The Salt Lake herald-Republican. [volume] (Salt Lake City, Utah) 1909-1918, 1910-11-01
CANDIDATES REPLY
TO COL. ROOSEVELT
(Continued from Page One1

CONTINUED from Page One.D
took the view that il was competent
for the w0rkmen, when driven to ac-
cept anv employment, 10 bind them
selves not 10 be compensated, il they
lost life and limb in that occupation.
have denied that 1 ever took such a
view. / will add that l have long been
in favor of the WOrkingmens cOmpen-
constitutional difficulties in applying
IL in this country, and was nominated
20 the office 10 which you referred by
a party which called for such legisla-
ton in its platform
Again Asks RetractiOn.
Il now repeat my request that you
retract the statement OF which / com
plain. ! ask IL as matter OF fairness
10 one 10 whom his reputation as a
lawyer is of value as well as in the
interest Of truth.
1t would seem TO me that in your
reference to the HOXie case, in your
second undated letter, you not only go
wide OF the question between US, but
rules which govern the decision of
legal actions Let me state a few Of
hese, as TO which there Is no differ
enee OF opinion emong any VINO nave
made the law a study.
"A Judge, in deciding a case. has to
pronounce on past transaction. The
only question coming before him Is
what were the rights OF the parties
must depend on the law as il then eN-
listed.
Most Of our law is what is termed
the customary or common law IN
each generation the people make II
and add to il by common consent, as
they 90 along; and so far at least as
the courts recognize and approve IL Il
is as authoritative and binding as II
enacted by the legislature. There has
thus grown a general common law
resting uOOn considerations Of right and
justice that have generally been &C
cepted by the people OF the United
States as rules which necessarily gov
erned the decision Of the HOXie case.
Issue ia HOxie Case.
THE main question in the HOXie ca Sc
was whether a federal statute had al
tered the common law, as administered
in the state courts or connecticut. Ihal
the fellow servant rule was part OF the
common law in Connecticut was not
questioned by any Of the bile counsel
who participated in the argument The
supreme court OF errors had no power
10 repudiate this fellow servant rule
as appliCa Bile TO the case before them.
It had become generally accepted as
right and just in the middle OF the last
century by the American people. II
had been recognized and applied by the
supreme court of errors Of Connecticut
Judge Baldwin here cites several
opinions bearing on the case and con-
tinues:
shortly after / came upon the bench
a case arose in which this same fellow
servant rule was relied upon. We ap-
piled il as we were bound TO do. but
with the observation that IL was too
firmly established as law by multi
tude of decisions TO be now reversed
or seriously modified by any exercise
of the power vested in courts
Note Appended TO DssisiOA.
IN order TO emphasize this intima-
ton that the rule was followed because
il was settled law. note was appended
to our opinion, signed by the initials Of
the justice who wrote II, containing
these statements.
The rule of co-employe is one de-
Quoted by a process of analogy from
decisions rendered under state OF so
ciety different from that of today; and
the specialization of such analogies
into binding rule is of comparatively
modern origin. IL first appeared in
England in Priestly VS.. Fowler and in
1850 was applied 10 the employees or
railroad companies in Hutchinson vs.
York y. & B. Railway company. In 1871
it WAS formulated in South Carolina
Mullan, 235: and in 1872 in Massachu-
sets. in the leading case OF FarWell VS..
Boston and ". X. Corp. 1 Met, AZ.
The very able opinion Of Chief JUS
tice Shaw in the last case has largely
dominated the law on this subject dur
ing the last fifty years and contains the
most plausible statement that can be
given of the grounds supporting the
entering the service of a master. TO
assume the whole risk OF an injury that
may be done him by the master thrOugh
the misconduct of fellow servant. The
vigorous language OF this statement,
however appropriate II may have been
at that time, has touch Of grim irony
when read in the light OF existing con-
ditiOns in the employment OF labor. In
I'm ala nd in HksN the FVllE changed
by the employers liability act and is
now practically abolished as 10 large
classes of WOrkmen by the workmen' 5
compensation act. passed during the
present 0S973 year This rule has been
dealt with by legislation in several OF
our sister states. II was flrst formally
recognized in this state In Burke vs..
Norwich and ". r. Co, "a Conn. + 4,
47S; with a strong protest against the
sufficiency OF the grounds for a prin-
ciple demonstrated too firmly in other
jurisdictions 10 be differently treated
here. In Darrigan vs.. y. /. q y. r. r.
Co. 80 Conn. 2S5. the application OF the
rule was somewhat modified and posi-
bly, cases may arise where the legiti-
mate exercise Of the duty OF the court
in applying established PRINCIPLES 10
novel conditions, may involve some lin
itatiOn or its apparent reach. But the
evil is too deep-seated TO be remedied
by judicial actiOnsi II needs radical
treatment through wise legislation
mo change having been made since
then by the legislature OF Connecticut,
the rule was necessarily applied 10 the
HOxsie case. subsequently and on ac-
count of that decision. the federal law
was altered so as to make it, in terms.
applicable TO actions in the state courts
Hoping that this letter may remove
any misunderstanding OF my request
and that you will conclude that under
these circumstances il is not an unrea-
sOnable one, I am,
yours truly,
SIMEON BALDWIN"
nil[nI0lo MIII MrrT