Misunderstanding concerning wages........... Unsuccessful Demand for adoption of rule providing for ..... Not settled Nov. 1, 1910 Demand for adoption of nine-hour workday... Unsuccessful Demand for increase in wage rate.. :20 1 day Demand for increase in wage rate. Demand for increase in wage rate...... 35 3 66 24 Alleged unfair treatment by foreman.............................. Unsuccessful Demand for reinstatement of discharged Unsuccessful 35 days Objection to proposed reduction in wage rate. Successful 6 66 Demand that factories should be unionized .... Demand for increase in wage rate and removal ......... Unsuccessful Demand that none but union men be employed Not settled Nov. 1, 1910 Objection to reduction in schedule of prices.. Partially successful EMPLOYERS' LIABILITY AND WORKMEN'S COMPENSATION. "Recent Action Relating to Employers' Liability and Workmen's Compensation," by Lindley D. Clark, A. M., LL. M. NATURE OF LIABILITY AND COMPENSATION SYSTEMS. The past few years have been marked by a rapid increase of interest in the question of the adjustment and distribution of the burden of the results of industrial accidents, the doctrine of compensation as distinguished from that of liability coming for the first time in the United States to any widespread support. Where the idea of employers' liability controls, the employe is given a right of action against the employer in cases where injury from accident results as a consequence of the negligence of the employer or of some one charged with the performance of his nondelegable duties; with this, however, the rule must be considered that where the injured employe contributed by his own negligence to cause the accident, such contributory negligence bars recovery. Ordinary risks, not due to the employer's negligence, but incidental to the employment, are held to be assumed by the employe, and for injuries resulting therefrom no recovery of damages can be had; these risks include the acts, negligent or otherwise, of ordinarily carefully selected and ordinarily skillful and competent fellow-workmen. It is obvious that the only right allowed to an injured employe under this doctrine is the right to sue, which experience has shown to involve uncertainty, delay, expense, and the ultimate acquisition by the workman of only a fraction of the money actually expended by the employer in the way of defense and of payments on judgments. The idea of compensation is that of an award of a fixed sum for injuries for which the employment is responsible, without the necessity of litigation or the endeavor to determine the question of fault. It is frequently provided, however, that where an employer is apparently grossly negligent, damages will be recoverable, and if the employe is willfully or grossly negligent he shall take nothing either by way of compensation or otherwise. The common-law doctrine of employers' liability has been dominant in the United States to the present time, though modified in many particulars by statutes, both state and federal. In most other industrial countries the idea of compensation has superseded that of liability, Germany having led the way in 1884, followed by Austria in 1889. Great Britain placed a compensation law of limited application on her statute books in 1897, giving the right of compensation thereunder as alternative to the right to sue under either the common law or the liability act of 1880. The British act last mentioned has furnished the pattern for statutes in several states of the Union, laws of this general type and varying scope having been enacted in five states in the single year 1909. One state (Colorado) has abrogated entirely the defense of fellow service, while in a number of jurisdictions this defense is not allowed in the case of accidents on railroads. The other defenses named, i. e., of assumed risks and contributory negligence, are also modified or abolished under certain conditions in a number of states. In all these cases, however, the underlying idea of liability is not changed. FEDERAL EMPLOYERS' LIABILITY LAW. Federal legislation on the subject of employers' liability has been restricted to employes of common carriers, and necessarily to such of these as are engaged in interstate commerce, though two liability bills, one restricted to the Isthmian Canal and one applying to all laborers, mechanics, and other civilian employes of the United States Government, were introduced into Congress during the recent regular session. It was owing to failure to restrict the provisions of the statute of 1906 to interstate operations that that act was declared unconstitutional, except in the District of Columbia and the Territories, as to which the powers of Congress are plenary. (1) The liability law of April 22, 1908 (35 Stat., 65), was adopte‹i with a view to correcting the defects of the earlier law, but was promptly declared unconstitutional by the Supreme Court of Connecticut (2) on the ground that it involved the administration of the law in state courts beyond either the intention or the power of Congress, and because its provisions affected matters beyond the scope of interstate commerce, and therefore also without the power of Congress. The result of this ruling was in any case a denial of the right of the state courts to administer the law, which view would be controlling on the subordinate courts of Connecticut. An appeal to the Supreme Court of the United States was taken in the Mondou case, the question of the constitutionality as well as of the application of the law being raised. This appeal has not yet been acted upon. Another decision that, if sustained, would prove destructive to the value of this act was one in a federal court to the effect that actions under the law could be brought only in the district of which the defendant company was an inhabitant. (3) In the case in question this ruling would require the plaintiff, a brakeman injured in New Mexico, to bring his suit in the city of Topeka, Kans., of which the defendant corporation was an inhabitant. A third decision pointed out the limitations of the law in so far as death claims are concerned, ruling that it gave no survival of the employe's personal right to recover damages where the injury was fatal. (4) The points raised in these decisions were made the subject of a variety of bills in Congress, whose object it was to cure the defects disclosed by them, though it was brought out in the debates and reports in connection with the proposed amendments that not all the points against the law were considered as well 1Employers' Liability Cases, 207 U. S., 463, 28 Sup. Ct., 141; El Paso & Northeastern R.. Co. v. Gutierrez, 215 U. S., 87, 30 Sup. Ct., 21. 2Hoxie v. New York, etc., R. R. Co., 82 Conn., 352, 73 Atl., 754. Mondou v. Same, 82 Conn., 373, 73 Atl., 762. 3Cound v. Atchinson, T. & S. F. R. Co., 173 Fed. 527. 4Fulgham v. Midland Valley R. R. Co., 167 Fed. 660. (See also Walsh v. New York, etc., R. Co., 173 Fed., 494.) taken. Amendments were adopted giving to state and federal courts concurrent jurisdiction in all cases arising under the act, and allowing actions to be brought in the place where the injury occurred or in any place in which the defendant company was doing business at the time of the commencement of the action. Cases brought in state courts of competent jurisdiction can not be removed to a federal court. A section was added providing that the right of action of an injured person should, in case of death, survive to the personal representative for the benefit of dependents. The act as amended is reproduced below. (1) The question of survival may still be open in some cases, however, in view of the construction placed upon a similar statute (2) by the supreme court of Montana. (3) In the case cited this court held that where death was instantaneous no right of action accrued, hence none could survive, though a less rigid construction of the Federal law seems possible, at least in view of the very clearly expressed intention of Congress in debate to provide for the accrual of a right to sue for the personal injuries of the employes as well as for the loss suffered by the dependents by reason of the death of the wage-earner, as set forth in the first section of the act. (4) STATUTES PROVIDING INSURANCE. The first absolute departure in the United States from the doctrine of liability and proved fault was the co-operative insurance law of Maryland, passed in 1902, and applicable only to mining, quarrying, and steam and street railways. This law provided for contributions at fixed rates by employers who might recoup themselves to the amount of one-half of such contributions from the wages paid employes. Payment on death was absolute, and the law was administered in all its details by the state insurance commissioner. After about two years' operations the law was declared unconstitutional as depriving parties of the right of trial by jury and conferring on an executive officer judicial or 1See pp. 310 to 312. 2Mont., Acts, 1905, ch. 1, sec. 2. 3 Dillon v. Great Northern R. R. Co., 38 Mont., 485, 100 Pac. 960. 4Duke v. St. Louis & S. F. R. R. Co., 172 Fed. 684; Watson v. St. Louis, I. M. & S. R. R. Co., 169 Fed. 942. |