another servant, that he was not a fellow

servant.

Provided the plaintiff has established the above points, in order to escape liability the burden of proof is on the defendant to show:

1. That the servant assumed the risk of the injury,

or

2. That the servant by his own negligence contributed to the occurrence of the injury.17

Death Limitation.-The common law doctrine that right of action for personal injury expires with the death of the person injured 18 also operates to relieve the employer of liability.

Contracting Out.—It has been the practice of some employers to require their employees to sign a contract exempting them from all liability on account of personal injury, and such contracts have been sustained under the common law.

MODIFICATIONS OF THE COMMON LAW

The common law of employers' liability has been modified to a considerable extent, both by statute and by judicial interpretation. The doctrine of assumption of risk has been made inoperative in the case of injuries arising through the violation of safety stat

"While this is the rule in England, in the U. S. Supreme Court, and in the majority of the state courts, the courts of certain states place the burden of proof on the plaintiff to show an absence of contributory negligence. This is true of the courts of Conn., Ill., Ind., Ia., La., Me., Mass., Mich., Miss., N. Y. and N. C.

19 Actio personalis moritur cum persona.

utes by the employer,19 and the doctrine of comparative negligence, to the effect that damages shall be reduced in proportion to the negligence attributable to the employee, has, in some instances, replaced the ruling that contributory negligence is an absolute bar to recovery.20 "Contracting out" has been prohibited in practically every state, and the death limitation has been removed to permit surviving relatives to recover damages for the death of an employee. The burden of proof has, in some states, been shifted so as to lay a heavier responsibility on the employer.

Modifications of the Fellow-servant Rule.-The doctrine of common employment has been modified to a great extent, both by limiting the definition of a fellow-servant and by depriving the employer entirely of this means of defense. In its extreme application the common law considers all employees of the same master to be fellow-servants. But many courts have used other tests than that of mere common employment to determine the status of a servant in relation to another who has been injured through his negligence. One test is based on the nature of the act performed-if the servant is "employed to perform an act, incident to any of the five classes of duties which the law imposes upon the master . . . he is, as to that act, a vice-principal 21—a true representative of his master-and his negligence is the master's negligence. If employed to do any other act, he is a mere servant, no matter what his rank, and for in

19 E. g., Ohio, Mass., Federal Employers' Liability Act.

2o E. g., Cal., Ga., Ore., Federal Employers' Liability Act. Italics not in original.

21

juries resulting to fellow-servants from his misconduct, the master is not liable." 22 This test has been adopted by the Supreme Court of the United States and by most of the state courts. A second test is that of the rank or grade of employment of the servant through whose negligence the injury is caused— "where one servant is placed by his employer in a position of subordination to, and subject to the orders and control of another, and such inferior servant, without fault, and while in the discharge of his duties, is injured by the negligence of the superior servant,23 the master is liable for such injury.'" 24 This rule, which originated in Ohio, has been accepted by the courts of several states,25 while others have incorporated it in statutes.26 A third test is provided by the different department, or consociation, rule. "Under this rule servants in different departments" or those "not brought into such personal relations that they may exercise an influence upon each other promotive of their mutual safety, are not fellow-servants.' It has been adopted by the courts in seven states has been applied to railroads by statute in five.29

22

" 27

28 and

Statutes have also been passed completely abrogat

Burdick, The Law of Torts, p. 207.

23 Italics not in original.

"Berea Stove Co. v. Kraft, 31 Ohio St., 287 (1877), quoted by Burdick.

25

26

Ill., La., Neb., Tenn., Tex., Utah, and in a modified form, Ky. Ala., Mass., N. Y., N. J., Vt., Penn., and as to railroads, Miss., Mo., O., Ore., S. C., Utah, Va.

"Bailey on Personal Injuries, p. 1551.

28

Ill., Ky., La., Mo., Neb., Utah, and as to railroads, Tenn. 29 Miss., Mo., S. C., Utah, Va.

ing the fellow-servant rule 30 or abolishing it in certain industries.31 In general the various "fellow-servant statutes" may be classified under five heads:

1. Statutes entirely abolishing the defense of fellowservants as to all employers and all employees.

2. Statutes entirely abolishing the defense of fellowservants as to employees of railroads.

3. Statutes limiting the defense of fellow-servants as to employees generally.

4. Statutes limiting the defense of fellow-servants as to all corporations.

5. Statutes limiting the defense of fellow-servants as to employees of railroads.

6. Statutes merely declaratory of the common law rule. Most of such statutes have been repealed by later statutes.32

HISTORICAL DEVELOPMENT

The first attempt to modify the common law of employers' liability by statutory enactment was made in England in 1880, when "The Employers' Liability Act" was passed by Parliament. This act provided for a modification of the fellow-servant rule and enabled the personal representatives of a deceased em

30 Cal. and Colo.

31 For a complete consideration of this point see Bailey, op. cit., P. 1553 ff.

32

This classification is given in Bailey, op. cit., pp. 1553-54. Volume II. of this work is wholly given over to the employer's defenses and their modification.

my

ployee to recover damages for death caused by negligence. The first statute to be passed in this country was enacted in Alabama in 1885 and was followed by the Massachusetts act of 1887. Both of these "employers' liability acts," as well as those of several other states, were modeled closely after the English statute. A majority of the states have now passed laws defining an employer's liability to his employee, practically all of which are in the nature of a limitation on the employer's defenses. A federal statute was enacted in 1908 to apply to inter-state railroads.

The law of employers' liability has developed in sympathy with the trend of law and opinion in other fields. When the first cases involving the relation of master and servant were decided the doctrines of individualism and laissez faire were widely accepted and the early decisions reflected the prevailing philosophy. To be sure, the rules laid down in employers' liability cases can be deduced from established principles of the general law of negligence but the rigidity of their application depends largely on the economic philosophy of the presiding judge. Reasoning from the principle of respondeat superior, it would seem that the master could be held liable for the consequences of acts of fellow-servants quite as logically as he was exempted from them under the assumption of risk doctrine. Speaking of the fellow-servant rule an eminent English jurist says, "The Courts, between 1830 and 1840, curtailed the extent of an employer's liability by grafting upon it an anomalous limitation. . . It belonged to the era of individualism, and was sup