Hagger v. Wortz Biscuit Company

• Decision Date: 01 July 1946
• Docket Number: 4-7942
• Citation: 196 S.W.2d 1,210 Ark. 318
• Parties: Hagger, Administratrix, v. Wortz Biscuit Company
• Court: Arkansas Supreme Court

196 S.W.2d 1

210 Ark. 318

Hagger, Administratrix, v. Wortz Biscuit Company

No. 4-7942

Supreme Court of Arkansas

July 1, 1946

Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge.

Affirmed.

D L. Grace and I. S. Simmons, for appellant.

Hardin Barton & Shaw, for appellee.

OPINION

Ed. F McFaddin, Justice.

The issues here are: (1) constitutionality of the Arkansas Workmen's Compensation Law; and (2) applicability of that law to the appellant's complaint against appellee.

Wortz Biscuit Company (hereinafter referred to as appellee) operates a baking establishment in Fort Smith. On December 30, 1944, Sylvia Johnson, aged 20, employee of the appellee, lost her life in a fire which occurred at the bakery. Appellant is the mother and administratrix of the estate of Sylvia Johnson, and, as such, brought action in the circuit court against appellee and Glen Kendall. In addition to the matters above stated, the complaint alleged: that Sylvia Johnson was duly at work when she received her fatal injuries; that the fire which caused the death of Sylvia Johnson was caused by the illegal storing of gasoline in glass containers in the bakery; that the breaking of one or more of such containers near the stoves and ovens caused an explosion and resultant fire; that gasoline in an underground storage tank was used for servicing company cars and delivery trucks; and that all such acts, of storing the gasoline in glass containers and in the underground tank, were violative of city ordinances and state laws, and were "gross, wanton and unlawful"; and that the death of the said Sylvia Johnson was caused by such unlawful and negligent acts.

The complaint further alleged that Glen Kendall was liable as joint tort feasor; because he was the shipping clerk of the appellee, and had charge of the shipping room where Sylvia Johnson was employed; that "the defendant, Glen Kendall, did knowingly, willfully, wrongfully, recklessly and unlawfully store or permit to be stored gasoline in glass containers in the Wortz Biscuit Company plant over which he had supervision and in which the deceased, Sylvia Johnson, was working at the time." The action against Glen Kendall is still pending, so far as the record here shows. At all events we are now concerned with only so much of the case as involves Wortz Biscuit Company, which is the sole appellee.

To the plaintiff's complaint, the appellee filed a motion to dismiss, alleging that the complaint showed on its face that Sylvia Johnson was, at the time of her death, an employee of appellee, and in discharge of her duties as such employee; and that any claim or cause of action against Wortz Biscuit Company for the death of Sylvia Johnson would have to be brought and prosecuted under the Workmen's Compensation Law of Arkansas, and before the Workmen's Compensation Commission rather than in the circuit court. Appellant resisted the motion on the grounds (1) that the Workmen's Compensation Law was unconstitutional; and (2) that the death of Sylvia Johnson was caused by the gross negligence and unlawful acts of appellee, and therefore the Workmen's Compensation Law did not apply. At the hearing on said motion to dismiss, it was stipulated:

". . . that the deceased Sylvia Johnson was an employee of Wortz Biscuit Company and died on December 30, 1944, while on duty as an employee as the result of injuries received in a fire which occurred on the premises of the Wortz Biscuit Company on that day.

"That the Wortz Biscuit Company at that time employed approximately 150 employees and that it was an employer under the definition contained in section 2 of the Workmen's Compensation Act. That the Wortz Biscuit Company had complied with the terms of the Workmen's Compensation Act by procuring and maintaining in force adequate and complete Workmen's Compensation insurance as required by the Workmen's Compensation Act to secure the payment of compensation."

The circuit court sustained the motion, and entered final judgment dismissing the action against the appellee; and this appeal follows:

I. The Constitutional Question. The Arkansas Workmen's Compensation Law is Act 319 of 1939. It was enacted by the Legislature after the people had adopted Amendment 26 at the General Election on November 8, 1938. The said Amendment 26 reads as follows:

"The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted."

In Young v. G. L. Tarleton, Contractor, 204 Ark. 283, 162 S.W.2d 477, we upheld the constitutionality of Act 319 of 1939, saying:

"That legislation similar to our Act 319 is not violative of the Federal Constitution is definitely settled by the opinion of the Supreme Court of the United States in the case of Mountain Timber Co. v. State of Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann. Cas. 1917D, 642. Nor does Act 319 violate our own Constitution, for full authority for its enactment was given by Amendment No. 26 to the Constitution, adopted at the 1938 general election. . . .

"This amendment confers upon the General Assembly the power to enact legislation prescribing the amount of compensation to be paid employees for injury or death, and to whom such payments shall be made. It confers power to prescribe the means, methods and forum for the adjudication of such claims, and for securing the payment thereof. It was pursuant to this amendment, and under the authority there conferred, that Act 319 was passed and became a law. The amendment provides that otherwise, that is, except in cases arising between employer and employee, no law shall be passed limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property. The effect of this amendment is to amend both § 7 of Art. 2 and § 32 of Art. 5 of the Constitution in the respects indicated.

"It appears that every state in the Union, save only the State of Mississippi, now has legislation more or less similar to our Act 319, all of which have the same general purpose, and that such legislation has been uniformly upheld. The legislation has been attacked upon almost every ground which the ingenuity of learned counsel could conceive. At § 14, p. 64, vol. 1, Honnold on Workmen's Compensation, it is said: 'Every conceivable constitutional objection has been made to the various acts. They have been quite uniformly upheld as against general objections that they are unconstitutional, and as against the objections that they are class legislation and make unreasonable classifications, deny equal protection and due process of law, impair the obligation of existing contracts, though applying to such contracts, and interfere with the right to contract, the right to jury trial, and vested rights by abolishing existing statutory and common-law remedies, and that they abridge privileges and immunities.'"

The holding in Young v. Tarlton is a complete answer to appellant's first...