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clear that the statute, as interpreted by the court below,-a construction which is not challenged,-imposed a duty as to safeguards upon the owner which was absolute, and as to which he could not relieve himself by contract. This being true, the contention has nothing to rest upon, since, in the nature of things, the want of power to avoid the duty and liability which the statute imposed embraced all forms of contract, whether of employment or otherwise, by which the positive commands of the statute would be frustrated or rendered inefficacious. Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 52, 32 Sup. Ct., 169 [Bul. No. 98, p. 470].

EMPLOYERS' LIABILITY-LIABILITY WITHOUT FAULT-CONSTITUTIONALITY OF STATUTE-Inspiration Consolidated Copper Co. v. Mendez, Supreme Court of Arizona (July 2, 1917), 166 Pacific Reporter, page 278.-Ceferino Mendez brought action against the company named under the Employers' Liability Act of Arizona, chapter 6, title 14, of the Civil Code of 1913. The employee was a miner engaged in underground work. On June 28, 1914, he opened a compressed air valve for the purpose of clearing a compartment of the mine of foul air, and the air, escaping from the valve under heavy pressure carried dirt and other substances into his eyes, injuring them. No negligence on the part of the employer was asserted, but the declaration, based on the provision of law mentioned, alleged that the occupation was a hazardous one, and that the accident was due to a condition of such occupation. The company made claim that the chapter in question was void as in conflict with certain provisions of the State constitution and with the fourteenth amendment to the Constitution of the United States. The company further alleged that the employee's negligence was the sole cause of the injury, that he was guilty of contributory negligence in failing to promptly and properly treat the injuries, that he assumed the risk of this injury as an ordinary risk of his employment, and that the remedy, if any, was under the succeeding chapter of the Code, the Workmen's Compensation Law. The superior court of Yavapai County overruled the objections based on alleged unconstitutionality, and judgment was rendered for the employee in the sum of $5,500, less an amount already paid over. Certain questions of practice relating to the proceedings on appeal were considered and determined in favor of the employee, after which the main question of the validity of the law was taken up. Judge Cunningham was the spokesman for the court in upholding the law and affirming the judgment below, and from his opinion the following is quoted on this point:

The appellant contends, and I think its contention is correct, that the liability statute must be construed as one creating a liability for accidents resulting in injuries to the workmen engaged in hazardous

occupations, due to the risks and hazards inherent in such occupations, without regard to the negligence of the employer, as such negligence is understood in the common law of liability; in other words, such statute creates a liability for accident arising from the risks and hazards inherent in the occupation without regard to the negligence or fault of the employer. The cause was tried upon that theory, and the judgment must stand or fall according to the validity or invalidity of the said statute.

Chapter 6 of title 14 [the statute under consideration] was enacted as a response to the mandate contained in section 7 of article 18 of the State constitution, reading as follows: [Provision quoted.] This provision is clearly one mandatory upon the legislative branch of the State government as to all the requirements set forth in that provision for affirmative action by the legislature. The only limitation or restriction thrown about the legislature's duty in this respect is that in the enactment of employers' liability laws or other laws of such nature, no employer shall be made liable for the death or injury of any employee, when such death or injury shall have been caused by the negligence of the employee killed or injured.

The statute clearly does not require as a condition of liability that the accident causing the injury proximately resulted from the master's negligence, and it as clearly does exclude as a matter of defense the assumption of all ordinary and extraordinary risks inherent in the occupation. Such risks and dangers as are inherent in the occupation are declared to be unavoidable risks and dangers, and therefore it necessarily follows that the employee in entering upon his duties does not assume such ordinary inherent risks, although known to him. Such risks as he may assume must be risks and dangers other than risks and dangers inherent in the occupation.

The decision of the United States Supreme Court in New York Central R. Co. v. White, 233 U. S. 188, 37 Sup. Ct. 247 (Bul. No. 224, p. 232), is then quoted from at length. This decision is made the basis for the decision in the present case, as is shown by the following pargraph quoted from Judge Cunningham's opinion, after which he disposes of other matters as to assumption of risks, limitation of amount of liability, and the sufficiency of the evidence to sustain the verdict, and announces the affirmance of the judgment of the court below:

Thus, from the court of ultimate authority over questions affecting constitutional guaranties and rights, we find answers to all of the arguments advanced by the appellant why chapter 6 of title 14 is in conflict with the fourteenth amendment of the Constitution of the United States. I am of the opinion that the statute is free from the objections urged by appellant on the authority of such case.

TREATMENT-NEGLIGENCE

OF

EMPLOYERS' LIABILITY-MEDICAL PHYSICIAN-Owens v. Atlantic Coast Lumber Corporation, Supreme Court of South Carolina (Oct. 29, 1917), 94 Southeastern Reporter, page 15.—The company named was sued by Julius Owens, an em

ployee, for damages for the death of his wife. His complaint alleged that the company collects from the monthly wages of each of its numerous employees the sum of $1, to maintain a staff of two physicians to render medical services to the employees and their families. Owens' wife becoming ill, he called upon one of the physicians, Dr. Brown, who refused to attend on the ground that he was too busy. Owens tried to find Dr. Sawyer, the other physician, but could not. Three or four days later his wife's condition became critical and being still unable to find Dr. Sawyer, and without means to employ another physician, he begged Dr. Brown to attend her; but the physician would not go with his automobile across the ferry, although it was one regularly operated by the county authorities, and the wife died. Damages were sought in the sum of $10,000, and the company demurred to the complaint alleging the above as facts. The trial court held that a cause of action was not stated by the complaint, and sustained the demurrer. The supreme court, however, reversed the order, thus placing the case in a position where it might be tried on its merits. Judge Hydrick, in delivering the opinion, said in part:

If the deductions made resulted in direct pecuniary profit to defendant, then, clearly, it would be responsible for the negligence or malpractice of the physicians employed even with due care, on the same principle that a private hospital conducted for gain, or the physician himself, is made liable.

Nothing appearing to the contrary, the allegation that defendant exacted and received pay for the promised services warrants an inference, at least prima facie, that defendant received pecuniary profit from the scheme. Certainly it is not inferable that it was conducted as a charity, even in part. The fund so raised was retained in defendant's treasury and, if there was any surplus, it inured to the benefit of defendant. This put upon defendant the burden of showing that it derived no pecuniary gain in the conduct of the undertaking and administration of the fund to escape the liability arising from that situation.

Construing the allegations of the complaint most liberally for plaintiff, as we must on demurrer, they bring his case, at least prima facie, within the situation described, in which the decided weight of authority and reason holds the master liable for the malpractice or negligence of physicians chosen by him, even with due care; for, in that situation, the master assumes an absolute duty and responsibility to the servant. [Cases cited.]

EMPLOYERS' LIABILITY-MINE REGULATIONS "KNOWN TO GENERATE EXPLOSIVE GASES"-Eleganti v. Standard Coal Co., Supreme Court of Utah (Oct. 15, 1917), 168 Pacific Reporter, page 266.—A. Eleganti brought action against the company named, as administrator of the estate of Giacamo Boetto, whose death, it was alleged,

was caused by the negligence of the company while he was employed in its mine, in November, 1914. The company appealed from a judgment against it, entered in the District Court of Salt Lake County. It was unquestioned that several weeks before the accident explosive gases had been found in the mine, and at that time proper steps were taken to exclude them. A statute requires that inspection for gases be made in all mines "known to generate explosive gases." Such inspection was not made in the mine in which the injury occurred during the interval after the first discovery of gas, and failure in this respect was the negligence charged. There was a controversy as to the meaning intended to be conveyed by the expression quoted. The judge in the trial court had told the jury that the mine was under the circumstances a mine known to generate explosive gases, and the company contended that he should have left this question to be determined by the jury from the evidence. This as well as the other disputed points were resolved in favor of the plaintiff, and the judgment below was affirmed. From the opinion delivered by Judge Frick the following is quoted:

Counsel's theory seems to be that unless the mine in question developed a certain quantity of explosive gases, that is, a quantity which would in the opinion of experts make a mine dangerous or unsafe, it would not constitute a mine known to generate explosive gases within the purview of our statute. In our judgment that contention is clearly untenable. The language of the statute is positive and direct. There is no qualification such as counsel seem to assume. The language of the statute is, "In all mines known to generate explosive gases" the examination and inspection directed by the statute must be made. A moment's reflection will make clear that the statute was intended to and does apply to all mines where explosive gases are known to exist, regardless of the quantity thereof. The legislature thus withdrew the question respecting the quantity of gases, or whether the quantity was safe or otherwise, from the judg ment of all classes, whether experts or nonexperts, and imposed the duty of examination and inspection in all mines where explosive gases in any quantity are known to exist.

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EMPLOYERS' LIABILITY-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE INFECTION FROM DECAYED CHICKEN IN CANNERY-Potter v. Richardson & Robbins Co., Superior Court of Delaware (Jan. 26, 1915), 99 Atlantic Reporter, page 540.-Annie Potter, an ployee of the company named, suffered from blood poisoning and claimed that it was the result of the actionable negligence of the employer in furnishing putrid carcasses of chickens to be prepared by her for canning. She had a scratch or cut on a finger, through which it appeared the poison entered her system. It was alleged that the chickens had been in cold storage, and

that the company knew or should have known their unsafe condition and warned the plaintiff, who did not know of the danger. The company demurred on the ground that a cause of action was not stated in the declaration, and the demurrer was sustained, in effect overthrowing the present suit. Judge Pennewill delivered the opinion, and stated that two questions of law were presented by the case: First, did the defendant exercise due care in furnishing to the plaintiff carcasses of chickens to be cut up and prepared? and, second, was the plaintiff guilty of negligence which proximately contributed to her injury? The opinion was in part as follows:

The first count is based upon the proposition that since the plaintiff was employed by the defendant to clean and prepare the carcasses to be cooked or potted by the defendant, it owed her the duty of furnishing and providing her with reasonably safe and sound carcasses of chickens to be cleaned and prepared. And since these chickens were to be prepared and to be put on the market for food for the public, the plaintiff had the right to rely upon the defendant to furnish her with only such carcasses as might be deemed fit for human food.

We think the plaintiff is here confusing the defendant's duty to an employee with the duty it owes its customers, the buyers of its goods, who can have no knowledge of the condition of the chickens before they are cooked and canned. The defendant's duty to the plaintiff can not be measured by the fitness of the chickens for food. The carcasses were given to her only for the purpose of being prepared for cooking and canning.

The care the defendant should have exercised in procuring and furnishing the carcasses for the plaintiff was reasonable and ordinary care, that is, such care as a reasonably prudent and careful person would have exercised in a like case, or under like circumstances. Such being the duty imposed upon the defendant, it can not be held liable unless there was a failure to exercise such care.

We are clearly of the opinion that the plaintiff's means and opportunities of discovering the danger complained of were even greater than those of the defendant. It is inconceivable that she did not observe and know the condition of the carcasses she handled. Indeed, she must have known else she would not have made the averments she has made in her declaration.

The plaintiff was employed to cut up and prepare chickens to be cooked and canned or potted. She was not employed to cut up and prepare putrid, rotten and decayed chickens. If she found a carcass in such condition it was her duty to report the fact to her employer, the defendant. Instead of doing that she went on and cut up the carcass and her injury resulted therefrom. She was, in the opinion of the court, guilty of contributory negligence.

After carefully considering this case, the court are of the opinion that there is no substantial ground on which the jury would be justified in finding negligence on the part of the defendant; and also, that negligence on the part of the plaintiff approximately contributing to her injury, appears from her declaration.

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