This doctrine has been justified on the ground that the servant is as well able to guard against the risk as his employer and that it is calculated to secure fidelity and prudence on the servants' part; on the other hand, it has been doubted whether it has the effect claimed for it, and it has been suggested that the "dread of personal injury" has always proved sufficient to bring into exercise the vigilance of the servant. Another attempt to justify the doctrine, on the ground that the amount of the workman's wages is adjusted with reference to the character of these risks, is answered by the statement that this theory is borne out only to a very limited extent by the actual facts of everyday life. (Labatt, sec. 259, etc.)

This principle was applied to the relations of master and servant in the case of Dynen 2. Leach (26 L. J. Exch. N. S., 221) in 1857, and also in Saxton v. Hawkesworth (26 L. T. N. S., 851) in 1872, in such a manner that it was made to operate as a defense against a claim by the servant for damages for injuries resulting from "negligence actually existing" on the part of his master, on the theory that the servant had voluntarily agreed to encounter the risks from nonfulfillment of his master's legal duty as to system and appliances.

At the time of these early cases cited the voluntary agreement of the servant was implied from his continuing in the service of the employer, "with knowledge of the defects," so that if the servant remained in the service, with knowledge, he was debarred thereby from maintaining any action for recovery from the master for injuries resulting from such defects.

Doctrine of Volenti Non Fit Injuria.

This old defense of assumed risk, enumerated as a defense peculiar to the relation of master and servant, has been thought by some authorities to be only a form of the wiler and more comprehensive doctrine of "volenti non fit injuria” of the common law, which means that "one who voluntarily incurs a risk can not recover." The latter las, by other authorities, however, been stated to be different from the doctrine of assumed risk, as the doctrine of assumed risk arises out of the contract of service between master and servant, while the doctrine volenti non fit injuria is a general principle applicable whether the relation of master and servant exists or not. (Tomas . Quartermaine, L. R. 18 Q. B. Div., 685; 56 L. J. Q. B. N. S., 310. See Labatt, se:. 370, note.)

This doctrine of volenti non fit injuria was thought not to be a hardship on the servant in the same scnse as were the fellow-servant doctrine and the assumed-risk doctrine, as it was common to the whole law of negligence and would be a good defense to a stranger's action against the master for damages for injuries resulting from negligence.

CONTRIBUTORY NEGLIGENCE.

The doctrine of contributory negligence was another defense against claims for damages for injuries resulting from ne dligence and, in very many instances, defeated a workman's claim against his employer. It is sometimes stated thus: “A plaintiff can not recover damages if but for his own negligence the accident would not have happened, though there was negligence on the part of the defendant." This was also recognized by Lord Abinger in Priestly. Fowler (supra), and applied to a master and servant case, when he laid down that "the relation of master and servant can not imply an obligation on the part of the master to take more care of the servant than he may be reasonably expected to do of himself," thereby recognizing that the servant's right to recovery for an accident was conditioned on his showing that he did not contribute to his own injury. (See Labatt, sec. 313.) This defense, however, was available against

the claim of a stranger as well as against the claim of a workman upon his employer. It was based upon the idea that if the plaintiff was negligent, his neglìgence and not that of the defendant was the real or proximate cause of the injury. (Thomas v. Quartermaine, supra.)

This doctrine was never accepted as sound in the admiralty courts, where, if both parties were negligent, the loss was divided.

EFFECT OF DEATH UPON PERSONAL ACTIONS.

Another defense that operated to defeat a workman's claim was the rule of the common law that every personal action dies with the person entitled to bring it, or on the death of the person against whom it can be brought (actio personalis moritur cum persona). This rule of the common law, which relieved a: employer from responsibility for all injuries causing death, was, however, abrogated by parliamentary enactment in 1816, under the statute commonly called "Lord Campbell's Act." Until that act the representatives of a workman killed by accident had no redress whatever against his employer.

BURDEN OF PROOF ON PLAINTIFF.

A final stumbling block to recovery by an injured workman lay in the fact that at common law in an action for damages for injuries resulting from negligence the burden of proof lies upon the plaintiff. He has to show (1) negligence, namely, a duty and a breach of that duty; and (2) injury, as a consequence of that breach. In many cases, therefore, even where a workman had a legal right of recovery, he got nothing, as he was unable to prove his case.

An examination of attempted legislation and legislative enactments shows that bills were introduced in 1875 and 1876 to abolish entirely the doctrine of common employment and the defense of assumed risk. These bills were doubtless introduced because the principles so laid down were being pressed more and more severely against the workmen until the restrictions which were conceivably equitable to apply in the case of the smaller industries of former years were made to apply in the case of more recent and indefinitely extended undertakings. Thus the doctrine of common employment was applied to the slight relationship existing between a miner and the engineer of the mine and between the general manager of a railway and a trackman in the service of the same company, resulting in the master in a large undertaking escaping responsibility by delegating authority. These bills were withdrawn, however, on the undertaking that Lord Beaconsfield, who was the prime minir, should cause an inquiry to be made into the subject by a select committee of Parliament.

This committee was duly appointed, and in 1877 submitted a report.

This report recommended that where a master delegates his duty of selecting proper servants, material, and plant wholly to agents, instead of performing them himself, such persons to whom these duties are delegated should be held to be "alter ego" of the master and not to be fellow-servants of the injured

servant.

During the proceedings of the committee, before the adoption of the report, it had been proposed that the committee recommend that the defense of common employment should be abolished in the case of accident through the negligence of any employee exercising authority, however low in the scale he might be, so long as he was not employed in actual manual labor. This recommendation, however, was rejected in favor of the report above given.

About the same time a report from the royal commission on accidents on railways was brought in, to the effect that the master should be made liable for damages for injuries resulting from the negligence of those to whom the master's authority had been delegated on railways.

The following year, 1878, one of the bills to totally abolish the doctrine of common employment was reintroduced. It, however, was "talked out" and then dropped. The attorney-general, however, promised to bring up a bill later. It was then contended that there was no difference between railways and other industries.

In 1879 three bills were introduced, none of which passed. Of these, one proposed to abolish the doctrine of common employment and the other two to modify that doctrine. One of the latter was introduced by the government and was limited in its operation to "railways, mines, factories, and works." It made the employer liable for damages for injuries resulting from the negligence of servants with "managerial" authority; it failed to pass, as there was a dissolution of the government before it had left committee.

EMPLOYERS' LIABILITY ACT OF 1880.

Ir the following year, 1880, a bill was introduced by Mr. Gladstone's government, which was finally enacted into law and became known as the "employers' liability act of 1880." At the general election, following the dissolution of Lord Beaconsfield's government, the abolition of the doctrine of common employment became an election cry. Therefore, at the entry of the next government Mr. Gladstone said: "The present law is unsatisfactory and further protection to workmen is necessary," and immediately reintroduced the bill introduced by Lord Brassey in 1879. Mr. Dobson, whose name was on the back of the bill, showed, in his statement, that "the common law had ended in giving the workmen no compensation at all unless he could trace the accident to personal negligence on the part of his employer." He stated that the bill reverted to the ancient state of the law and would take a middle course, making the employer liable for injuries resulting from the negligence of those to whom he deputed his duties, or from defects in the plant due to negligence of his deputies.

Many amendments, which became interesting from their frequent reappearances in later Parliaments, were introduced. One provided for a general system of insurance, and though this amendment was negatived the government said that while they did not deem compulsory insurance practicable, they would consider proposals thereto. Another amendment, which was negatived, allowed a workman to recover, if injured by a fellow-servant, “in a separate department.” · An amendment to extend the benefits of the bill to Her Majesty's arsenals and dockyards was negatived on the ground that they now had greater benefits, although it was said that the government employees would ultimately be treated the same as others. It was claimed by the opponents of the bill that if passed it would result in the ruin of industries. Mr. Chamberlain strenuously denied this in debate.

When the bill became a law it was restricted to a limit of seven years, but it was subsequently extended, year by year, until the passage of the workmen's compensation act of 1897, and is still in force. It, however, imposed a limit upon the amount of damages (previously unlimited at common law) that could be recovered for an accident, namely, "three years' wages of the injured person, or of a person in the same grade in the same district." This limitation has operated as a hardship upon injured children, since their earnings were usually only a few shillings weekly.

The act being a compromise, was imperfectly drawn, and resulted "in a large crop of litigation."

While in introducing the bill the Government had intended to bring back the law to what it was supposed to be in England before the case of Priestly v. Fowler, and in Scotland up to the decision in the Bartonshall Coal Company v. Reed (3 McQ., H. L. Cas., 266), the result of the act was to prima facie entitle the workman to recovery for injuries resulting from the negligent performance of master's duties and powers delegated to superintendents and to other persons. It therefore only obliterated the doctrine of common employment, as far as the five causes of injury to a workman mention in section 1 of the act was concerned. That doctrine therefore remained in force as to accidents from other causes than those mentioned in section 1 of the act, but placed the workman in the same position as if he had been a stranger to his employer, so far as the five causes mentioned in that section were concerned. The five causes mentioned were as follows:

(1) Defective ways, works, machinery, and plant (if due to the negligence of the employer or of the person to whom had been delegated his duty thereabout).

(2) Negligence of a superintendent (if superintendence was his principal duty and he was not ordinarily engaged in manual labor).

(3) Negligence of persons to whom the employer had delegated his power of giving orders.

(4) Acts or omissions in cbedience to rules or by-laws or in obedience to instructions authorized by employers to give them.

(5) In the case of railway companies, the negligent management of trains, points, and signals.

The act was also at first thought to have taken away the defense of violenti non fit injuria (see Weblin v. Ballard, 17 Q. B. D., 125); however, the later leading case of Thomas v. Quartermaine, supra, showed that this defense still survived, although the subsequent case of Smith v. Baker (60 L. J. Q. B., 683), in the House of Lords, minimizes its application.

CONTRACTING OUT.

After the passage of the employers' liability act of 1880 it was found that employers were, by special contracts with their men, freeing themselves from the liability imposed by that act, and the case of Griffiths v. Earl Dudley (9 Q. B. D., 357) decided that such contracts were "not contrary to public policy." Therefore, in 1881, a bill was introduced to prevent an employer from contracting himself out of the act. The bill failed, and in the following years, 1882 and 1883, similar bills again failed. It was stated that "it was inexpedient to interfere with freedom of contract and with private schemes that made provision for every accident, whether under the employers' liability act or not." In 1886 a similar bill contained a further clause that the definition of a person intrusted with superintendence was not thereafter to be limited to "one who is not ordinarily engaged in manual labor, and whose principal duty is that of superintendence." The bill was dropped on the appointment of a select committee to inquire into the workings of the act of 1880.

The committee's recommendations were as follows:

(1) The repeal of the "limiting definition" of a superintendent.

(2) That no contracting out should be allowed, unless for adequate consideration (namely, a contribution to insurance approved by outside authority and guaranteed against deficiency by the employer).

In 1887-88 a bill was introduced by a labor member practically abrogating the doctrine of common employment, and while not affecting existing "contracts out," providing that in future there should be none, but that the "court in any

suit,' should "reduce the damage" if it was found the plaintiff had received benents from insurance funds. The bill was dropped on the Government itself introducing a bill on the lines of the select committee's recommendations. That bill was emasculated in committee, and thereafter dropped on opposition by labor members, who insisted on abolishing the defense of common employment and contracting out.

In 1890 another bill was introduced by a labor member abolishing common employment as a defense, and repealing the act of 1880. But the Government again re-introduced its bill, allowing contracting out only when "a written request was made by a workman," and even then allowing the court, in any subsequent suit, to pass on the question of the adequacy of consideration received by him for so doing, and to see that it was a substantial one, other than "continuance in service." The following year a labor member introduced a bill, which did not pass, entirely prohibiting contracting out, and actually invalidating all such existing

contracts.

It will therefore be seen that the Government was on the horns of a dilemma:

On the one hand, it was shown that from the workmen's standpoint there seemed to be no equitable reason for the distinction of the existing law between accidents, the result of negligence, traced to a superior servant, and accidents traced to an inferior servant, the neglect of one being as liable to cause an accident as the neglect of the other, or for the law treating workmen less liberally than strangers, even where the accident was caused by an inferior servant. Again, if a distinction were maintained making "mere authority" on the part of the offending servant the test, it would still be unjust and would practically amount to no distinction at all. The elimination therefore of the distinction by abolition of the doctrine of common employment was put forward as one remedy.

On the other hand, the only other remedy would have been to change the general law by taking away from the master his liability to anyone, to a stranger as well as to a servant, for his servant's acts. This would have caused altogether too great an upheaval of general legal relations, and probably could not have been enacted, owing to opposition not only by the workmen interest, but also by the public interest.

The difficulties that confronted the Government, if they permitted contracting cut, were:

(1) Examination of adequacy of contracting-out schemes beforehand would necessitate a Government department.

(2) To allow the adequacy of contracting-out schemes to be passed on by a court in suits would take from the employers "the prevention of suit feature," their chief incentive to contract out.

The Government found, on inquiring into how far contracting out had been carried, since the act of 1880, that as regards mines, a very large number did contract out, and desired to; in railways contracting out was general; in the building trades, the iron trades, and other trades there was generally no contracting out.

Among the reasons advanced for prohibiting contracting out were:

(1) That the act tends to safety through exposing negligent employers in court. But the Government found the number of cases in court were insignificant, and from such statistics as were available concluded that the claim was not borne out.

(2) That if allowed to contract out, workmen will be coerced to contract out for no consideration. The Government found practically no such cases, and also found that employers' contributions to benefit societies under contracting-out schemes exceeded vastly the amount payable under the act.