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VIEWS OF A MAJORITY OF THE COMMITTEE IN REFERENCE TO THE COMPENSATION ACT HEREINAFTER PRESENTED BY CERTAIN MEMBERS OF THE COMMITTEE.
Under existing provisions of law, an employee who is injured cannot recover where the injury was caused by the negligence of a fellow servant not specified in the statute. He cannot recover where the injury was caused not by the negligence of any persons, but was occasioned by risks naturally and necessarily incident to the business itself. He cannot recover if the injury was caused by his own negligence, or where the injury would not have been received but for his own negligent act. Argument is made that the injured employee should receive some compensation for injuries arising from those causes which now preclude his recovery under the law. Some of the bills referred to the committee seek to so provide. The employer must now pay for any and all injuries received in the course of the employment where the injury could be prevented by proper care on his own part or by proper care on the part of any person whom he allows to act as superintendent, or whom he allows to have charge of a signal, switch, locomotive, engine or train as set forth in the statute.
Much can be said in favor of holding and providing by law that the employer shall be responsible for injuries occasioned by the neglect of his employees to the same extent when it causes injury to an employee who is himself free from blame as he would be if the party injured were not an employee. Much also may be said against that theory when it is sought to apply it to the employment in ordinary business concerns and transactions. The employer is liable under the law for injury caused by the negligent act of the fellow servant if by the use of proper care he would have
discovered that the employee whose negligent act caused the injury was a negligent or incompetent person. The law simply now permits the employer to say to his employees when they are entering into the employment: "Care and attention on the part of all of us is of importance not only to you and each of you, it is important to the success of this business venture in which you and I are concerned. There are risks naturally incident to the business, though we are all duly careful. The risk to each of us is far greater if any of us are negligent. Therefore, this shall be the understanding between us: for any injury that is in any way attributable to any negligence on my part in the proper selection and maintenance of the plant, or the ways, works and machinery, or in the selection of proper and careful employees who are to be your fellow laborers, or to any negligence of myself or any person allowed by me to exercise superintendence or to have charge of any signal or switch or locomotive engine or train, or any other negligent act of mine, I will be responsible to you in damages. Further than this, I will be responsible to you for any injury due to the joint negligence of myself and any of you gentlemen, except that if the one of you who is injured is himself negligent to such an extent that but for his own negligence he would not be injured, I will not compensate him. But for the risks. of the business which due care on my part or the part of my superintendent cannot prevent, and for injuries which you inflict upon each other, I will not be responsible. You can look out for that better than I can, and you must, or suffer the consequences.'
The idea of giving to persons who, in the course of their employment, are producing the necessities of mankind, compensation and aid to alleviate their hardships, to the end that we may all share with them their burdens is a beneficent one, and appeals to all right-minded persons; and any scheme under which the public at large shall share the burdens of those in need will be cheerfully adopted by our community, as such propositions have always been cheerfully adopted by our Commonwealth. They have been so adopted to such an extent that he who observes must admire when he sees how
much is being done in the Commonwealth by those who have for those who have not a liberal supply of the world's goods, or who for any cause are in need of assistance. However, when such assistance is being by law provided for, we ought to be reasonably sure that the principle which has always guided us in it, viz., that all shall share alike in the doing according to their means and ability to do, is not violated. It is this munificent idea of sharing each other's burdens which suggests the enactment that the employer shall compensate the employee in some part for injuries received in the employment for which injuries the employer is in no way to blame. And no one would suggest such a law if the compensation and relief thus afforded were to come out of the employer, unless he believed that through increased price of his commodities or otherwise the burden was to be ultimately borne by the whole people. If it is not to be so borne, there is no more justice in making the employer pay it than there would be in making him compensate his workmen for loss through sickness or any other affliction. He is no more responsible for the one than the other.
It is argued by some that any burden which is by law put upon the employer by increasing his liability for injuries received by his employees will be shifted to the general public, and that the unfortunates who are injured ought to be cared for; and that to increase the employer's liability is simply one way of providing that the public at large shall pay for that care of the injured employee. This seems more or less sound if we treat the whole body of employers as one united interest, from which the public must purchase the product of those employers. But when it is realized that that is not so, but that the employers are many instead of one, and that Massachusetts does but a small part of the producing for the country, and that competition for trade is indeed sharp, it is of much concern to the Commonwealth how much more it will burden its industries. Especially are those considerations of importance now, when there seems reason to fear that production is for a time to be limited, and we may be much concerned for a time as to how much of that which is to be done, which it is feared is for a while to be less than
sufficient to keep the whole country busy, can be done by our industries. The times, it is feared, are inopportune for the placing of any more burdens on the business to be done in Massachusetts. Some go so far in their argument for such legislation that they would give an employee compensation for injuries received by him which are caused exclusively by his own negligence. It seems to us that care upon the part of employer and employee alike is of so much consequence to each that it is unwise to provide that either the one or the other should escape from the consequences of his own neglect to perform carefully his duties looking to the protection of all.
To legislate that any person must give compensation to him who, through his own negligence, causes a fire in a factory producing much loss of property to his employer, and loss of life and untold misery to an hundred others, where the employer was entitled to care on the part of such employee, is somewhat repugnant to the idea of right and wrong. Any compensation act which is to be compulsory never ought to provide compensation for injuries caused by the negligence of the injured. The idea of compensating a person against whom every one injured ought to have a right of action and whose negligence has caused all the damage does not appeal to us.
If the act were made only applicable to public-service corporations, which have little or no competition, and whose business and traffic could bear the burden, thus securing the shifting of the burden to the public at large, and it was provided that an employee would not be entitled to compensation under the act for injuries caused by his own negligence, it would be much more reasonable.
No subject presented to the committee appealed to every member for their most careful consideration more than that which seeks to compensate employees for injuries received in the course of their employment. We also believe that to extend the operations of a compensation act which provides that the employer shall give compensation for injuries which by no possibility, other than going out of business, he can prevent, and which are in no sense attributable to any fault of his, to classes of business in which, by reason of many em
ployees being in a small compass or in one building, a single negligent act may result in such injury that the entire property of the employer may by the act be confiscated, is too likely to do absolute wrong. When such a calamity befalls a lot of workmen, no one objects to providing that the public shall rush to the rescue. But the poor employer, who has been compelled to pay out his entire savings of a lifetime when he has been in no sense to blame, will find but cold comfort in the theory that because of the burden imposed by the act the product will hereafter bring a better price. We have suggested no specific enforced compensation bill, for the reason that anything we would suggest is within the scope of that proposed by some of the committee. Such an act is rather experimental, and if it is to be tried it should at first be mild in its provisions, and confined to classes of business wherein it will not put Massachusetts at a disadvantage industrially. As other States follow, other steps may, with safety to our industrial prestige, be taken. Under the English compensation act no part of the country is put at a disadvantage as against any other part, for it is a national law. Any burden placed upon Massachusetts industries which is not placed upon the business industries of other States places us at disadvantage industrially with such other States. If it is by law provided that less burdens are to be borne by manufacturing industries in other parts of the country than in Massachusetts, it will have a tendency to induce such industries to locate elsewhere. By the general adoption of industrial insurance the burden is distributable among those who can get and who do carry such insurance. But the increased insurance rates in England, which are attributable to the existence of the compensation act there, show that, as against Massachusetts with such a law, States which did not have the law would have an advantage.
Evidence submitted to the committee showed that such a compensation act as is proposed produced great disadvantage to a certain class of workmen. Experience shows that persons of middle age and advanced years, of impaired eyesight, of any physical disability, are more liable to accident, through their own acts, than are younger and sounder men. This has