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exceptional employments. A rational and courageous extension of this great body of thought and experience to business generally should contribute much to the solution of modern trade problems.87

86 Shepherd, writing in 1652 (Office of Justice of the Peace), summarizes the law of trade as follows: "There are many laws that concern trading and traffique, which may be thus reduced. 1. None may exercise some trades before they have been trained up in them. 2. Tradesmen must sell true, not false and sophisticall commodities, especially provision. 3. They must sell at reasonable prices, and for moderate gain. 4. Bakers, brewers, and such like tradesmen must keep the assizes. 5. All tradesmen must sell by just weights and measures." Duty to sell at a reasonable price cannot co-exist with a right to refuse to sell at any price.

The idea of service was inseparable from the idea of business in the early law. The term "office" is used in the Year Books with reference to the most ordinary occupations. "Mystery" in the phrase "art and mystery" is not, as often asserted, equivalent to maistrie, a mastery of a craft, but is a corruption of a word meaning, not "mastery," but "ministry," "service." Beverley Town Documents, Selden

Society Pub., introd., p. xlvii.

It is worthy of note that the Statute of Labourers, supra, refers to tradesmen as "ministers."

The following cases from the Year Books are of particular interest. Y. B. 21 Hen. VI. 55, pl. 12: "Paston, J., If I come riding along the highway to a town where a smith lives who has sufficient stuff to shoe my horse supposing it has lost a shoe, and I request him at a proper time to shoe it and offer him enough for his labor and he refuses so that my horse is later lost for want of shoes, because of his default, I say in such event I shall have action of trespass on the case." Y. B. 9 Ed. IV. 32, pl. 4: "Needham. . . and Sir in trespass against a man for taking a servant it is a good plea for the defendant to allege that he is a common school-master, and the father of the said servant brought him to the defendant to be instructed, wherefore. .. Littleton. In trespass for taking a servant it is a good plea for the defendant to allege that he is a common surgeon and the servant had broken his leg so that he could not walk and came to him to be cured etc. wherefore he etc."

87 In the Court Baron (Selden Society), p. 31, may be found a precedent taken from a thirteenth century book of forms or instructions to the steward of the lord's court, to be used "when brewer or breweress refuseth to sell beer to the lord." It is as follows:

"Sir steward, the bailiff R(obert) by name, who is here, complaineth of Ellis Atte Well, who is there, that wrongfully and to the lord's despite he refused to sell beer to the use of the lord on such day he at such an hour in the year that was, whereas on the said day he had in his brewery sold beer new and old to his neighbours and to strangers; and wrongfully for this reason, that he, (Robert) prayed him debonairely and earnestly for the love of his lord that he would sell him of his beer in return for present and ready payment according to the assize which is provided and established; but this Ellis neither for prayer nor for admonishment nor yet for present and ready payment would confess that he had beer for sale, new or old, in secret or in public, for gift or sale to his lord or any of his folk, to the lord's damage for 40 s. or the shame for 20 s. by reason of the strangers that were there assembled. If confess etc.

"Tort and force and the damage of the lord of 40 s. and the shame of 20 s. and every penny thereof and all that is in the lord's despite, defendeth Ellis, who is here, against

Effective as this basic principle of the common law can be made by the courts in the administration of justice and the prevention of business abuses, its recognition should be scarcely less serviceable as a helpful guide to business men and an aid to legislators in the framing of constructive laws. The problem of holding companies and industrial combinations, for example, which in recent years has been much discussed in the United States, becomes simplified, for, with a positive duty of service to all resting on each subsidiary or business unit, the opportunity and temptation for oppressive conduct are lessened, and the importance of ultimate ownership and control is minimized. A commercial code based on the common law would differ from the French, German, and Japanese codes, which treat business empirically from the standpoint of its mechanism or of determinate classes of actors therein, by presenting a rational system dealing with business itself as a public profession.

BOSTON, MASS.

Edward A. Adler.

the sworn bailiff R(obert) by name, who is there, and against his suit and all that he surmiseth against him; and well he showeth thee that on that day which the bailiff surmiseth nor at that hour nor within four days afterwards was any manner of beer, new or old, within his power, in barrell or out, to give or to sell even had one given him ten shillings. Again, sir, as to what he surmiseth, that on the same day he sold beer, new and old, to his neighbours and to strangers, privately and publicly, we answer and say right fully that he talketh idly, and we offer thee a besant of gold that lawfully it may be inquired of these good folk of the vill and if thou findest by good inquest of good folk of the vill that he had beer at that hour or within four days afterwards, at any hour of the said days, beer new or old, to give or sell, he obligeth himself in all his goods moveable and immoveable to do whatever thou seest fit.

"Therefore be this inquired."

ASSUMPTION OF RISK UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT

ON

N April 22, 1908, executive approval was given to the act of Congress known as the Federal Employers' Liability Act; which, stripped of its verbiage irrelevant to this discussion, is as follows:

"That every common carrier by railroad while engaging in commerce between any of the several states . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . . for such injury . . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

"Sec. 3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, . . . the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured... shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury. . . of such employee.

"Sec. 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this Act to recover damages for injuries to... any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury . . . of such employee.

"Sec. 5. That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void. . . ."1

1 The constitutionality of this statute was sustained in Mondou v. New York, N. H. & H. R. R. Co., 223 U. S. 1, 50 (1912), upon the following ground:

"The natural tendency of the changes described is to impel the carriers to avoid

In Seaboard Air Line Ry. v. Horton 2 the court held that "by the phrase 'any statute enacted for the safety of employees,' Congress evidently intended federal statutes such as the Safety Appliance Acts and the Hours of Service Act"; and then proceeded to place upon the fourth section the following interpretation:

"It seems to us that sec. 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action. And, taking sections 3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in cases where the violation of a statute has contributed to the injury or death of the employee, there is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding limitation is imposed upon the defense of assumption of risk—perhaps none was deemed feasible."

The doctrine of assumption of risk, which the court thus engrafts upon the statute, is a common-law doctrine by which the employee,

or prevent the negligent acts and omissions which are made the bases of the rights of recovery which the statute creates and defines; and as whatever makes for that end tends to promote the safety of the employees and to advance the commerce in which they are engaged, we entertain no doubt that in making those changes Congress acted within the limits of the discretion confided to it by the Constitution."

In that case the court also said:

"We are not unmindful that that end was being measurably attained through the remedial legislation of the several states, but that legislation has been far from uniform, and it undoubtedly rested with Congress to determine whether a national law, operating uniformly in all the states, upon all carriers by railroad engaged in interstate commerce, would better subserve the needs of that commerce."

In Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 66 (1913), it is said: "We may not piece out this act of Congress by resorting to the local statutes of the state of procedure or that of the injury. The act is one which relates to the liability of railroad companies engaged in interstate commerce to their employees while engaged in such commerce. The power of Congress to deal with the subject comes from its power to regulate commerce between the states. Prior to this act Congress had not deemed it expedient to legislate upon the subject, though its power was ample. The subject,' as observed by this court in Second Employers' Liability Cases, 'is one which falls within the police power of the state in the absence of legislation by Congress.' . . . By this act Congress has undertaken to cover the subject of the liability of railroad companies to their employees injured while engaged in interstate commerce. This exertion of power which is granted in express terms must supersede all legislation over the same subject by the states."

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guilty of no fault, was denied recovery, notwithstanding his injury resulted from a danger created by the employer's negligence, if, after becoming chargeable with knowledge of the danger, he continued in the service without complaint. It is a doctrine against the injustice of which, in its application to modern railroad service, the legislation of the states has been chiefly directed.

If it be true that no question of law is to be regarded as finally decided until it has been rightly decided, the question whether this common-law doctrine is to be construed into the act should still be an open one, certainly until it has received more thorough consideration than was given it in the case of Seaboard Air Line Ry. v. Horton, or in any other case in which a similar conclusion has been reached. The question is vital. Its decision necessitates a judicial determination of the character and purpose of the act, - whether the legislation was in furtherance of the policy evinced in the legislation of the states, or is in fact a reactionary measure designed to displace state legislation to the extent that the abolition of assumption of risk by the states had inured to the benefit of employees of interstate carriers.

If the present trend of judicial decision shall be adhered to, it is obvious that the act is worse than nugatory so far as concerns any beneficial result to interstate employees, in comparison with the rights secured to them under state legislation which the act supplants; and that the act, viewed as a regulation of interstate commerce, with this destructive principle of the common law engrafted upon it, so far from having a tendency "to promote the safety of the employees and to advance the commerce in which they are engaged," in fact relegates the subject to the crude and artificial rules of the common law, except as to that comparatively small class of "defects and insufficiencies" which result from the violation of statutes enacted for the safety of employees.

The Hours of Service Act does not deal with instrumentalities. The Safety Appliance Acts cover only a part of the appliances used in connection with "cars and engines." The common-law immunity to the carrier from the consequences of its own negligence would, therefore, be reinstated as to everything of a physical nature embraced in the comprehensive terms "machinery, track,

3 Supra.

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