(Dissenting). — The majority opinion states the facts upon which this case is based. It is clear therefrom the appellant was guilty of no negligent act. Indeed, it is not suggested either by pleadings or otherwise that the accident was caused by any act of appellant. On the contrary, the facts would seem to indicate a lack of caution or skill upon the part of .appellee.
I agree with the majority opinion that the state is clothed with power to require the employer without fault to compensate his employee for injury or in case of his death, his dependents. This principle is too well settled to be now questioned. I am satisfied that the state legislature in the absence of constitutional limitations and directions as set forth in section 7, article 18, of the state Constitution could have enacted a law providing for compensation to employees injured without fault of the employer, along the general lines of the various compensation acts of the different states of the Union. I think also that under the provisions of section 7, article 18, it was possible to formulate a law giving compensation to the employee when injured without any fault of the employer. In other words, I am of the opinion that the mandate contained in said section and article of the Constitution is not violative of any provision of the Constitution of the United States. M!y quarrel is with the legislation under that mandate and not the mandate itself.
Chaper 6, title 14, of the Civil Code of 1913 creates a liability without fault but adopts no system or scale of compensation. It leaves the liability to be ascertained by a jury, as under the common-law action for tort. It injects incongruities as to defenses allowed the employer on account of the employee’s negligence. These latter I will not discuss here, for whatever view is taken of them, they do not relieve the method of ascertaining the liability of serious and, in my opinion, fatal constitutional objections.
In the first place, I will consider the nature of this so-called employers’ liability law. It is designated as such both by the Constitution and the legislature. There is not much in the name; the true test of what the right of action is, or was intended to be, must in this case, as in all others, bé ascertained from the words used to describe and define it.
The Constitution directs the legislature to “enact an employer’s liability law, by the terms of which any employer *170. . . shall be liable for the death or injury caused by any accident due to a condition or conditions of such occupation, in all eases in which such death or injury of such employee shall not have been caused by negligence of the employee killed or injured.” Section 7, article 18.
The liability enjoined and contemplated is one heretofore unknown to our laws. Manifestly it is not an employer’s liability law in the sense in which those terms are generally used and understood, for the reason that liability laws are based on tort. They are in fact the common-law right of action for negligence with most of the defenses heretofore allowed abrogated or greatly modified. They do not undertake to create liability without fault, as is done by our legislation. Rounsaville v. Central R. Co., 87 N. J. L. 371, 94 Atl. 392; Winfield v. New York Cent. R. Co., 216 N. Y. 284, Ann. Cas. 1916A, 817, 110 N. E. 614; note to Seaboard A. L. B. Co. v. Horton, L. R. A. 1915C, 54.
These eases hold that a law making the employer liable without fault creates a new right of action unknown to the common law. The legislation is a new departure creating a new liability. It is said: “This legislation is wholly in derogation of the common law. It is legislation which awards compensation for the accidental industrial injuries to be added to the cost of production.” Andrejwski v. Wolverine Coal Co., 182 Mich. 298, Ann. Cas. 1916D, 724, 148 N. W. 684.
The liability contemplated by our Constitution being therefore a new liability, it was within the power and province of the legislature to fix and regulate it, with no limitation on that power except the employer be given the equal protection of the law, and that the method of ascertaining his liability be in accordance with due process of law.
In every other jurisdiction in this country except ours, where this new right of action has been created, the law has been called a “compensation law” and the award to the employee, or his dependents, has been called “compensation.” The liability or compensation is based upon the average wages and the extent of the injury suffered by the employee. It is not an action tó recover “damages” as are the common-law action for negligence and the action under the employers’ liability law.
*171For some inexplainable reason the framers, of our Constitution enjoined on the legislature the duty of enacting two laws for the same general purpose; namely, the creation of a liability of the employer without fault. See sections 7 and 8, article 18. The latter differs from the first principally in that it is called a “compensation law” and authorizes recovery whether the employee causes the injury or not. In both instances the employer is made liable without fault. In the one as well as the other, the liability of the employer is a new one.
Under the compensation act, chapter 7, title 14, of the Civil Code, the legislature provided a method of recompensing the employee for injury or death by an allowance based upon his ability as a wage-earner and the extent of his injury, — in that respect following the compensation laws of other states. The legislature designates the recompense for injury or death under the employers’ liability act as “damages for personal injuries,” evidently intending thereby that the damages recovered should be ascertained and measured by the common-law standard or by the rules governing in actions sounding in tort. In the matter and quantum of evidence to establish liability thereunder it is practically the same, if not identical, with the workmen’s compensation law. The pecuniary liability is, however, unlimited. It contemplates a trial by jury whose only functions, necessarily in most cases, must be the fixing by their verdict the sum to be paid by the employer.
To an injured employee, or in case of his death, there are now open to him or his personal representatives or dependents three avenues of redress; first, the workmen’s compensation law; second, the employers ’ liability law; and third, the common-law action for damages, supplemented by what is commonly known as the Lord Campbell Act. I have indicated somewhat of the nature of the first two. The status of the third or action for negligence, as it exists in this state at present, is as follows:
The common-law doctrine of fellow-servant is abrogated. The defense of contributory negligence and assumption of risks are questions of fact to be at all times left to a jury, and the right of action to recover damages for injuries may not be abrogated, nor may the amount of recovery be lim*172■ited by statute. Sections 4, 5, and 6, article 18, and section 31, article 2, Constitution.
These provisions o£ the Constitution were evidently intended to apply only to actions of negligence, in which the measure of damages were to be according to the rules of the common law. Thus understood, the common-law action for damages for personal injury is so modified and changed as really and in fact to constitute what is generally known as the employers’ liability law.
That the above constitutional provisions do not apply to or affect the newly created rights of action for compensation against the employer is evident, or else our Workmen’s Compensation Act would be violative of the Constitution, in that it does limit the amount of recovery. For like reasons I think they do not apply to the liability created by the statute known as the Employers’ Liability Act. This latter act creating new liability, — one not known to the common law and in derogation thereof, — it would seem that the power of -the legislature to fix the measure of compensation in disregard of the common-law rule is as absolute as under the compensation act.
.< “The theory upon which the compensation law is based (which is now generally accepted) is that each time an employee is killed or injured there is an economic loss which must be made up or compensated in some way, that most accidents are attributable to the inherent risk of employment, — that is no one is directly at fault — that the burden of this economic loss should be borne by the industry rather than by society as a whole, that a fund should be provided by the industry from which a fixed sum should be set apart ás every accident occurs to compensate the person injured or his dependents, for his or their loss.” (Italics mine.) State v. Industrial Com., 92 Ohio St. 434, 450, L. R. A. 1916D, 944, 111 N. E. 299.
• The justification of such an economic rule and its substitution for the common law and employer’s liability rule of damages for personal injury is variously stated by the courts, ■but all are based upon common ground: That the state owes the duty to its members of preventing their becoming public charges by reason of injuries sustained in the industries of modern civilization, the duty to stop the waste of time and money in protracted and bitterly contested lawsuits, and *173thereby remove one of the most potent causes of hatred, animosity, and distrust between employer and employee, the duty to prevent unjust and bogus claims supported and opposed by perjury and subornation, and to see that bona fide claims for compensation are amicably and expeditiously settled, the duty of relieving the state from the expense of personal injury litigation, and, finally, to see that the injured or his dependents receive not a moiety but all that the employer is required to pay. Appeal of Hotel Bond Co., 89 Conn. 143, 146, 93 Atl. 245; Cunningham v. Northwestern Imp. Co., 44 Mont. 180, 204, 119 Pac. 554, 1 N. C. C. A. 720; Hawkins v. Bleakley, 220 Fed. 378, 379; Stertz v. Industrial Ins. Com., 91 Wash. 588, 158 Pac. 256, 258; Lewis & Clark County v. Industrial A. C. C. Bd., 52 Mont. 6, L. R. A. 1916D, 628, 155 Pac. 268.
The reasons given by the courts to sustain the compensation laws, it is apparent from what has been said, cannot he invoked in support of our so-called employers’ liability law. None of the evils “of a difficult problem, affecting one of the most important of social relations” is done away with.
The majority opinion bases its judgment entirely upon the reasoning of the supreme court in New York C. R. Co. v. White, 243 U. S. 188, 61 L. Ed. 667, 37 Sup. Ct. Rep. 247, 13 N. C. C. A. 943, in which was considered the New York Workmen’s Compensation Act. It is said in that case that the Workmen’s Compensation Act was a substituted system devised to compensate employees or their dependents for injuries in certain hazardous businesses, the measure of damages being based upon the loss of earning power, having regard to the previous wage and the character and duration of the disability, and, in case of death, benefits according to the dependency of the surviving wife, husband, or infant child. Our liability act is not a substitution for former rights and remedies. It creates a new right, not to take the place of old ones, but supplemental or cumulative in its nature. It leaves open to the injured employee or his personal representatives or dependents the common-law action of negligence as modified by our Constitution, as also the right to claim under the compensation act.
Justice PITNEY, in the White case, said that as between the employer and the employee, the common-law defenses of the negligence of a coemployee, assumed risk, and contrihu*174tory negligence could be completely abolished without violating any fundamental right of the employer or the law of the land. He cites in support thereof a number of cases upholding the state and federal departures from the common-law rules of liability of the employer, but he says, at page 252: .
“It is true that in the case of the statutes thus sustained there were reasons rendering the particular departures appropriate. Nor is it necessary, for the purposes of the present case, to say that a state might, without violence to the constitutional guaranty of ‘due process of law,’ suddenly set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute. Considering the vast industrial organization of the state of New York, for instance, with hundreds of thousands of plants and millions of wage-earners, each employer, on the one hand, having embarked his capital, and each employee, on the other, having taken up his particular mode of earning a livelihood, in reliance upon the probable permanence of an established body of law governing the relation, it perhaps may be doubted whether the state could abolish all rights of action, on the one hand, or all defenses, on the other, without setting up something adequate in their stead. No such question is here presented, and we intimate no opinion upon it.” (Italics mine.)
There is an intimation here that even the common-law defenses of negligence of a fellow-servant, assumed risk, and contributory negligence may not be arbitrarily abolished without substituting in place thereof some rule or system befitting the conditions and situation, and when it is considered that the act we now have in hand is not substitutional— that it does not “set aside one body of rules only to establish another system in its place,” but that it is purely and simply cumulative, affording an additional, new, and heretofore unknown right of action with practically all defenses of the employer abrogated, I think it is quite the supposititious case alluded to by Justice PITNEY. This legislation has not attempted to “abolish all rights of action,” but has created a new and additional right of action allowing no defense thereto except that it appear that the accident inflicting the injury was caused by the negligence of the employee. To say, as the majority opinion does, that the negligence that *175will defeat a recovery by the employee may be one of assumption or contribution is a violation and repudiation of the very definition of the right of action as defined. It certainly does not mean the negligence of working in a dangerous or hazardous place, or with careless, unskilled, or incompetent coemploy ees. Neither does it mean contributory negligence, for in that case the injury would be caused by the combined negligence of the employer and employee and not “by the negligence of the employee killed or injured.” It means a negligence by the employee at the instant of the injury or death and without which there would have been no accident. It must mean some intentional or culpable act or omission. But whatever view may be taken of that, the employer is denied the right to defend by showing that the accident was through no fault of his, and an employee whose negligence caused the injury may fall back on the Workmen’s Compensation Act. If it is “due to a condition or conditions of the occupation,” he may sue under the Employers’ Liability Act.
In the White case it was decided that the state was competent to set aside one body of rules and to establish another system in its place. There the common-law rules governing the liability of the employer to the employee were abrogated and in lieu thereof a system of compensation substituted. On the substituted system it was said:
“Of course, we cannot ignore the question whether the new arrangement is arbitrary and unreasonable, from the standpoint of natural justice. Respecting this, it is important to be observed that the act applies only to disabling or fatal personal injuries received in the course of hazardous employment in gainful occupation.. Reduced to its elements, the situation to be dealt with is this: Employer and employee, by mutual consent, engage in a common operation intended to be advantageous to both; the employee is to contribute his personal services, and for these is to receive wages, and, ordinarily, nothing more; the employer is to furnish plant, facilities, organization, capital, credit, is to control and manage the operation, paying the wages and other expenses, disposing of the product at such prices as he can obtain, taking all the profits, if any there be, and, of necessity, bearing the entire losses. . . . It is plain that, on grounds of natural justice, it is not unreasonable for the state, while relieving the employer from responsibility for damages measured by *176common-law standards and payable in eases where he or those for whose conduct he is answerable are found to be at fault, to require him to contribute a reasonable cwnount, and according to a reasonable and definite scale, by way of compensation for the loss of earning power incurred in the common enterprise, irrespective of the question of negligence, instead of leaving the entire loss to rest where it may chance to fall,— that is, upon the injured employee or his dependents. Nor can it be deemed arbitrary and unreasonable, from the standpoint of the employee’s interest, to supplant a system under which he assumed the entire risk of injury in ordinary cases, and in others had a right to recover an amount more or less speculative upon proving facts of negligence that often were difficult to prove, and substitute a system under which, in all ordinary cases of accidental injury, he is sure of a definite and easily ascertained compensation, not being obliged to assume the entire loss in any case, but in all cases assuming any loss beyond the prescribed scale. ... In excluding the question of fault as a cause of injury, the act in effect disregards the proximate cause and looks to one more remote,— the primary cause, as it may be deemed, — and that is, the-employment itself. For this, both parties are responsible, since they voluntarily engage in it as coadventurers, with personal injury to the employee as a probable and foreseen result. . . . Viewing the .entire matter, it cannot be pronounced arbitrary and unreasonable for the state to impose upon the employer the absolute duty of making a moderate and definite compensation in money to every disabled employee, or, in case of his death, to those who are entitled to look to him for support, in lieu of the common-law liability confined to cases of negligence.
“This, of -course, is not to say that any scale of compensation, however insignificant, on the one hand, or onerous, on the other, would be supportable. In this case, no criticism is made on the ground that the compensation prescribed by the statute in question is unreasonable in amount, either in general or in the particular case. Any question of that kind may be met when it arises.” (Italics mine.)
Our liability law does not relieve “the employer from Responsibility for damages measured by .common-law standards.” It does not “require him to contribute a reasonable-amount, according to a reasonable and definite scale, by way *177of compensation for loss of earning power. ” It is not a substituted system assuring the employee “a definite and easily ascertained compensation,” and he is not required to assume “any loss beyond the prescribed scale.” It violates the recognized power of “the state to impose upon the employer the absolute duty of making a moderate and definite compensation in money to every disabled employee ... in lieu of the common-law liability confined to cases of negligence,” by permitting a recovery of an unlimited amount not for disability alone, as in the White case, but for physical suffering also. It is not a composition of losses sustained in a mutual joint adventure (as Justice PITNEY reasons) in which accidental injury is inevitable and is expected, but it places all of the loss without limitation upon one of the “eoadventurers.” There is in it no conception of having the employer and employee share in some measure, or at all, the loss incidental to personal injuries, a basic consideration for upholding the New York compensation law.
It is said if the “scale of compensation” be too small or too large, it would not be “supportable.” We have no scale of compensation. It is without limit. It may be ever so “insignificant, on the one hand, or onerous, on the other.” Notwithstanding no criticism of the compensation prescribed by the New York statute had been made, the supreme court laid much stress upon the necessity of the compensation being definite and reasonable and according to a fixed scale. When that is found in the law, it is said the arrangement is not arbitrary and unreasonable from the standpoint of natural justice. A very different case in fact and in reason from the one at bar. Ours is not a system, but a lawsuit. When an accident happens, instead of adjustment ‘ ‘ according to a reasonable and definite scale,” both sides prepare for a contest in the courts with all the attendant evils of the old system. When the litigation is finally ended and the fruits thereof, if successful, are paid over to the employee, whether inadequate or excessively large, both he and the employer have been wronged, in that a goodly portion of the recovery has been diverted from the beneficiary into various channels— such as attorney’s fees, costs, and expenses — all necessary under the system.
Natural justice would dictate that nothing should be taken from the employee, nor would it tolerate the dissipation of *178the employer’s property as an nnction to third or foreign parties. Natural justice would require that the amount to be paid by the employer and received by the employee should be reasonable according to a definite scale, and should pass unimpaired and undiminished to the beneficiary.
The right of the state to require the employer without fault to compensate the employee or his dependents, when injured in the service of the employer, is referable to the police power. As so many of the courts have said, this power is not capable of exact definition. It is recognized as the right a state has to enact laws for its preservation and betterment. It is elastic, in that it expands with social and industrial necessities of the state and may be invoked to promote the health, safety, and general welfare of the people. But there is a limit to its exercise. It may not be arbitrarily and capriciously exercised to deprive the citizen either of his property or liberty, especially in a case of this kind, where there is accruing benefit to neither the individual nor society as a whole. The supreme court in the White case has pointed out in no uncertain manner how “a just settlement of a difficult problem, affecting one of the most important of social relations,” may be solved, and that solution has not been followed or observed in the least by our legislation. See, also, Mountain Timber Co. v. Washington, 243 U. S. 219, 61 L. Ed. 685, 37 Sup. Ct. Rep. 260, 13 N. C. C. A. 927; Hawkins v. Bleakly, 243 U. S. 210, 61 L. Ed. 678, 37 Sup. Ct. Rep. 255.
In the last case cited it was contended by the appellant-employer that the Iowa compensation act did not conform to “due process of law,” in that it provided that if the employer rejected the act, it should be presumed, in an action for damages by the employee, that the injury was the direct result of the employer’s negligence. The contention was held unsound, as it only cast the burden of proof upon the employer to rebut the presumption of fact, and the court said:
“A provision of this character, not unreasonable in itself and not conclusive of the rights of the parties, does not constitute a denial of due process of law,” citing Mobile, Jackson and Kansas City R. R. Co. v. Turnipseed, 219 U. S. 35, 42, 55 L. Ed. 78, 79, Ann. Cas. 1912A, 463, 31 Sup. Ct. Rep. 436, 32 L. R. A. (N. S.) 226, 2 N. C. C. A. 243. In this last ease Justice LUBTON said: “ ... it must not under guise of regulating the presentation of evidence operate to pre*179elude the party from the right to present his defense to the main facts thus presumed. If a legislative provision not unreasonable in itself prescribing a rule of evidence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him.”
Thus while it was held the state may change the rules of evidence so as to cast the burden of proof in the first instant upon the employer, it may not take from him all his defenses in actions for damages for personal injury. What may not be done “under the guise” of a rule of evidence surely cannot be accomplished by a direct thrust of the legislature. In both the Hawkins and Turnipseed cases the court was considering actions for damages for personal injuries where the measure of damages was according to the standards of common law, and for that reason the rule announced in those eases is the rule that should be applied in the case at bar.
Again, in the Hawkins case, speaking of the power of the state to abolish the common-law defenses of fellow-servant, contributory negligence, and assumed risk, and authorizing a recovery as “for personal injury” when the employer rejects the compensation act, or when both the employer and employee reject it, but reserving unimpaired all these defenses in case the employer accepts and the employee rejects the act, the court said:
“We cannot say that there is here an arbitrary classification within the inhibition of the ‘equal protection’ clause of the Fourteenth Amendment. ... As already shown, the abolition of such defenses is within the power of the state, and the legislation cannot be condemned when that power has been qualifiedly exercised without unreasonable discrimination. ’ ’
Our liability law not only abolishes the defenses named in a case of the kind we have here, but takes from the employer the right to defend by showing that he was guilty of no fault. The legislation is all in favor of the employee. The employer is given no chance to escape the unlimited liability imposed. The Iowa statute under consideration in the Hawkins case gave the employer the alternative of paying a reasonable compensation according to a definite scale, refusing *180which, his only defense was to show that he was guilty of no negligence. Our liability law offers no alternative, neither can the employer defend by showing he was without fault. Granting that the employer may defend by showing that the employee contributed to the accident or that he assumed risks not inherent in the occupation, an absurdity, it seems to me, still he is deprived of the fundamental right of showing he was without fault, and at the same time made liable for unlimited damages, as iñ a suit for personal injury according to the standards of the common law, — and the law has provided no avenue of escape for him. This, it would seem, is “unreasonable discrimination” against the employer and in favor of the employee. That all defenses may be abolished and absolute liability imposed without fault, according to a reasonable and definite scale, is not questioned, but it is inconceivable that one who is guilty of no wrong should be made liable to an injured employee in damages unlimited and unlimitable.
I am constrained to hold that the so-called Employers’ Liability Act, in so far as the procedure for the enforcement of the right of action created thereunder is concerned, is not a proper and lawful exercise of the police power of the state, and further, that it denies the employer due process of law, in that it deprives him of the right to present all his defenses, at the same time allowing unlimited damages against him according to the standard of damages at common law.
At the expense of extending this opinion — too long already — I wish to add: The right of action created by the act is not limited to the employee or, in case of death, to his dependents. It extends to the parents, whether dependent or not, and the personal representative for the benefit of the estate, in the absence of certain enumerated classes. Thus an employer without fault may be mulct in damages to an estate which would go to heirs in no way dependent upon the deceased or, there being no heirs, it would escheat. This I conceive to be contrary to every dictate of natural justice. All employers in the occupations mentioned are not millionaires — some are just beginning, with no more means than the men they employ. It reaches the small contractor and small mine owner as well as the larger concerns of the state. Yet these, under the law, guilty of nothing other than a laudable ambition to better their condition, and incidentally build up *181and develop the industries of the state, may be forced to contribute to an estate that owes nothing or that may go to heirs in no way dependent on the deceased, or that may be escheated.
The workmen’s compensation laws of the different states and foreign countries without exception, so far as I know, limit the benefits to the employee, or in case he dies, to his dependents.
In view of the fact that-our Workmen’s Compensation Act is not satisfactory to either employer or employee and our Employers’ Liability Act, as drawn, is clearly unconstitutional, as I see it, I feel constrained to express my opinion more at length than I otherwise would.
The Workmen’s Compensation Act is generally conceded to give inadequate compensation for death and injury. It is compulsory on the employer only. The employee’s option to accept under it can be exercised after the injury (Consolidated Arizona Smelting Co. v. Ujach, 15 Ariz. 382, 139 Pac. 465), and is personal to the employee. The beneficiaries of the deceased cannot exercise the option at all or in any case Behringer v. Inspiration Consolidated Copper Co., 17 Ariz. 232, 149 Pac. 1065. It therefore is not a “just settlement’’ of the rights and wrongs growing out of the relation of employer and employee. This confused, chaotic, and unsatisfactory condition has had the attention of both employer and employee with a view of remedying it, but owing to a lack of co-operation by the last legislature with a joint committee representing both sides, nothing was accomplished. It is devoutly to be wished that a just, reasonable, and equitable law following the lines of other states, settling the question, may soon find a place in this state.
On construction and effect of workmen’s compensation acts generally, see comprehensive note in L. R. A. 1916A, 23.