History of work accident indemnity in Iowa

Front matter

CORNELL UNIVERSITY LIBRARY

3 1924 092 430 010

Cornell ili^

Contents

I. The Need of Indemnity foe Wokk Accidents 1

II. The Genesis of Employees' Liability . 11

III. An Analysis of Employees' Liability . 17

II The Genesis Of Employers' Liability

The existing legal system of accident indemnity in Iowa is based upon the common law of employers ' liability. The common law, to be sure, has been considerably modified by statute, and it has also received something of a specifically local character from a long line of Iowa decisions. But neither the legislators nor the courts of Iowa have overthrown the fundamental principles of liability laid down in England and in the older American Commonwealths before the question of responsibility for work accidents was raised in this State. To understand the present status of accident indemnity in Iowa it is necessary, therefore, to examine the circumstances under which the common law doctrines arose and to sketch the mutations which these doctrines have undergone as they have come to be applied to modern economic conditions.

Work accidents in England and America began to assume serious proportions toward the middle of the nineteenth century with the development of machine manufacturing, steam transportation, large-scale mining, and other characteristically modern industries. Wage contracts, then as now, made no provision for injuries sustained in the course of work.*^ There was no legislation upon the subject, so that the courts were called upon to determine whether the money losses occasioned by such injuries should be borne in the first instance by employers or employees. This question had, of course, to be decided on the basis of existing juristic principles. But there were no controlling precedents.*^ A new body of law was to be created by successive decisions,.

and the character of that law was mainly determined by the judges' views of public policy** — that is to say, by "the sum of prejudices, and the political, social and economic convictions of the dominant classes of which they [the courts] themselves are a part."" The genesis of employers' liability is, accordingly, to be sought in the principles which seventy-five years ago governed responsibility for accidental injuries in general, and in the prevalent social philosophy by which these principles were interpreted and applied.

In the second quarter of the nineteenth century, the common law had come to recognize three categories *° of unintended injuries to person and property, as respects pecuniary liability therefor: (1) injuries caused by pure misadventure, for which, if occurring in the ordinary relations of life, no one was liable; (2) injuries negligently inflicted, for which the negligent person was liable; (3) injuries arising from "acts done at peril", for which the doer was liable notwithstanding he neither intended the injury nor was guilty of any negligence in the premises.** The important question for the future of employers' liability was, under which of these classes of torts should work accidents be placed?

Starting from the immemorial principle that every one is bound so to conduct his own affairs that others shall receive no harm therefrom,*^ it might have been possible to hold that he who employs dangerous instrumentalities for his own profit does so "at his peril" and must answer in damages for any injury to person or property thereby occasioned. Such was the common law liability of one who kept a vicious animal,** or who permitted fire ** to escape, or cattle ^^ to stray, from his premises. This principle, that certain things are done or kept at peril, was applied by the courts to some, at least, of the innovations consequent upon the industrial revolution. Thus it was held in England that

THE GENESIS OF EMPLOYERS' LIABILITY 13

one who impounds water on his land, or who brings thereon "any other thing which will, if it escape, naturally do damage", must keep it "at his peril"." So, too, under the earlier decisions the user of a steam engine was liable for fires started by it without fault on his part.^^ Said Lord Justice Bramwell in deciding a traction-engine case: "It is just and reasonable that if a person uses a dangerous machine, he should pay for the damage which it occasions ; if the reward which he gains for the use of the machine will not pay for the damage, it is mischievous to the public and ought to be suppressed, for the loss ought not to be borne by the community or the injured person. ' ' °^ Had a similar view of the Habilily for work accidents been adopted by the courts, the "ordinary", or "occupational", risks, in extra-hazardous employments at least, would have been thrown upon the employer, and indemnity would have been provided for much the greater number of industrial injuries. Such might very well have been the course of the law had present day views of collective responsibility for socially-created evils been entertained by our great-grandfathers.

Unfortunately, as seen from the modern standpoint, the leading employers' hability cases," from which the whole subsequent juristic development received its tone and direction, were decided at the very moment when the laisses fairs movement in economic and political thought reached its culmination.°° These early cases arose in communities where capitalism was just coming into dominance,^* where wage-workers as yet had no effective voice in government, and where the propertied and business classes, who possessed the preponderating political influence,^' had but lately secured the abolition of hampering feudal restrictions and were impatient of any restraint upon their new-born liberty.

In such communities and under such social conditions was matured the highly individualistic natural rights philosophy of the common law," The protection of private property became the chief function of the state.^* The teaching of Adam Smith that the unrestrained pursuit of individual self-interest will necessarily promote the general welfare,"" and of Thomas Jefferson that that is the best government which governs least " were deemed irrefutable if not actually inspired.®^ Superior wealth and social position were looked upon as "natural" advantages which the state had no right to neutralize."' Given only freedom of contract, equality before the law, and protection from violence and fraud, it was believed that every man might safely be left to fend for himself." Such was the genesis of the theory that the wage-worker stands on equal terms with his employer, that he is able to choose the conditions under which he will consent to serve, may decline any employment which he deems unduly hazardous, and can exact extra pay for extra risk.

The judges of a half century since were steeped in this individualistic philosophy. The older and more influential among them had gathered their impressions of industrial conditions from the regime of handicraft and petty trade, which was then just passing away but which had been dominant in the days of their youth."' All had learned the rudiments of law from Blaekstone, who was inclined to subordinate the public good to private right,"" and had imbibed the principles of political economy from those disciples of Jeremy Bentham who took the individual for the center of the economic universe."" Moreover, in point of birth and association the judges of that day, almost without exception, belonged to the propertied and business classes, and in consequence had little sympathy with, or understanding of, the position and claims of wage-workers."*

In the light, then, of the circumstances of seventy-five years ago it is not strange that courts should have sought to restrict the master's liability for work accidents within the narrowest possible limits. It was felt that to make the em-

THE GENESIS OF EMPLOYERS' LIABILITY 15

ployer bear the pecuniary loss of injuries due to ordinary trade hazards would impose an intolerable burden upon business enterprise, retard the accumulation of capital, and discourage investment to the serious detriment of the community."*

Ample ground for such restriction of liability was found in existing principles of the common law. Liability without fault was, in the second quarter of the nineteenth century, highly exceptional and anomalous,^" being nearly confined (1) to the small category of "acts of peril" which had been inherited from primitive English law," (2) to cases of "imputed fault", like the liability of a master for the torts of his servant '" or of a husband for those of his wife," and (3) to such persons as common carriers and inn-keepers upon whom unusual liabilities were imposed because others had no practical alternative but to trust to their fidelity and prudence.''* The general rule, as contra-distinguished from these exceptional cases, confined liability to injuries arising from the failure to use reasonable care.''^ Moreover, no one ordinarily was under any legal obligation to protect another from dangers which that other knew of, or could reasonably discover ''" and guard against,'^ or to which he had voluntarily subjected himself.'^ So a shop-keeper discharged his duty to protect his patrons from personal injury if he kept his premises in reasonable repair or if, neglecting repairs, he warned them of dangerous conditions."

The foregoing principles, drawn from the ordinary a^oIuntary relations of life, were applied without mitigation to the relationship of employer and employee. The courts, adopting an academic theory of "liberty and equality"'" and ignoring the actual situation of the parties to wage contracts,*^ treated wage-workers as, in the fullest sense, voluntary agents.'^ Hence it was held, on the one hand, that the employer is bound merely to use ordinary care for the safety of his employees, and on the other hand, that the employee takes on himself the risk of all dangers which are, or reasonably should be, known to him, and which, therefore, he "voluntarily encounters" by entering upon, or continuing in, the service. Upon these foundations was reared the whole fabric of employers' liability doctrines — doctrines thoroughly consonant, in the main, with the genius of the common law and with the social philosophy prevalent at the time and place of their origin."

The social conditions under which the common law rules of employers' liability originated, and to which they were (presumably) adapted, have long since passed away. The machine industry has in the course of three generations wrought a revolution in the economic life of civilized mankind greater, in many respects, than the changes of the preceding three thousand years. The new mode of industrial life has brought in its train new views of social responsibility and of the scope and ends of government." Whence it happened that the "system of natural liberty" had scarcely received definitive formulation before it began to be discredited and that it now finds a precarious lodgment only in the archaic abode of constitutional law."' But the employers' liability doctrines, which owed their genesis to the society of artizans and shop-keepers and their authentication to the metaphysics of laisses faire, live on even after they have been condemned by the very classes in whose supposed interest they were invented.'*

How juristic principles which took shape some three quarters of a century since are applied in Iowa at the present day will, it is hoped, sufficiently appear in the course of the ensuing analysis.

Ill

AN ANALYSIS OF EMPLOYEES' LIABILITY

Three quarters of a century of ever-increasing litigation and of amendatory legislation in scores of separate jurisdictions have made employers' liability one of the most involved and intricate branches of the law, have multiplied definitions more recondite and distinctions more elusive than those of the marginal utility theory, and have given rise to conflicts of decisions that are the despair of jurists.*^ A becoming cognizance of his own limitations might well deter a mere layman from rushing into a field so beset with pitfalls for even the trained lawyer. Yet the guiding principles of employers' liability are neither many nor difficult to comprehend. It is in the detailed ramifications of the law, and especially in the variations from one jurisdiction to another, that confusion is encountered. An analysis of the main features of employers' liability in a single State, accordingly, presents no insuperable obstacles; at the same time such an analysis is essential to a clear view of the situation which the present reform movement in Iowa seeks to remedy.

The several doctrines comprised in the law of employers' liability will, in the present anlysis, be grouped under these captions: (1) duties of the employer, (2) the burden of occupational risks, (3) the fellow-servant rule, (4) comtributory negligence and (5) assumption of risk. It is not claimed that this arrangement is logically unimpeachable ; but it is hoped that the common origin and the mutual relations of the several doctrines Avill be made sufficiently clear in the course of the analysis based thereon.

DUTIES OF THE EMPLOYEE

The cardinal principle of the common law of employers' liability, upon which all else depends, is that the employer is liable only for such injuries as are due to some ''fault" or neghgence on his part,** that is, to some breach of the employer's legal duty to provide for the safety of his employees.*' It seems advisable, therefore, to begin the present analysis with a statement of the extent and limits of this duty.

It was laid down in the earliest cases, and is indeed but a particular application of the general rule governing voluntary relations, that a master is bound to use reasonable care to protect his servant from injury while engaged in his service.®" Subsequent decisions have defined this obligation of the employer with great particularity and have divided it into several so-called "absolute duties": (1) to provide a safe place to work; "^ (2) to furnish safe and adequate tools, appliances and instrumentalities for carrying on the work; *^ (3) to hire a sufficient number of reasonably competent and careful servants ; °' (4) to conduct the business in a safe manner with sufficient rules for the guidance of employees, where such rules are reasonably necessary to their safety; ®* (5) to instruct inexperienced servants in the safe performance of their duties ; ®^ (6) to warn a servant of dangers which are, or in the exercise of reasonable care should be, known to the master, but which are not known to, or readily discoverable by, the servant ; °° and (7) to make such frequent and thorough inspection of working place, materials, and equipment as may be reasonably necessary to maintain them in a safe condition.®''

None of the foregoing duties of the master is absolute. He does not warrant the safety of his premises ; ®* it is enough if he maintains "reasonably" safe conditions and surroundings of work,*® so far as that can be done by the exercise of ordinary care,"" that is, sucli care as a person of average prudence would exercise under the same or similar circumstances.^" Of course the conduct of "a reasonably prudent and careful man" can afford no definite standard of "ordinary care" or "reasonable safety","^ since what is reasonable will depend upon the character of the undertaking in hand and the risks attending its prosecution.^"' As has been judicially said, "reasonable care demands increased watchfulness and greater caution in proportion to the dangerous nature of the instrumentality employed ; that is, ' due care ' means care which is reasonably commensurate with a known danger and the seriousness of the consequences which are liable to follow its omission. ' ' "* Hence in handling electricity "reasonable care" is great care.^"^ So, too, it is negligent to run a train at high speed over a road bed that has been softened by recent rains, although similar speed would not be dangerous under normal conditions."'

Reasonable care only requires the master to provide against dangers that can reasonably be anticipated "^ and to remedy conditions of which he has knowledge, actual or constructive."' Notice will, however, be presumed when a dangerous condition has existed for such a length of time that the employer, in the exercise of ordinary care, could have discovered it."®

The employer is not required to use the safest equipment that can be obtained,^^" nor is he bound to adopt any new device until its utility has been sufficiently tested and it has been shown to be, as a whole, better than the appliance already in use for the same purpose.^" Thus it is not necessarily negligent to operate locomotives equipped only with link-and-pin couplers,"'' or to leave dangerous machinery unguarded,"' although practical safety devices may be known. Ordinarily, it is sufficient if the employer use such precautions as are customary in similar establishments ; "* and the general usage of employers in tlie same line of business may always be shown as bearing upon the question of care."° Proof of common usage, however, is not proof of care ^^* and is no defense where the custom is in itself careless."'

The only definite standard of "reasonable care" appears to be that afforded by statutes expressly enacted for the protection of employees. The violation of such a statute is neghgence per se.^^' Thus, it is negligent to operate railway cars not equipped in accordance with the automatic coupler law,^^* to maintain trolley wires at a lower level than is permitted by city ordinance,^^" to omit machine guards ^^^ or belt shifters ^^^ where such appliances are prescribed by the factory acts, to supply a less amount of air in a coal mine than the mine law requires,"^ or to operate trains at an illegal rate of speed."* In the absence of such statutory commands or inhibitions, what is reasonable care can only be determined by the particular circumstances of each case.

The master 's obligation to protect his servant from probable clangers apphes only while the latter is in the line of his duty : one who voluntarily undertakes a task outside the scope of his employment, or who goes into an unauthorized place of danger, becomes a mere volunteer or licensee, to whom the master owes no duty of protection until his peril is discovered."^ But a servant is within the ' ' scope of his employment" in engaging in work which he customarily performs with the knowledge, actual or constructive, of the master or his representative, though without express authorization.^^" A fortiori, the express command of the employer or his responsible representative brings the act commanded within the line of the employee's duty."' Where the effect of such an order is to expose the employee to greater peril than would be encountered in the usual scope of the latter 's employment, the giving of the command is actionable negligence."'

Mere proof of negligence does not constitute sufficient ground of recovery: it must further appear that the negligence complained of was the proximate cause of the injury in respect of which recovery is sought."' That is to say, there can be no recovery unless it is shown that some negligent act or omission of the employer, in a natural and continuous sequence, would have produced the employee's injury, and that without such negligence the injury would not have occurred.^^" ' ' Proximate cause ", it has been judicially said, "is probable cause, and the proximate consequence of a given act or omission .... is one which succeeds naturally in the ordinary course of things, and which, therefore, ought to have been anticipated by the wrong doer. ' ' "^ Hence the employer is not liable for his failure to provide against improbable contingencies."^ But where a given act or omission is negligent in respect of its probable consequences it will be treated as the proximate cause of an injury which would not have occurred but for such negligence, even though the accident which actually takes place is so unusual or extraordinary that it could not have been foreseen."^ So, too, where the employer's negligence concurs with that of a third party,"* or with an "act of God","" to produce an injury, the employer is liable.

The plaintiff in an employers' liability case has, of course, the "burden of proof" to show both that his employer was negligent and that such negligence was the proximate cause of the injury complained of."° That is to say, to justify recovery both of these essential facts must be established by a fair preponderance of all the evidence in the case. Negligence and proximate cause are ordinarily questions of fact, to be determined by a jury under proper instructions from the trial judge.^^^ But where there is no evidence to warrant a finding of negligence, or where, in the opinion of the trial court, reasonable men could not honestly conclude that the alleged negligence of the employer was the proximate cause of the injury, it is th.e duty of the court to direct a verdict for the defendant."'

THE BUEDEN OP OCCUPATIONAL EISKS

The cardinal principle of no liability without fault manifestly relieves the employer of all responsibility for the inherent hazards of industry. Despite the exercise of ordinary care on the part of all concerned, slate and coal will fall from the roofs of mines, railway tracks Avill unexpectedly slip on softened roadbeds, signals will be misread by trainmen, dynamite will explode prematurely, steam pipes \^'ill burst, molten metal will splash upon those who handle it, and structural iron workers will slip from their precarious perches and be hurled to death. These and countless similar occurrences, accounting in the aggregate for fully one-half of all industrial injuries,"'' are no one's fault. They are inherent hazards of the work and the risk of injury from them, under existing Iowa law, is the worker's own.

The servant's assumption of these inherent or "ordinary" risks, being but a corollary of the rule which makes the master liable only for his failure to use reasonable care, must rest upon the same juristic principles and the same considerations of pubhc policy as the main rule itself. To be sure, the courts have commonly said that the servant assumes the ordinary risks of the service in which he engages by virtue of an implied term in the contract of employment."" But this, manifestly, is no more than a judicial fiction. Prior to a legal determination of their respective rights and duties the parties to a contract of service can have had no understanding as to responsibility for trade hazards. The servant's assumption of such hazards is implied by law from the relationship of master and servant,"^ without reference to any consent of the parties thereto, and is in no proper sense contractual."^ Nor does the fiction of an implied contract afford any independent support to the juridieial doctrine ostensibly founded thereon; it would have been as easy for the courts to say, de novo, that the master "imphedly" warrants his servant's safety as that the servant "impliedly" assumes the risks of his employment. The whole train of reasoning as to contractual assumption ' ' amounts to saying that the law is that he cannot recover because he takes the risk, and he takes the risk because the law is so." "' Why the law is so has been considered in an earher section.^**

Since the ordinary risks of an employment are assumed by the servant as a matter of law (and as to them the master is relieved of all responsibility) , the determination of what risks are to be deemed ordinary becomes a matter of great importance. The question may be approached from either of two directions: the care required of the master, or the knowledge imputed to the servant.

On the one hand, ordinary risks are defined as all such danger and exposure to injury as are naturally incident to or connected with the service after the master has fulfilled his duty to take reasonable care for the safety of his employees.^*' But this statement, while satisfactory as regards the "inherent risks" of the business, does not fully cover the "ordinary risks" assumed by employees.

Approached from the standpoint of the servant's knowledge, and seen in the light of the common law principle that everyone takes on himself the risk of any danger which he voluntarily encounters,"^ ordinary risks include all those which the servant, as a reasonably prudent and careful man, should expect to encounter in the course of his employment."^ The servant thus assumes, not only all risks incident to the business when conducted in a reasonably careful manner,^*^ but also all risks due to conditions which may be ascertained by the exercise of ordinary diligence at the time of entering the employment."* All open and obvious dangers are, accordingly, to be considered as risks incident to the employment,^^" although such dangers result from the defective character of the instrumentalities used,^^^ or from the negligent conditions, whether permanent ^'^ or temporary ,^°^ under which the business is openly conducted.

The ordinary risks of an employment always include those which inhere in the nature of the business.^'* One who engages in an extra-hazardous employment thus takes upon himself the extra perils incident thereto."^ Thus, one employed to make a dangerous place safe can not recover for injuries incurred by reason of the very danger which he undertakes to remove, since that is a danger incident to his employment."* So, too, a servant assumes any risk of injury created by the progress of the work in which he is engaged.^" If, for example, he is employed to demolish a building, the risk of injury from the collapse of the walls or the falling of overhanging material is his own."* In all these cases, however, the servant assumes only those risks which are naturally incident to the employment, while the master's duty not to expose him to any injury which may reasonably be anticipated and guarded against remains unimpaired.^'*

Knowledge and appreciation of danger are essential elements in the assumption of risk.^^° But knowledge and appreciation of the ordinary risks of an employment may be presumed from the fact of undertaking the service ; for one who enters an employment "impliedly represents" that he has the experience to perform properly the duties of his position and that he understands the usual dangers attending the employment in which he engages.^*^ The age and experience of an employee are, however, to be considered in determining whether he comprehended and so assumed a particular risk.^°^

The assumption of ordinary risks is not a defense of the master and need not be pleaded by him : the issue as to such risks is sufficiently raised by a general denial of negligence."' Indeed, as has already been pointed out, an averrtient that an injury was due to an ordinary risk of the business amounts to a denial that it was caused by the employer's negligence. Still, the defendant in an employers' liability suit will ordinarily seek to show, by way of rebuttal, that the injury complained of was attributable to one of those ordinary risks for which the em.ployer is not liable.

THE FELLOW-SEEVANT EULE

The doctrines already discussed hold the employer to exercise reasonable care for the safety of his employees and exempt him from responsibility for inherent occupational hazards. So much was settled in accordance with general common law principles and has never occasioned serious division among the courts. A more difficult question was raised by those injuries, very numerous in every large industrial establishment, which are attributable to error of judgment, forgetfulness, or want of skill, care, or attention on the part of co-employees.

On the one hand, the courts were confronted with the very ancient ^°* and thoroughly established doctrine that a master is answerable to third parties for injuries negligently, or even wilfully, inflicted by his servants, acting within the scope of their employment "^ — notmthstanding the master may have been free from fault, both in the selection of his agents and in his instructions to them."" This rule was conceded, even seventy years ago, to rest on sufficient grounds of public policy,^*" and it has latterly found fresh justification in the growth of corporations and other large employers who, but for the doctrine of respondeat superior, would escape all responsibility for injuries to the persons or property of others.^"* If, then, the general rules of law were to be followed, the master would be liable for the torts of his servant even when the complainant was a co-employee of the actual wrong-doer.

On the other hand, the doctrine of respondeat superior was felt to be a harsh one, even in its application to injuries suffered by strangers."^ To extend the rule to cases where employees were the sufferers would, it was believed, impose an intolerable burden upon industrial enterprise."" Accordingly, when the courts were called upon, some seventy-five years ago, to apply the doctrine of respondeat superior to an injury sustained by a workman through the negligence of a co-employee, they "boldly invented an exception to the general rule of masters' liability, by which servants were deprived of its protection." "^

Such an exception appears to have been first suggested in Priestley vs. Fowler, decided by the English Exchequer Court in 1837. A butcher driver 's helper, who had been injured by the breaking down of the butcher's van, whereon he was riding, brought suit against the butcher on the grounds (1) that the van was insufficient for its purpose — in modern legal parlance was "an unsafe place to work" — and (2) that it had been negligently overloaded by the driver. Chief Baron Abinger, delivering the opinion of the Court, held that the plaintiff could not recover. His lordship alleged three grounds for this decision. (1) If recovery were allowed in this case the master's liability would be found to extend very far. "The footman .... may have an action against his master for a defect in the carriage, owing to the negligence of the coach-maker, or for a defect in the harness arising from the negligence of the harness-maker, or for drunkenness, neglect, or want of skill in the coachman. . . . The master, for example, would be liable to the servant for the negligence of the chambermaid, for putting him into a damp bed ; for that of the upholsterer, for sending in a crazy bedstead .... for the negligence of the cook, in not properly cleaning the copper vessels used in the kitchen ; of the butcher in supplying the family with meat of a quality injurious to the health; of the builder, for a defect in the foundation of the house, whereby it fell, and injured both the master and the servant by the ruins." (2) "The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself. . . . The plaintiff must have known as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was hkely to carry him safely. " (3) " To allow this sort of action to prevail would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse against his master for damages could possibly afford. ' ' "^