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REPORT OF EMPLOYERS' LIABILITY AND WORKMEN'S COM
PENSATION COMMISSION OF THE STATE OF MICHIGAN.
To His Excellency the Governor, and the Legislature of the State of
Michigan: Your commission appointed by Act 245 of the Public Acts of 1911 to investigate and report a plan for legislative action to provide com- pensation for accidental injuries or death arising out of and in the course of employment, respectfully submits its report as follows:
The Michigan Commission to investigate and report as to employers' liability and workmen's compensation was created by Act 245 of the Public Acts of 1911. It has assumed that its creation resulted from a wide dissatisfaction with the present system of employers' liability for negligence as to employes. It has directed its investigation, as this report will indicate, to an inquiry into the facts in connection with the number of industrial accidents, the extent of the damage suffered by reason thereof, the responsibility therefor, and the financial compensation which the injured receives. The result of this inquiry, as presented in this report, cannot be understood without a brief and general statement of the present system of employers' liability as defined by the statutes and the decisions of our courts.
THE PRESENT SYSTEM OF EMPLOYERS' LIABILITY.
This system known as employers' liability at common law, is based upon a showing of the employers' negligence. The law has imposed upon the employer, or master, certain duties, and holds him liable to the employe for any accident which may occur by reason of the master's failure to perform any of these duties. Failure to perform these duties is deemed negligence. It may in general be said that the employer is required to furnish an ordinarily safe place in which the employe may work; to provide ordinarily safe machinery; to inform his workmen of the dangers of their work; to select competent servants; not to engage his servants or workmen in a different kind of work than that which they are employed to perform; and to provide reasonable inspection of his machinery and the place of work of his servant. If the employer violates any
any of these duties, and from such violation injury results to the workman the workman can recover in an action of law in the courts, and secure damages for such negligence, if he has established that he, on his part, has not violated his duties. The workman's duties are, briefly, that he should obey the orders of the employer, perform his work without negligence, inform the employer of defects he may discover in his work, machinery, place of work, and as to the incompetency of his fellow workmen.
In the application of these rules which govern the employer's duties, and define the duty of the workman, there have arisen three main defences which have been known as, first, the defence of assumed risk; second, the fellow-servant doctrine, and third, contributory negligence. These three defences have been the subject of much criticism, and the discussion that has arisen concerning them plays an important part in the agitation for a change in the system of employers liability.
DOCTRINE OF ASSUMED RISK.
Under the doctrine of assumed risk, an employe is held to assume and consent to the ordinary and obvious risk incident to his employment, and if he is injured thereby, as a result of these risks, he cannot recover.
It has been argued in this respect that the employe practically cannot refuse to work at a hazardous task, and is thus compelled to assume the risk. The Michigan courts have not applied this rule with as much rigor as have some other courts. They have held that an employe assumes no risk which he is incapable of appreciating, and that where there is a doubt as to the safety of the machinery, the employe can rely upon the assurance of the master. But, nevertheless, earnest criticism has been made of the doctrine as inapplicable to present conditions when workmen are not entirely free to select their employment.
THE FELLOW-SERVANT DOCTRINE.
The rule known as the fellow-servant doctrine bars a recovery in an action of negligence when the employe has been injured through the negligence of a fellow servant. This doctrine is of a comparatively modern development, and was first announced in 1837. It is closely related to the theory that the servant assumes the risks of his employment. It has been accepted by all courts, sometimes on the theory that servants should co-operate for their own safety, sometimes on the theory that they jointly undertake that they are responsible to the master for each other's acts, and again on the theory that there is an implied contract to assume the risks attendant upon the employment of the other servants.
This fellow-servant rule has been criticized severely as an unjustifiable exception to the rule that the master or employer is responsible for the acts of each of his servants in the course of their employment. The chief difficulty as to this doctrine seems to be in its application rather than in the doctrine itself. The courts have radically disagreed as to what is a common employment, and as trades and employments have multiplied, an increasing difficulty has been found in the task of properly classifying the workmen.
It has, however, been insisted that this rule should be restricted to cases where an accident results from the act of the fellow servant who, at the time of the injury, was directly co-operating with the injured workman, in the particular work or business in hand, or where their duties brought them into habitual association so that they may exercise an influence upon each other promotive of proper caution.
The Michigan courts have held that the character of the work determines the character of the servant, and that whenever the duty of inspection is placed upon a servant, he is a representative of the master, and so not a fellow-servant in that particular work. In short, whenever the servant exerts the power of the master in the particular work in which he is engaged, he ceases to be a fellow servant, and therefore, the servant, his fellow, who may be injured, is not denied recovery because of the first servant's negligence. Even with this modification, the rule has aroused much opposition.
As has already been stated, the workman must show before he can recover, that he, on his part, was not negligent. The Supreme Court of Michigan once said that this rule fails to produce justice. Some other states have enforced the same rule, but in the courts of the United States, it is otherwise, and the defendant must show that the plaintiff has been guilty of negligence. Our own court has modified the rule when the manner and circumstances of the accident themselves raise a presumption that it could only have occurred through the defendant's negligence (res ipsa loquitur.)
The doctrine of contributory negligence is severely criticized, and it has been urged that the admiralty rule of a division of damages where there is negligence proven as to both parties should be substituted. Still others insist earnestly that the question of contributory negligence should always be left as a question of fact for the jury to determine. The practicability of such a solution is, on the other hand, questioned, since if the negligence of the plaintiff was in each instance to be left to the jury, a verdict for the defendant would undoubtedly be extremely rare. The Michigan rule permits recovery even where contributory negligence is shown, if the employer's negligence is wanton or wilful. The comparative negligence rule which permits the plaintiff to recover even when guilty of some negligence is the rule in the State of Illinois and has many supporters.