Greene v. Caldwell

• Citation: 170 Ky. 571
• Parties: Greene v. Caldwell, Chairman, et al.
• Decision Date: 06 June 1916
• Court: Court of Appeals of Kentucky

170 Ky. 571

Greene v. Caldwell, Chairman, et al.

Court of Appeals of Kentucky.

Decided June 6, 1916.

Appeal from Franklin Circuit Court.

R. S. ROSE and C. I. DAWSON, Amicus Curiae.

M. M. LOGAN, Attorney General, and OVERTON S. HOGAN, Assistant Attorney General, for appellant.

R. T. CALDWELL and R. C. P. THOMAS for appellees.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

In 1914 the legislature passed a workmen's compensation act which was declared unconstitutional in State Journal Co. v. Workmen's Compensation Board, 161 Ky. 562. In 1916 the legislature again enacted a workmen's compensation act, and the validity of this act, which was upheld in the circuit court, is drawn in question on this appeal.

Before considering the objections urged to the present law, it is well to have a clear understanding of the grounds upon which the act of 1914 was condemned. In the State Journal case, as appears from the opinion, counsel in opposition to the validity of the act urged many reasons why it should be set aside, but the court, after considering the various objections raised, found that only three of them presented substantial grounds upon which the act could be assailed. These were: (1) That the act violated section 54 of the constitution, providing that, "The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property;" (2) that the act was compulsory in that both the employers and employes were compelled to accept its provisions, and being compulsory it deprived appellant of its property without due process of law in violation of section 54 of the constitution; (3) that the act was in contravention of section 241 of the constitution, providing that: "Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporation and persons so causing the same * * *."

In the course of the opinion, the court, in pointing out the availability of these objections as grounds for adjudging the act invalid, said that in limiting the compensation to which an injured person should be entitled to the amount specified in the schedule of the act the legislature violated section 54 of the constitution heretofore quoted; and further said: "But we think it is within the power and right of an employe to waive this limit of recovery for injury, by contract, if such contract is freely and voluntarily made."

It was further said that the act was objectionable in compelling the injured employe to accept its provisions and take the compensation allowed by the board in lieu of any cause of action he might have against his employer whether he desired to do this or not, whereas "His election should be free, not even in the alternative. The law has no right to force him to accept the compensation fixed by this board by depriving him of his causes of action. * * * The legislature has no right to say to one of its citizens that `unless you accept the provisions of a law impairing your constitutional rights, it will take from you other rights more valuable.' In the light of section 54 of the constitution, we must treat the contract made by the employe under the provisions of this act as compulsory and therefore void."

In reference to the burdens put on the employer who refused to come under the provisions of the act, it was said: "If any employer should determine that he wanted to carry his own risk and make his own contracts instead of having the law to make a contract for him, he can do so. * * * But what is the result? The law says to this employer: `You may go on with your business industries, but if one of your employes is injured or killed, you shall not avail yourself of the following defenses: The defense of the fellow-servant; the defense of the assumption of risk; or the defense of contributory negligence." These are practically all the defenses the employer has, and they are taken from him unless he accepts the provisions of this act. He cannot, under these conditions, successfully defend any suit for personal injury. * * * We cannot subscribe to the proposition that this is a voluntary contract, even on the part of the employer."

In upholding the contention that the act violated section 241 of the Constitution before set out, it was said that: "If an injury to an employe should result in his death, his personal representative is authorized to recover damages from the negligent person or corporation causing his death. This is an absolute right given by this section of the constitution to his personal representative to recover damages for such negligence as has resulted in his death. And it is immaterial, under this section of the constitution, whether the money recovered goes to the children or parents, or becomes a part of his personal estate. The disposition of the money after his death cannot affect the right of the personal representative to recover. It may go to his heirs, or it may become a part of his personal estate and go to his creditors. * * *.

"It seems clear to us that such parts of this act as take from the personal representative or estate of a deceased employe, who left no dependents surviving him, any part of the compensation due such representative or his estate, and directs its payment into this fund for the benefit of other people, is a violation of the above section 241 of the constitution. The legislature has no right to limit the damages recovered, for the death of an employe negligently killed, to his dependents. Nor do we think the legislature has the right to take what is due the estate of one man and give it to another.

"It then necessarily follows that such parts of this act under consideration as give to this Board of Compensation, without the voluntary contract of the employe, the right to recover from the employer for the death of the employe leaving no dependents, and such other parts of the act as coerce the employe to consent or to make a contract that such compensation shall be paid into this compensation fund, are unauthorized and void."

Responding to other objections urged to the act, it was said: "A sufficient answer to all this is, that these are matters addressed entirely to the wisdom of the legislature and can be regulated as necessities may require. * * * The Legislature has the right to create a compensation board and put it into operation free from the objectionable features of the present act. * * * And it is not the purpose of the court or the intention of this opinion to lay down any rule that will preclude the legislature from enacting a compensation act that will conform to the constitution, as we are clearly of the opinion that the legislature may, in conformity to the constitution, adopt an effective compensation law. But this court cannot consent that the legislature has the power to put this compensation act in operation by means of compulsory contracts."

A petition for a rehearing was filed by counsel for the compensation board, and in response to this petition the court, in Kentucky State Journal Co. v. Workmen's Compensation Board, 162 Ky. 387, retracted some objections to the act pointed out in the opinion and stated more explicitly the material grounds upon which it was induced to hold the act invalid, saying:

"First. The provisions of the present compensation act, as far as they affect the employer, are unobjectionable, as they do not conflict with any provisions of the constitution.

"Second. Any employe coming within the provisions of the act may voluntarily agree to accept its provisions fixing and limiting his recovery in case of injury.

"Third. He may likewise voluntarily accept the provisions of the act fixing the amount that shall be recovered in the event of his death, and said sum should be paid to his dependents if he leaves any, and if not, to his personal representatives. The legislature has no power to direct that this sum shall in any event be paid into the compensation fund.

"Fourth. Some provisions should be made in the act whereby the employe signifies his acceptance of the provisions of the act by some affirmative act on his part. Silence on this subject should not be construed into acceptance.

"Fifth. Provision should be made in the act for appeal to a court of competent jurisdiction for review in all cases where compensation is denied or where a less sum is allowed by the board than that claimed by the injured employe."

In the light of this opinion pointing out the objections to the act of 1914, while indicating that it was competent for the legislature to enact a compensation act that would be free from the objectionable features of the act of 1914, it would appear that all we need do in this opinion is to ascertain whether the legislature conformed the act of 1916 to the opinion of the court by eliminating from it the clauses that rendered the act of 1914 invalid, and if this was done, to further ascertain and determine if any provisions or sections not found in the act of 1914 were inserted in the act of 1916 that would bring it within the condemnation of the constitution. If the act of 1916 is free from the obnoxious features of the act of 1914 and does not contain any new sections prohibited by the constitution, there would seem to be no sound reason why it should not be sustained, however much the policy or wisdom of it may be questioned or its economic benefits to both employer and employe doubted by those not favorable to legislation of this nature, for it has been pointed out by this court in many decisions that the judiciary will not interfere with the enactments of the law-making department of the state unless they are found to be clearly in contravention of some provision of the constitution. This well settled rule in the construction of statutes was thus stated in Com. v. Goldberg, 167 Ky. 96:

"Laws cannot be disregarded...