INTRODUCTION TO PART TWO

It is now necessary to consider the occurrence of industrial injuries from the legal point of view. This involves an examination of the rights and responsibilities of employer and employee under the law.

At one time the employee was the property of the master— a serf—and, in his relations with the feudal lord, had no standing before the law. If a serf were injured or killed, the master suffered a property loss, but incurred no obligation either to the serf or his family. This phase of history will be ignored and the treatment of the subject will date from the time when the liability of the master to his servant was first definitely established. Since that time the law governing the indemnification of those affected by industrial injury has passed through three distinct periods.

After the employee was recognized as a person with rights and privileges before the law there was, first, a period during which the liability of the employer for injuries sustained by his employees was determined by judicial decisions. The common law of employers' liability was developed during this period. There was no legislation on the subject. Cases were decided upon their merits as they arose in daily practice and, as time went on, certain principles were established by precedent which were considered to be binding and to have the force of law in subsequent decisions.

While these common law doctrines were in process of formulation the Industrial Revolution occurred, marking the inception of the factory system, and accomplishing radical changes in industry and in the fields of sociology, economics and politics. The precedents of the common law, based upon conditions no longer in existence, developed startling inconsistencies. Injustice resulted from strict adherence to rules which were out of harmony with current practices and thought. It was found

impossible to correct the situation by the processes of common law because the force of precedent was overwhelming, and established doctrines could be changed only slightly as individual judges sought to modify the rulings of the past by injecting the spirit of public opinion into their decisions.

When it was realized that the old law of negligence was no longer equitable, the second period began. During this period, attempts were made to remedy the defects of the common law by legislative enactment. Employers' liability laws, modifying or abrogating certain doctrines of the common law which were felt to be inapplicable to modern conditions, were enacted. The fundamental conception of a system based upon negligence of the parties involved was still adhered to, however, and, after a period of experimentation, it was generally conceded that employers' liability legislation had only served to accentuate the defects of a thoroughly unwise and unjust system of indemnification. The demand then was for an entirely new system.

This ushered in the final period. The old law based upon negligence has been discarded, and the principle of workmen's compensation, in which the question of negligence plays but an insignificant part, has been gradually adopted. So far as the rest of the world is concerned, there is scarcely a country which has not repudiated employers' liability in favor of workmen's compensation. The United States followed the lead of other countries in the adoption of the new principle, and it is now well advanced into the final period, there being only six states (Arkansas, Florida, Mississippi, Missouri, North Carolina and South Carolina) and the District of Columbia which still adhere to the "Employers' Liability System.'

It is proposed to trace the historical development of workmen's compensation in Europe and in this country through these three periods, and also to analyze in some detail presentday workmen's compensation legislation in the United States. This will serve to define the legal obligation of the employer, against which he seeks to protect himself by purchasing workmen's compensation or employers' liability insurance.

The field of workmen's compensation legislation is so extensive and the details of application so diverse that it is imprac

One state

ticable to deal with the subject in all its variations. has, therefore, been chosen for intensive consideration. New York has been selected for this purpose, and particular attention will be devoted to legislation in this state with, however, explanation of the outstanding variations in the laws of other states in order that a general idea may be obtained of the plan of workmen's compensation as it actually exists today in this country.

CHAPTER III

EMPLOYERS' LIABILITY

The Common Law. An impression of what is embodied in the common law is essential to a proper understanding of the development of the doctrine of employers' liability. A general idea of the nature and scope of this body of law may be obtained from the following statement:

The common law includes those principles, usages and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the Legislature.

A great proportion of the rules and maxims which constitute the immense code of the common law grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice without any legislative act or interference. It was the application of the dictates of natural and of cultivated reason to particular cases.

The reports of judicial decisions contain the most certain evidence, and the most authoritative and precise application of the rules of the common law. Adjudged cases become precedents for future cases resting upon analogous facts and brought within the same reason; and the diligence of counsel and the labor of judges are constantly required in the study of the reports in order to understand accurately their import and the principles they establish.1

It is one of our legal principles that, in the absence of a specific legislative enactment bearing on a subject under adjudication, the precedents of the English common law still bind us in judicial procedure. Thus, in New York State, until recently, in case of death of the wife, the husband automatically received full title to all of the wife's personal property. This was the common law rule until it was later modified by legislative enactment. Today,

1 "Kent's Commentaries," Lecture XXI, cited by J. E. RHODES, 2ND, in "Workmen's Compensation," p. 9.