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ARTICLE A-SYNOPSIS OF THE DEVELOPMENT OF THE

COMPENSATION PRINCIPLE

1. Economic principles involved.

It is difficult for American lawyers to reconcile themselves to the fundamental changes which workmen's compensation

Economic principles involved

laws accomplish in the principles underlying doctrines with which they have long been familiar. The declaration that an employer shall be responsible for injuries to his workmen, whether or not the master is at fault, has, until very recently, in most parts of the United States, met with almost instant opposition whenever it has been made. Nevertheless, the compensation principle, when carefully analyzed, undoubtedly rests on sound economic, legal and moral foundations. Testimony from foreign countries and a rapidly increasing fund of evidence from many of the States in the Union, prove that it is not taking the employer's property without due process of law to compel him to pay compensation to an injured workman, when the injury is due to a risk which is necessarily incident to the business. An assertion to the contrary is an economic fallacy. The amount paid in compensation to injured workmen will be added to the cost of the article produced and in the readjustment, which is inevitable, the expense will be borne by the community generally. All experience proves this beyond question. It is believed by those who have given the most careful thought to the subject that this expense or burden on the community will be less, in the long run, when the compensation principle is put in operation, than it is at present, when inadequate provision is made, through public and private charity, for taking care of the injured workmen and the dependents of those who are killed. That the widows and young children of the workmen who are killed frequently are dependents upon the community there is no denying. The same is true, of course, as to the families of workmen who are seriously injured, and sometimes to a greater degree than if the workman had been killed. It is often more difficult for the family to get along while the father is seriously injured and requires medical and other attention, than it would be had the father been killed. The children who are left with a mother not able to care for them not infrequently grow up in bad surroundings and a good

Origin and nature of the so-called common-law defenses

many of them, a little later on, help to make bad surroundings for other children in the same situation. This condition of affairs is an expense to the community, not only directly but indirectly. Moreover, equitable compensation laws tend, to a very great extent, to make workmen more contented than they otherwise would be, with the knowledge that in any event they will not have to meet starvation for themselves and their families should they be the victims of one of the number of inevitable industrial accidents. This is an important factor in the efforts to secure the greatest industrial efficiency.

2. Origin and nature of the so-called common-law defenses.

The doctrines of assumption of risk, contributory negligence and negligence of fellow servant have played an important part in English and American law. Up to a very recent time the rule had long been established that a workman assumed all the risks which were necessarily incident to his employment and also all the risks which were obvious and concerning which he had actual information, or should have had knowledge by reason of the fact that they were open and obvious. This doctrine of assumption of risk was carried to the extent that even though the employer was negligent and failed in many respects to perform his duty in safeguarding his workmen, nevertheless if an employé continued to work after these risks, due to the negligence of the employer, had become obvious and well known to the workman, he assumed such risk and could not recover if he was injured by reason of any of the dangers thus assumed.

The doctrine of assumption of risk has received much legislative attention, irrespective of the workmen's compensation statutes. It has been modified, from time to time, by the courts. Probably the most radical judicial modification of recent times is to be found in the case of Fitzwater v. Warren, 206 N. Y. 355. The Court of Appeals squarely

Origin and nature of the so-called common-law defenses overruled the leading case of Knisley v. Pratt, 148 N. Y. 372, and held, in effect, that an employé could not be held to have assumed the risks of his employment in relation to an injury which was caused by an employer's violation of a statutory safety regulation.

It has also been the rule, even when the employer was negligent, that if it could be demonstrated that the negligence of the employé contributed in any manner to the injury of which complaint was made, then the employer was discharged completely and the employé was entirely without remedy. This rule also has been modified by statutes other than workmen's compensation acts. The rule of "comparative negligence" and the doctrine of the "last clear chance" have been adopted in some jurisdictions. The rule of contributory negligence in one form or another is still in force, however, in most of the jurisdictions where compensation laws have not been adopted.

The fellow-servant doctrine dates from 1837, when it was established in England in the case of Priestley v. Fowler, 3 M. & W. 1. In that case two butcher boys were on a wagon, being employed by the same master. One of them was injured by reason of the negligence of the other. The court decided that in such a case the master was not liable. The principle thus established was the germ from which the entire law, known generally as the fellow-servant doctrine, was developed. Five years later, in 1842, Chief Justice Shaw of Massachusetts, in the case of Farwell v. Boston, etc., R. Co., 4 Met. 49, followed the doctrine announced in the earlier English case. The same rule was subsequently promulgated and settled in the House of Lords in England in 1858, in the case of Bartonshill Coal Co. v. Reid, 3 Marq. H. L. Cas. 266. The same doctrine was thereafter followed by the courts of the various States of the Union.

In England the doctrine was applied with great rigor. Employés of all grades of employment were held to be fellow servants with those in practically every other grade. Or

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