THE NORTHEASTERN REPORTER VOLUME 106 (218 Mass. 346) YOUNG v. DUNCAN. In re YOUNG. (Supreme Judicial Court of Massachusetts. Suffolk. June 17, 1914.) 1. JURY (8 25*)-RIGHT TO TRIAL BY JURYWAIVER OF RIGHT-WORKMEN'S COMPENSATION ACT. Though plaintiff, in a common-law action against her employer for personal injuries, had a right to a trial by jury of the issues raised by the employer's plea in abatement that he was a subscriber under the Workmen's Compensation Act, and that plaintiff, upon entering his employment, failed to give notice that she claimed her common-law right of action, as provided by Workmen's Compensation Act (St. 1911, c. 751) pt. 1, § 5, yet, having proceeded to a hearing without objection and without insisting upon a jury, she waived it. [Ed. Note. For other cases, see Jury, Cent. Dig. §§ 154-173; Dec. Dig. § 25.*] 2. APPEAL AND ERROR (§ 671*)-EVIDENCEFAILURE TO REPORT. Where the evidence upon which a finding of the lower court is based is not reported, the finding must stand. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. 671.*] 3. MASTER AND SERVANT (§ 872, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-PURPOSES OF ACT. The purpose of the Workmen's Compensation Act (St. 1911, c. 751) is to substitute a method of accident insurance for the commonlaw rights and liabilities for substantially all employés except domestic servants, farm laborers, and masters and seamen on vessels engaged in interstate and foreign commerce, and those whose employment is casual, etc., and probably those subject to the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]). 4. Master and Servant (§ 872, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-RULE OF CONSTRUCTION. The Workmen's Compensation Act (St. 1911, c. 751) is to be interpreted in the light of its purpose and to promote the accomplishment of its beneficent design. 5. MASTER and Servant (§ 2504, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION Аст WAIVER BY EMPLOYÉ OF COMMON LAW RIGHT OF ACTION. employé waives his common-law right if he fails to give notice "at the time of the contract of hire," regardless whether he had notice of the fact that the employer was a subscriber under the act. 6. MASTER And Servant (§ 250, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-NOTICE BY EMPLOYER. Workmen's Compensation Act (St. 1911, c. 751) pt. 4, § 21, as amended by St. 1912, c. 571, § 16, requiring every subscriber to give notice to every person with whom he is about to enter into a contract of hire that he has provided for payment to injured employés by the association, and to file a copy of the notice with the Industrial Accident Board, is merely a direction to the employer, and failure to comply therewith does not carry with it any penalty either to him or the employé. 7. MASTER and Servant (§ 250, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-WAIVER BY EMPLOYÉ OF COMMONLAW RIGHT OF ACTION. Workmen's Compensation Act (St. 1911, c. be held to have waived his common-law right of 751) pt. 1, § 5, providing that an employé shall the time of the contract of hire that he claims action, unless he give notice to his employer at such right, is not correlative or interdependent with, nor modified by, part 4, § 21, as amended by St. 1912, c. 571, § 16, requiring every subscriber to give notice to every employé at the time of the contract of hire that he has provided for payment to injured employés by the association. 8. APPEAL AND ERROR (§ 854*) REVIEW THEORY AND GROUNDS OF DECISION OF LOWER Court. In reviewing a ruling of the lower court, the accuracy of the reason given is of no consequence, when the ruling is right. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. § 854.*] 9. MASTER AND SERVANT ( 250, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION Аст WAIVER BY EMPLOYÉ OF COMMONLAW RIGHTS. The failure of an employé to give notice to his employer, at the time of his contract of hire, that he claims his common-law right of action, as required by Workmen's Compensation Act (St. 1911, c. 751) pt. 1, § 5, renders the act operative, regardless of whether the employer gave notice that he was a subscriber under the act, as required by the amendment made by St. 1912, c. 571, § 16, to part 4, § 21. 10. COURTS (§ 89*)-DECISIONS AS PRECEDENTS -STARE DECISIS-ADVISORY OPINION. The rule of stare decisis does not apply to an advisory opinion by the Justices, given in response to a question from the General Court. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 311, 312; Dec. Dig. § 89.*] Under Workmen's Compensation Act (St. 1911, c. 751) pt. 1, § 5, providing that an employé shall be held to have waived his right of action at common law unless he give his employer at the time of the contract of hire notice in writing that he claims such right, the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-1 11. JURY (§ 35*)-WORKMEN'S COMPENSATION | industrial accident board, the employé apACT-TRIAL BY JURY-DENIAL OF RIGHT. peals. Appeal dismissed. Workmen's Compensation Act (St. 1911, c. 751) pt. 1, § 5, providing that an employé shall be held to have waived his common-law right of action, unless he give notice to his employer, at the time of the contract of hire, that he claims such right, does not deprive an employé of the right to a trial by jury; the right to a jury trial going no further than the right to have the question whether he has retained such a common-law right under the act determined by a jury. [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 236-241; Dec. Dig. § 35.*] 12. MASTER AND SERVANT (§ 2504, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-WAIVER OF COMMON-LAW RIGHTS BY EMPLOYÉ-CONSTITUTIONALITY. Workmen's Compensation Act (St. 1911, c. 751) pt. 1, § 5, requiring an employé at the time of entering employment to notify his employer that he claims his common-law rights of action, affects no existing property right, but merely a situation which antedates any property right arising out of tort. 13. MASTER AND SERVANT ( 250%, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-NOTICE BY EMPLOYÉ. The requirement of Workmen's Compensation Act (St. 1911, c. 751) pt. 1, § 5, that an election must be made by an employé at the time he enters into a contract of hire whether he will claim his common-law right of action, is reasonable. Otto C. Scales, of Boston, for employé. Sawyer, Hardy & Stone, of Boston (Edward C. Stone, of Boston, of counsel), for insurer. RUGG, C. J. [1] Hazel Young received injuries on June 10, 1913, arising out of and in the course of her employment while working for Jefferson E. Duncan at his jewelry of tort at common law against her employfactory at Arlington. She brought an action er, alleging that her injuries resulted from The defendant seahis negligent conduct. Sonably filed a paper entitled "Motion and Plea," setting out that he was a subscriber under the Workmen's Compensation Act at the time of the plaintiff's employment by him and had continued so to be since, and that she neither at the time of entering his employment nor at any time thereafter gave him notice that she claimed her right of action at common law as provided in St. 1911, c. 751, part 1, § 5, and hence that she could not maintain her action at law, concluding with a prayer that the writ abate. Both parties treated this as a plea in abatement. The plaintiff had claimed a trial by jury. It is not necessary 14. CONSTITUTIONAL LAW (§ 208*)-MASTER to determine whether this referred only to Workmen's Compensation Act (St. 1911, c. 751) pt. 1, § 5, providing that an employé shall be held to have waived his common-law right of action, unless he give notice, at the time of his contract of hire, that he claims such right, is not class legislation; it applying to all employés alike. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 649-677; Dec. Dig. § 208.*] the general issue raised in her declaration or extended to the plea in abatement. She had a right to claim trial by jury upon the facts raised by this plea. O'Loughlin v. Bird, 128 Mass. 600; Oliver Ditson Co. v. Testa, 216 Mass. 123, 103 N. E. 381. But having proceeded to hearing upon the plea before the judge without objection and without insisting upon a trial by jury as to the facts raised by it that right if preserved up to that time was waived as to that point. Hence no constitutional right by jury is involved in this respect. The court allowed the motion. As matter of construction this means that he found the facts as alleged in the motion. He excluded, subject to the plaintiff's exception, the affidavit offered by her tending to show that the defendant had not complied with section 21, part 4, of the act, as amended by St. 1912, c. 571, § 16, as to giving notice to every person with whom he is about to enter into a contract of hire that he has provided for payment to injured employés under the act and that no notice had been given her and she had no knowledge that the defendant was a subscriber under the act. [2] It must be presumed that the court found that the defendant was a subscriber under the act. That finding must stand, as the evidence upon which it was based is not reported. The questions presented are, whether an employé must receive notice that the employer is a subscriber before he can be held to have waived his common-law rights, and whether the failure of the employer to give the notices required of him renders the Proceedings under the Workmen's Compensation Act, in which Hazel Young was the employé, Jefferson E. Duncan the employer, and the Fidelity & Casualty Company of New York the insurer. From a judgment of the superior court, affirming a finding of the act inoperative as to the unnotified employé, | § 16, which requires every subscriber to "give if the latter so elects. [3, 4] The purpose of this act has been stated several times. Briefly, it was to substitute a method of accident insurance in place of the common-laws rights and liabilities for substantially all employés except domestic servants, farm laborers and masters of and seamen on vessels engaged in interstate or foreign commerce, and those whose employment is casual or not in the usual course of trade, business or employment of the employer, and probably those subject to the federal Employers' Liability Act. It was a humanitarian measure enacted in response to a strong public sentiment that the remedies afforded by actions of tort at common law and under the Employers' Liability Act had failed to accomplish that measure of protection against injuries and of relief in case of accident which it was believed should be afforded to the workman. It was not made compulsory in its application, but inducements were held out to facilitate its voluntary acceptance by both employers and employés. It is manifest from the tenor of the whole act that its general adoption and use throughout the commonwealth by all who may embrace its privileges is the legislative desire and aim in enacting it. The act is to be interpreted in the light of its purpose and so far as reasonably may be to promote the accomplishment of its beneficent design. [5] Part 1, § 5, provides that: "An employé shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed such right, or, if the contract of hire was made before the employer became a subscriber, if the employé shall not have given the said notice within thirty days of notice of such subscription." This sentence is plain and definite. The employé is held to have waived his commonlaw right if he fails to give notice "at the time of his contract of hire." This absolute and unequivocal provision is not made dependent upon any other condition or circumstance. It is not made to rest upon knowledge or notice to him of the fact that the employer is a subscriber. That it was not intended to be dependent upon such knowledge or notice is plain from the concluding clause, which in the event of the employer becoming a subscriber after the employment makes such waiver dependent upon notice. The expression of this condition in the one class of cases impliedly would exclude it from the other, even if the language used were less plain. It seems clear beyond a doubt from these words that the notice is required to be given when the terms of the employment are fixed by the contract of hire. notice in writing or print, to every person with whom he is about to enter into a contract of hire, that he has provided for payment to injured employés by the association" and to file a copy of the notice with the industrial accident board. This is a direction to the employer, but failure to comply with it does not carry with it any penalty either to him or to the employés, except that it may involve some consequences to the employer as shown by section 22. That it was not intended to be of rigid effect is apparent from the further provision that the notice may be given as there prescribed "or in such other manner as may be approved by the industrial accident board." Manifestly the rights of employés were not intended to be made to rest on a method of giving notice which may be changed from time to time by an administrative board as experience may evolve that which is most practicable. Moreover, this notice may have other uses in giving information as to hospitals and physicians available to employés in case of injury, as is pointed out in Panasuk's Case, 105 N. E. 368. If the employé's right to avail himself of the act depended upon actual notice to him of the fact of insurance by the employer, hardship to the employé often might result. There would be strong ground for the argument (if the plaintiff's contention were upheld) that the only right of an employé would be at common law unless the employer gave the required notice; a consequence manifestly at variance with the general purpose of the act and one which in many instances would work great hardship. There is no indication in the act itself that part 1, § 5, and part 4, § 22, were intended to be correlative or interdependent. Each stands alone with distinct uses and purposes. As thus interpreted the act is plain and easy of comprehension. If an employé desires to avoid the act, and preserve his common-law rights, hẹ must give notice to that effect in the absence of fraud when he enters the employment rather than when he is notified of insurance by the employer, or he is held to have availed himself of the act. This construction in the vast majority of cases will forward the benef. icent aims of the act better than any other. The evidence offered by the plaintiff was excluded rightly. [8] This was not the reason for the ruling given in the superior court. But the accuracy of the reason given is of no consequence when the ruling is right. Randall v. Peerless Co., 212 Mass. 352, 384, 99 N. E. 221. [9] It follows that the plaintiff had no occasion to try the question whether the em ployer had given the notice required of him under the act or the regulations of the industrial accident board, and hence had no right [6, 7] It is urged, however, that the effect to a trial by jury in that respect. If the of this unequivocal language is modified by parties are subject to the act then all thei part 4, § 21, as amended by St. 1912, c. 571, | rights arising under it are to be settled by the agencies there provided and not as in actions at common law. Panasuk's Case, 105 N. E. 368. required in most of the affairs of life in or der that one may act intelligently. Knowledge as to interstate commerce rates may be inaccessible without very considerable inquiry, and yet shippers or passengers be bound by them although ignorant of their terms. N. Y., N. H. & H. Rd. v. York & Whitney Co., 215 Mass. 36, 39, 102 N. E. 366; Texas & Pacific Ry. v. Cisco Oil Mill, 204 U. S. 449, 27 Sup. Ct. 358, 51 L. Ed. 562; Kansas City Southern Ry. v. Albers Com. Co., 223 U. S. 573, 594, 32 Sup. Ct. 316, 56 L. Ed. 556; B. & M. Rd. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868. [10] The plaintiff argues that the act is unconstitutional as thus interpreted. An opinion was given by the Justices to the General Court to the effect that the act would be constitutional if enacted. Opinion of Justices, 209 Mass. 607, 96 N. E. 308. This opinion, however, was advisory in character, given by the justices as individuals, without the benefit of argument, and was not an adjudication by the court and the rule of stare decisis does not apply to it. Green v. Commonwealth, 12 Allen, 155, 164; Opinion of Justices, 7 Pick. 125, 130; Id., 126 Mass. 566; Id., 214 Mass. 599, 604, 102 N. E. 464. There fore the ground is re-examined in the light of the argument now presented, without reliance upon the earlier opinion of the justices and with the effort carefully to guard against any influence flowing from our pre-instance may not know all his rights does not vious consideration. [11] Attack is made upon part 1, § 5, on various grounds. It is urged that it deprives the plaintiff of her constitutional right to a trial by jury. If that question properly is presented and insisted upon, undoubtedly an employé has a right to a trial by jury on the point whether the employer was in truth a subscriber under the act and whether notice had been given by the employé at the time of the contract of hire of an election to rely upon his common-law rights in cases where claim is asserted that such notice had been given. The issue of fact whether the parties have come under the operation of the act may be tried to a jury. It is analogous to the issue whether an agreement to arbitrate has been made. Boyden v. Lamb, 152 Mass. 416, 25 N. E. 609. It may be assumed that a right of action for personal injuries at common law is a property right. But the right of trial by jury respecting it goes no further in a case like the present than the right to have the question whether she had retained such a common-law right under the act determined by a jury. But, as has been pointed out, so far as that right existed in the case at bar, it was waived. [13] The requirement that the election be made at the time of the contract for hire is reasonable. Difficulties of a serious nature might be presented if the right of election were allowed to be exercised after the happening of the accident. The possibility that the employé in a given affect the constitutional aspects of the law. Many crimes even are made to depend solely upon the doing of an act with the utmost moral innocence and in ignorance of any forbidden aspect of the act. Com. v. Mixer, 207 Mass. 141, 93 N. E. 249, 31 L. R. A. (N. S.) 467, 20 Ann. Cas. 1152. The employé is not compelled to give up any common-law or constitutional right. It is a matter of choice whether he avails himself of the one or the other. Reasonable provisions are made for the exercise of his election. Foster v. Morse, 132 Mass. 354, 42 Am. Rep. 438. [14] The section is not open to objection as class legislation, or as denying equal protection of the laws. It applies to all employés alike. In this respect it is no more vulnerable than the Employers' Liability Act, which establishes remedies for the benefit of employés, the weekly payment law or many other acts of like nature. Opinion of Justices, 163 Mass. 589, 40 N. E. 713, 28 L. R. A. 344; Com. v. Riley, 210 Mass. 387, 97 N. E. 367, Ann. Cas. 1912D, 388; Sturges v. Beauchamp, 231 U. S. 320, 326, 34 Sup. Ct. 60, 58 L. Ed. 245, and cases cited; Chicago, Burlington & Quincy R. R. v. McGuire, 219 U. [12] The section in question affects no ex- S. 549, 31 Sup. Ct. 259, 55 L. Ed. 328; Mondou isting property right. It deals with no prop- v. N. Y., N. H. & H. R. R., 223 U. S. 1, 32 Sup. erty right after it has come into being. It Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; affects a situation which antedates any prop- German Alliance Ins. Co. v. Kansas, 233 U.S. erty right arising out of tort. It simply es- 389, 34 Sup. Ct. 612, 58 L. Ed. 1011. The act is tablishes a status between subscribers under constitutional and is not open to criticism in the act and their employés in the absence of the respects urged by the plaintiff. It follows express action by the latter manifesting a that judgment rightly was ordered for the desire to elect a different status. No com- defendant in the action at law. plaint justly can be made that the section compels the employé to elect without sufficient knowledge. Ignorance of the law commonly is no excuse for conduct of failure to act. The employé is not required to act without inquiry as to the fact of insurance by the employer. He has only to ask for [15] Hazel Young received her injury on June 10, 1913. She made no claim under the Workmen's Compensation Act. But the insurer of her employer, acting under part 3, § 5, as amended by St. 1912, c. 571, § 10, which permits either party to act in case the insurer and the injured employé fail to agree as to |