case.

It has been stated by the Massachusetts court that if a workman is not to be subjected to unusual risks and danger arising from the anesthetic to be employed, or from the nature of the proposed operation, it is his duty to submit to it if it fairly and reasonably appears that the result of such operation will be a real and substantial physical gain. Floccher v. Fidelity & Deposit Co. (1915) Mass. 108 N. E. 1032. In the same case it was held that it would be unreasonable to require an injured workman to submit to an operation upon his hand where, according to the expert testimony, it would be "pretty close to being permanently incapacitated for use even after this operation," and there was doubt as to the time within which some uncertain and indeterminate degree of benefit reasonably might be expected.

The New Jersey court has held that the refusal of an employee to submit to an operation cannot be said to be unreasonable where it appears that a risk of life is involved, although such risk is very slight. McNally v. Hudson & M. R. Co. (1915) N. J. L. 95 Atl. 122 (peril to life was about 48 chances in 23,000).

And the same court has also held that it is error for the trial court to make an award as for temporary disability upon the theory that the injury may be cured by an operation, and that it is the duty of the employee to undergo such operation. Feldman v. Braunstein (1915) N. J. L., 93 Atl. 679; McNally v. Hudson & M. R. Co. (N. J.) supra.

Under the English act the cases very generally hold that a workman will be denied compensation where he unreasonably refuses to undergo an operation of a minor character which would, in the opinion of medical men, restore his earning capacity. Donnelly v. William Baird & Co. [1908] S. C. (Scot.) 536, 45 Scot. L. R. 394, 1 B. W. C. C. 95 (operation of a simple character, not attended with appreciable risk or serious pain, and likely to restore to the workman, in a large measure or altogether, the use of his injured hand); Anderson v. Baird (1903) 5 Sc. Sess. Cas. 5th series, 373, 40 Scot. L. R. 263 (simple operation not attended with serious risk or pain); Warncken v. Richard Moreland & Son [1909] 1 K. B. (Eng.) 184 [1908] W. N. 252, 25 Times L. R. 129,

And a workman may be found to be unreasonable in refusing to undergo an operation although two doctors said that it would not remove the incapacity, where three other doctors gave as their opinion that the operation would remove the incapacity, and the advice against having the operation performed was based solely upon the ground that it would not be successful, and not upon the ground of the risk or pain involved in having the operation performed. O'Neill v. John Brown & Co. [1913] S. C. 653, [1913] W. C. & Ins. Rep. 235, 50 Scot. L. R. 450, 6 B. W. C. C. 428.

But compensation will not be denied because of the workman's refusal to submit to a serious operation. Rothwell v. Davies (1903) 19 Times L. R. (Eng.) 423 (operation would be attended with a certain amount of risk).

Nor will compensation be refused upon the ground of the workman's refusal to have an operation performed, where it is questionable whether the operation would benefit him. Hawkes v. Coles (1910) 3 B. W. C. C. (Eng.) 163; Marshall v. Orient Steam Nav. Co. [1910] 1 K. B. (Eng.) 79, 79 L. J. K. B. N. S. 204, [1909] W. N. 225, 101 L. T. N. S. 584, 26 Times L. R. 70, 54 Sol. Jo. 50, 3 B. W. C. C. 15; Braithwaite v. Cox (1911) 5 B. W. C. C. (Eng.) 77.

Nor will a workman be compelled to submit to an operation on the peril of losing his right to compensation, where his own doctor advises against it. Sweeney v. Pumpherston Oil Co. (1903) 5 Se. Sess. Cas. 5th series, 972, 40 Scot. L. R. 731, 11 Scot. L. T. 279; Tutton v. The Majestic [1909] 2 K. B. (Eng.) 54, 78 L. J. K. B. N. S. 530, 100 L. T. N. S. 644, 25 Times L. R. 452, 53 Sol. Jo. 447, 2 B. W. C. C. 346; Moss v. Akers (1911) 4 B. W. C. C. (Eng.) 294.

A workman cannot be claimed to be unreasonable in refusing to undergo an operation where there is no evidence that the operation would lessen the amount of compensation payable by the employers. Molamphy v. Sheridan [1914] W.

C. & Ins. Rep. 20, 47 Ir. Law Times, 250, 7 B. W. C. C. 957.

Ordinarily the question whether the refusal to permit an operation is unreasonable depends upon the facts of each case. Ruabon Coal Co. v. Thomas (1909) 3 B. W. C. C. (Eng.) 32; Hay's Wharf v. Brown (1909) 3 B. W. C. C. (Eng.) 84; Burgess & Co. v. Jewell (1911) 4 B. W. C. C. (Eng.) 145; Shirt v. Calico Printers' Asso. [1909] 2 K. B. (Eng.) 51, 3 B. R. C. 62, 78 L. J. K. B. N. S.

528, 100 L. T. N. S. 740, 25 Times L. R. 451, 53 Sol. Jo. 430; Dolan v. Ward [1915] W. C. & Ins. Rep. (Eng.) 274, 8 B. W. C. C. 514.

The remedy of the employer, based upon the refusal of the workman to have an operation performed, lies in an application to have the award varied, and not in an appeal from the award. O'Neill v. Robner (1908) 42 Ir. Law Times, 3, 2 B. W. C. C. 334. W. M. G.

Master and servant — workmen's compensation act limiting recovery constitutionality. 2. A provision in a workmen's compensation act that if an employee elects not to accept the provisions of the act he cannot recover of the employer if the injury was caused or contributed to by the negligence of a fellow servant, or was due to any of the ordinary hazards of the employment, or defect in appliances or place of work, if he knew, or could have known, of them by the exercise of ordinary care, or they were not know or could not have been discovered by the employer by the exercise of such care, nor in the event that his own negligence contributed to the injury, violates a constitutional provision that the general assembly shall have no power to limit the amount of recovery for injury. For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S.

the class to which the employee belongs, violates a constitutional provision giving a right to recover for death in an action brought by the personal representative of

decedent.

4. The regulation of the management of the industries of the state so as to provide compensation for injured employees is within the police power.

For other cases, see Constitutional Law, II. c, 4, c, in Dig. 1-52 N. S.

On Petition for Rehearing. compulsion upon employer

constitutionality.

5. No constitutional right of an employer is infringed by requiring him to accept the provisions of a workmen's compensation act under which he must contribute to a fund for the reimbursement of injured employees under penalty of being deprived of the defenses of fellow service, assumption of risk, and contributory negligence. For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. 8.

(Hobson, Ch. J., and Miller and Lassing, JJ., dissent.)

A

(December 11, 1914.)

PPEAL by defendant from a judgment of the Circuit Court for Franklin County overruling a demurrer to a petition filed to compel defendant to fill out and surrender certain blanks furnished by the Workmen's Compensation Board to it for the purpose of bringing it under the provisions of the compensation act. Reversed. The facts are stated in the opinion. Messrs. Charles Carroll and Pratt Dale, for appellant:

The act is in violation of §§ 54 and 241 of the Kentucky Constitution.

Union Cent. L. Ins. Co. v. Spinks, 119 Ky 261, 69 L.R.A. 264, 83 S. W. 615, 84 S. W. 1160, 7 Ann. Cas. 913; Continental Casualty Co. v. Harrod, 30 Ky. L. Rep. 1117, 100 S.

The act violates § 60 of the Kentucky Constitution in that it creates a system of jurisprudence taking effect upon an authority other than the general assembly.

Western & S. L. Ins. Co. v. Com. 133 Ky. 292, 117 S. W. 376; Columbia Trust Co. v. Lincoln Institute, 138 Ky. 804, 29 L.R.A. (N.S.) 53, 129 S. W. 113.

The act violates the 14th Amendment in that it denies due process of law to both employer and employee, and in that it gives the same protection to the careless employer and the careless employee that it gives to the careful employer and the careful employee.

Ives v. South Buffalo R. Co. 201 N. Y. 271, 34 L.R.A. (N.S.) 162, 94 N. E. 431, Ann. Cas. 1912B, 156, 1 N. C. C. A. 517; Campbellsville v. Odewalt, 24 Ky. L. Rep. 1739, 60 L.R.A. 723, 72 S. W. 314.

Messrs. James Garnett, Attorney General, and Robert T. Caldwell, Assistant Attorney General, for appellee:

different in state and Federal courts sitting in the same territory.

Baltimore & O. R. Co. v. Baugh, 149 U. S. 387, 37 L. ed. 781, 13 Sup. Ct. Rep. 914. The action of the Board is under the supervision of the courts.

Board of Prison Comrs. v. De Moss, 157 Ky. 289, 163 S. W. 183; Wilson v. Com. 141 Ky. 341, 132 S. W. 557.

Dorsey, Special Judge, delivered the opinion of the court:

This case was brought to this court by appeal from a judgment of the Franklin circuit court to test the constitutionality of an act generally known as the workmen's compensation act, passed by the legislature and approved by the governor, March 21, 1914 (Laws 1914, chap. 73). By the provisions of this act, a board of commissioners is created, composed of the attorney general, the commissioner of insurance, and the commissioner of agriculture, labor, and statis

623.

Murphy v. Com. 1 Met. (Ky.) 365; Taylor v. Com. 9 Ky. L. Rep. 316; Pierce v. Somerset R. Co. 171 U. S. 641, 43 L. ed. 316, 19 Sup. Ct. Rep. 64; Borgnis v. Falk Co. 147 Wis. 327, 37 L.R.A. (N.S.) 489, 133 N. W. 209, 3 N. C. C. A. 649; Opinion of Justices, 209 Mass. 607, 96 N. E. 308, 1 N. C. C. A. 557; State ex rel. Yaple v. Creamer, 85 Ohio St. 349, 39 L.R.A. (N.S.) 694, 97 N. E. 602; Sexton v. Newark Dist. Teleg. Co. 84 N. J. L. 85, 86 Atl. 451, 3 N. C. C. A. 569; Deibeikis v. Link-Belt Co. 261 Ill. 465, 104 N. E. 211, Ann. Cas. 1915A, 241, 5 N. C. C. A. 401; Mathison v. Minneapolis Street R. Co. 126 Minn. 286, L.R.A.—, —, 148 N. W. 71, 5 N. C. C. A. 871; Hawkins v. Bleakley, 220 Fed. 378.

maintained by the various classes of employers mentioned in the act, and such other employers who, together with their employees, shall apply for the benefits and protection of the act. This fund is created by fixing a rate or premium, during the first year, of not to exceed $1.25 on each $100 of the gross annual pay roll of each employer in any class of employers coming within the purview of the act. The Compensation Board has charge of this fund, and may increase the rate if deemed necessary. All persons, firms, and corporations regularly employing six or more persons for profit for the purpose of carrying on the class of business designated in the act in which such person, firm, or corporation is engaged are employers. And persons in the service of such employers, for the purpose of carrying on such class of business, are employees within the meaning

The act is an exercise of the police power. Silva v. Newport, 150 Ky. 781, 42 L.R.A. (N.S.) 1060, 150 S. W. 1024, Ann. Cas. 1914D, 613.

The act does not affect the right to sue and recover for wrongful act, and the definition of actionable negligence is variable by the legislature and the courts, and is

such other information desired by the Board, by filling out blanks furnished by the Board, and returning the same to the Board. These blankets were furnished by the Board to the appellant, the State Journal Company, who was the defendant in the court below. But the appellant refused to fill out or return said blanks, and further refused to furnish the Board with any information touching the place of its business, the amount of its pay roll, the number of men in its service, or anything else. Whereupon the appellee brought this suit in the form of a man

This act is of too great length to be embraced in this opinion. But the storm center of the fight gathers around §§ 29, 30, 31, 32, and 34, which sections read as follows:

"Section 29. It shall be lawful for any employee subject to this act, including persons under twenty-one years of age to contract with any employer subject to this act who elects to pay the premiums herein provided to be paid into said workmen's compensation fund, to accept the compensation provided to be paid to injured employees and the dependents of those killed, and to accept the benefits conferred on employees by this act, in lieu of any cause of action which he might have, if injured, or that his representative might have if he was thereafter killed through the negligence of his agents, servants, officers or employees, and to waive all causes of action against such employer conferred by the Constitution or statutes of this state or by the common law for his injury or death, occurring through the negligence of the employer or his agents and such contract shall be binding upon the employer and upon the employee and upon his heirs, personal representatives, and all persons claiming under or through him.

"Section 30. Such a contract between an employee and his employer shall be conclusively presumed to have been made in every case where an employer has elected to pay into the workmen's compensation fund, if said employee shall continue to work for said employer thereafter, with notice that the employer has elected to pay into said fund and the posting of printed or typewritten notices in conspicuous places about the employer's place of business at the time of the elections of such employer to pay into the workmen's compensation fund that he has elected to pay into said workmen's compensation fund shall constitute sufficient notice to all such employers' employees then or thereafter employed of the fact that he has made such an election, and the continuance in the service of such employers shall be deemed a waiver of the employee of his rights of action, as aforesaid. Except as provided in § 32.

"Section 31. Any employer subject to this act, electing to pay into the workmen's compensation fund, the premiums provided for

the injury or death or loss of service of any employee occurring through the negligence of such employer, or his agent, servants, officers or employees, during any period of time in which such employer shall not be in default in the payment of such premiums. Provided, that the injured employee has remained in his service after notice is posted as provided in § 30, that his employer has elected to pay into the workmen's compensation fund the premiums provided by this act. The continuance in the service of such employer or accepting service after such notice shall have been posted, shall be deemed a waiver by the employee of his rights of action, as aforesaid. Except as in § 32.

"Sec. 32. Any employee prior to receiving an injury may give notice to an employer who has elected to pay into said fund, that he will not accept the benefits of this act and waive his right of action as herein provided. Such notice shall be in writing and served on the employer as provided by the Civil Code for the service of notices, and a copy thereof shall be mailed by the employee to the Workmen's Compensation Board. If thereafter such employee shall be injured or killed while employed by such employer who has elected to pay into the said workmen's compensation fund, and an action shall be instituted against such employer to recover damages for the injury or death of such employee, it shall be sufficient defense thereto and shall bar recovery if the injury of said employee was caused by or contributed to by the negligence of any other employee of said employer, or if the injury was due to any of the ordinary hazards, or risks of employment, or if due to any defect in the tools, machinery, appliances, instrumentality or place of work, if the defect was known or could have been discovered by the injured employee by the exercise of ordinary care on his part, or was not known or could not have been discovered by the employer by the exercise of ordinary care in time to have prevented the injury nor in any event, if the negligence of the injured employee contributed to such injuries. But nothing herein shall deprive such employer of any defense not herein mentioned. If the employer is not in default in payment of premiums and a recovery shall be obtained against him in such action, the said Board shall pay on said judgment not exceeding a sum equal to the amount which the said injured employee or his dependents in case of death, would have been entitled to recover if he had elected to accept the benefit of this act, and the employer shall receive