Mahlon Pitney

“ This is too fantastic a definition of 'inherent risk' to form the basis of a law which must conform to standards of reasonableness. And again, how can the classification resorted to in second group 45 be sustained as reasonable, within the requirements either of the 'due process of law' or the 'equal protection of the laws' provisions of the Fourteenth Amendment? The occupation of a salesman stationed alone far uptown in the Bronx does not become hazardous simply because four or more porters art regularly employed at headquarters downtown in Manhattan. ”

“ Accidents cannot be relied upon to follow the symmetrical lines of group description; this is a difficulty that showed itself under the groups as they stood before, and led to the 1916 amendment of the definition of 'employee.' Even clerks and salesmen cannot, in this busy day, be confidently treated as immune from industrial hazards; if a general rule must be declared, it would be safer to say, on the basis of experience, that no occupation is free from industrial hazard, than to say that any specified occupation is free. ”

“ The Legislature, in the New York system, is justified in extending the benefits of the Compensation Law as far as it reasonably may determine occupational hazard to extend-to the 'vanishing point' as it were and any lines of group definition it may adopt, if easily understood and applied, cannot reasonably be called 'an empty form of words' merely because they do not carry on their fact the reasons for adopting them. ”

“ That Krinsky's occupation was no more hazardous than that of millions of residents of the metropolitan district, who daily make use of the subways and elevated railways in going to and from their work; that there had been no such accident among plaintiff in error's employees in 20 years of operation; and that it is unreasonably and unnecessarily burdensome to require the employer to either maintain compensation insurance at heavy annual premiums, or deposit securities with the state to guarantee payment of compensation benefits, where the probability of injury is so slight. ”

“ This court sustained the New York Workmen's Compensation Law, and the kindred statutes of Washington and Arizona, fundamentally upon the ground of the hazardous nature of the occupations covered. if that ground is defensible at all-so runs the argument-the system must be confined to occupations actually hazardous in their nature; a legislative definition is not sufficient, nor is the occurrence of a single accident, much less one so singular and so little related to his general duty as that which befell Krinsky, adequate proof of occupational hazard. ”

“ Any question about the validity of an act purporting to impose compulsory liability upon employers for losses due to occupational hazards, where there really are no occupational hazards, may safely be left until such a case is presented.
Next, we agree that, in a test of constitutionality under the Fourteenth Amendment, the question whether there is inherent hazard in an occupation or a group of occupations is not to be settled conclusively by a legislative declaration or by an empty form of words. ”

“ The Legislature may have had the best of reasons for believing that others as strange were happening rather frequently in the great, busy, bustling population of the Empire State; that, while an individual clerk's or salesman's life and limb perhaps were less in danger than an individual machinist's, yet they were in appreciable danger; there were more clerks and salesmen than machinists; many times, naturally, they would be employed in the same business with machinists, or other 'workmen or operatives' ”

“ The difficulty is inherent in the subject; in years of practical experience, it had been found that in the extremely varied and complex organization of industry, disabling or fatal injuries occur when least expected, and in ways not characteristic of any particular industry described. The Legislature hardly could be called upon to predict, any more than the comployer, who was to be injured; and to confine the cost of casualty insurance strictly to those who were sure to be 'casualties' might baffle the efforts even of the experienced legislators who framed second group 45. ”

“ A like suggestion arises in the case before us, where the employer insured the chauffeurs, who drove the trucks with merchandise to the various stations, but failed to insure the salesmen, overlooking the fact that they also occasionally were subjected to peril in the line of duty. It may be objected that these cases are not typical; but the Legislature may have realized, as an element of the problem with which they were dealing, what indeed is proverbial, that accidents do not conform to types; that they are one thing that happen 'simply because' they are accidents. ”

“ How can we accept the reason suggested by the Court of Appeals in the Europe Case, supra (somewhat at random, it should be said, and when the court, by its own confession, was not required quired to test its adequacy) , that a business not ordinarily hazardous becomes such at times when manual work is done or machinery operated in connection with its main purpose? ”

“ In the framing of so far-reaching a scheme of legislation, dealing with occupations so diverse, necessarily a wide range must be accorded to legislative discretion about defining the groups to which it shall apply. Lines must be drawn, and it is not to be assumed that they have been drawn without good reason. The difference between the larger and the smaller establishments may be recognized as a basis of classification in legislation affecting the defenses of contributory negligence and assumption of risk, as was held in Jeffrey Mfg. ”

“ So, the minimum number in a single employ may be regarded, we think, in arranging a system designed to distribute the burden of industrial accident losses with a view to the ability of the industry to bear it. ”

“ We need not be sure of hitting upon a correct, much less a complete, explanation. Upon the general presumption referred to the questioned group must stand, unless it were demonstrated to a moral certainty, beyond a reasonable doubt, that the grouping could not possibly be explained on reasonable grounds. ”

“ The contention that by this construction second group 45 has been extended beyond the limit allowable consistently with due process of law, and 'has been applied in this case to an employment with no inherent hazard whatever,' rests upon an assumption of fact disproved by Krinsky's experience. ”