Vinje, J.
The Commission found that Heruben, who was a general helper in a restaurant, was performing work incidental to his employment while engaged in grinding meat for Hamburger steak. Plaintiff attacks this finding and urges that Heruben, whose chief employment consisted in serving tea, coffee, and milk, was not engaged in work incidental to his employment at the time he was hurt. This contention must be attributed to a lack of restaurant experience rather than to a want of knowledge of the conclusive character of findings of fact made by the Commission when based upon any competent evidence or upon the common experience of mankind. The patrons of many restaurants would unhesitatingly say that the preparation of Hamburger steak is pre-eminently the most striking example of genuine restaurant service that can be imagined. [568]*568But be that as it may, we certainly cannot hold that the finding of the Commission has no basis in fact, since it is a matter of common knowledge that Hamburger steak is a customary product of the ordinary restaurant. The Commission, therefore, was justified in finding that Heruben performed service incidental to, if not inherent in, his employment when he was hurt, and the finding must stand as a verity in the case.
A much more serious question is raised by plaintiff’s claim that the amendment of 1917, providing for treble compensation when a minor is employed without a permit, is unconstitutional.
It is suggested by counsel for the Industrial Commission that, since the workmen’s compensation act is elective, plaintiff cannot question the constitutionality of a law he has elected to come under and from which he can withdraw. Without deciding the question whether an employer can question the constitutionality of any provision of the compensation act contained therein when he elects to come under it, or subsequently added thereto and from which he has had an opportunity to withdraw as provided by sec. 2394 — 5, Stats. 1917, we are of the opinion that plaintiff here can question the constitutionality of this amendment because he has had no option to withdraw from it since it was enacted. Under sec. 2394 — 5 he must file with the Commission notice of withdrawal for any year beginning July 1st at least thirty days prior thereto. On June 1st this amendment was not in existence. It did not become law till July 13, 1917, when it was published, and it became effective September 1, 1917. When it became a law it'was too late for plaintiff to withdraw for the year beginning July 1, 1917, and he was compelled to accept this law for that year at least. He had no election as to whether he should remain in under it for the year specified. Not having any election as to the amendment so far as this accident is con[569]*569cerned, the elective feature of the law cannot be-invoked to deprive him of the right to question the constitutionality of the amendment.
The argument against its constitutionality runs in substance like this: Treble compensation is a penalty and its exaction is in fact the enforcement of a penal or criminal statute, namely, that of the child-labor law, which is not in any way germane to the subject of 'compensation for industrial accidents. The right to a jury trial for the enforcement of a penalty has never been waived by employers in electing to come in under the workmen’s compensation act.
It is further argued that sec. 2394 — 9, Stats. 1917, provides full compensation for injuries sustained by employees and therefore the increased compensation is purely a punishment for violating sec. 1728a; that this is further evidenced by the fact that under sub. (7), sec. 2394 — 9, the emplpyer is mad'e primarily liable for the increased compensation and the insurer only secondarily liable, and that, since there is no relation between the injury sustained and the additional compensation, the classification of minors based upon their having or not having a permit is void because it is not based upon any real distinctions germane to the purpose of the law of which it is a-part, citing Kiley v. C., M. & St. P. R. Co. 142 Wis. 154, 125 N. W. 464, and Borgnis v. Falk Co. 147 Wis. 327, 133 N. W. 209.
The argument is not without force, and were we to justify the ainendment upon common-law principles alone, without reference to the wide departure therefrom made by the workmen’s compensation act, the task would not be an easy one. But the question is not whether it is a justifiable common-law scheme, but whether it is fairly germane to and within the.limits of the general scheme.of the workmen’s compensation act. If it is, then it is constitutional, for an employer in coming under the act waived his common-law remedies and agreed to be bound by the remedies afforded [570]*570by the act and all lawful amendments thereto. Anderson v. Miller S. I. Co. 169 Wis. 106, 170 N. W. 275; 171 N. W. 935.
Under the common-law scheme the employer must breach his duty to his employee in failing to exercise ordinary care, and because of such delict on his part the employee is entitled to full compensation for injuries resulting proximately therefrom.
Under the scheme of the workmen’s compensation act there need be no delict on the part of the employer, and full compensation is not given to the employee for the damage he has sustained, but only partial compensation. Thus for total disability of a person under thirty-two years of age only sixty-five per cent, of his average weekly earnings for not exceeding fifteen years is provided. Sec. 2394 — 9. It will thus be seen that under the scheme of the compensation act the loss sustained is borne by the employer, the employee, and the public who use the product of the industry in which the employee is engaged at the time of his injury. It is quite evident from the schedule in sec. 2394 — 9 that the employee usually bears the major part of the damage, even where full statutory compensation is given him. Since he gets compensation irrespective of any negligence on the employer’s part; and since it comes to him speedily and without much expense, it is perhaps as desirable as the full compensation given under the common-law scheme, though the latter averages perhaps three times the statutory compensation.
But though the workmen’s compensation act is not bottomed upon negligence, it nevertheless recognizes negligence, faults, or delicts in certain cases and gives increased or diminished compensation accordingly. Thus, where an injury is caused by the failure of the employer to comply with any statute of the state or any lawful order of the Industrial Commission, compensation and death benefits are increased fifteen per cent. Sub. (5) (h), sec. 2394 — 9. [571]*571Compensation is reduced fifteen per cent, in each of the following cases: (a) Where the injury is caused by the wilful failure of the employee to use safety devices provided by the employer; (b) where the injury results from the employee’s wilful failure to obey any reasonable rule adopted by the employer for the safety of the employee; or (c) where injury results from intoxication of the employee. Sec. 2394 — 9, sub. (5) (i), (j), and (k), respectively. The reason for this is obvious. It is to secure as far as possible compliance with the laws, rules, and regulations adopted to safeguard the life and limb of employees. The state has a direct interest in so doing and may enact reasonable laws to effectuate such purpose.
Free access — add to your briefcase to read the full text and ask questions with AI
Vinje, J.
The Commission found that Heruben, who was a general helper in a restaurant, was performing work incidental to his employment while engaged in grinding meat for Hamburger steak. Plaintiff attacks this finding and urges that Heruben, whose chief employment consisted in serving tea, coffee, and milk, was not engaged in work incidental to his employment at the time he was hurt. This contention must be attributed to a lack of restaurant experience rather than to a want of knowledge of the conclusive character of findings of fact made by the Commission when based upon any competent evidence or upon the common experience of mankind. The patrons of many restaurants would unhesitatingly say that the preparation of Hamburger steak is pre-eminently the most striking example of genuine restaurant service that can be imagined. [568]*568But be that as it may, we certainly cannot hold that the finding of the Commission has no basis in fact, since it is a matter of common knowledge that Hamburger steak is a customary product of the ordinary restaurant. The Commission, therefore, was justified in finding that Heruben performed service incidental to, if not inherent in, his employment when he was hurt, and the finding must stand as a verity in the case.
A much more serious question is raised by plaintiff’s claim that the amendment of 1917, providing for treble compensation when a minor is employed without a permit, is unconstitutional.
It is suggested by counsel for the Industrial Commission that, since the workmen’s compensation act is elective, plaintiff cannot question the constitutionality of a law he has elected to come under and from which he can withdraw. Without deciding the question whether an employer can question the constitutionality of any provision of the compensation act contained therein when he elects to come under it, or subsequently added thereto and from which he has had an opportunity to withdraw as provided by sec. 2394 — 5, Stats. 1917, we are of the opinion that plaintiff here can question the constitutionality of this amendment because he has had no option to withdraw from it since it was enacted. Under sec. 2394 — 5 he must file with the Commission notice of withdrawal for any year beginning July 1st at least thirty days prior thereto. On June 1st this amendment was not in existence. It did not become law till July 13, 1917, when it was published, and it became effective September 1, 1917. When it became a law it'was too late for plaintiff to withdraw for the year beginning July 1, 1917, and he was compelled to accept this law for that year at least. He had no election as to whether he should remain in under it for the year specified. Not having any election as to the amendment so far as this accident is con[569]*569cerned, the elective feature of the law cannot be-invoked to deprive him of the right to question the constitutionality of the amendment.
The argument against its constitutionality runs in substance like this: Treble compensation is a penalty and its exaction is in fact the enforcement of a penal or criminal statute, namely, that of the child-labor law, which is not in any way germane to the subject of 'compensation for industrial accidents. The right to a jury trial for the enforcement of a penalty has never been waived by employers in electing to come in under the workmen’s compensation act.
It is further argued that sec. 2394 — 9, Stats. 1917, provides full compensation for injuries sustained by employees and therefore the increased compensation is purely a punishment for violating sec. 1728a; that this is further evidenced by the fact that under sub. (7), sec. 2394 — 9, the emplpyer is mad'e primarily liable for the increased compensation and the insurer only secondarily liable, and that, since there is no relation between the injury sustained and the additional compensation, the classification of minors based upon their having or not having a permit is void because it is not based upon any real distinctions germane to the purpose of the law of which it is a-part, citing Kiley v. C., M. & St. P. R. Co. 142 Wis. 154, 125 N. W. 464, and Borgnis v. Falk Co. 147 Wis. 327, 133 N. W. 209.
The argument is not without force, and were we to justify the ainendment upon common-law principles alone, without reference to the wide departure therefrom made by the workmen’s compensation act, the task would not be an easy one. But the question is not whether it is a justifiable common-law scheme, but whether it is fairly germane to and within the.limits of the general scheme.of the workmen’s compensation act. If it is, then it is constitutional, for an employer in coming under the act waived his common-law remedies and agreed to be bound by the remedies afforded [570]*570by the act and all lawful amendments thereto. Anderson v. Miller S. I. Co. 169 Wis. 106, 170 N. W. 275; 171 N. W. 935.
Under the common-law scheme the employer must breach his duty to his employee in failing to exercise ordinary care, and because of such delict on his part the employee is entitled to full compensation for injuries resulting proximately therefrom.
Under the scheme of the workmen’s compensation act there need be no delict on the part of the employer, and full compensation is not given to the employee for the damage he has sustained, but only partial compensation. Thus for total disability of a person under thirty-two years of age only sixty-five per cent, of his average weekly earnings for not exceeding fifteen years is provided. Sec. 2394 — 9. It will thus be seen that under the scheme of the compensation act the loss sustained is borne by the employer, the employee, and the public who use the product of the industry in which the employee is engaged at the time of his injury. It is quite evident from the schedule in sec. 2394 — 9 that the employee usually bears the major part of the damage, even where full statutory compensation is given him. Since he gets compensation irrespective of any negligence on the employer’s part; and since it comes to him speedily and without much expense, it is perhaps as desirable as the full compensation given under the common-law scheme, though the latter averages perhaps three times the statutory compensation.
But though the workmen’s compensation act is not bottomed upon negligence, it nevertheless recognizes negligence, faults, or delicts in certain cases and gives increased or diminished compensation accordingly. Thus, where an injury is caused by the failure of the employer to comply with any statute of the state or any lawful order of the Industrial Commission, compensation and death benefits are increased fifteen per cent. Sub. (5) (h), sec. 2394 — 9. [571]*571Compensation is reduced fifteen per cent, in each of the following cases: (a) Where the injury is caused by the wilful failure of the employee to use safety devices provided by the employer; (b) where the injury results from the employee’s wilful failure to obey any reasonable rule adopted by the employer for the safety of the employee; or (c) where injury results from intoxication of the employee. Sec. 2394 — 9, sub. (5) (i), (j), and (k), respectively. The reason for this is obvious. It is to secure as far as possible compliance with the laws, rules, and regulations adopted to safeguard the life and limb of employees. The state has a direct interest in so doing and may enact reasonable laws to effectuate such purpose. It has enacted a child-labor law for the purpose of insuring an education for children and also for the purpose of throwing around those minors who may be permitted to work in industrial pursuits reasonable safeguards by requiring them to secure permits to work, thus enabling the person authorized to grant or refuse such permit to judge of the fitness of the minor to perform the intended work so far as his strength, health, and safety are concerned. This is a beneficent law and its purpose should not be frustrated by any strict construction. Coming in close touch with this law as do both the workmen’s compensation act and the industrial commission act, it will not do to say that they are not germane to the subject of child welfare. Employers under the workmen’s compensation act employ minors. «This act brings them in direct contact with the child-labor law. They must either comply with it or violate it, every time they hire a minor of permit age.
Previous to the amendment of sub. 1, sec. 1728A Stats. 1913, by ch. 421, Laws 1915, the employment of a minor of permit age without a permit by an employer under the compensation act did not bring the employment under the compensation act, because as the law then stood only minors lawfully permitted to work came under it. Sub. (4), sec. 2394 — 7. Such employment constituted a misdemeanor, [572]*572and the employer in case of injury had no defense to the action. Stetz v. F. Mayer B. & S. Co. 163 Wis. 151, 156 N. W. 971. By the amendment of ch. 421, Laws 1915, such employment constituted a misdemeanor only in case-the employer suffered, permitted, or required the minor to work at a prohibited employment. Reiten v. J. S. Stearns L. Co. 166 Wis. 605, 165 N. W. 337. But the amendment did not bring the employment within the compensation act. It was not until the enactment of ch. 624, Laws 1917, that sub. (4), sec. 2394 — 7, was amended so as to include a minor of permit age employed without a permit to become an employee under the act. Previous to that amendment injuries to such minors were not compensable thereunder because not employees within the meaning of the law. ■ When this feature of ch. 624 came up for legislative consideration it presented this question: If injuries to minors of permit age employed without a permit are to be com-pensable under the workmen’s compensation act, under what conditions shall they be made compensable so as not to emasculate one of the purposes of the child-labor law? If no civil liability was attached to a violation of sec. 1728a by employers under the workmen’s compensation act, who constitute the great bulk of employers of minors of pérmit age in this state, then a part at least of the purpose of the child-labor law would miscarry.
It was no doubt a consideration of those facts that induced the legislature to permit injuries to minors of permit age employed without a permit, in direct violation of the law, to be compensated under the workmen’s compensation act upon condition that treble compensation should be paid. It was within the legislative field to prescribe reasonable conditions for permitting injuries under such employments to be so compensated. Conditions thus prescribed cannot be set aside by courts unless so severe as to be confiscatory, or to amount to a denial of due process of law. The condition [573]*573in question does not come within either class and must be held lawful.
The classification made by the legislature, if any, is one of employers, not one of minors. It divides them into those who obey the law and those who violate it. Obviously this -clear-cut cleavage is one of substance and furnishes a good basis for classification. Borgnis v. Falk Co. 147 Wis. 327, 133 N. W. 209.
As before stated, delicts of both employer and employee are recognized by the act and are made the basis of difference in-the amount of compensation granted.' No violation of rights is perceived by so doing. A public policy can be effectuated through the workmen’s compensation act in connection with other public laws, and especially so where the laws involved.are of a cognate nature. We therefore conclude that the amendment is constitutional and that the judgment must be affirmed.
By the Court. — Judgment affirmed.