Employers' Liability

ABOUT seventy years ago, within a period of five or six years, there were three events in the domain of jurisprudence of signal importance to the industrial world. Viewed retrospectively with reference to their bearing upon the welfare of men, they have a distinct dramatic interest. In the year 1837 the decision was rendered in the Priestly case in England; in 1838 Prussia enacted a memorable law relating to the responsibility for accidents on railroads; these were followed in 1842 by the fateful Farwell case in Massachusetts.

The Prussian law, afterwards incorporated in the imperial code of 1871, apprehending with rare prescience something of the new questions which were to arise in the industrial world, may be deemed to have prefigured the present insurance code of Germany, the most striking and far-reaching social legislation of the century. The two legal decisions opened a Pandora’s box of woes of appalling magnitude. There were thus marked out two distinctly divergent conceptions of the obligation of the state toward workmen.

If a general on the battlefield commits a grave strategical blunder which costs thousands of lives, the world is thrilled with horror; but a judge may so misapprehend a critical situation as to bring sorrow and suffering to unnumbered homes for generations, and we dumbly acquiesce, as if viewing a visitation from Heaven. That such a result was entailed by these decisions will be the enlightened judgment of mankind. They have inflicted unjust and grievous burdens upon more than two generations of Englishspeaking workmen; they have brought desolation to thousands of homes; they have aggravated beyond estimate the friction between employer and employed.

That the decision in each case constituted judge-made law is strikingly manifest from the language of both Lord Abinger and Chief Justice Shaw. They deemed the cases of novel impression, to be decided with due regard to the consequences, general convenience, and considerations of public policy. The enlightened legislator considers the economic and ethical as well as the purely legal aspects of proposed legislation. The judge who makes law should take the same attitude, but, weighed by the standards of to-day, these decisions would seem to have had far more regard for mere legal formalism than for ethics.

Thus was firmly established the common-employment or fellow-servant doctrine, the principle that the workman, by his contract of service, assumes the risks of employment, including those that may come through the act or neglect of his fellow servant. The doctrine has had phenomenal development, and usually in the direction of giving larger immunity to employers. The dicta in the Priestly case did not justify the judgment in the Farwell ease, nor did that (in view of the expressed caution against any hasty conclusion as to the application of the rule) lay a sufficient foundation for the vast brood of cases which trace their parentage to it. Such a doctrine had not existed in any country of Europe, and it is even questioned whether it was not bad law as well as bad policy.

These cases were of such transcendent importance, they so powerfully affected industrial relations and conditions, and they reared so formidable an obstacle to rational reform in the direction of justice to workmen, that any consideration of accident insurance compels an examination of the basis upon which they rest.

It was the opinion of Chief Justice Shaw, with its elaborate exposition of what constitutes common employment, rather than that of Lord Abinger, that established the law in England as well as in America, and influenced the House of Lords in the decision of a case in which the unwelcome doctrine was forced upon the reluctant courts of Scotland.

The facts in the Farwell case were very simple. The plaintiff, an engineer in the service of the defendant railroad company, loses his right hand in the course of his employment, through the negligence of a switchman, a fellow employee. Should the railroad company be deemed liable ? The opinion, as befitted the importance of the principle to be established, was an elaborate one; it has been greatly admired and pronounced a classic. The judgment might have been very brief; a Latin maxim of two words would have been consistent with law and would have fully satisfied justice.

The decision was based largely upon three assumed facts : that hazardous employments command higher wages, and the acceptance of higher wages indicates an assumption of the greater risk; that each servant is an observer of his fellow, and therefore knows the risk that he assumes; and that the servant may leave the service. These facts were not ascertained by a jury, nor did the court seek for any expert testimony bearing upon them. They seemed so manifest that the court might take judicial cognizance of them.

The first question was one for the sociologist or the political economist, and not for the jurist. Generally speaking, hazardous employments do not command higher wages. But, viewed broadly and from the social standpoint, it would be very unwise for the state to encourage or permit the workman to gamble upon his chance of exemption from accident. He has not the data or the capacity for making an intelligent estimate of the amount or the value of the risk; and besides, he is virtually in the position of one who bets without the means of paying in the event of loss. It would be against public policy, upon which this decision is partly based, to permit him to play a game in which he may be the gainer and the spite may be the loser.

Nor is it true, at least under modern conditions to which this doctrine with greatly increased rigors has been extended, that servants necessarily have any adequate means of observing their fellow workmen engaged perhaps in a distinct branch of service. How much this engineer, running a passenger train between Boston and Worcester and passing this switchman four times a day, knew of his fitness, habits, or reliability, we are left to conjecture. He had nothing to do with his selection, discipline, or retention in the service. It would be infinitely absurd to claim that there is any such knowledge in the large and complicated relations of to-day.

Nor is it true in any practical sense that the workman may leave the service. It is evident enough from the standpoint of one writing a treatise on the freedom ot the will. But it is well understood in the industrial world that there is no place for the workman who, in the estimate of his employer, is captious or hypercritical, or for one who should assume to advise as to the competency of a fellow servant even in matters especially concerning his own safety. To leave one’s employment in protest is a heinous offense, and must carry with it an inconvenient stigma. For the workman who is odiously officious about his master’s business there must be a vista of idleness, of privation, and suffering.

There was added the questionable fiction of an implied contract under which the plaintiff assumed the risk that his fellow servant might be incompetent or grossly negligent.

Upon this frail and insecure foundation was based a decision fraught with momentous consequences, — a decision as mischievous and baneful as ever fell from any bench. For many decades thousands of laboring men, maimed and incapacitated, suffering without any color of justice from accidents on railroad and in factory, and dependents of the injured, and widows and orphans of the slain, were to hear the refrain of this doom, sentencing them to lives of penury and dependence. Meanwhile legislatures, royal commissions and parliaments, were to seek vainly to overcome the effects of this decision.

To the great Chief Justice, considering public policy and general convenience, it seemed unjust that this corporation should suffer for an accident which perhaps its foresight coidd not have prevented. It was certainly unjust that this engineer should be incapacitated for life through the fault of an agent over whom he had no control, and for whose negligence he was not remotely responsible. According to modern conceptions the solution of the problem would not have seemed difficult. Here was an industry comparatively new, with its own hazards. The corporation must replace the engine, wrecked in the same accident, negligence or no negligence; that was one of the risks of the business. Why should it not, for the same reason and out of the same resources, pay for its wrecked engineer ? Why should not both losses have been deemed a part of the cost of transportation ? How else, with any regard to the rudimentary principles of justice, could the loss be met?

At the time of this decision the world was slowly awakening to the fact of great industrial changes. The Factory Age had come; great inventions and the application of steam to machinery were transforming the industrial world. It was gradually dawning upon the minds of thoughtful men that these great changes had made imperative new standards of law as related to workmen. The problem was dimly apprehended, as indicated by the Prussian law referred to, as well as by the factory legislation which had engaged the attention of England from the beginning of the century. Possibly these judges were of those who were patronizingly characterizing the law of Prussia as the benign paternalism of a despotic power. But if Prussia reached a point in 1838 which Great Britain attains with much difficulty in 1880, and Massachusetts in 1887, — at which point she still remains; if that conception of the obligation of the state to the laboring classes, in its gradual but logical development in the German empire of to-day, has challenged the attention and the admiration of the world, we ought to discern in it something of the grasp and prescience of true statesmanship.

But in connection with the remedies which have been sought to mitigate the common-employment doctrine, the law of contributory negligence must be considered. This law has always borne with unjust severity upon workmen. It has existed from time immemorial, but the reasoning by which it has been supported savors more of the refinements of mediæval logic than of modern modes of thought. Contributory negligence is the slightest want of ordinary care contributing proximately to the injury. If there has been a lack of such care the injured workman cannot recover damages. If he contributes one per cent of the elements which go to make up an accident, and his employer ninety-nine per cent, he cannot recover. Moreover, if there is no fault, if an accident is an incident of the business simply, or attributable to superior force, he is deemed to have assumed such risks. Even further, if there is gross fault on the part of the employer,, if certain precautions or safeguards have been neglected by him, if stringent provisions of law have been flagrantly violated, still, if the workman knew of these acts, omissions, or violations of law, he is presumed to have waived any remedy. The very severity of treatment in many employments, overwork, excessive hours, unsanitary surroundings, working at too great speed, assenting to labor under circumstances of obvious danger because required to do so, the necessity of satisfying the importunate demands of overseer or master as bearing upon retention or promotion, all of the elements, in a word, which make care difficult or impossible, have been charged up to the workman. The standard of the court room has been too high for him; he has been found wanting in due care, and remediless. Under these circumstances there was not a strong inducement for the employer to exercise care in construction, in adjustment of machinery, or in safeguarding workmen. It was cheaper to let him take his chances; to replace the killed and wounded by new recruits; to treat the human material as negligible when compared with the cost of expensive safeguards.

Data have been collected, from varied and widely distributed industries, which indicate the sources of accidents and the responsibility for them. These show that about one-half are incidental to the business, three-tenths due to the fault of the workman, and most of the remainder to the fault of the employer. In America and Great Britain, before there were any modifications of the law, the employer’s share would have been much greater. Still, it is estimated that not more than fifteen per cent of the injured have ever recovered damages. When we consider not only the expense of litigation but the bad feeling and consequent loss of employment resulting from it, we must conclude that conditions would not have been very much worse if there had been an absolute denial of any legal remedy.

Great Britain partially awakened to the gross injustice resulting from these conditions about forty years ago. The evils began to seem intolerable. In every great industrial centre there were concrete and ever-recurring illustrations of the wrongs inflicted. But it took ten years of agitation and discussion to effect the passage of the law of 1880. This measure, so mild and ineffectual as to be soon discarded as an ill-fitting garment, was strongly opposed by all the great mining, manufacturing, and railroad interests. Dire disaster was predicted if it should become a law; capitalists would not put money into mines; capital would be driven from the kingdom; they were making a plunge into socialism. But this law, as a measure of social equity, proved utterly inadequate. Chamberlain characterized it as a half-hearted compromise, and suggested that, in view of the resulting-litigation, it should have been called the Lawyers’ Employment Bill. Asquith declared that it was an elaborate series of traps and pitfalls for the unwary litigant, barren of result, and a reproach to the legislature. Under the law, the liability of the employer was almost insusceptible of proof, and the defense of common employment was nearly sufficient to nonsuit.

In the study of this question we find an instructive illustration of the extremely slow awakening of the public consciousness — not to say conscience — in England and America, where the righting of a great social or industrial wrong is involved. Nearly forty years after the Priestly and Farwell decisions, a parliamentary commission charged with the consideration of employers’ liability legislation came to the conclusion that the common law had been entirely altered by judicial decision; that the fellow-servant doctrine owed its origin to the ingenuity of a judge in suggesting analogies, and consisted largely of the invention and enforcement of a contract which never existed. Twenty years later, Asquith complained that the law had been a legitimate grievance to the working classes, and had established fantastic distinctions between workmen and third parties. Birrell, present secretary for Ireland, expressed himself with greater emphasis: “The doctrine was invented in 1837; Lord Abinger planted it; Baron Alderson watered it; and the devil gave it increase.”

The social consciousness and unrest, of which these discussions were the index, made legislation imperative. A very radical measure brought in by Asquith, in 1893, was lost through the opposition of the House of Lords to what was termed the “contracting out” clause; and it remained for a Tory government, with Chamberlain leading the House of Commons, to secure the enactment, in 1897, of the most radical and far-reaching social legislation in English parliamentary history. The very name of the bill, the Workmen’s Compensation Act, revealed a new conception of the problem involved. There was to be no longer a nice balancing of the relative liability of workman and employer, of waiver and of assumption of risk. There was a recognition, not of the employers’ liability, but of the industry’s liability. It was tersely expressed in the apothegm attributed to Asquith: “The blood of the workman is a part of the cost of production.”

England thus put herself in the ranks, although by no means in the front rank, of civilized nations in this kind of industrial legislation. During the twenty years succeeding Germany’s legislation for the compulsory insurance of workmen, her contagious example had reached almost every nation of continental Europe, and had led either to laws in the nature of compulsory insurance of workmen, or to workmen’s compensation acts.

The English law of 1897 applied only to the so-called dangerous trades, and extended to less than one-half of the workmen of the kingdom, but later amendments materially increased that number. These proved to be merely steps toward broader legislation. A disposition arose to attach less importance to the element of special danger, and another parliamentary commission thoroughly and exhaustively examined the whole subject anew. On the basis of its report, the law of 1906 was passed. This retained the provisions of the earlier laws, but extended their application to substantially all of the laboring men of the kingdom. Even with this rapid progress in public sentiment it is doubtful if the end has been reached. The opinion was expressed by a member of the commission, and is frequently reëchoed elsewhere, that there can be no stopping-place short of compulsory insurance of workmen on the German plan.

This law of 1906 practically abolished the common-employment and contributory-negligence defenses. No degree of negligence disqualifies the injured workman from recovering, unless it amounts to serious or willful misconduct; nor even then, if death or permanent disablement result. It extends to all employments, and to all, except casual, employees whose compensation is less than about twelve hundred dollars a year. It applies to all injuries through accidents arising out of the workmen’s employment, which cause death or disablement. It provides that death or disablement from certain scheduled diseases, such as anthrax, lead or phosphorus poisoning, shall be deemed accidents within the meaning of the law. It furnishes minute schedules of compensation for cases both of disablement and of death. In case the injury is caused by the personal negligence or willful act of the employer or his agent, the injured workman may bring suit independently of the act, and if he fails in his suit may still have his compensation fixed under the act. The entire cost of the compensation falls upon the employer, but under certain restrictions he may substitute a different scheme of compensation or insurance.

This brief sketch of a very elaborate and carefully perfected law, and the history of progress toward its enactment, are instructive in illustrating the incalculable gain to thirteen million English workmen as compared with their condition under the decision of Lord Abinger. In the tardy movement of events we are reminded how vastly more difficult it is to modify or repeal judge-made law than statute law.

We naturally inquire what has been done in the United States meanwhile. We must answer, practically nothing. It is quite within limits to say that, in spite of much patchwork and piecemeal legislation, we have, as yet, hardly reached the level of the English law of 1880, a law which statesmen of to-day unite in deeming practically worthless; or to say that, in this regard, we are far behind every civilized country of Europe, incomparably behind Germany.

The United States stands alone among the civilized nations of the world in adhering to the law of negligence as a solution of the problem of industrial accidents, while the governments of Europe and Australia have made the financial burden of injuries to workmen a charge upon the particular industry.

It is perhaps natural that this country, and especially that state which furnished the judge who pronounced the fateful sentence upon English-speaking laboring men the world over, should have clung to that odious common-employment doctrine, although there have been many attempts from the beginning to mitigate its severity. More than fifty years ago Georgia, by a few lines of legislation, annulled the common-employment doctrine as to railroads, and has legislated against both that and the law of contributory negligence since. Other states took similar but less decisive steps. There have been legislative as well as judicial protests in great variety: sometimes to negative what seemed to be unwarranted severity in judicial interpretation; to discriminate between the liability for the negligence of a vice-principal and other common employee ; to introduce a rule of comparative negligence, analogous to that in maritime law, in place of the severe rule of contributory negligence.

In Massachusetts, where the fellowservant doctrine developed far beyond the intention of its great author, the subject attracted much attention twenty-five years ago, stimulate! by the discussion in and out of Parliament in Great Britain, and the resulting legislation. The legislature directed the Bureau of Labor to investigate the question and report its conclusions. There was a thorough investigation, and an admirable report in which the matter was discussed in all its bearings. It was recommended that a law be passed, either like the Gladstone act. or, preferably, a brief and simple statute abolishing the defense of common employment and materially modifying the law of contributory negligence. Four years later, the law of 1887, based upon the Gladstone act, was passed, and still remains in force. It has not been materially modified. More recently the subject was again up for discussion, and a select committee was instructed to consider this among other labor questions. Its report, rendered to the legislature of 1904, reads like a convincing document, but apparently received scant attention. It recommended legislation based upon the then recent Workmen’s Compensation Act of England. Still later, a recess committee struggled with the subject, but the majority report opposed any substantial legislation looking to the compensation of workmen for industrial accidents or to an increase in the liability of employers. A minority report renewed the recommendations of earlier committees.

In this country we are still dominated by the dogmas pronounced by Judge Shaw two generations ago. He was profoundly impressed, as his admirers have been ever since, by a sense of the great injustice that the employer would suffer if held liable for an accident which he could not have prevented. To-day we see that there are three parties interested in industrial accidents: the victim, the employer, and the public. We cannot judge justly if we fix our minds too intently upon any one of these parties, to the neglect of the others. We should follow the injunction in the Priestly case, and “look at the consequences of a decision,” the possible bearing upon each of these three parties. All serious industrial accidents involve hardship and impose a burden which must fall somewhere. We can conceive of a case of new impression so nicely balanced that either one of two decisions may be legally defensible, but economic and ethical aspects must not be ignored. The court cannot determine the real incidence of the burden of an industrial accident. If it is imposed upon the workman who is propertyless, whose working capacity, now impaired or ruined, is his only asset, he must turn it over to society upon which he becomes dependent with his family. If imposed upon the employer, it may either result in a diminution of profits or be added to the cost of the product or service, thus reaching the public by another route. Still, it is of great economic consequence by which route the burden reaches society. Meanwhile, we cannot ignore as negligible any industries which yield large profits and yet insist that it is not socially inequitable for the profitsharer to use this human material recklessly or improvidently, and throw the wrecks upon society.

The employer tells us that the cost of industrial accidents cannot be added to the charge for the traffic or the product, as it would make that cost too high; which is nearly equivalent to saying that, while the public is not willing to pay this enhanced price as such, it will submit if it is disguised in the form of poor rates. He tells us, too, that the state or government which puts such a burden upon industry wall be at a great economic disadvantage as compared with other states; which is practically a claim that such an industry is not self-supporting, but essentially parasitic.

These arguments are not new. They were urged a hundred years ago against factory legislation in Great Britain. They have done service there in every discussion of employers’ liability legislation during the past forty years. Mines would close, industry would be paralyzed, capital would disappear. The same appeal was made against the compulsory insurance laws of Germany. But that nation has had a phenomenal period of development and industrial prosperity, such as no nation ever surpassed. And on the highest authority, this material progress and the well-being of her industrial classes has even been attributed to the beneficence of these very laws.

Such arguments do not take into account the immense value of measures which contribute to social peace; the importance of impressing upon employers the economic profit of saving life and limb; the wastefulness of litigation and contention resulting from mischievous legal and industrial systems; the fact that rational legislation is contagious, and that other states are compelled to follow an inspiring example, as all of the nations of Europe have followed Germany.

Clearly, it would seem, the workman should be compensated for injuries that befall him through the fault of his employer; through the inevitable risks of the industry; through superior force; through the act or negligence of a fellow workman. But there are accidents that befall him through his own negligence, perhaps three-tenths of all. Why, in any view of the case, should he be compensated for these ? Ordinary care, as measured by juries under the instructions of courts, really comes to mean a degree of care as high as the average man would exercise, probably higher. The juror in the serene atmosphere of the court room undoubtedly very much overestimates the presence of mind that he could command in an emergency, the occasion when accidents most frequently occur. If we have an industry employing a thousand workmen, presumably more than five hundred of them would fall below the standard of ordinary care by which they must be tested. They have been selected for their working capacity, and not with reference to the alertness of mind by which they might avoid danger. But these five hundred must work, and any impairment of the individual’s efficiency or ability to work on account of injuries received, even if through lack of that care of which he is not quite capable, must be, in the nature of things, a part of the cost of that industry. To what other account can it be charged ? It cannot be charged to the individual, because by that very injury he may have become hopelessly bankrupt. If the industry cannot bear the burden, it is simply not self-sustaining. Society, for its own sake, and for the sake of the victim, must so regard it. No other solution of the problem satisfies intelligent conceptions of social obligations.

There is but one logical conclusion: there must be compensation to the workman for all injuries received in the course of his employment, and such compensation must be deemed an essential part of his wages.

It is amazing that the world should have been so slow in perceiving how grievous and unjust the law has been which attempted to impose this burden of industrial accidents upon workmen; slow to realize how impotent the attempt has been; slow to profit by the instructive example which a great nation has exhibited to us for twenty-five years.

We have been indulging in illusions. We have looked on complacently, persuading ourselves that we have compelled the laboring man to assume risks and to provide for future emergencies, ignoring the manifest fact that the burden of such risks has really fallen upon society. The report of the recess committee in Massachusetts referred to above rehearses arguments, long since threadbare and discredited, about industrial disadvantage, and speaks of munificent and beneficent ideas; but the workman who suffers wrongfully from bad industrial conditions is not seeking the dole of charity, but simple justice.

In legislating toward the reforms indicated, two important facts should be kept in mind. If the workman were really to assume the risks of his employment he has not the data for estimating their value. In Germany, under an elaborate tariff of risks, he might be advised of the wide difference in this respect in the various forms of employment: he might learn that the risk of the most dangerous trades was three hundred and fifty times as great as in the least dangerous. He could not act intelligently upon the disconnected facts coming within the range of his own observation. Secondly, there is no necessary industrial equality between the two parties to the labor contract. Even in the immobility of labor of which political economists write instructively, there is frequently an enormous handicap. Such disparity it should be the aim of ethical legislation to neutralize.

The appalling colliery disasters in Great Britain during the sixties aroused that nation from her indifference. Her philanthropists, statesmen, and legislators began to inquire whether the price of coal covered the real cost, and whether the employers5 exemption from liability as to these disasters might not, in some degree, account for their frequency. Employers’ liability acts were advocated, not only for the purpose of securing compensation to the victims of accidents, but with the confident expectation of diminishing their number and severity. The cry of the workmen themselves was, “We want immunity, not indemnity.” It was the claim of Salisbury that a suitable law would prove to be a life-saving mechanism. We may well give serious attention to this aspect of the question in this country, where industries are carried on with less regard for human life and safety than in most others.

Viewed in its merely commercial aspects, a nation cannot afford unnecessary waste of life or limb. It has been estimated that it costs fifteen hundred dollars to rear the boy and youth until he reaches the age for work. He becomes too costly a piece of mechanism to be exposed to needless hazards or to wasteful methods in industry. In a material as well as in an ethical sense, the life, health, and well-being of her workmen are proper subjects of the state’s solicitude. Considerations of economy and of philanthropy concur in demanding, not only that industrial accidents shall be guarded against, but that their consequences unjust to the victim shall, so far as practicable, be averted.