WORKMEN'S COMPENSATION-DISFIGUREMENT-CONSTITUTIONALITY OF STATUTE-Sweeting v. American Knife Co. et al., Court of Appeals of New York (Apr. 8, 1919), 123 Northeastern Reporter, page 82.-The plaintiff, Sweeting, was employed in the grinding department of the American Knife Co. The explosion of an emery wheel destroyed the bridge of his nose, giving him what is commonly known as a flat nose, with deep scars upon his face. The commission made an award of $2,500 for serious facial disfigurement according to the provisions of subdivision 3 of section 15 of the workmen's compensation law (Consol. Laws, ch. 67, as amended in 1916), allowing a maximum award of $3,500 as compensation for disfigurement. The employer and insurance carrier insisted that this provision was unconstitutional and void because, as they argue, such injuries have no relation to the loss of the employee's earning power. The lower court affirmed the award of the commission and on appeal the award was again affirmed, the court of appeals saying in part:

The award would stand, therefore, though the facial disfigurement were unrelated to loss of earnings. But in truth it is related, and so the legislature must have found. One can not defeat a statute by a presumption that in its enactment the truths of life have been ignored. The presumption is, on the contrary, that they have been perceived and heeded. But one of the truths of life is that serious facial disfigurement has a tendency to impair the earning power of its victims. In some callings it would rule out altogether an applicant for employment. In most it would put him at a disadvantage when placed in competition with others. There may, of course, be individual instances of disfigurement without impairment of earning power. That is true also where there has been the loss of a finger or a foot or an eye. Lawmakers framing legislation must deal with general tendencies. The average and not the exceptional case determines the fitness of the remedy.

This case was carried to the Supreme Court of the United States on appeal and there affirmed, in conjunction with other cases under the same statute. (See next case below.)

WORKMEN'S COMPENSATION-DISFIGUREMENT-CONSTITUTIONALITY OF STATUTE-LOSS OF EARNING CAPACITY-DUE PROCESS OF LAW-New York Cent. R. Co. v. Bianc, American Knife Co. et al. v. Sweeting, Clark Knitting Co. (Inc.) et al. v. Vaughn, United States Supreme Court (Nov. 10, 1919), 40 Supreme Court Reporter, page 44.—This decision is the result of appeals by three employers and an insurance carrier from orders issued by the appellate division of the Supreme Court of New York, and affirmed by the New York Court of Ap

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peals, affirming awards by the State industrial commission of compensation to the injured employees for facial or head disfigurement. It is contended that the provision of the compensation statute allowing awards for disfigurement, added by an amendment of 1916, is unconstitutional as an unreasonable exercise of the police power of the State, and that it deprives the employers of their property without due process of law because it allows compensation where no loss of earning capacity has been suffered. Mr. Justice Pitney delivered the opinion of the United States Supreme Court upholding the constitutionality of the provision.

He first called attention to the fact that the compensation law had been held constitutional by the court prior to the amendment. (New York Central R. R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247 [see Bul. No. 224, p. 232].) Continuing, Mr. Justice Pitney said:

The sole contention here is that the amendment of 1916 deprives the respective plaintiffs in error of property without due process of law, in contravention of the fourteenth amendment.

The argument is that an award for disfigurement, made wholly independent of claimant's inability to work, is not based upon impairment of earning power; that only such impairment can justify imposing upon an employer without fault compulsory payment by way of compensation to an injured workman; and hence that the "disfigurement clause" is not a reasonable exercise of the police power, but is arbitrary and oppressive.

Even were impairment of earning power the sole justification for imposing compulsory payment of workmen's compensation upon the employer in such cases it would be sufficient answer to the present contention to say that a serious disfigurement of the face or head reasonably may be regarded as having a direct relation to the injured person's earning power, irrespective of its effect upon his mere capacity for work.

Under ordinary conditions of life a serious and unnatural disfigurement of the face or head very probably may have a harmful effect upon the ability of the injured person to obtain or retain employment. Laying aside exceptional cases, which we must assume will be fairly dealt with in the proper and equitable administration of the act, such a disfigurement may render one repulsive or offensive to the sight, displeasing or at least less pleasing to employer, to fellow employees, and to patrons or customers. (See Ball v. Wm. Hunt & Sons (Ltd.), 1912, App. Cas. 496.)

But we can not concede that impairment of earning power is the sole ground upon which compulsory compensation to injured workmen legitimately may be based. Unquestionably it is a rational basis, and it is adopted for the generality of cases by the New York law. But the Court of Appeals has construed the 1916 amendment as permitting an allowance for facial or head disfigurement, although it does not impair the claimant's earning capacity. (Matter of Erickson v. Preuss, 223 N. Y. 365, 368; 119 N. E. 555 [Bul. No. 258, p. 167]; and see opinion of Judge Cardozo in the present case, 226 N. Y. 199, 200; 123 N. E. 82 [above].) In view of this, and there being no specific finding of such impairment in these cases, it is proper

to say that in our opinion the "due process of law" clause of the fourteenth amendement does not require the States to base compulsory compensation solely upon loss of earning power.

The New York law as at first enacted, the Washington, and the Arizona laws presented for our consideration three different methods adopted for the purpose of imposing upon the industry the burden of making some compensation for the human wastage attributable to the hazards of the work. We were unable to find that any of these ran counter to the "due process" clause. Nor does that provision debar a State from adopting other methods or a composite of different methods provided the result be not inconsistent with fundamental rights.

And we see no constitutional reason why a State may not in ascertaining the amount of such compensation in particular cases take into consideration any substantial physical impairment attributable to the injury, whether it immediately affects earning capacity or not. For the reasons thus outlined it was not unreasonable, arbitrary, or contrary to fundamental right to embody in the New York workmen's compensation law a provision for a special allowance of compensation for a serious disfigurement of the face or head. Nor is there any ground for declaring that the allowance prescribed by the 1916 amendment exceeds the constitutional limitations upon the State power.

Judgments affirmed.

WORKMEN'S COMPENSATION-ELECTION-MINORS-Chicago, R. 1. & P. Ry Co. v. Fuller et al., Supreme Court of Kansas (Dec. 6, 1919), 186 Pacific Reporter, page 127.-Fuller, a minor of 20 years, was injured in November, 1917, while in the employ of the railway company. The compensation law of Kansas by amendments made in 1917 automatically brought all employers and employees under the act, and those not desiring to be governed by the law were required to make a written election to that effect. The railway company submitted the question of Fuller's compensation for his injuries to an arbitrator, who made an award under the workmen's compensation act (Laws 1917, ch. 226) which was affirmed by the district court. Fuller appealed from the award, declaring that because he was a minor he was not subject to the provisions of the act. The court failed to take this view and affirmed the award, saying in part:

The appellants also contend that because Fuller was a minor when the accident occurred he was not bound by the provisions of the law making the statute applicable to employees who filed no notice of an election to the contrary. Gen. Stat. 1915, sec. 5939; Laws 1917, ch. 226. sec. 24.) The argument is that the matter is contractual, and that a minor is not bound by his contracts. The compensation act by various references to minor workmen fairly shows an intention to bring them within its provisions. It is competent for the legislature to place upon minors the obligation of an affirmative election not to come within the compensation act in order not to be subject to its

provisions (Young v. Sterling Leather Works, 91 N. J. Laws, 289, 102 Atl. 395), and this it appears to have done. If the result sought to be attained is inconsistent with the general law with respect to the extent to which a minor is bound by his contracts, then the more recent act controls, the prior law being repealed by implication to the extent of the conflict. Provision is made in the statute for any right, privilege, or election accruing to an "injured workman" being exercised in his behalf by his guardian (Gen. Stat. 1915, sec. 5904), but the language obviously has no relation to the choice between coming within the law or rejecting its provisions before injury. The attention of the legislature having been directed to the matter of guardianship and no provision having been made for the action of a guardian in the matter of electing whether to come within the law or not, the inference seems just that the intention was for the minor to be left to make his own choice, or to change the choice which the State may be deemed to have made for him in the first instance.

The judgment is affirmed.

WORKMEN'S COMPENSATION--ELECTION-PRESUMPTION-Storrs v. Industrial Commission, Supreme Court of Illinois (Dec. 18, 1918), 121 Northeastern Reporter, page 267.-Jacob Dier was regularly employed by the foreman of the plaintiff, Storrs, who was engaged in no other business than the managing, maintaining, and keeping in repair of some 12 or 15 buildings. Dier was a painter, and in the course of his employment he received an injury to one eye which destroyed the sight. The law of Illinois was at the time elective; and Storrs had made no election. He therefore claims that he was not subject to the workmen's compensation act. The court, in affirming the judgment of the lower court that he was, spoke, in part, as follows:

Every employer enumerated in subdivision 1 of paragraph (b) of section 3 (sec. 128) is conclusively presumed to be subject to the act unless he elects to the contrary. Plaintiff in error (Storrs) made no election. Among the occupations, enterprises, or businesses enumerated in paragraph (b) are " the building, maintaining, removing, repairing, or demolishing of any structure, except," etc. If plaintiff in error was subject to the act, it was because he was engaged in the occupation or business of maintaining buildings. He looked after renting the property and collecting the rent, and for the purpose of keeping it in good condition he had a regularly employed foreman and also employed such other help as was needed. He engaged in no work of any kind for others and was not a contractor or builder. All he did was to look after and care for his property and that of his children. Lexicographers define "maintain":"To hold or keep in any particular state or condition; in a state of efficiency or validity; to keep up." It would seem clear that plaintiff in error was engaged in the business or occupation of maintaining buildings within the usual and ordinary meaning of that term. If he had not been the owner, but had contracted to look after, maintain, and keep

in repair the buildings for other owners, from whom he received compensation for his services, it could not reasonably be disputed that his business or occupation would come within the act. The fact that he was the owner and received his compensation from rents of the properties we can not believe to relieve him from liability under the provisions of the workmen's compensation act.

We are of the opinion the contention that the plaintiff in error was not engaged in an occupation subject to the act can not be sustained.

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WORKMEN'S COMPENSATION-EMPLOYEE-COURSE EMPLOYMENT-Farrington v. United States Railroad Administration et al., Court of Appeals of New York (Mar. 9, 1920), 127 Northeastern Reporter, page 272.-John Farrington and another laborer were engaged in unloading some screenings for their employer from a Long Island Railroad freight car standing on the tracks of the railroad company. The two men had completed their days' work and had boarded a motor truck of their employer to return to their homes when the station agent of the Long Island Railroad, who together with a helper was endeavoring to shut the door of a box car, called to them to help him close the door. This the men did, but in so doing the tip of Farrington's finger was clipped off. An infection set in and he later died of tetanus. The lower courts affirmed an award by the industrial commission and the defendant appealed. The decision and award were reversed by the court of appeals on the ground that Farrington was not an employee of the railroad company and therefore the accident did not occur in the "course of employment" by the railroad company, so as to render it liable under the workmen's compensation act.

In taking this action, the court of appeals adopted the dissenting opinion of Judge Henry T. Kellogg in the trial in the supreme court, appellate division (179 N. Y. Supp., 920), which reads in part:

The agent [of the railroad company] testified that he had no authority to employ labor, and particularly to employ the two men whose help he asked. These men had finished their work and were about to go home on their employer's truck, when they were called upon to do a friendly act requiring the exertion of their strength but for a moment of time. To call their acts those of a new employment, rather than acts of kindness gratuitously performed, is to supply a mercenary motive, where the proven facts indicated that none existed.

WORKMEN'S COMPENSATION-EMPLOYEE-INDEPENDENT CONTRAC TOR-CASUAL EMPLOYMENT-WELL REPAIRER--Otmer v. Perry, Supreme Court of New Jersey (Dec. 15, 1919), 108 Atlantic Reporter, page 369.-Frank J. Perry was employed by Matilda Otmer to repair a well. He was paid $8 per day and was free to make the repairs