Prager v. Chapman Sons , 122 W. Va. 428 ( 1940 )


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  • 1. Greater detail concerning the amendatory and the amended statutes than what is contained in the majority opinion, makes its first syllabic section untenable, to my mind. The amendatory act was entitled (in part), "An Act to amend and reenact sections * * * eight, article two, chapter twenty-three of the Code of West Virginia, one thousand nine hundred thirty-one." 23-2-8 of that code is entitled "Election Not toPay or Default in Payment of Premiums; Defenses Prohibited." It is not necessary to descend into particulars in the title of an act, if the title gives notice of the purpose of the act. State v. Thompson, 80 W. Va. 698, 93 S.E. 810. The title of an amendatory statute may be supplemented by that of the statute amended. State v. Furr, 101 W. Va. 178, 132 S.E. 504. And where the title of the latter sufficiently expresses its object, an amendatory act need refer only to it. Hood v.Wheeling, 85 W. Va. 578, 102 S.E. 259. Under these holdings, it seems to me that since the instant act proposed to amend one prohibiting defenses to a non-paying employer, its title was sufficient to put such employer on notice.

    2. The essence of the majority opinion supporting the second section, as I understand it, is that the majority believes the imposition of personal liability upon an employer for an industrial accident, he not at fault, "unfair" and "counter to any conception" of the majority "of the meaning of due process of law." That conviction is, of course, due to the common law tenet of no liability without fault. Wherefore it becomes pertinent to consider the source of the tenet. Modern research has demonstrated that the common law was not the law of the common people of England and so named, and did not exist *Page 437 beyond the recorded memory of men, as was formerly taught by the text writers. There was no system of law common to England when it emerged from the Dark Ages and commenced to have a national memory. The laws were then tribal, instead of territorial. Every fief had its own customs and usages, enforced in the local courts over which there was no court of general jurisdiction. There was, in fact, no unifying juridical agency until the rise of the King's Court under the Norman kings, long after the date of Magna Charta. The jurisdiction of that court, though very limited during its early existence, did extend over the entire kingdom. Such jurisdiction made that court the first legal body ever in position to unify nationally the variant laws of the fiefs. That court, after several centuries, did weld the local laws into a fairly uniform system. Because that system was common to all of England, it became entitled the common law of England. The learned Professor Jenks says the common law is "the law of the royal court * * *. It is judiciary law: The men who declared it were judges, not legislators, nor wise men of the shires." Accord: Pollock and Maitland. The judge-made common law rules affecting negligence simply reflected the judicial philosophy of the times; they cannot be said to express immutable principles of justice, and therefore are not free from legislative dominion. "Plainly, these rules (the common law rules affecting negligence) as guides of conduct and tests of liability, are subject to change in the exercise of the sovereign authority of the state." New York Central Railroad Co. v. White,243 U.S. 188, on page 200, 37 S. Ct. 247, on page 251, 61 L. Ed. 667, L.R.A. 1917D, 1, Ann. Cas. 1917D, 629. There is nothing in the common law dogma of no liability without fault of such "exceptional sanctity" as to set it apart from, or above, the common law defenses of assumption of risk, contributory negligence and negligence of a fellow-servant. All four defenses are alike judge-made. This Court has heretofore recognized the legislative power to withdraw from the employer the last three defenses. De Francesco v. Mining Co., 76 W. Va. 756,86 S.E. 777; Watts v. Railway *Page 438 Co., 78 W. Va. 144, 88 S.E. 659. Since all of these defenses emanate from the same source, are of equal quality, and regulate the same subject, it would seem that the abolition of one rule is as fairly within the scope of legislative power as the abolition of any other. Western Indemnity Co. v. Pillsbury,170 Cal. 686, 151 P. 398, 403. "A person has no property, no vested interest in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even the whim of the legislature, unless prevented by constitutional limitations." Munn v. Illinois, 94 U.S. 113,134, 24 L. Ed. 76. The legislature of this state is not so prevented. Watts v. Railway Co., supra, 147, 148.

    The only cited case supporting the view of the majority isIves v. Railroad Co., (N.Y.) decided in 1911. For immediate criticism of that case see note thereto in 34 L.R.A. (N.S.) 162, and 24 Harvard Law Rev. 647. Twenty-five years later, 71 C. J. Workmen's Compensation Acts, section 23, says the Ives decision "appears contrary to the trend of the subsequent authorities." That statement is mild. The Ives decision is unsupported by any subsequent authority of which I am advised, unless the obiter in Middleton v. Power Co., 108 Tex. 96,185 S.W. 556, be taken as support. The isolation of the Ives decision is demonstrated by the declaration of the Supreme Court of the United States in Cudahy Packing Co. v. Parramore, 263 U.S. on page 422, 44 S.Ct. on page 154, 68 L. Ed. 366, 30 A.L.R. 532, (cited in the majority opinion): "It is settled by the decisions of this court and by an overwhelming array of state decisions, that such statutes are not open to constitutional objection because they abrogate common law defenses or impose liability without fault." The "overwhelming array" may be found, at least in part, in Cooley's Constitutional Limitations (8th Ed.) 1337 et seq. note 8.

    "Unfair." The common law rules governing industrial accidents were formulated in accordance with the judicial *Page 439 philosophy of by-gone generations. Modern legislatures regard that philosophy as unsuited to the changed conditions of present times. So they have simply substituted another system of rules deemed more suitable. Railway Co. v. White, supra;Grand Trunk Western Railway Co. v. Commission, 291 Ill. 167,125 N.E. 748, 751. It cannot, perhaps, be successfully maintained that either system is the exclusive result of logic or natural justice. But there is assuredly nothing contrary to modern notions of economics, sociology and fair play in requiring one who conducts an enterprise for profit, to assume personally the loss resulting from an industrial accident to an employee not due to his wilful misconduct. Indemnity Co. v.Pillsbury, supra; Arizona Employer's Liability Cases,250 U.S. 400, 39 S. Ct. 553, 63 L. Ed. 1058, 6 A.L.R. 1537.

    "Counter to any conception". Liability without fault, says the Supreme Court of the United States, "is not a novelty in the law. The common law liability of the carrier, of the innkeeper, or him who employed fire or other dangerous agency or harbored a mischievous animal was not dependent altogether upon questions of fault or negligence. Statutes imposing liability without fault have been sustained." Railway Co. v.White, supra. The common law liability without fault, both of the husband for antenuptial torts of his wife and of the master for acts of his servant, could also have been included in the above list.

    "The meaning of due process of law." Mr. Cooley says that the most accurate definition of this term he has met is that inBank v. Okely, (U.S.) 4 Wheat. 235, 244, 4 L. Ed. 559, wherein the court said, "The good sense of mankind has at length settled down to this" that the words due process of law are intended merely "to secure the individual from the arbitrary exercise of the powers of government." Approved: Twining v. NewJersey, 211 U.S. 78, 29 S. Ct. 14, 53 L. Ed. 97. A statute like the one in question is within the police power of government.Arizona Copper Co. v. Hammer, 250 U.S. 400, 39 S. Ct. 553, 560,63 L. Ed. 1058, 6 A.L.R. 1537. Justice Holmes concurring in that case said, "There is no more certain way of securing attention to the *Page 440 safety of men, an unquestionably constitutional object of legislation, than by holding the employer liable for accidents. * * * They probably will happen a good deal less often when the employer knows that he must answer for them, if they do." Results in England are said to demonstrate that making employers liable without fault has caused them to take greater steps to prevent accidents, and fewer injuries have occurred. Harvard Law Review, supra. Wherefore, I see no ground for considering the statute arbitrary. If not, it does not violate the due process clause, the equal protection clause, or any other constitutional guaranty. State v. Hagan, 44 N.D. 306,175 N.W. 372; Arizona Employer's Liability Cases, supra; Rhodes v.Coal Co., 79 W. Va. 71, 90 S.E. 796.