.

While the employers' liability act, so far as it affects private corporations, applies to all within the class named therein, it does not include all of the class to which it is naturally related. Employes of individuals and copartnerships are excluded from the benefit of its provisions. It gives a right of action to an employe for injuries received while in the service of a private corporation in certain cases, but denies the employe of an individual or copartnership, engaged in the same business, a right of action for an injury arising from the same cause and under the same conditions. It imposes new burdens on private corporations, while natural persons carrying on a like business and under like circumstances and conditions are left without any such burden. The right of action is made to depend upon the character of the employer and not upon the character of the employment.

In Ballard v. Mississippi, etc., Oil Co., supra, a statute providing that where the injury results from the negligence of a superior agent or officer, or of a person having the right to direct or control the services of the person injured, every employe of any corporation shall have the same rights and remedies for an injury suffered by him from an act or omission of the corporation or its employes as are allowed by law to other persons not employes, and also providing that it shall constitute no defense that the injury results from the negligence of a fellow servant, or with the injured person's knowledge of defective appliances, and further providing that the provisions of the statute shall not be waived by contract, was held unconstitutional, because it imposed restrictions on all corporations, without reference to any difference arising out of the nature of their business, which are not imposed upon natural persons, and thus denied to corporations the equal protection of the laws.

A statute of Minnesota provides: "Every railroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by any agent or servant thereof by reason of the negligence of any other agent or servant thereof, without contributory negligence on his part, when sustained within this state, and no contract, rule, or regulation between such corporation and any agent or servant shall impair or diminish such liability: provided, that nothing in this act shall be so construed as to render any railroad company liable for damages sustained by any employe, agent, or servant, while engaged in the construction of a new road, or any part thereof, not open to public travel or use."

The supreme court of that state said concerning the same, in Lavallee v. St. Paul, etc., R. Co., supra, at page 251: "The objection made to the construction of the statute which the appellant contends for is that, upon that construction, the statute would be what is sometimes called class legislation, by imposing upon one class of persons liabilities from which other persons in precisely the same circumstances are exempt. It is to be presumed, unless the language used excludes such presumption, that the legislature does not intend an act so to operate as to be open to that objection. Of course, the legislature must have the power to classify, when necessary subjects for legislation, and make provisions for subjects within one class, without making them applicable to subjects in another; and the proper exercise of that power is not liable to the objection that it is class legislation. The practical limitation of the power to classify so as to avoid such imputation was stated by this court in Nichols v. Walter [1887], 37 Minn. 264, 33 N.W. 800, as 'that the classification shall be made upon some apparent natural reason, some reason suggested by necessity, by such a difference in the situation and circumstances of the subjects placed in different classes as suggests the necessity or propriety of different legislation with respect to them.' Applying this test, it is impossible to avoid the conclusion that the statute, if construed as appellant claims it ought...

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  • Bedford Quarries Co. v. Bough, 20,489.
    • United States
    • Indiana Supreme Court of Indiana
    • 1 Marzo 1907
    ...168 Ind. 67180 N.E. 529BEDFORD QUARRIES CO.v.BOUGH.No. 20,489.1Supreme Court of Indiana.March 1, Appeal from Circuit Court, Orange County; Wm. C. Utz, Judge. Action by Martin S. Bough against the Bedford Quarries Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.F.......

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