Compensation Law (Consol. Laws, c. 67 [as amended in 1916]) provides that— "In case of an injury resulting in serious facial or head disfigurement the commission may in its discretion, make such award or compensation as it may deem proper and equitable, in view of the nature of the disfigurement, but not to exceed $3,500." The employer and the insurance carrier insist that this provision of the statute is unconstitutional and void. The argument is that the purpose of the amendment is to compensate the workman for injuries that have no relation to his earning power. If that were in truth the purpose, the statute would still be valid. Matter of Erickson v. Preuss, 223 N. Y. 365, 119 N. E. 555. The Constitution (article 1, § 19) authorizes the adoption of a system of insurance to compensate employés for injuries without regard to fault. Insurance against pain of mind and body is as legitimate, if the amount is kept within the bounds of moderation, as insurance against loss of earnings. It is of no moment that some other measure of compensation may have prevailed in the past. The Constitution does not stereotype the forms of legislation. The common law gave the workman compensation for pain and suffering, as well as for loss of earnings, when the employer was at fault. The statute takes that remedy away, and substitutes insurance within prescribed limits, irrespective of fault. Pain and suffering are part of the risks of the employment. The Legislature may make them part of the risks of the insurance. The one restriction on its power is that the burden must be reasonable. Mountain Timber Co. v. Washington, 243 U. S. 219, 240, 241, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642; N. Y. Central R. R. Co. v. White, 243 U. S. 188, 207, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1 Ann. Cas. 1917D, 629. The statute would stand, therefore, though facial disfigurement were unrelated to loss of earnings. But in truth it is related, and so the Legislature must have found. One cannot 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. The argument is made, however, that the findings are defective. If the purpose of the statute is to compensate for loss of earnings, there should be a finding, it is said, that the result of the claimant's disfigurement will be diminished earning power. One might as well argue that without a like finding there could be no recovery for the loss of a finger or a foot or an eye. The commission has found that there has been serious facial disfigurement, and that an award of $2,500 is fair and equitable. Those are the ultimate facts to be embodied in the decision. The capacities and opportunities of the individual claimant have at the utmost an evidential value. It is true that the commission has a wide discretion, and in fixing a fair and equitable compensation it may inquire into all the circumstances that will help to guide its judgment. But those circumstances, however pertinent as evidence, have no place in the findings. The mutilated face, like the mutilated arm or leg, is the capital fact upon which liability depends. The injury alone, without other proof of loss, makes out the claimant's handicap in the struggle of existence. Given the fact of injury, the commission is to assess the damages. The presumption is that all relevant circumstances have been weighed in the assessment. These findings, therefore, would be adequate even if the commission were a court. But in truth it is not a court, and the niceties of code practice have no place in its procedure. Its decision states the facts essential to liability. No more should be exacted. There is nothing in the point that the extent of compensation must be determined by a jury. The Constitution authorizes "the adjustment, determination and settlement, with or without trial by jury, of issues which may arise under such legislation." Const. art. 1, § 19. The award is not redress for a tort. It is an allotment to an insured workman of his proportion of a fund maintained for his insurance. Mountain Timber Co. v. Washington, supra, 243 U. S. at page 235, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642. Nor does the statute become invalid because the commission has some discretion in fixing the amount. The Legislature may provide for such a method of "adjustment, determination and settlement" as it will. There is reason for the distinction which it has drawn between facial disfigurement and other injuries, though the reason is hardly our concern. Some injuries, as for instance the loss of a limb, may be so defined and classified that the appropriate compensation may, with a fair average of justice, be estimated in advance. But cases of disfigurement have their special problems. It is difficult, if not impossible, to define and classify the injuries. A flexible compensation makes for justice alike to employer and to workman. It is not important that a lump payment is exacted. That may be done in other "The injury for which the statute gives compensation is not mutilation or disfigurement or loss of physical power, but loss or diminution of the capacity to earn wages." cases. Workmen's Compensation Law, § 27. | Sons (1912, A. C. 496), upholding an award The payment is not made by the employer for such injuries, said: himself, if he insures in the state fund, except to the extent of the premium which he pays for his insurance. Sections 50, 53. It is a charge upon the fund. He may, of course, be a self-insurer, or pay his premiums to an insurance company (section 50), but that is only at his option. The statute is constitutional, and the proceedings under it have been regular. The order should be affirmed, with costs. POUND, J. (concurring). I concur in the result. The compensation awarded to the employé under the Workmen's Compensation Law is based on loss of earning power. An allowance for serious facial or head disfigurement, so far as such disfigurement has no re lation to disability, is an anomaly. Matter of Marhoffer v. Marhoffer, 220 N. Y. 543, 116 N. E. 379; The language of the opinion in the Erickson Case, 223 N. Y. 365, 368, 119 N. E. 555, 556. "The commission may now make an award for serious facial or head disfigurement, even though such disfigurement does not diminish or impair the earning capacity of the claimant," is unnecessarily broad, and might have been limited to the language of the act itself, which does not include the words italicized. The New York statute, by mentioning facial injuries, merely makes plain what the English act leaves to interpretation. If this award for disfigurement is placed on the broad ground of impaired ability to get work, no violence is done to the purpose of the act. In the absence of a finding of fact negativing such impaired ability on the facts in this case, the award should be sustained. W. C. L. § 21. The order should be affirmed, with costs. MCLAUGHLIN and ANDREWS, JJ., concur with CARDOZO, J. HISCOCK, C. J., and POUND, J., concur in result in memorandum, by POUND, J. CHASE and HOGAN, JJ., vote to remit case to Industrial Commission for further hearing because of absence of findings showing that disfigurement has resulted in loss of earning power or of ability to obtain employment. Order affirmed. (226 N. Y. 57) MCGRAW v. GRESSER. 1919.) PLOYÉS-WRONGFUL REMOVAL-REMEDIES― DAMAGES. Doubtless the general language of the New York Constitution (article 1, § 19) would permit us to uphold a statute which awards compensation to employés for all industrial injuries, without trial by jury, but the theory (Court of Appeals of New York. March 18, of the Compensation Acts is that the community rather than the injured workman should carry the burden of impaired earning 1. MUNICIPAL CORPORATIONS 218(10)—ÉMcapacity due to accident. If that theory is extended to cases where the injured man can The remedy of mandamus for reinstatement, still work and get work and an administragiven to a civil service employé, wrongfully distive board is permitted to assess the dam-charged, by Civil Service Law, § 22, does not ages, a new problem is introduced as to the limits of legislative power (U. S. Const. Amend. 14) and the reasonableness of the burden, the solution of which is not so easy. N. Y. Central R. R. Co. v. White, 243 U. S. 188, 202, 203, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1 Ann. Cas. 1917D, 629. Serious facial or head disfigurement may leave one able to work and unable to get work. Employers might refuse to employ a disfigured man in his trade either from lack of confidence in his unimpaired ability or because it would be unpleasant for others to work beside him or unprofitable to have him meet the customers. A woman whose hair had been torn off or whose face was badly scarred might be so repulsive to the eye that no one would employ her and yet be as competent as ever to do her work. In a lesser degree, the seriously disfigured face or head of a man might lead to discrimination against him. The House of Lords in Ball v. Hunt & preclude recovery of damages for the wrongful removal by the borough president. 2. MUNICIPAL CORPORATIONS 218(10)—OFFICERS LIABILITY-WRONGFUL DISCHARGE OF EMPLOYÉ. The removal by a borough president of a civil service employé without a hearing is a ministerial act, which renders the president liable in damages. 3. OFFICERS 71- WRONGFUL REMOVAL – DAMAGE. Though a public office is not property, an officer under the civil service has a right to his office, of which he is deprived by removal without a hearing, and for such injury can recover as damages the salary of which he was deprived by the wrongful removal. 4. ELECTION OF REMEDIES 3(1)—WRONGFUL REMOVAL FROM OFFICE-DAMAGES MANDAMUS. The failure of a civil service officer to claim damages for a wrongful removal in the manda For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mus proceeding by which he was reinstated, as | 246, 247, 71 N. Y. Supp. 383. But mandamus authorized by Code Civ. Proc. § 2088, is not a was essentially a remedy for reinstatement waiver of his right to such damages, but he can and reinstatement is not a complete remedy. recover them by separate actions. [2] The act of defendant in removing plainHiscock, C. J., and Collin and Cuddeback, JJ., tiff without a hearing was ministerial. Nutdissenting. tall v. Simis, 31 App. Div. 503, 52 N. Y. Supp. 308. Defendant is, therefore, also liable in Appeal from Supreme Court, Appellate damages to plaintiff by reason of his misDivision, Second Department. Action by Thomas J. McGraw against Lawrence G. Gresser. Judgment for plaintiff was affirmed by the Appellate Division (176 App. Div. 887, 162 N. Y. Supp. 1129), and defendant appeals. Affirmed. Plaintiff was executive clerk in the office of the president of the borough of Queens in the city of New York. He had served a term in the volunteer fire department of Long Island City and was wrongfully removed from his position by the defendant, the president of the borough, for political reasons and without a hearing (Civil Service Law [Consol. Laws, c. 7] § 22), and the position was filled by the appointment of another. After his removal he was reinstated in his position, pursuant to a writ of peremptory mandamus, and the amount of the recovery herein is the compensation attached to his position from the time of his removal until he was reinstated. Charles H. Street, of Huntington, for appellant. Solon Weit, of New York City, for respond ent. POUND, J. The question is whether a former volunteer fireman, wrongfully discharged from a position in the civil service, may maintain an action to recover damages against the officer who removed him; his position having meanwhile been filled by the appointment of another. [1] Exempt volunteer firemen were first protected from removal from positions in the civil service of the various cities and counties, "except for cause shown after a hearing had," by Laws 1892, c. 577. This statute provided no remedy, but it was held in People ex rel. Coveney v. Kearny, 44 App. Div. 449, 61 N. Y. Supp. 41, affirmed 161 N. Y. 648, 57 N. E. 1121, that a veteran fireman wrongfully discharged from a subordinate position was entitled to a common-law writ of mandamus to compel his reinstatement when no question arose between the relator and any actual incumbent of the position. feasance. Hover v. Barkhoof, 44 N. Y. 113; Bryant v. Town of Randolph, 133 N. Y. 70, 30 N. E. 657; Beardslee v. Dolge, 143 N. Y. 160, 38 N. E. 205, 42 Am. St. Rep. 707. [3] A public office or position is not property in the sense in which that term is generally used, but it is idle to say that one who is wrongfully removed from a position in the civil service does not sustain an injury. He is deprived of a right. Nichols v. MacLean, 101 N. Y. 526, 533, 5 N. E. 347, 54 Am. Rep. 730. In the "great case" of Ashby v. White (1703) 2 Ld. Raym. 938, 950, 3 Ld. Raym. 323, 1 Smith L. C. (11th Ed.) 240, the House of Lords, approving the dissenting opinion of the famous Sir John Holt, C. J., below, held that an action lies in behalf of any person having a right to vote against election officers who refused to receive his vote, because he has been deprived of a right and where there is a right there is a remedy. Willy v. Mulledy, 78 N. Y. 310, 314, 34 Am. Rep. 536. The loss is the amount of salary of which plaintiff has been deprived by defendant's wrongful act. [4] If plaintiff had so elected, he might have, with proper parties and allegations, had damages awarded to him in the mandamus proceeding wherein he was reinstated (Code Civ. Proc. § 2088; People ex rel. Goring v. Prest, etc., of Wappingers Falls, 151 N. Y. 386, 389, 45 N. E. 852); but the alternative was not between such election and a waiver of his rights. Where a statute gives a right, it does not follow that other consistent rights are taken away. Central Trust Co. v. N. Y. City & No. R. R. Co., 110 N. Y. 250, 255, 18 N. E. 92, 1 L. R. A. 260. Even if we adopt, as did the learned trial justice, the dictum of Laughlin, J., in People ex rel. Walker v. Ahearn, 139 App. Div. 88, 94, 123 N. Y. Supp. 845, affirmed People ex rel. Walker v. McAneny, 202 N. Y. 551, 95 N. E. 1137, that public policy protects officials who make unauthorized remoyals "in the absence of bad faith or improper motive," plaintiff is entitled to recover. But the law may not be violated with impunity, even by public officials with good motives. I think that the judgment is right, and should be affirmed, with costs. HOGAN, CARDOZO, and ANDREWS, JJ., concur. HISCOCK, C. J., and COLLIN and CUD dissent. DEBACK, JJ., The statutory provision for a writ of mandamus for the benefit of firemen appears in Laws 1899, c. 370, § 21, now section 22, Civil Service Law. The effect of this amendment was merely to extend the remedy by mandamus to cases where the position had been filled by the appointment of another. People ex rel. Mesick v. Scannell, 63 App. Div. 243, Judgment affirmed. 86 (232 Mass. 596) 123 NORTHEASTERN REPORTER EMACK'S CASE. (Supreme Judicial Court of Massachusetts. Suffolk. April 17, 1919.) 1. MASTER AND SERVANT 361, 403-LENDING MACHINE AND SERVICES-CHANGE OF EMPLOYMENT-PRESUMPTION. Where person in general employment of contractor assists, with machine or other appliances belonging to contractor, in work of subcontractor or other employer to whom he is lent, he may become, with his consent, servant of the other contractor or special employer, but there is a rebuttable presumption that in management of machine or appliance he remains servant of general employer. Walter I. Badger and Louis C. Doyle, both of Boston, for appellee Travelers' Ins. Co. CARROLL, J. Albert M. Emack, employed by the Aberthaw Construction Company as the engineer in charge of a locomotive crane, received a fatal injury. Holbrook, Cabot & Rollins Corporation, a subcontractor, on March 13, 1918, wrote to the Aberthaw Company stating that it required a locomotive crane to act "as auxiliary to our derricks, also to provide motive power for getting piles from the pile yard out to the wharf. We understood from Mr. Garrod that the crane would be forthcoming and could be On the following 2. MASTER AND SERVANT 405(2)-WORK- held absolutely at our disposal for the conMEN'S COMPENSATION ACT-CHANGE IN EM-tinuance of our work." PLOYMENT-FINDING OF INDUSTRIAL ACCI-day the supervisor of the Aberthaw ComDENT BOARD-EVIDENCE. pany replied, saying that the company "has In proceedings for compensation for death furnished you at Squantum this morning, of engineer of locomotive crane lent by con- March 14, 1918, with one locomotive crane 50-foot boom, and one * Please note tractor to subcontractor, finding of Industrial flat car. standard Accident Board that engineer' did not become equipped with a servant of subcontractor in care and management of crane, but in such respect remained em- that the Aberthaw Construction Company ployé of contractor, held supported by evidence. will furnish the engineer and fireman on the 3. MASTER AND SERVANT 417 (7)-WORK-locomotive crane throughout its work for MEN'S COMPENSATION ACT-REVIEW-FIND- Where there was evidence to support finding of Industrial Accident Board on a question of fact, such as whether engineer of locomotive crane lent by contractor to subcontractor became servant of latter in respect to management of crane, Supreme Judicial Court cannot set finding aside. Appeal from County. as Superior Court, you." Sunday morning (March 17, 1918) Green. a rigger employed by Holbrook, Cabot & Rollins, ordered Emack to go to the dock The crane was run down and hoist an engine from the deck of a lighter to a flat car. to the dock, employés. of the subcontractor adjusted the chains about the engine and connected them with the hoisting tackle of the crane. The crane was equipped with Suffolk jacks to support the platform when lifting, and clamps to fasten the crane to the rail. Neither the jacks nor clamps were in use when the employé was killed. was Before After Proceeding under the Workmen's Compensation Act by Mabel B. Emack for compen- attempting to hoist the engine, Emack's firemen asked Green its weight, to which Green sation for the death of Albert M. Emack, the employé, against the Aberthaw Constructhen said, "You think that is a 30-foot radition Company and the Holbrook, Cabot & replied, "From 4 to 5 tons." The fireman Rollins Corporation, as employers, and the?" and Green answered, "Yes." The fireInsurance Mutual Liability Contractors' Company and the Travelers' Insurance Cominsurers. Compensation pany, the Contractors' Mutual awarded against Liability Insurance Company, and denied as against the Travelers' Insurance Company, and from the decree of the superior court ordering payment by the Contractors' Mutual Liability Insurance Company, and dismissing the claim against the Travelers' Insurance Company, the claimant and the Contractors' Mutual Liability Insurance ComAffirmed. pany appeal. man then looked at the guideplate on the were Both the Aberthaw Company and the Holinsured under the The IndusWorkmen's Compensation Act. brook Company trial Accident Board awarded compensa Peter F. McCarty, of Boston, for appellant tion against the insurer of the Aberthaw Emack. Norman F. Hesseltine, J. Frank Scannell and J. Waldo Bond, all of Boston, for appellant Contractors' Mutual Liability Ins. Co. Construction Company in favor of Mrs. For other cases sce same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes case it should be found that the Industrial | erate the crane, and the master mechanic of Accident Board was in error. The insurer the Aberthaw Company testified that "Mr. of the Aberthaw Company also appealed. Emack was supposed to know what the crane would lift on a certain job, and it was left * [1] Where a person in the general employment of a contractor assists with a ma-to Mr. Emack to use his judgment as to chine or other appliance belonging to the contractor, in the work of an employer to whom the servant is lent, the person so lent may become, with his consent, the servant of the special employer. But in such a case it will be presumed that in the management of the machine or appliance the employé in charge remains the servant of the general employer and does not become the servant of the special employer. Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922; Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648; Pigeon's Case, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737; Peach v. Bruno, 224 Mass. 447, 113 N. E. 279; Clancy's Case, 228 Mass. 316, 117 N. E. 347; Scribner's Case, 231 Mass. 132, 120 N. E. 350. This presumption, however, may be overcome by evidence to the contrary; and the facts may be such as to warrant the finding that the owner of the machine has so far surrendered the right of control that even in this particular the person in charge of the machine has become the servant of the special employer. See in this connection Scribner's Case, supra; Cain v. Hugh Nawn Contracting Co., 202 Mass. 237, 88 N. E. 842. [2, 3] In the case at bar there was evidence upon which the Industrial Accident Board could have found that Emack, in the operation and management of the locomotive crane, became the employé of the Holbrook, Cabot & Rollins Corporation. The correspondence between the two corporations indicates that the crane was to be at the disposal of the Holbrook, Cabot & Rollins Corporation. There was evidence that, when Emack and his fireman started the work for the Holbrook Company, they were informed by the master mechanic of the Aberthaw Company "to do absolutely as they were told by the subcontractor," and that they made no objection to this direction. But the Industrial Accident Board was called upon to decide a question of fact; and it might well have found that, even if Emack was temporarily in the employment of the Holbrook, Cabot & Rollins Corporation, in the care and operation of the crane he remained the employé of the Aberthaw Company. It could have found that the crane was a complicated machine, requiring experience and skill in its operation; that Emack was an experienced engineer and that the control was left entirely to him, with no direction for its management given by the Holbrook Company. It does not appear that any one employed by the subcontractor understood how to op how much he should lift. If Mr. Emack Decree affirmed. (232 Mass. 557) MCCARTHY'S CASE. In re TOWN OF DAN- 1. MASTER AND SERVANT ~405(4) WORK. MEN'S COMPENSATION ACT-OPPORTUNITY TO ESCAPE INJURY-SUFFICIENCY OF EVIDENCE. Finding of Industrial Accident Board that employé, who suffered sunstroke, had no opportunity to escape effects of exposure to heat before he collapsed, held warranted by evidence. 2. MASTER and Servant ✨-373—WORKMEN'S COMPENSATION ACT-"ARISING OUT OF EM PLOYMENT"-SUNSTROKE. Where town's employé, who worked in gravel pit, suffered a sunstroke, injury arose out of of sunstroke, an injury naturally connected and his employment, which exposed him to danger reasonably incident to employment, as distinguished from ordinary risk which general public is exposed to. Appeal from Superior Court, Suffolk County. Proceeding for compensation for injuries under the Workmen's Compensation Act (St. 1911, c. 751, as amended by St. 1912, c. 571) by John E. McCarthy, the employé, opposed by the Town of Danvers, the employer, and the Employers' Liability Assurance Corporation, Limited, the insurer. Compensation was awarded by the Industrial Accident Board, the award affirmed by the superior court, and from its decree the insurer appeals. Affirmed. All the material evidence introduced at the hearing follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |