Evening public ledger. [volume] (Philadelphia [Pa.]) 1914-1942, 1915-03-25
SCOTCHING OF AN
INFAMOUS TRIO
How Should Pennsylvania Elective
Compensation Act Deal With the
Old Defenses of Common Law
Liability?
By RAYMOND G. FULLER


! An INFAMOUS trio are those three COM
! Amon-law defenses available in suits in
volving employers liability for personal in
! jury to employees Their names are ana
thena: "contributory negligence" "assump-
! tion OF risk" and fellow servant" AS was
! shown in previous article in these columns
! they contradict the ordinary conceptions of
! Justice They are archaic, having been laid
down in the days of the small shop few en-
| ployes and simple machinery. Under the
| common law of employers. liability no re-
| covery at law is possible in s319 per cent.
OF the instances of accidental injury or death
in industry. The proportion of actual recov-
cries Is of course, still smaller The logic
of these three rules is one-sded.
In the annotated edition Of the worlSmen's
compensation act proposed by the State Ad-
ministration the commentator remarks, in
reference to the defense of contributory neg
ligence. that the courts of Pennsylvania
have in their recent decisions shown a dis
tinct tendency toward the recognition of the
impossibilitY of expecting a constant watch
fulness from persons absorbed in the per-
tormanCe of Industrial labor So we have in
our own state a judicial acknowledgment of
the menace lurking in too-long established
rule of common law Despite the modern ten
dency, however, the Pennsylvania courts
have held that a brakeman is guilty of con-
tributory negligence in coupling cars not
having safety coupling device conforming
to the Federal safety appliances act, If he
raises his head little too high, death re-
suting from the crushing in of the top Of his
head an accident that would not have taken
place had the requirements of the Federal
act been followed.
Too Fast to the Scrap Heap
To the scrap heap with the Infamous trio
OF common-law defenses! Wipe them COM
pletey out of existence! For % years these
cries have been heard at many Legislative
sessions in many American States. Mending
and tinkering have failed to produce employ
ers' liability statutes adequate to meet the
demands of present ideals of social justice.
Hardly five years ago came the real begin
ming of workmen's compensation laws in this
country.
In Article II, Section 2Ol. OF the proposed
Pennsylvania act it is provided that in any
action at law against an employer to recover
damages for injury to an employe, such in
jury arising lin the course of his employ
ment," the defenses of fellow servant and as
sumption of risk are abolished. The defense
of contributory negligence is removed with
this exception: Unless it be established
that the injury was caused by such en-
ployes intoXcation or by his reckless indf-
ference to danger" The modification is
merely declaratory of the law as already in
terpreted by the courts of Pennsylvania.
Article II is practically an up to date liza
bility law Article III sets forth the com
pensaton plan. Acceptance of the compen-
sation plan on the part of employers and
employees is presumed unless they take def
mite steps to reject. If an employer accepts
and one of his employees rejects in the pre-
scrbed manner the empoye may sue at law
for damages in case of injury, In such
situation the common-law defenses are not |
restored to the employer. This is wrong.
Give Employer What Is Offered
Ideal results in social legislation come |
slowly at best. A variety of difficulties beset |
its progress compulsory compensation act |
is more desirable than an elective act but in
Pennsylvania there is a constitutional obsta-
Gle which prevents our having a compulsory
act at once. We are dealing at present,
therefore, with an elective plan of compen-
sation. The absolute and immediate aboi-
tion of the old common law rules, anti
quated as they are and certain they are
to disappear within few years, turns their
against the employer in such
cases as that above indicated
1t is true that the cmploye would still have
to prove that the employer was negligent,
and that he himself was not intoxicated or
indifferent to danger. An inn
partial investigation of industrial accidents,
however, has shown results which prove that
these considerations would apply to only
about one-fourth of the total number of ac-
,idents. 1t is manifestly unfair to force the
employer into acceptance of workmen's COM
which is offered him as a substi-
ute for the former condition of expensive
md troublesome litigation, and then leave
he employe a road, not an easy one, indeed
lut nevertheless a road, leading back to the
I'D state OF things where now the employers
have been taken from him. Ii is
breach of good faith toward the employer.
t is not fair play. 1t is not sportsmanslike,
When we have compulsory compensation we
ire playing one game. but when we have
Elective compensation we have TO take care
hat neither side secures Overmuch advan-
age by selection and elimination among the
ues of both the old and the new game.
In its draft of an outline of an elective
compensation act, the National
livic Federation, which had worked with
he American Federation of Labor in an ex-
austive study of compensation in this eoun-
ry, recommended that the effect of rejection
" an employe, as TO any employer who had
ocepted the act. should be to enable the
to interpose i'm a suit for damages
he previously available defenses
Experience of Massachusetts,