In re Opinion of Justices

• Decision Date: 24 July 1911
• Citation: 209 Mass. 607,96 N.E. 308
• Parties: In re OPINION OF JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

209 Mass. 607

96 N.E. 308

In re OPINION OF JUSTICES.

Supreme Judicial Court of Massachusetts.

July 24, 1911.

Application by the State Senate for an opinion of the Justices on the validity of House Bill No. 2154 (St. 1911, c. 751). Questions answered.

The following order, the consideration of which had been postponed from the preceding session, was on July 18, 1911, considered by the Senate, as shown by its journal, to wit:

‘Whereas, there is now before the Senate a bill entitled ‘An act relative to payments to employés for personal injuries received in the course of their employment and to the prevention of such injuries,’ being House Document No. 2154; and

‘Whereas, no similar legislation has ever been enacted in this Commonwealth; and

‘Whereas, an act for a similar purpose was enacted in the state of New York, and has been decided to be in violation of the Constitution of the state of New York and of the fourteenth amendment to the Constitution of the United States; and

‘Whereas, there appears to be no precedent bearing on said subject in other jurisdictions in the United States;

‘Be it ordered, that the opinion of the Justices of the Supreme Judicial Court be required on the following important questions of law:

‘First. Is the said bill, House Document No. 2154, in conformity with the provisions of the Constitution of the commonwealth of Massachusetts which requires that property shall not be taken from a citizen without due process of law?

‘Second. Is the bill in conformity with the fourteenth amendment to the federal Constitution?’

The following is the text of said bill as approved by the Governor: ‘An act relative to payments to employees for personal injuries received in the course of their employment and to the prevention of such injuries.

‘Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

‘Part I.

‘Modification of Remedies.

‘Section 1. In an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense:

‘1. That the employee was negligent;

‘2. That the injury was caused by the negligence of a fellow employee;

‘3. That the employee had assumed the risk of the injury.

‘Section 2. The provisions of section one shall not apply to actions to recover damages for personal injuries sustained by domestic servants and farm laborers.

‘Section 3. The provisions of section one shall not apply to actions to recover damages for personal injuries sustained by employees of a subscriber.

‘Section 4. The provisions of sections one hundred and twenty-seven to one hundred and thirty-five, inclusive, and of one hundred and forty-one to one hundred and forty-three, inclusive, of chapter five hundred and fourteen of the acts of the year nineteen hundred and nine, and of any acts in amendment thereof, shall not apply to employees of a subscriber while this act is in effect.

‘Section 5. An employee of a subscriber shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer at the time of his contract of hire, notice in writing that he claimed such right, or if the contract of hire was made before the employer became a subscriber, if the employee shall not have given the said notice within thirty days of notice of such subscription. An employee who has given notice to his employer that he claimed his right of action at common law may waive such claim by a notice in writing which shall take effect five days after it is delivered to the employer or his agent.

‘Part II.

‘Payments.

‘Section 1. If an employee, who has not given notice of his claim of common law rights of action, as provided in Part I, section five, or who has given such notice and has waived the same, receives a personal injury arising out of and in the course of his employment, he shall be paid compensation by the association, as hereinafter provided, if his employer is a subscriber at the time of the injury.

‘Section 2. If the employee is injured by reason of his serious and wilful misconduct, he shall not receive compensation.

‘Section 3. If the employee is injured by reason of the serious and wilful misconduct of a subscriber or of any person regularly entrusted with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled. In such case the subscriber shall repay to the association the extra compensation paid to the employee.

‘Section 4. No compensation shall be paid under this act for any injury which does not incapacitate the employee for a period of at least two weeks from earning full wages, but if incapacity extends beyond the period of two weeks, compensation shall begin on the fifteenth day after the injury.

‘Section 5. During the first two weeks after the injury, the association shall furnish reasonable medical and hospital services, and medicines when they are needed.

‘Section 6. If death results from the injury, the association shall pay the dependents of the employee, wholly dependent upon his earnings for support at the time of the injury, a weekly payment equal to one half his average weekly wayes, but not more than ten dollars nor less than four dollars a week, for a period of three hundred weeks from the date of the injury. If the employee leaves dependents only partly dependent upon his earnings for support at the time of his injury, the association shall pay such dependents a weekly compensation equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents bears to the annual earnings of the deceased at the time of his injury. When weekly payments have been made to an injured employee before his death, the compensation to dependents shall begin from the date of the last of such payments, but shall not continue more than three hundred weeks from the date of the injury.

‘Section 7. The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee:

‘ (a) A wife upon a husband with whom she lives at the time of his death.

‘ (b) A husband upon a wife with whom he lives at the time of her death.

‘ (c) A child or children under the age of eighteen years (or over said age, but physically or mentally incapacitated from earning) upon the parent with whom he is or they are living at the time of the death of such parent, there being no surviving dependent parent. In case there is more than one child thus dependent, the death benefit shall be divided equally among them.

‘ In all other cases questions of dependency, in while or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury; and in such other cases, if there is more than one person wholly dependent, the death benefit shall be divided equally among them, and persons partly dependent, if any, shall receive no part thereof; if there is no one wholly dependent and more than one person partly dependent, the death benefit shall be divided among them according to the relative extent of their dependency.

‘Section 8. If the employee leaves no dependents, the association shall pay the reasonable expense of his last sickness and burial, which shall not exceed two hundred dollars.

‘Section 9. While the incapacity for work resulting from the injury is total, the association shall pay the injured employee a weekly compensation equal to one half his average weekly wages, but not more than ten dollars nor less than four dollars a week; and in no case shall the period covered by such compensation be greater than five hundred weeks, nor the amount more than three thousand dollars.

‘Section 10. While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to one half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury.

‘Section 11. In case of the following specified injuries the amounts hereinafter named shall be paid in addition to all other compensation:

‘ (a) For the loss by severance of both hands at or above the wrist, or both feet at or above the ankle, or the loss of one hand and one foot, or the entire and irrecoverable loss of the sight of both eyes, one half of the average weekly wages of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of one hundred weeks.

‘ (b) For the loss by severance of either hand at or above the wrist, or either foot at or above the ankle, or the entire and irrecoverable loss of the sight of either ege, one half the average weekly wages of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of fifty weeks.

‘ (c) For the loss by severance at or above the second joint of two or more fingers, including thumbs, or toes, one half the average weekly wages of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of twenty-five weeks.

‘ (d) For the loss by severance of at least one phalange of a finger, thumb, or toe, one half the average weekly wages of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of twelve weeks.

‘Section 12. No savings or insurance of the injured employee, independent of this act, shall be taken into consideration in determining the compensation to be paid hereunder, nor shall benefits derived from any other source than the association be considered in fixing the compensation under this act.

‘Section 13....