■ IOWA ECONOMIC HISTORY SERIES EDITED BY BENJAMIN F. SHAMBAUGH WORK ACCIDENT INDEMNITY IN IOWA IOWA ECONOMIC HISTORY SERIES EDITED BY BENJAMIN F. SHAMBAU6H HISTORY OF WORK ACCIDENT INDEMNITY IN IOWA \ BY E. H. DOWNEY PUBLISHED AT IOWA CITY IOWA IN 1912 BY THE STATE HISTORICAL SOCIETY OF IOWA 7 EDITOR'S INTRODUCTION This volume on the History of Work Accident Indem- nity in Iowa is in a sense supplementary to the author's more general work on the History of Labor Legislation in Iowa, which appeared some two years ago as the first contribution to the Iowa Economic History Series. Dealing with the vital subject of employers' liability and workmen's compensation, both historically and compar- atively, the present volume will be as valuable to students of comparative legislation as it will be interesting to students of Iowa history. Indeed, this book may well serve as a guide to constructive legislation. Benj. F. Shambatjgh Offick of the Superintendent and Editor The State Historical Society of Iowa Iowa City 1912 H vu 280813 AUTHOR'S PREFACE This volume is an outgrowth of the chapter on ' ' The Law of Employers' Liability" in the writer's History of Labor Legislation in Iowa — a book published by The State His- torical Society of Iowa in 1910. An expansion of that chap- ter which would bring the narrative down to date and sup- plement the analysis of Iowa laws with a comparative survey of accident indemnity in other States and countries was undertaken early in the spring of 1911 at the request of The State Historical Society of Iowa. Originally designed as a paper for the Iowa Applied History Series, it soon appeared that so short a sketch would not in itself be adequate in deal- ing with a subject at once so large, so complicated and, in the United States, so comparatively new. The study has, accordingly, grown to the proportions of a volume, and the paper which was at first planned has been issued as an abridgment in the Iowa Applied History Series. The analysis of the common law as herein presented is somewhat more condensed than in the earlier chapter al- ready mentioned. The cases have, however, been brought down to September, 1912; and the doctrines of "the last clear chance", of "acts of God", and of the servant's as- sumption of risks due to the master's violation of safety statutes have been more fully treated in order to incorporate later decisions. The other chapters of the present study are entirely new. The plan of the work and the inter-rela- tion of the several parts will, it is hoped, sufficiently appear x AUTHOR'S PREFACE from the table of contents. The very full quotations set out in the Notes and References are intended not only to justify but also to supplement the statements in the text. The printed and manuscript sources used are indicated in the Notes and References which follow the text; but the personal assistance, without which this study could not have been successfully prosecuted, calls for further acknowledg- ment. The writer's thanks are due above all to Professor Benj. F. Shambaugh, Superintendent of The State Histori- cal Society of Iowa. It was upon his suggestion that the study was undertaken and to his counsel and criticism much, of whatever merit it may possess must be attributed. Val- uable suggestions, as well as original data, were received from the Industrial Commission of Wisconsin, and especial- ly from its chairman, Mr. C. H. Crownhart. Chairman John T. Clarkson and Secretary Welker Given of the Employers' Liability Commission of Iowa very kindly supplied the writer with the unpublished results of the Commission's labors. The writer is also under obligations to Messrs. Wallace D. Waple, William C. Archer, and E. E. Watson of the Ohio Liability Board of Awards. The employers' lia- bility commissions and the industrial accident boards of many States generously responded to requests for informa- tion. Many courtesies were extended by the State Libraries of Ohio and Wisconsin, and more especially by Mr. A. J. Small of the Iowa State Law Library, who has made a very complete collection of workmen's compensation and em- ployers' liability materials and who spared no pains to sup- ply the writer with books and pamphlets not elsewhere accessible. AUTHOR'S PREFACE xi Invaluable service was rendered by the writer's wife in the preparation and verification of notes and particularly in the compilation of the illustrative tables. The entire vol- ume was read in the galley proofs by Professor John R. Commons of the University of Wisconsin. Of the staff of The State Historical Society of Iowa, Dr. Dan E. Clark read the proofs and prepared the index, Miss Eliza Johnson verified many of the notes and references, and Miss Florence Franzen compiled the table of cases. E. H. Downey The State Historical Society of Iowa Iowa City 1912 CONTENTS I. The Need of Indemnity for Work Acci DENTS II. The Genesis of Employers' Liability III. An Analysis of Employers' Liability IV. The Practical Working of Employers Liability V. Work Accident Indemnity Abroad . VI. Indemnity Legislation in the United States VII. The Iowa Employers' Liability Commis SION VIII. Some Standards of Indemnity Legisla- tion Notes and References Table of Cases Cited Index . 1 11 17 71 92 107 156 167 205 309 325 THE NEED OF INDEMNITY FOR WORK ACCIDENTS The employers' liability law of Iowa, considered as a mode of indemnifying work accidents, has apparently been discredited by experience. Both the Iowa Federation of Labor and the State Manufacturers' Association have de- manded the abrogation of the existing law in favor of a system based on fundamentally different principles. 1 The Employer's Liability Commission, appointed by the Gov- ernor under the authority of the Thirty-fourth General Assembly, has recommended a compensation act on lines novel to the jurisprudence of this State. Twenty-six for- eign governments have abandoned the principles of liability which Iowa still retains and sixteen of the United States have recently enacted laws looking to the same end. 2 It is not unlikely that similar legislation will in the very near future be adopted by the General Assembly of Iowa. The present is, therefore, an opportune moment for an historical and comparative survey which shall attempt to show how the present situation in respect to indemnity for work accidents arose, what are the grounds of dissatisfac- tion therewith, and what effects may be expected in the light of experience here and elsewhere from proposed modifica- tions thereof. The point of departure for such a study necessarily is the social need which accident indemnity is designed to serve and in respect to which alone indemnity systems can be compared or criticised. Work accidents in the United States, according to the best obtainable estimates, annually cause more than 35,000 2 WORK ACCIDENT INDEMNITY IN IOWA deaths and about 2,000,000 injuries, whereof probably 500,- 000 produce disability lasting more than one week. 3 To em- ploy a telling comparison, frequently made, the industrial casualties of a single year in this country alone equal the average annual casualties of the American Civil War, plus all those of the Philippine War, increased by all those of the Russo-Japanese War.* As many men are killed each fortnight in the ordinary course of work as went down with the Titanic. This single spectacular catastrophe appalled the civilized world and compelled governmental action in two hemispheres; while the ceaseless, day-by-day destruc- tion of the industrial juggernaut excites so little attention that few States take the trouble to record the deaths and injuries. The point especially to be emphasized in this connection is that the appalling waste of life revealed by the above-cited estimates is, in great part, unavoidable. Doubtless the number of work accidents may be considerably reduced in the United States, as it has been reduced in Europe, by pre- ventive measures. 5 Yet when all possible precautions have been taken, modern industry will continue to exact a fearful toll of life and limb. Even in the German Empire, which leads the world in accident prevention, there were reported in the last year (1911) for which records are at present available 662,321 work injuries, whereof 9687 terminated fatally and 142,965 caused disability for more than thirteen weeks. 6 Scientific accident prevention in Germany has pro- duced a lower accident rate and a much lower rate of fatal accidents than obtains in the United States, 7 but it has left the total casualty list of industry deplorably large. Indeed, the number of work injuries in Germany, as elsewhere, is increasing, both absolutely and relatively to the numbers employed, as industrial development goes forward. 8 The ugly fact is that work accidents, in the main, are due to causes inherent in mechanical industry on the one hand, NEED OF INDEMNITY FOR WORK ACCIDENTS 3 and in the hereditary traits of human nature on the other hand. In the first place, a high degree of hazard inheres in pres- ent day methods of production. Modern technology makes use of the most subtle and resistless forces of nature — forces whose powers of destruction when they escape con- trol are fully commensurate with their beneficent potency when kept in command. Moreover, these forces operate not the simple hand tools of other days, but a maze of compli- cated machinery which the individual workman can neither comprehend nor control but to the movements of which his own motions must closely conform in rate, range, and direc- tion. 9 Nor is the worker's danger confined to the task in which he is himself engaged, nor to the appliances within his vision. A multitude of separate operations are combined into one comprehensive mechanical process, the successful consummation of which requires the cooperation of thous- ands of operatives and of countless pieces of apparatus in such close interdependence that a hidden defect of even a minor part, or a momentary lapse of memory or of atten- tion by a single individual, may imperil the lives of hun- dreds. 10 A tower man misinterprets an order, or a brittle rail gives way, and a train loaded with human freight dashes to destruction. A miner tamps his "shot" with slack, and a dust explosion wipes out a score of lives. A steel beam yields to a pressure that it was calculated to bear, and a rising skyscraper collapses in consequence, burying a small army of workmen in the ruins. In the second place, human nature, inherited from genera- tions that knew not the machine, is imperfectly fitted for the strain put upon it by mechanical industry. Safely to per- form their work the operatives of a modern mill, mine, or railway, should think consistently in terms of those me- chanical laws to which alone present day industrial pro- cesses are amenable. 11 They should respond automatically 4 WORK ACCIDENT INDEMNITY IN IOWA to the most varied mechanical exigencies, 12 and should be as insensible to fatigue and as unvarying in behavior as the machines they operate. 13 Manifestly these are qualities which normal human be- ings do not possess in anything like the requisite degree. The common man is neither an automaton nor an animated slide-rule. His movements fall into a natural rhythm, in- deed, but the beat is both less rapid and more irregular than the rhythm of most machines — with the consequence that, he fails to remove his hand before the die descends or al- lows himself to be struck by the recoiling lever. 14 It re- quires an appreciable time for the red light or the warning gong to penetrate his consciousness and his response is apt to be tardy or in the wrong direction. Fatigue, also, over- comes him, slowing his movements, lengthening his reaction time, and diminishing his muscular accuracy — thereby' trebly enhancing his liability to accident. 15 The machine technology, in fact, covers so small a frac- tion of the life history of mankind that its discipline has not yet produced a mechanically standardized race, even in those communities and classes that are industrially most ad- vanced. 16 And so there is a great number of work injuries due to the "negligence of the injured workman" — due, that is to say, to the shortcomings of human nature as meas- ured by the standards of the mechanician. This mal-adjust- ment is aggravated by the never ceasing extension of ma- chine methods to new fields of industry and the continued influx of children, women, and untrained peasants into me- chanical employments. 17 Accordingly, the proportion of accidents attributable to want of knowledge, skill, strength, or care on the part of operatives appears everywhere to be increasing. 18 There is, then, no prospect that the "carnage of peace" will be terminated, as the carnage of war may be, within the predictable future. An industrial community, such as Iowa, NEED OF INDEMNITY FOR WORK ACCIDENTS 5 must face the patent fact that work injuries on a tremen- dous scale are a permanent feature of modern life. Every mechanical employment has a predictable hazard : of a thousand men who climb to dizzy heights in erecting steel structures a certain number will fall to death, and of a thous- and girls who feed metal strips into stamping machines a certain number will have their fingers crushed. So regular- ly do such injuries occur that every machine-made com- modity may be said to have a definite cost in human blood and tears — a life for so many tons of coal, a lacerated hand for so many laundered shirts. This " blood tax" of industry, as it may well be termed, can in no wise be shared or shifted. There can be no com- pensation "for the torment of the scorched body, for the de- lirium of terror in the fall through endless hollow squares of steel beams down to the death-delaying construction planks of the rising skj^scraper, for the thirst in the night in the hospital, for the sinking qualms of the march to the op- erating-table, for the perpetual ghostly consciousness of the missing limb — for these things and for the whole hideous host of things like them, following upon the half mil- lion accidents that happen to American workmen every year. . . . ' ' Nor can there be compensation for what follows the tell- ing of the tale by some fellow-workman at the door of the stricken comrade's home. There can be no compensation for the stretching-out of a woman's hand, in search of sup- port, against the door's swinging edge. . . . Payment is beyond human power for the emptiness of a father's chair while the girl that was a baby is growing up to be a young woman among young men. ' ' 19 It is otherwise, however, with the expense of burying the dead and caring for the wounded and with the wages lost through the death or disability of breadwinners. These pe- cuniary costs of work accidents may be distributed in any 6 WORK ACCIDENT INDEMNITY IN IOWA manner that the community may deem just and expedient. The burden may be imposed wholly upon the individual suf- ferers and their dependents ; it may be distributed over in- dustrial workers as a class by compulsory accident insur- ance, or over society at large through a system of pensions ; or it may be taxed to the consumers of the products that occasioned the injuries. The consequences of imposing this pecuniary burden upon the injured workmen and their families are such as no civi- lized community can afford to tolerate. Work accidents, in the nature of the case, are sustained principally by wage- earners, who are substantially propertyless as a matter of course, 20 who have no savings to speak of, 21 and whose in- comes, for the most part, are too small to leave any adequate margin for accident insurance. 22 The almost total absence of property or savings among wage-workers is abundantly demonstrated by tax returns and the records of savings banks and life insurance companies. 23 But wage statistics are yet more conclusive to the same effect. A recent inves- tigator of this subject, Professor Scott Nearing of the Uni- versity of Pennsylvania, concludes that one-half of the adult male wage-workers of the United States receive less than $500 a year ; that three-fourths of them get less than $600 ; and that only ten per cent are in receipt of more than $800 annually. As to women wage-workers, three-fifths are re- ceiving less than $325 yearly; nine-tenths are paid less than $500; and only one in twenty is paid more than $600. 24 These estimates are well substantiated by the findings of other investigators. More than half of the workmen in- jured in the Pittsburgh District in 1907 were earning less than $15 weekly (making no allowance for unemployment) at the time of injury. 25 Of the men sustaining industrial injuries in Minnesota in 1909-1910, forty-seven per cent were receiving less than $12.50 and seventy-eight per cent were receiving less than $15 weekly. 26 NEED OF INDEMNITY FOR WORK ACCIDENTS 7 It needs no argument to show that families in receipt of incomes such as these can have neither property, savings accounts, nor insurance. And this conclusion, finally, is corroborated by investigations into the insurance actually carried by wage-workers. Of 132 married men killed in Pittsburgh, only six had insurance in substantial amount and only 25 out of 214 left savings, insurance, and trade union and fraternal benefits to the amount of $500 each. 27 In New York State 175 workingmen who suffered fatal or permanently disabling accidents had insurance in the aggre- gate sum of $18,635. 28 Nor are these extreme instances se- lected to make out a case. The average value of 13,448,124 "industrial insurance" policies in force in 1902 was only $135. 2i * The unvarnished fact is that the wage-earner neither does, nor can, provide for the contingencies of sick- ness, accident, and unemployment. 30 To the wage-worker, then, even Avhen no one but himself is dependent on his earnings, the loss of a few weeks' wages means serious privation, and permanent incapacity means beggary. But quite half the victims of work accidents are married men, and a majority of even the unmarried con- tribute to the support of others. For example, of 467 fatal accidents in Allegheny County, Pennsylvania, 258 were sus- tained by married men and 129 others by regular contribu- tors to the support of relatives ; whereas only 80 of the 467 dead were wholly without dependents. 31 Of 285 fatal acci- dents investigated in Cuyahoga County, Ohio, 176 were suf- fered by heads of families. 32 Of 1476 men killed on the job in New York State, 679 were the sole supporters of 1775 dependents, 167 were the principal supporters of 520 de- pendents, and 252 contributed to the support of 668 rela- tives — leaving but 378, or thirty-five per cent of the whole number of deceased entirely without economic responsibili- ties. 33 In Wisconsin forty-three per cent of the injured 8 WORK ACCIDENT INDEMNITY IN IOWA workmen whose conjugal condition could be learned by the State Bureau of Labor were married. 34 A serious work accident, therefore, commonly deprives a necessitous family of its sole, or chief, or at least a very important, source of income. The inevitable result, in the absence of systematic accident indemnity, is poverty, and the long train of social evils that spring from poverty. It is not only that the victims of unindemnified work accidents suffer prolonged incapacity and often needless death from want of means to obtain proper care, not only that families are compelled to reduce a standard of living already low and that women and children are forced into employments unsuited to their age and sex, with resultant physical and moral deterioration ; but it is that the ever-present fear of undeserved want goes far to impair that spirit of hopeful- ness and enterprise upon which industrial efficiency so large- ly depends. Lest anyone suppose that similar conditions do not obtain in agricultural Iowa, let it be recalled that the railways and mines of this State took the lives of 114 workmen and in- flicted 14,863 injuries upon employees within the decade 1901-1910. 35 How many factory and building accidents oc- curred during the same period can not be told from extant records. If the number reported since 1906 may be taken as a rough guide such accidents must have caused, during the ten years, more than 100 deaths and at least 12,000 in- juries. 38 Taking the returns at their face value, not far from 125 deaths and 3000 injuries annually are sustained in the capitalistic industries of Iowa. But the returns can not be accepted at their face value. The accident records of the Iowa Bureau of Labor Statis- tics, especially, are notoriously incomplete. 37 The slightest comparison with the records of other States will demon- strate their unreliability. During the first eight months of the current year there were reported to the Wash- NEED OF INDEMNITY FOR WORK ACCIDENTS 9 ington Industrial Insurance Commission 6985 accidents, whereof 5844 were made the bases of claims for compensa- tion. 38 At this rate more than 10,000 accidents and nearly 9000 disabling injuries occur in a single year among the 125,000 persons in hazardous employments in the State of Washington. Indeed, the actual rate appears to be some- what higher, since full returns under the law were not se- cured until it had been some months in operation. The Washington returns are borne out by those of other States. The Workmen's Compensation Commission of Michigan estimated that 13,000 injuries were sustained by the 250,000 industrial workmen of that Commonwealth in 1910. 39 More than 5000 accidents causing disability for more than seven days were reported to the Wisconsin In- dustrial Commission in the ten months ending June 30, 1912. 40 The employments covered by the above-mentioned reports engage approximately 150,000 wage-workers in Iowa. Unless it be supposed that such industries are only one-third as hazardous in this State as in other American Commonwealths, the official return of 3351 work accidents in 1910 can only be regarded as evidence of its own incom- pleteness. The Iowa reports of accidents on railways and in coal mines seem to be fairly trustworthy. For other in- dustries the official returns must be multiplied by two or three to arrive at the true figures. It is safe to say that the number of work injuries causing disability for more than one week runs into the thousands annually. Unless, therefore, hundreds of innocent families in this State are each year to be rendered destitute through deaths and injuries unavoidably incurred in producing the com- munity's wealth, systematic indemnity for work accidents must be provided. How the cost of such indemnity may be so distributed as to entail the minimum of loss and dam- age upon the Commonwealth is the problem to which the advocates of employers' liability reform must address them- 10 WORK ACCIDENT INDEMNITY IN IOWA selves. Since the existing situation is, necessarily, the start- ing point for any proposed reform an attempt will be made in the following chapters to show how the people of Iowa have dealt with this problem hitherto, and with what results. 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 over- thrown 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 un- dergone 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 char- acteristically modern industries. Wage contracts, then as now, made no provision for injuries sustained in the course of work. 41 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. 42 A new body of law was to be created by successive decisions, 11 12 WORK ACCIDENT INDEMNITY IN IOWA and the character of that law was mainly determined by the judges' views of public policy 43 — 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." 44 The genesis of em- ployers' liability is, accordingly, to be sought in the prin- ciples which seventy-five years ago governed responsibility for accidental injuries in general, and in the prevalent so- cial philosophy by which these principles were interpreted and applied. In the second quarter of the nineteenth century, the com- mon law had come to recognize three categories 45 of unin- tended injuries to person and property, as respects pecuni- ary liability therefor: (1) injuries caused by pure misad- venture, 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. 46 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 re- ceive no harm therefrom, 47 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 occa- sioned. Such was the common law liability of one who kept a vicious animal, 48 or who permitted fire 49 to escape, or cat- tle 50 to stray, from his premises. This principle, that cer- tain 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 dam- age", must keep it "at his peril". 51 So, too, under the ear- lier decisions the user of a steam engine was liable for fires started by it without fault on his part. 52 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 re- ward 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 com- munity or the injured person. ' ' 53 Had a similar view of the liability 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 em- ployer, 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' liability cases, 54 from which the whole subsequent juristic development received its tone and direc- tion, were decided at the very moment when the laissez faire movement in economic and political thought reached its cul- mination. 55 These early cases arose in communities where capitalism was just coming into dominance, 56 where wage- workers as yet had no effective voice in government, and where the propertied and business classes, who possessed the preponderating political influence, 57 had but lately se- cured 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. 58 The protection of private property 14 WORK ACCIDENT INDEMNITY IN IOWA became the chief function of the state. 59 The teaching of Adam Smith that the unrestrained pursuit of individual self-interest will necessarily promote the general welfare, 80 and of Thomas Jefferson that that is the best government which governs least 61 were deemed irrefutable if not ac- tually inspired. 62 Superior wealth and social position were looked upon as "natural" advantages which the state had no right to neutralize. 63 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. 64 Such was the genesis of the theory that the wage-worker stands on equal terms with his em- ployer, 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 domi- nant in the days of their youth. 65 All had learned the rudi- ments of law from Blackstone, who was inclined to subordi- nate the public good to private right, 66 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. 67 Moreover, in point of birth and association the judges of that day, almost without exception, belonged to the propertied and business classes, and in con- sequence had little sympathy with, or understanding of, the position and claims of wage-workers. 68 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 com- munity. 69 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, 70 being nearly confined (1) to the small category of "acts of peril" which had been inherited from primitive English law, 71 (2) to cases of "im- puted fault", like the liability of a master for the torts of his servant 72 or of a husband for those of his wife, 73 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 pru- dence. 74 The general rule, as contra-distinguished from these exceptional cases, confined liability to injuries arising from the failure to use reasonable care. 75 Moreover, no one ordinarily was under any legal obligation to protect another from dangers which that other knew of, or could reasonably discover 76 and guard against, 77 or to which he had volun- tarily subjected himself. 78 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. 79 The foregoing principles, drawn from the ordinary vol- untary relations of life, were applied without mitigation to the relationship of employer and employee. The courts, adopting an academic theory of "liberty and equality" 80 and ignoring the actual situation of the parties to wage con- tracts, 81 treated wage-workers as, in the fullest sense, volun- tary agents. 82 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 16 WORK ACCIDENT INDEMNITY IN IOWA takes on himself the risk of all dangers which are, or reason- ably should be, known to him, and which, therefore, he "vol- untarily encounters" by entering upon, or continuing in, the service. Upon these foundations was reared the whole fab- ric 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. 83 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 man- kind greater, in many respects, than the changes of the pre- ceding three thousand years. The new mode of industrial life has brought in its train new views of social responsi- bility and of the scope and ends of government. 84 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. 85 But the employers' liability doctrines, which owed their genesis to the society of artizans and shop-keepers and their authenti- cation to the metaphysics of laissez faire, live on even after they have been condemned by the very classes in whose sup- posed interest they were invented. 86 How juristic principles which took shape some three quarters of a century since are applied in Iowa at the pres- ent day will, it is hoped, sufficiently appear in the course of the ensuing analysis. Ill AN ANALYSIS OF EMPLOYERS' LIABILITY Throe quarters of a century of ever-increasing litigation and of amendatory legislation in scores of separate jurisdic- tions have made employers' liability one of the most in- volved 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. 87 A becoming cognizance of his own limitations might well deter a mere layman from rushing into a field so beset with pit- falls for even the trained lawyer. Yet the guiding principles of employers' liability are neither many nor difficult to com- prehend. 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 fea- tures 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 rem- edy. 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 oc- cupational risks, (3) the fellow-servant rule, (4) com- tributory 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 rela- tions of the several doctrines will be made sufficiently clear in the course of the analysis based thereon. 17 18 WORK ACCIDENT INDEMNITY IN IOWA 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 negligence on his part, 88 that is, to some breach of the em- ployer's legal duty to provide for the safety of his em- ployees. 89 It seems advisable, therefore, to begin the pres- ent 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 volun- tary relations, that a master is bound to use reasonable care to protect his servant from injury while engaged in his ser- vice. 90 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; 91 (2) to furnish safe and adequate tools, appliances and instrumentalities for carrying on the work; 92 (3) to hire a sufficient number of reasonably com- petent and careful servants ; 93 (4) to conduct the business in a safe manner with sufficient rules for the guidance of em- ployees, where such rules are reasonably necessary to their safety; 94 (5) to instruct inexperienced servants in the safe performance of their duties ; 95 (6) to warn a servant of dan- gers 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; 96 and (7) to make such frequent and thorough inspection of working place, mate- rials, and equipment as may be reasonably necessary to maintain them in a safe condition. 97 None of the foregoing duties of the master is absolute. He does not warrant the safety of his premises ; 98 it is enough if he maintains "reasonably" safe conditions and surroundings of work, 99 so far as that can be done by the ex- AN ANALYSIS OF EMPLOYERS' LIABILITY 19 ercise of ordinary care, 100 that is, such care as a person of average prudence would exercise under the same or similar circumstances. 101 Of course the conduct of "a reasonably prudent and careful man" can afford no definite standard of " ordinary care" or "reasonable safety", 102 since what is reasonable will depend upon the character of the under- taking in hand and the risks attending its prosecution. 103 As has been judicially said, "reasonable care demands in- creased 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 conse- quences which are liable to follow its omission." 104 Hence in handling electricity "reasonable care" is great care. 105 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 condi- tions. 106 Reasonable care only requires the master to provide against dangers that can reasonably be anticipated 10T and to remedy conditions of which he has knowledge, actual or constructive. 108 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. 109 The employer is not required to use the safest equipment that can be obtained, 110 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 al- ready in use for the same purpose. 111 Thus it is not neces- sarily negligent to operate locomotives equipped only with link-and-pin couplers, 112 or to leave dangerous machinery unguarded, 113 although practical safety devices may be known. Ordinarily, it is sufficient if the employer use such precautions as are customary in similar establishments ; 114 20 WORK ACCIDENT INDEMNITY IN IOWA and the general usage of employers in the same line of busi- ness may always be shown as bearing upon the question of care. 115 Proof of common usage, however, is not proof of care llfi and is no defense where the custom is in itself care- less. 117 The only definite standard of ' ' reasonable care ' ' appears to be that afforded by statutes expressly enacted for the pro- tection of employees. The violation of such a statute is negligence per se. lls Thus, it is negligent to operate rail- way cars not equipped in accordance with the automatic coupler law, 119 to maintain trolley wires at a lower level than is permitted by city ordinance, 120 to omit machine guards 121 or belt shifters 122 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, 123 or to operate trains at an ille- gal rate of speed. 124 In the absence of such statutory com- mands 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 prob- able dangers applies 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. 125 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 au- thorization. 126 A fortiori, the express command of the em- ployer or his responsible representative brings the act com- manded within the line of the employee's duty. 127 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. 128 AN ANALYSIS OF EMPLOYERS' LIABILITY 21 Mere proof of negligence does not constitute sufficient ground of recovery: it must further appear that the negli- gence complained of was the proximate cause of the injury in respect of which recovery is sought. 129 That is to say, there can be no recovery unless it is shown that some negli- gent act or omission of the employer, in a natural and con- tinuous sequence, would have produced the employee's in- jury, and that without such negligence the injury would not have occurred. 130 "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, there- fore, ought to have been anticipated by the wrong doer." 131 Hence the employer is not liable for his failure to provide against improbable contingencies. 132 But where a given act or omission is negligent in respect of its probable conse- quences 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. 133 So, too, where the employer's negligence concurs with that of a third party, 134 or with an "act of God", 13 *' 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. 136 That is to say, to justify re- covery both of these essential facts must be established by a fair preponderance of all the evidence in the case. Negli- gence and proximate cause are ordinarily questions of fact, to be determined by a jury under proper instructions from the trial judge. 137 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 22 WORK ACCIDENT INDEMNITY IN IOWA of the injury, it is the duty of the court to direct a verdict for the defendant. 138 THE BURDEN OF OCCUPATIONAL RISKS The cardinal principle of no liability without fault mani- festly relieves the employer of all responsibility for the in- herent hazards of industry. Despite the exercise of ordi- nary care on the part of all concerned, slate and coal will fall from the roofs of mines, railway tracks will unexpectedly slip on softened roadbeds, signals will be misread by train- men, dynamite will explode prematurely, steam pipes will 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 simi- lar occurrences, accounting in the aggregate for fully one- half of all industrial injuries, 139 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 "ordi- nary" 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 public policy as the main rule itself. To be sure, the courts have commonly said that the servant as- sumes the ordinary risks of the service in which he en- gages by virtue of an implied term in the contract of em- ployment. 140 But this, manifestly, is no more than a judi- cial fiction. Prior to a legal determination of their respec- tive 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 im- plied by law from the relationship of master and servant, 141 without reference to any consent of the parties thereto, and is in no proper sense contractual. 142 Nor does the fiction of an implied contract afford any independent support to the AN ANALYSIS OF EMPLOYERS' LIABILITY 23 juridieial doctrine ostensibly founded thereon; it would have been as easy for the courts to saj r , de novo, that the master "impliedly" warrants his servant's safety as that the servant "impliedly" assumes the risks of his employ- ment. The whole train of reasoning as to contractual as- sumption "amounts to saying that the law is that he cannot recover because he takes the risk, and he takes the risk be- cause the law is so." 143 Why the law is so has been con- sidered in an earlier section. 144 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 denned 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 em- ployees. 145 But this statement, while satisfactory as re- gards the "inherent risks" of the business, does not fully cover the "ordinary risks" assumed by employees. Approached from the standpoint of the servant's knowl- edge, and seen in the light of the common law principle that everyone takes on himself the risk of any danger which he voluntarily encounters, 146 ordinary risks include all those which the servant, as a reasonably prudent and careful man, should expect to encounter in the course of his employ- ment. 147 The servant thus assumes, not only all risks inci- dent to the business when conducted in a reasonably careful manner, 148 but also all risks due to conditions which may be ascertained by the exercise of ordinary diligence at the time of entering the employment. 149 All open and obvious dan- gers are, accordingly, to be considered as risks incident to 24 WORK ACCIDENT INDEMNITY IN IOWA the employment, 150 although such dangers result from the defective character of the instrumentalities used, 151 or from the negligent conditions, whether permanent 152 or tempo- rary, 153 under which the business is openly conducted. The ordinary risks of an employment always include those which inhere in the nature of the business. 154 One who en- gages in an extra-hazardous employment thus takes upon himself the extra perils incident thereto. 155 Thus, one em- ployed 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. 156 So, too, a servant assumes any risk of in- jury created by the progress of the work in which he is engaged. 157 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. 158 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 un- impaired. 159 Knowledge and appreciation of danger are essential ele- ments in the assumption of risk. 190 But knowledge and ap- preciation 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 attend- ing the employment in which he engages. 161 The age and experience of an employee are, however, to be considered in determining whether he comprehended and so assumed a particular risk. 162 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 negli- AN ANALYSIS OF EMPLOYERS' LIABILITY 25 gence. 163 Indeed, as has already been pointed out, an aver- ment that an injury was due to an ordinary risk of the busi- ness amounts to a denial that it was caused by the employ- er's negligence. Still, the defendant in an employers' lia- bility 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 employer is not liable. THE FELLOW-SERVANT RULE 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 di- vision among the courts. A more difficult question was raised by those injuries, very numerous in every large in- dustrial 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 164 and thoroughly established doctrine that a mas- ter is answerable to third parties for injuries negligently, or even wilfully, inflicted by his servants, acting within the scope of their employment 165 — notwithstanding the master may have been free from fault, both in the selection of his agents and in his instructions to them. 160 This rule was con- ceded, even seventy years ago, to rest on sufficient grounds of public policy, 167 and it has latterly found fresh justifica- tion in the growth of corporations and other large employers who, but for the doctrine of respondeat superior, would es- cape all responsibility for injuries to the persons or prop- erty of others. 168 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. 26 WORK ACCIDENT INDEMNITY IN IOWA 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. 109 To extend the rule to cases where employees were the sufferers would, it was believed, im- pose an intolerable burden upon industrial enterprise. 170 Accordingly, when the courts were called upon, some sev- enty-five years ago, to apply the doctrine of respondeat su- perior to an injury sustained by a workman through the negligence of a co-employee, they "boldly invented an ex- ception to the general rule of masters' liability, by which servants were deprived of its protection." m 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 in- jured 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 lord- ship 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 car- riage, owing to the negligence of the coach-maker, or for a defect in the harness arising from the negligence of the har- ness-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 negli- gence of the cook, in not properly cleaning the copper ves- sels used in the kitchen ; of the butcher in supplying the fam- ily with meat of a quality injurious to the health; of the AN ANALYSIS OF EMPLOYERS' LIABILITY 27 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 suffi- cient, whether it was overloaded, and whether it was likely 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 ex- ercise 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." 172 The passages above set out show that the Priestley case is an authority both for the assumption by the servant of risks due to the master's negligence and for the fellow-servant rule. Upon the latter point, however, Lord Abinger's opin- ion contains no definitive pronouncement and the curious mingling of house-servants, contractors, and independent tradesmen, of dangers arising from the negligence of co- employees and from the master's failure to provide safe instrumentalities for carrying on his business, indicate that his lordship had not clearly thought out the principles or the implications of his own decision. Four years later than the Priestley case, though without referring to it, the South Carolina Court of Errors denied recovery to a locomotive fireman who had been injured by the negligence of the engineer under whom he worked. The majority opinion was placed on these grounds: (1) that the contract of employment did not make the railway com- 28 WORK ACCIDENT INDEMNITY IN IOWA pany a guarantor to one employee against the negligence of other employees; (2) that the fireman was, or ought to have been, aware of the perils to which his employment ex- posed him, including the likelihood that fellow-employees would be negligent, and must be presumed to have under- taken to meet these perils; and (3) that the plaintiff was paid for his labor and for the dangers to which he was exposed. 173 Neither of the foregoing decisions was very broad in scope. In the Priestley case the master was a small em- ployer engaged in a hand trade and the plaintiff was closely associated, in the discharge of his duties, with the employee whose negligence occasioned his injury. In the South Caro- lina case, also, the injured and the culpable employee were upon the same engine, and it could be colorably argued that the former had chosen to work with this particular associate after having an opportunity to observe his habits. It remained for Chief Justice Shaw, of the Massachusetts Supreme Judicial Court, to give the fellow-servant rule definitive formulation and sweeping applicability. This result was accomplished in the famous case of Farwell vs. Boston and Worcester Railroad Corporation (4 Metcalf 49), decided in 1842. An engineer had lost a leg because a switchman had neglected to change a switch. The switch- man had been long in the company's employ and was re- puted ordinarily careful, so that the corporation was not at fault in retaining him. On the other hand, the engineer had no control over the switchman's actions and no opportunity to know of, or to guard against, his carelessness. These facts squarely presented the question, is a master liable to one of his employees for an injury which was caused by the negligence of another employee and which neither the mas- ter nor the injured workman could have prevented by the exercise of ordinary care? Chief Justice Shaw, in a lumi- nous decision, answered this question in the negative and AN ANALYSIS OF EMPLOYERS' LIABILITY 29 fortified his opinion with a chain of reasoning that was ac- cepted as conclusive by his contemporaries of the bench and bar. The validity of the learned judge's arguments will be considered at a later point in the present exposition (See below, p. 34). The doctrine of the Farwell case was quickly accepted in other common law jurisdictions, 174 and within twenty years was as well established as the rule of respondeat superior to which it is an exception. The question was thus fore- closed when, in 1860, the earliest, case presenting it reached the Supreme Court of Iowa. 175 The fellow-servant rule, ac- cordingly, was imported bodily into the law of this State. None the less, the determination of the precise limits of the rule and its application to particular cases have given rise to a huge volume of litigation continuing to the present day. The fellow-servant rule, or the doctrine of co-employment or co-service, as it is variously termed, has been judicially stated thus: ''Where different persons are employed by the same principal in a common enterprise, no action can be brought by them against their employer on account of in- juries sustained by one employee through the negligence of another." 17G This language, and that of the early cases gen- erally, is broad enough to include all persons employed by the same master in the prosecution of the same general bus- iness. The British courts, at least, did not shrink from this very broad, but strictly logical, interpretation. 177 So inter- preted, the doctrine exempts a corporation, which necessa- rily acts only through agents, from all liability to its em- ployees — except perhaps for negligence in selecting its agents or in retaining them with notice of their carelessness or incompetence. American courts, however, commonly have construed the doctrine more narrowly and have in- vented several exceptions to the great exception whereby its harshness is somewhat mitigated. Thus have grown up the doctrines of " non-delegable duties", "vice-principalship", 30 WORK ACCIDENT INDEMNITY IN IOWA and "department of service". Of these qualifying doctrines only the first mentioned is well established in Iowa, though the others have occasionally been recognized. Non-Delegable Duties : — The most important qualifica- tion of the fellow-servant rule is the doctrine that the master can not so delegate certain of his duties as to escape liability for the non-performance or mal-perf ormance of them. 178 Thus the duties to furnish a safe place to work, 179 to provide safe tools and appliances, 180 to inspect instrumentalities and place of work, 181 to hire competent servants, 182 to warn serv- ants of latent dangers, 183 to instruct them in the perform- ance of new duties, 184 and to exercise proper control and supervision over the work 185 are non-delegable. Nothing short of performance can discharge these duties : 186 it is no defense that the master may have entrusted them to a relia- ble agent or contractor. 187 Vice-principalship : — A second exception to the rule that a master is not liable to one servant for the negligence of another arises where the servant who committed the fault stands in loco magistris, or is a vice-principal. This ex- ception was referred to in the first fellow-servant case in Iowa as being already recognized by the courts of Ohio. 188 It was applied by the Supreme Court of Iowa as early as 1866 189 and has long been the law of this State. It is to be noted, however, in connection with this statement, that the term "vice-principal" is used in a two-fold sense. A serv- ant may be in loco magistris by virtue of a rank or author- ity which makes him the general representative of the mas- ter, or by reason of discharging, in the particular instance, a masterial duty. 190 In the latter sense the doctrine of vice- principalship is hardly, if at all, distinguishable from that of non-delegable duties, and it is in this sense only that the doctrine is clearly recognized in Iowa. AN ANALYSIS OF EMPLOYERS' LIABILITY 31 There are some Iowa cases which appear to make the question of vice-principalship turn upon the control exer- cised by the employee whose status is in dispute. 191 Thus a manager who has full direction of the business, or of a par- ticular department or undertaking, is a vice-principal as to acts within the scope of his authority. 192 In a number of cases the authority to hire and discharge is made the test of vice-principalship and it is said that an employee who possesses this authority is not a fellow-servant but a vice- principal. 193 But most, if not all of these cases, can be reconciled with orders which hold that "it is not the rank or grade of employment which determines the character of the service, but the nature of the duty to be performed which gives color to the employee's act." 19t By this second test, an employee who is entrusted with the discharge of a per- sonal, non-delegable duty of the master is, as to such service, a vice-principal, and his negligence is the master's. 195 But a servant, whatever his rank or grade, who undertakes the work of an ordinary employee is, as to such service, a co- servant with others engaged in the same work. 196 This doc- trine of dual capacity, whereby the same person may be a vice-principal as to some acts and a co-employee as to others, may now be considered the settled law of Iowa. 197 Under the doctrine of dual capacity the fact that an employee has authority to direct others at their work does not make him a vice-principal. 198 Hence a mere foreman — that is, a laborer with power to superintend the labor of those working with him — is a co-employee so far as his own labor is concerned. 199 Accordingly, liability for negligence in the discharge of non-masterial duties has been denied when the delinquents were the following : a foreman of car- repairers, 200 a foreman superintending the construction of a house for a contractor, 201 and a machinist who occasionally called other employees to his assistance. 202 On the other hand, recovery was allowed for the negligence of the follow- 32 WORK ACCIDENT INDEMNITY IN IOWA ing persons in their supervisory capacity: a section fore- man, 203 a mine boss, 204 a boss driver in a mine, 205 a railway yard foreman, 206 a locomotive engineer, 207 and a brakeman temporarily in charge of switching operations. 208 A super- intendent, or general foreman, is the proper person to re- ceive complaints of dangerous conditions and to remedy the same ; in the exercise of such functions he is a vice-princi- pal. 209 So, also, a master is bound by the negligent command of a servant or agent whom other employees are required to obey, 210 and such a command relieves the servant who obeys it of assumption of risk and of contributory negligence to the same extent as would a command of the master. 211 ( See below, p. 63.) In this view, the power to hire and discharge is significant chiefly as showing the authority of the superior servant in question to enforce compliance with his com- mands. 212 Department of Service : — Expressions are used in cer- tain Iowa decisions which seem to approve the doctrine that only persons associated in the same department of work are co-employees. Thus, it has been held that a bridge-builder is not a co-employee of a train crew upon the same railway line, 213 that a brakeman is not a fellow-servant of a car in- spector, 214 and that an inspector of machinery is not engaged in the same service with an operative. 215 None of these cases, however, really turns on the departmental doctrine. Indeed, the Supreme Court has explicitly held that the fact that two servants are engaged in different branches of the common service can make no difference in their rights as against their employer, so long as both are employed in the same general business under one master. 216 The test of com- mon employment in this State appears to be whether or not the negligence of the delinquent servant was a risk (im- pliedly) contemplated by the injured servant in entering and remaining in his master's service. By this test the AN ANALYSIS OF EMPLOYERS' LIABILITY 33 following employees have been held to be co-servants: a machinist engaged in installing a counter-shaft and the operator of a bolt machine notwithstanding that these two were under the direction of different foremen, 217 a track inspector and a locomotive engineer, 218 a sweeper and other employees in a round house, 219 a coal miner and road men employed in the same mine, 220 and a railway detective and the members of a train crew. 221 Probably all the cases which seem to imply the departmental doctrine can be brought under either the doctrine of non-delegable duties or the rule that a servant does not assume a risk of which he has no notice and which could not reasonably have been anticipated at the time of entering his master's service. Concurrent Negligence of Master and Fellow-Servant : — Where negligence on the part of the master is the proximate cause of an injury to an employee, the fact that the wrongful act of another employee cooperated therewith to produce the injury, will not relieve the master of liability. 222 In other words, while the contributory negligence of the in- jured employee is a bar to recovery, that of a fellow-servant is not. This rule is but a special application of the general principle that where a wrongful act concurs with some other cause and both operate proximately in producing an injury, the wrong-doer will be liable, whether or not the other cause is one for which he is responsible. 223 Criticism of the Fellow-Servant Rule : — The alleged rea- sons for the fellow-servant rule may be reduced to four : 224 (1) that the employee has the means of knowing and of guarding against the negligence of co-emploj^ees ; 225 (2) that the risk of injury by the negligence of co-employees is among those ''ordinary risks" of his employment which are "im- pliedly assumed" by the servant in his contract of ser- vice; 226 (3) that the rule makes employees watchful of each 34 WORK ACCIDENT INDEMNITY IN IOWA other's conduct, and so is a better security against careless- ness or incompetence than any liability of the master would be; 227 and (4) that if employees were allowed to maintain actions for injuries caused by the negligence of co-em- ployees, employers would be heavily burdened and invest- ment of capital in industrial enterprises would be curtailed to the detriment of the public. 228 None of these alleged grounds will bear close scrutiny. 229 The supposition that employees of the same master are necessarily intimate associates, Avell acquainted with each other's personal habits and constant observers of each other's conduct, might have possessed some plausibility if confined to the servants of a moderate-sized household, 230 or even to the fellow-craftsmen of a petty shop. But, with ex- quisite irony, the argument drawn from domestic industry was applied without mitigation to railway corporations, with their tens of thousands of employees scattered over half a continent. "Workingmen who had never heard of one another, nor had the faintest relation with one another, were held to be in common employment, and if one was in- jured by the negligence of the other there was no title to compensation. ' ' 231 The very case which has become the chief fountain of fellow-servant wisdom denied indemnity to a locomotive engineer injured by the negligence of a switchman. 232 The earliest Iowa decision was that a track inspector is a fellow-servant of a locomotive engineer. 233 As was pointed out in an earlier section (see above, p. 22), the "implied contract" argument simply begs the ques- tion. Chief Justice Shaw's dictum, "To say that the master shall be responsible because the damage is caused by his agents is assuming the very point which remains to be proved", 234 is at least as convincing when reversed. To say that the master shall not be responsible because the damage was caused to one of his agents is assuming the very point which remains to be proved. 235 The argument that the negli- AN ANALYSIS OF EMPLOYERS' LIABILITY 35 gence of co-employees is an ordinary occupational hazard is equally inconclusive. No doubt, one who engages in a service in which numerous others are employed may reason- ably anticipate that his associates will at times be guilty of negligent acts or omissions. But so might he equally ex- pect that his master will sometimes fail of due care and caution. Want of "ordinary care" — as that term is de- fined by the courts — is a very common failing of mankind. Indeed, the whole train of reasoning which makes the negli- gence of fellow workmen an ordinary hazard of the employ- ment may be carried over, with scarcely a change of phrase, to the negligence of the employer. To take a single instance, the railway brakeman has as much reason to anticipate that couplings will be out of repair as that engineers will make cross-overs at high speed. Both contingencies are ordinary perils of the employment in the sense of being within the range of every day experience and so of being such as "a reasonably prudent man" would expect to encounter in the course of his service. The brakeman can guard against the one source of danger as well as the other — being powerless to guard against either. The rate of compensation could, in legal presumption, provide for the one risk as well as the other — in point of fact, it provides for neither. In strict logic, then, the servant might be held to contract with refer- ence to the probable negligence of his master as well as with reference to the probable negligence of his co-employees. Evidently, the servant's "implied contract" to assume or- dinary risks affords no independent ground for exempting the master from liability for the negligence of his em- ployees, while leaving him liable for his own negligence. At best, the argument under consideration merely recites the rule as a justification for itself. The contention that the fellow-servant rule promotes the safety of workmen resembles nothing so much as the ingen- ious theory once propounded by Chief Justice Ruflfin of 36 WORK ACCIDENT INDEMNITY IN IOWA North Carolina, that the law permits a master to flog his slaves ''out of humane regard to the best interests of the slaves themselves." 236 If the fear of death or of mutilation does not avail to make men regardful of their own safety, pecuniary incentives are little likely to affect such a result. The argument overlooks, as well, the obvious considerations on which the rule of respondeat superior is grounded: that it is the employer and not the co-employee who effectually controls and directs the acts of employees and who has power to penalize carelessness or incompetence by dismis- sal from the service. 237 The argument ab inconvenienti need hardly be taken seriously. Capital continues to be invested, and railways, mines, and mills continue to operate in those States and countries that know not the fellow-servant rule. No doubt employers in these jurisdictions are somewhat inconven- ienced by their greater liability for work accidents. But, then, it is no small inconvenience to the trainman in a com- mon law jurisdiction that he can have no indemnity for an injury caused by the carelessness of a section hand whom he never saw and over whose actions he had not the smallest control. 238 The real foundation of the fellow-servant rule is to be sought not in the specious reasoning by which it is bolstered up, but in the conviction of judges that master's liability should be confined to the narrowest possible limits. And most of the criticisms which have in recent years been lev- eled against the rule by lay and learned alike spring from a shifting of social values whereby the interests of capital have come to hold a lower, and human life and happiness a higher, place in men's esteem. 239 Statutory Modification of the Fellow-Servant Rule : — A radical innovation upon well settled legal principles, which has such slight foundations in reason or justice 240 AN ANALYSIS OF EMPLOYERS' LIABILITY 37 and which works such hardship upon a very numerous and necessitous class, has, of course, not passed unchallenged by statesmen or unnoticed by legislatures. The character of the fellow-servant rule as a piece of judicial legislation has long been recognized. Said Mr. Birrell, late Secretary for Ireland, speaking in the House of Commons in 1897 : "The doctrine [of common employment] was only invented in 1837. Lord Abinger planted it ; Baron Alderson watered it, and the devil gave it increase." 241 The British Home Of- fice reported to the Royal Commission on Labour in 1894 as follows : The doctrine is an exception to the general rule ; is modern judge- made law; implies a contract founded on a legal fiction not in accordance with fact; has been pushed to extreme length by the judges' forcing and straining the meaning of the term 'common employment' and in practice leads to gross anomalies and injus- tice. . . . The law .... is an unfair law, operating oppressively against workmen as a class. 242 Even the courts now very generally recognize the injus- tice and unwisdom of the rule 243 and welcome the modifica- tion or abrogation of it by legislation. 244 The defense of common employment has, accordingly, been swept away by statute in Great Britain and has been abrogated by a few American legislatures 245 and more or less modified by nearly all of them. 240 Most of the Ameri- can fellow-servant statutes are limited in application to rail- ways, partly because the common law rule has even less jus- tification in railway transportation than in most other in- dustries, partly because accidental injuries to railway workers are so shockingly numerous, but most of all, per- haps, because legislators are less tender of railway than of other industrial interests. Railways are notoriously un- popular with farmers and small business men, and a law adversely affecting railway investors directly touches but a 280842 38 WORK ACCIDENT INDEMNITY IN IOWA small number of voters. A general fellow-servant statute, on the contrary, would arouse wide-spread antagonism, and is not likely to be enacted except where the ' ' labor vote ' ' is a decisive factor in politics. The Iowa Railway Liability Act: — The fellow-servant statute of Iowa, as of most American Common wealt] is, is confined to railways, and, indeed, by judicial interpreta- tion to certain railway hazards. The statute has a history of half a century, having been first enacted in 1862, only two years after the doctrine of co-service was adopted by our Supreme Court. The first act was as follows : Every rail-road company shall be liable for all damages sus- tained by any person, including employees of the company, in con- sequence of any neglect of the agents or by any mismanagement of the engineers or other employees of the corporation to any person sustaining such damage. 247 The words "all contracts to the contrary notwithstand- ing" were added in 1870. 248 In 1872 the liability was extend- ed to the wilful wrongs of agents and employees when such wrongs were in any manner connected with the use and oper- ation of the railway. 249 In the Code of 1873 these three acts were combined into one section which reads : Every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such cor- poration, in consequence of the neglect of agents, or by any mis- management of the engineers or other employes of the corporation, and in consequence of the wilful wrongs, whether of commission or omission of such agents, engineers, or other employees, when such wrongs are in any manner connected with the use and operation of any railway, on or about which they shall be employed, and no con- tract which restricts such liability shall be legal or binding. 250 Judicial construction of the railway liability act began in 1866 and has continued to the present day. It will be con- AN ANALYSIS OP EMPLOYERS' LIABILITY 39 venient, however, to discuss the questions which have arisen in logical order as presented by the statute rather than to trace the historical development of judicial interpretation. First. In Iowa all the duties and liabilities imposed by law upon "corporations owning or operating railways" ap- ply to every person, firm or corporation that owns or oper- ates a railway. 251 Accordingly, the liability law has been held to apply to a lessee, 252 to a receiver, 253 and to a railway construction company which moves trains upon the track in furtherance of its work. 254 The statute does not apply to street railway companies, 255 though interurban railways were brought within its provisions in 1902. 258 Second. The constitutionality of the railway liability law has been repeatedly attacked in the courts, but without success. As originally enacted the liability provision was a section of "An Act in relation to the duties of Railroad Com- panies." In the first case which arose under this statute, that of McAunich vs. Mississippi and Missouri Railroad Company (20 Iowa 338), decided in 1866, it was contended that this title did not cover provisions relative to the liabili- ties of railroad companies within the meaning of that sec- tion of the State Constitution which requires that "Every act shall embrace but one subject, and matters properly con- nected therewith; which subject shall be expressed in the title." 257 The Supreme Court held this objection to be not well taken. "Every law", it was said, "prescribing duties must have the sanction of liabilities resulting from a fail- ure to perform those duties, in order to have any practical beneficial effect or operation." 25S The burden of the attack upon the constitutionality of the statute has been that it is class legislation. Thus, it has been argued that the act violates the State Constitution in that it is not uniform in operation, and in that it grants privileges and imposes liabilities which are not extended upon the same terms to all citizens of the State; 259 and that 40 WORK ACCIDENT INDEMNITY IN IOWA it contravenes the Fourteenth Amendment to the Constitu- tion of the United States by depriving railway companies of the equal protection of the law. The objection that the statute is not uniform in operation was disposed of in the McAunich case above cited. The Court said : It [the statute] applies to all railroad corporations now in exist- ence, or which may hereafter exist, and is just as general and uni- form as it would be if it applied to all common carriers. . . . Very many laws, the constitutionality of which are [is] not doubted, do not operate alike upon all citizens of the State. . . . These laws are general and uniform, not because they operate upon every person in the State, for they do not, but because every person who is brought within the relations and circumstances provided for, is affected by the law. They are general and uniform in their oper- ation upon all persons in the like situation, and the fact of their being general and uniform is not affected by the number of persons within the scope of their operation. 260 A similar line of reasoning answers the contention that the act violates the constitutions of Iowa and of the United States by subjecting railroad corporations to penalties and liabilities to which other persons and corporations engaged in a like business are not subjected. For, it was said, the business of operating a railway is peculiarly hazardous, and as the statute extends to all persons or corporations en- gaged in operating railroads it does not discriminate in favor of or against anyone. It is a pure question of legis- lative discretion whether like penalties and liabilities should be applied to carriers by canal or stage coach, or to persons and corporations using steam in manufactories. 261 Finally, the act when rightly construed does not grant to railway employees any privileges or immunities which are not open on the same terms to all persons in the same situa- tion. 262 In reaching this conclusion, however, the State Su- preme Court, held that the act must be so construed as to AN ANALYSIS OP EMPLOYERS' LIABILITY 41 embrace, not all railway employees, but only those engaged in the hazardous business of operating railroads. "When thus limited", said the Court, "it is constitutional ; when ex- tended further it becomes unconstitutional." 263 The reas- oning was that the statute if applied to all persons in the employ of railroad corporations, would secure privileges to certain persons — section hands, for example — which are denied to others engaged in equally perilous callings. The effect of this interpretation is materially to narrow the scope of the original statute, the terms of which had includ- ed all railway employees. Beaten in the highest State tribunal the railways carried the "due process" and "equal protection of the law" ques- tions to the Supreme Court of the United States, which sustained the decision of the Court below. 264 The Federal tribunal was, of course, powerless to widen the construction of the statute adopted by the State Court. It may be doubt- ed, however, in view of subsequent decisions of the United States Supreme Court, whether so narrow a construction was necessary to save the statute from the inhibitions of the Fourteenth Amendment. That Court has not only upheld legislation abrogating the fellow-servant rule as to railway employees generally, 265 but has construed an Indiana act, apparently similar in scope to the Iowa statute of 1862, so as to embrace all railway employees. 266 A similarly broad interpretation of the Iowa statute would probably have been sustained. Indeed, the reasoning by which the Iowa Su- preme Court justified its narrow interpretation of the fel- low-servant law was met and refuted by the highest court of the land in construing the Indiana act above referred to. 267 The court of last resort having decided that the railway liability act does not apply to all casualties sustained in railway service it became important to determine precisely what injuries fall within its scope. The act of 1862 was held 42 WORK ACCIDENT INDEMNITY IN IOWA to apply to servants employed for the discharge of duties which exposed them to the peculiar hazards incident to the operation of railways. Under this rule, apparently, an em- ployee would have been entitled to recover for an injury which did not arise from the peculiar hazards of railway operation so long as his employment embraced those haz- ards. 268 The act of 1872 introduced a new element into the railway liability statute in the proviso, "when such wrongs [of em- ployees] are in any manner connected with the use and operation of any railway, on or about which they shall be employed". The Supreme Court has held that the words ' * such wrongs ' ' in this clause refer to negligent acts as well as wilful wrongs, and that, consequently, recovery under the statute can be had only for injuries arising from "the use and operation of any railroad". 269 The phrase, "use and operation of a railway", is judicial- ly denned as referring only to the "handling of railroad ma- chinery moved upon railroad tracks". 270 Justice Beck, speaking for the Supreme Court, remarked in a leading case: "What is the use and operation of a railway? It is constructed for the sole purpose of the movement of trains. That is its sole use. What is the operation of a railway 1 ? They can be operated in no other way than by the movements of trains." 2T1 But the word "trains" as here used must be understood to include all railroad machinery moved upon railroad tracks, as a work train, 272 a steam shovel mounted upon a car and operated by being moved along the track, 273 a single locomotive, 274 or even a hand car. 275 The rails on the floor of a machine shop, however, are not a railway and the movement of an engine thereon is not the use and operation of a railway. 278 Under this interpretation it is not the nature of the em- ployment but the cause of the injury which determines the applicability of the statute. 277 There are, indeed, some de- AN ANALYSIS OF EMPLOYERS' LIABILITY 43 cisions to the effect that the benefits of the statute accrue only to such employees as are engaged, at the time of receiv- ing the injury, in the business of operating a railroad.-' 7 " But a majority of the cases hold that any employee is within its protection while engaged in the performance of a duty which exposes him to hazards peculiar to the operation of a railway. 279 The following judicial statement may be taken as an authoritative interpretation of the scope of the statute : If, then, the injury is received by an employee whose work ex- poses him to the hazards of moving trains, cars, engines, or machin- ery on the track, and is caused by the negligence of a co-employe in the actual movement thereof, or in any manner directly connected therewith, the statute applies, and recovery may be had. Beyond this, the statute affords no protection. 280 A few concrete cases in which recovery has been allowed or denied will serve further to elucidate the effect of the statute. First. All persons employed in the actual operation of trains are within the statute as a matter of course. 281 The essential questions in cases where members of train crews were injured in the course of duty are whether the co-ser- vant was in fact negligent and whether the injured employee was himself at fault. 282 Second. Persons employed upon a train, though having nothing to do with its management. A laborer employed in the working of a ditching machine operated by moving along the track the train of which it formed a part, is a member of the train crew. 283 The same rule applies to a shoveler upon a gravel train, 284 and to a laborer who rides upon a train and alights from time to time to clear the track of snow. 285 Third. Employees working on or about a "live" engine. An employee engaged in coaling a "live" engine, 286 in 44 WORK ACCIDENT INDEMNITY IN IOWA coupling tanks together, 287 or in operating a turn table, 288 is exposed to perils peculiar to the operation of a railway and can recover for injuries due to the negligence of a co-em- ployee in the same service. Fourth. Employees at work upon a car which forms a part of a train, or is likely to be moved by the operation of trains. A car inspector whose duty requires him to go be- neath all cars, 289 a car repairer injured by a moving engine when at work in a railway yard, 290 a car cleaner at work in a standing car which was moved by the impact of a loco- motive, 291 and a mechanic injured while repairing one of the cars of a train, 292 were each held to be within the protection of the statute. Fifth. Employees exposed to the peril of passing trains while in the performance of their duty are within the stat- ute. This rule has been applied to a railway detective rightfully walking along the track, 293 to a water carrier for a bridge gang, 294 and to section men engaged in track re- pairing 295 — of course only where the injury was due to the negligence of persons employed in the operation of trains. Sixth. Section men riding upon a hand car. 290 On the other hand, employees in the following situations have been held not to be engaged in the operation of a railway so as to make the company liable for the negligence of a fellow- servant engaged in the same sort of work : employees in a railway machine shop, 297 employees engaged in hoisting coal in a railway coal house, 298 sweepers in a round house, 299 men repairing a "dead" engine, 300 a section hand repairing the track, 301 and men loading a detached car. 302 As to all cases not embraced in the statute, the common law rule exempting the employer from liability to one em- ployee for the negligence of another is still in force. 303 Even as to cases within its terms the statute does not change the degree of care due from a master to his servant ; 304 nor did AN ANALYSIS OF EMPLOYERS' LIABILITY 45 it, prior to the act of 1909, affect the defense of contributory negligence. 305 Ordinarily the character of the servant's employment, the cause of his injury and whether or not thereby the em- ployee is brought within the provisions of the statute are questions of fact for the jury and not of law for the court. 31 " But where there is no dispute in the evidence upon these propositions the court may instruct the jury as to whether or not the case comes within the statute. 307 The clause in the railway liability act reading "no con- tract which restricts such liability shall be legal or binding" has been attacked as an unconstitutional interference with "freedom of contract". The Supreme Court of Iowa in overruling this contention remarked : There is no such thing as absolute liberty of contract. Indeed, all personal and property rights are subject to proper legislative regulation and control. ... A very great proportion of our legislation is a restriction upon some one's liberty. Indeed, the liberty of which we boast and are so justly proud is liberty under law, and not absolute license. It is freedom frequently restrained by law for the common good. 308 In pursuance of the foregoing decision an agreement en- tered into by a railway employee at the time of his employ- ment that if he sustains any personal injury for which he makes a claim against the company for damages, failure to give notice thereof in writing within thirty days after injury is sustained shall be a bar to action therefor, was held to be invalid. 309 None the less an effective device for contracting out of the statute, in spite of the contracting out clause, was hit upon by the Burlington Railway. This device took shape in the Burlington Voluntary Re- lief Department, organized in 1889. The employees who became members of this department agreed to allow the company to deduct a specified sum from their monthly wages 46 WORK ACCIDENT INDEMNITY IN IOWA for the creation of a relief fund. The company on its part undertook to care for the fund, to defray all administrative expenses, and to guarantee the payment of the stipulated benefits. The essential feature of the plan, in the present connection, is the agreement on the part of members that the acceptance of any benefit thereunder for personal in- juries sustained in the service of the company should oper- ate as a release of all claims against the company in re- spect of such injuries, and further that the bringing of a suit against the company should forfeit all rights under the relief plan. 310 It was claimed by the company that the department was wholly beneficent in purpose, that membership therein was purely voluntary, that the company bore about one-third of the total cost of relief thereunder (including administrative expenses), and that the scheme avoided the wastes of litiga- tion, secured prompt relief in cases of sickness or injury, made equitable provision for deserving cases, and tended to promote good will between the company and its employees. The employees, on the contrary, asserted that membership in the department was practically compulsory, at least for trainmen; that the relief fund consisted, in larger part, of deductions from wages ; that the acceptance of benefits took place at the time when the injured employee was seriously in need of aid and was easily induced to waive his right of ac- tion in return for immediate relief; and, finally, that the provision which made the acceptance of relief out of funds contributed by the employees themselves a bar to any action founded on the company's negligence transferred to the employees a portion of that liability for personal injuries which ought to rest upon the company to insure reasonable care for the safety as well of the travelling public as of rail- way employees. 311 Without passing upon the merits of all these respective assertions, it is clear from the very terms of membership AN ANALYSIS OF EMPLOYERS' LIABILITY 47 that members of the organization practically became their own insurers against work accidents however caused. In other words, the Voluntary Relief Department operated to relieve the company of its liability under both common and statute law. The stipulations above recited were held by the Supreme Court of Iowa, in 1895, not to be a contract restricting the liability of the company in violation of the acts of 1870 and 1873. The theory of this decision is (1) that the employee by entering the relief department has waived his right of action for a valuable consideration and (2) that the effect of the contract of membership is but to put the employee to his election, after injury, between his right of action and his rights as a member of the department. 312 This theory over- looks the possibility that both the contract and the election might be involuntary in fact, and hence for a consideration not deemed adequate by the employee. At any rate, the Court's decision was felt to be, in effect, a judicial repeal of a legislative enactment. It was believed that under this decision it would be possible for every rail- way company to defeat the purpose of the liability law by maldng membership in a relief association a condition of employment. Accordingly, the railway unions at once began agitating for a law which should expressly invalidate con- tracts such as those used upon the Burlington system. The views of the railway workers were embodied in an amend- ment to the railway liability statute which was offered by Representative Temple at the special legislative session of 1897, 313 and which has come to be known as the Temple Amendment. The proposed amendment having failed of passage at the special session, 314 the unions "took the ques- tion to the people" and secured the endorsement of the principle for which they were contending by both the Re- publican and Democratic State conventions of 1898. 315 An act embodying that principle was accordingly passed at the 48 WORK ACCIDENT INDEMNITY IN IOWA next session of the General Assembly (1898) with but little opposition. 316 The Temple Amendment as finally enacted reads : Nor shall any contract of insurance, relief, benefit or indemnity in case of injury or death, entered into prior to the injury, between the person so injured and such corporation, or any other person or association acting for such corporation, nor shall the acceptance of any such insurance, relief, benefit, or indemnity by the person in- jured, his widow, heirs, or legal representatives after the injury, from such corporation, person or association, constitute any bar or defense to any cause of action brought under the provisions of this section, but nothing contained herein shall be construed to prevent or invalidate any settlement for damages between the parties sub- sequent to injuries received. 317 The validity of the Temple Amendment as an exercise of police power has been fully upheld by the supreme courts both of Iowa and of the United States. 318 Its effect is to in- validate the Burlington Voluntary Relief Department con- tracts so far as these undertake to restrict the liability of the railway. After the passage of the Temple Amendment, in 1898, the railway liability act stood unchanged until the act of 1909 modifying the common law in respect to contributory negli- gence and assumption of risk — topics elsewhere treated in this monograph. CONTRIBUTORY NEGLIGENCE Proof that a work injury was occasioned by the fault of the employer is of no avail unless the plaintiff can also es- tablish his own freedom from contributory negligence. 319 For no one can, at common law, hold another liable in dam- ages for an injury to which his own want of ordinary care in any degree proximately contributed. 320 It matters not that the fault of the workman may have been slight and that of the master gross by comparison: any negligence on the AN ANALYSIS OF EMPLOYERS' LIABILITY 49 part of the person injured, which actually contributed to produce the injury and without which the accident would not have occurred, will defeat recovery. 321 But negligence which was not a proximate and efficient cause of the injury complained of is not to be regarded as contributory ; 322 hence the injured party, though not entirely without fault, may maintain an action if he could not have prevented the injury by the exercise of ordinary care. 323 Lastly, even the contributory negligence of the person in- jured is not a bar to recovery where the other party to the accident became aware of such negligence in time to avoid the injury by the use of ordinary care. 324 This doctrine of "the last clear chance", 325 like the preceding apparent ex- ception to the general rule of contributory negligence, ap- pears to be founded on the theory of proximate cause : the negligent act or omission of the defendant intervening be- tween the negligence of the injured party and the injury is considered the sole proximate cause of the latter. 320 As applied in employers' liability cases the doctrine of contributory negligence presents two aspects. First, an em- ployee may be guilty of contributory negligence so as to preclude recovery in continuing to work under conditions of such imminent hazard as a reasonably prudent man would refuse to encounter. 327 Second, a servant can not recover for an injury to which his own want of due care at the time of the accident contributed as an efficient cause. In Iowa, how- ever, the conception of contributory negligence in continuing at work is merged with that of assumption of risk 328 — which will be discussed in a subsequent section. 329 It only remains, therefore, to consider the question of the servant's negligence at the time of the injury. The care exacted of an employee is that defined as "reasonable" or "ordinary", 330 though what conduct is reasonable will, of course, depend upon the particular cir- cumstances surrounding each case. 331 Thus the standard of 50 WORK ACCIDENT INDEMNITY IN IOWA care varies with the age and experience of the employee : 332 reasonable care on the part of a child or young person is only such care and discretion as is usual with persons of similar age. 333 So, too, the need of performing a duty in haste, 334 or under conditions of imminent peril or neces- sity, 335 or the engrossment of the employee's attention by the duties in which he is engaged, 336 will excuse acts that would be negligent if performed under normal conditions. Contributory negligence is not predicable unless the em- ployee was, or ought to have been aware of the conditions which produced his injury, 337 and appreciated the dangers created by those conditions. 338 The employee has a right to rely on the presumption that both his employer and his co- employees will exercise due care in the discharge of their respective duties, and is not bound to take precautions against their failure so to do unless he has notice thereof. 339 Knowledge of a dangerous condition will, however, be im- puted to the injured employee if he could have discovered the same by the exercise of ordinary care. 340 Whether, in a given case, the employee can be held to have appreciated the dangers to which he was exposed will depend, upon the age and experience of the employee, 341 his means of obser- vation, 342 and other circumstances existing at the time of the injury. 343 Contributory negligence is ordinarily a mixed question of law and fact, 344 but may be conclusively presumed as a matter of law whenever it is an unavoidable inference from the undisputed facts of the case. 345 Typical instances of conduct which has been held to present such an inference are : failure to look for possible dangers ; 346 f orgetf ulness of a permanent structure, the position of which should have been known ; 347 going into, or remaining in, an unauthorized and dangerous place ; 348 creating or assisting to create the conditions from which the injury results ; 349 or going into a AN ANALYSIS OF EMPLOYEES' LIABILITY 51 dangerous place without notifying persons from whose acts danger may reasonably be anticipated. 350 Violation of law is negligence per se, 351 and where such violation by the injured party contributed to the injury com- plained of he can not recover. But if the violation of law was a mere condition, and not the proximate cause of the injury, it will not defeat recovery. 352 The needless violation of a known rule of the employer intended for the safety of his employees is contributory negligence, if it is an efficient cause of the injury. 353 Of course, a breach of the rules will not defeat recovery when it was not the proximate cause of the injury, 354 nor when the breach was justified by the circumstances. 355 Nor can an employer escape responsibility by showing the violation of a rule which is habitually disregarded with his apparent acquiescence. 358 It is not necessarily negligent to adopt the more hazard- ous of two available courses of action. The question usually is one of fact, to be determined according to the circum- stances of the case, the reasons for doing what was done, and the care used to avoid danger. 357 But to choose a reck- less or needlessly dangerous method of accomplishing an object is negligence as a matter of law. 358 Thus, a brake- man is not always guilty of contributory negligence in going between cars while in motion to couple or uncouple them. 359 Nor is a servant necessarily negligent in failing to use a safety appliance provided by the employer, 300 though it is negligent to ignore such an appliance where it can reason- ably be used. 381 Lastly, the fact that a particular act is usual or customary tends to rebut a presumption of negli- gence, 328 unless the custom is itself negligent. 363 Contributory negligence is not a defense of the master, to be established by him : freedom from such negligence must be pleaded and proven by the employee to justify recovery. 384 It is not always necessary, however, to prove the absence 52 WORK ACCIDENT INDEMNITY IN IOWA of contributory negligence by direct and positive testi- mony. 385 The fact of due care may sometimes be inferred from the circumstances attending the injury, 360 or from the instinct of self-preservation. 367 Thus, in case of an injury causing death it may be presumed, until the contrary ap- pears, that the deceased, prompted by his natural instinct, exercised such care for his safety as was required under the circumstances. 368 But the presumption arising from the in- stinct of self-preservation only obtains in the absence of direct evidence as to the care exercised by the person in- jured at the time of the injury.* 69 Criticism of Contributory Negligence : — The rule which makes the smallest inadvertence on the part of the injured person a complete bar to recovery bears with peculiar hard- ship upon industrial wage-workers. The statisticians of the Imperial Insurance Office estimate that not less than forty per cent (41.26 per cent in 1907) of work accidents in the German Empire are attributable to the fault of the injured workmen, within the common law definition of contributory negligence. 370 Such a record convincingly demonstrates the impossibility of incorporating the rule under discussion in any adequate system of indemnity for industrial injuries, since its operation would leave some two-fifths of such acci- dents unindemnified. The doctrine of contributory negligence not only defeats recovery in a large proportion of employers' liability cases ; it is substantially unjust even as a part of an indemnity sys- tem based on fault. Statistics of work accidents, of which those above quoted are fairly representative, 371 contain abundant proof that negligence, in the sense of occasional lapses of that care and watchfulness which are the only hu- man traits of the "reasonably prudent man", is a very common failing. The prevalent shortcoming of industrial workmen in this respect is due partly to a conceptual juris- AN ANALYSIS OF EMPLOYERS' LIABILITY 53 prudence which makes the conduct of a hypothetical "rea- sonable man", rather than of actual human beings, the standard of due care; and partly to conditions which inhere in modern industry. The "reasonable man" of the common law never relaxes his vigilance under the influence of monotony, fatigue, or habituation to danger, never permits his attention to be di- verted, even for a moment, from the perils which surround him, never forgets a hazardous condition that he has once observed, and never ceases to be on the alert for new sources of danger. Evidently, this personage, like the "economic man" of John Stuart Mill, has no flesh-and-blood existence, but is a heritage from pre-scientific psychology. The unreasonableness of the "reasonable man" standard of care is well exhibited in its application to extra-hazardous employments. In the nature of the case such callings are followed by men of unusual daring — which is to say, of less than usual regard for their own safety. Moreover, all ex- perience shows that long continued exposure to danger be- gets indifference thereto. 372 Accordingly, acts which would be deemed reckless in less hazardous employments are but incidents of the day's work to a railway brakeman or a structural iron-worker. To the common law jurist these well-known facts suggest only that a special presumption of negligence should lie against the members of these trades. 373 But this is so only because "ordinary care", as defined by the courts, is something different from the usual practice of men under the actual circumstances to which the test of care is to be applied. The ordinary man is not "ordinarily pru- dent" in the eye of the law, just as no actual business com- munity is fully "normal" in the view of orthodox econo- mists. Another very large class of so-called negligent acts is accounted for by the mal-adjustment of human nature to a mechanical environment. 374 The high speed of modern in- 54 WORK ACCIDENT INDEMNITY IN IOWA dustrial processes, the ceaseless din amidst which they are carried on, the excessive hours in many employments, the difficulty of focusing attention upon a monotonous and in- cessantly recurring operation, impose a strain upon indus- trial operatives which makes occasional inadvertence on their part as inevitable as it is disastrous. In short, "it is coming to be well understood by all who have studied the circumstances of modern industrial em- ployments that the supposed contributory negligence of employees is in effect the result of the mechanical conditions imposed on them by the nature of their employment, and that by reason of these conditions the individual vigilance and responsibility contemplated by the common law are im- possible in practice." 875 To these mechanical causes of contributory negligence must be added others for which the individual workman is no more responsible than for the conditions under which he works — the ignorance of "green" hands or of tongue-tied immigrants, the horse-play and mischief of children and young persons, and the physical defects which do not keep the victims out of dangerous trades but which do render them peculiarly liable to injury. 376 Thus, the investigators of the Pittsburgh Survey found that of 410 fatalities, 22, or five per cent, were due to the ig- norance or unskillfulness of "greeners"; 13, or three per cent, were due to the extreme youth of the victims ; 8, or two per cent, to intoxication ; 4, or one per cent, to physical weak- nesses ; 22, or five per cent, to sheer heedlessness ; and 83, or twenty per cent, to momentary inattention, more or less ex- cusable by the circumstances, or to the deliberate taking of chances in order to save time and avoid effort. 377 Of 132 fatalities attributable to the victims' "fault", in the com- mon law sense, no more than 85 were due to "heedlessness, inattention, or recklessness", and a considerable number, AN ANALYSIS OF EMPLOYERS' LIABILITY 55 even of these 85, must be explained by the high speed of the work and by the workers' habituation to danger. The common law doctrine of contributory negligence is, then, defective in that it fails to take account of men as they are. A practical science which has to do with the ordinary relations of everyday life ought not to be based on the un- real abstractions of an antiquated psychology. If "con- tributory negligence" is to bar recovery for a work acci- dent, "negligence" should be denned as failure of that care ordinarily practiced by men of the same calling under cir- cumstances similar to those of the case at bar. The logical foundations of the rule under discussion are hardly more secure than the psychological assumptions which gave birth to the ' ' reasonable man ' '. The rule can not be based on the doctrine of proximate cause, for there are numberless cases where the contributory negligence of the plaintiff was no more a proximate cause of the injury than was the fault of the defendant. 378 It can not be grounded on the fact that the defendant's negligence in such cases is not the sole efficient cause of the injury, since the concurrence of another cause never relieves a wrong-doer from the con- sequences of his own fault. 379 Nor will it do to say that re- covery is not allowed because the law will not undertake to determine which of two wrong-doers is most at fault 38 ° — the injured person is not a wrong-doer, since no man owes a legal duty of protection to himself. 381 Lastly, the doctrine of contributory negligence can not be justified by the unfitness of a jury to apportion damages to the degree of fault. 382 If juries can be trusted to determine the nice questions of contributory negligence, assumption of risk, and fellow-servant or vice-principal, they can discharge this further duty also. In point of fact, the present rule rests upon no other basis than the general individualism of the common law — ■ whereof it is, indeed, one of the most ex- treme expressions. 383 No man owes any duty to another be- 56 WORK ACCIDENT INDEMNITY IN IOWA yond that of affording him the opportunity to protect him- self. If, therefore, the injured person could have prevented his injury by the exercise of ordinary care he is not allowed to recover. The day when the social philosophy of laissez faire was a sufficient authentication of juristic principles that have to do with practical affairs lies some two generations in the past. Accordingly, as changed industrial conditions have made the common law rule of contributory negligence more and more oppressive in operation, there has appeared a vigorous and widespread demand for the modification of that rule. Statutory Modification of Contributory Negligence : — In response to this demand, statutes affecting the law of con- tributory negligence have been enacted by fifteen States, by the District of Columbia, and by the United States. These statutes are of three types. (1) In Indiana contributory negligence is made an affirmative defense, to be pleaded and proven by the employer. 384 (2) In six States contributory negligence is not a bar to recovery where the violation by the employer of specified safety laws is the ground of ac- tion. 385 (3) The rule of proportional negligence, borrowed from admiralty law, 386 whereby want of care on the part of the person injured does not defeat recovery, but only effects a reduction of damages proportionate to such want of care, 387 is established as to all employments in Ohio 388 and the Dis- trict of Columbia, 389 as to mines, smelters, and ore mills in Nevada, 390 as to coal mines and clay works in Maryland, 391 as to building operations in Oregon, 392 and as to railways by nine States 393 and by the United States. 394 The Iowa statute, dating from 1909, is restricted to rail- way employees and combines the types numbered (2) and (3) above. The text of the act is as follows: AN ANALYSIS OF EMPLOYERS' LIABILITY 57 That, in all actions hereafter brought against any such corpora- tion [operating a railway] to recover damages for the personal in- jury or death of any employe under or by virtue of any of the provisions of this section, [Code of 1897, Section 2071, the railway liability statute] the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe; provided, that no such employe who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier or corporation of any statute enacted for the safety of employes contributed to the injury or death of such employe. 393 This act has not yet been construed by the courts. There is little doubt, however, that, as part of the Railway Lia- bility Statute, the Contributory Negligence Act applies only to injuries arising from the peculiar hazards of railway op- eration 396 and that railway companies can not contract out of their liability under the act. To employees within its pro- visions the new legislation is probably at least as important as the fellow-servant act already noticed. If anything, the common law rule of contributory negligence barred re- covery in a larger number of railway accidents than the fellow-servant rule. ASSUMPTION OF RISK When the plaintiff in an employers' liability action has made out his case, when it clearly appears that the injury was caused by a condition for which the employer was re- sponsible, and w T as in no way contributed to by the fault of the injured employee, the master may still, at common law, escape liability by setting up the curious contention that the employee had ' ' assented ' ' to the negligence, and ' ' assumed ' ' the risk, and "waived" his right to recover. Not that the employee had consciously agreed to release his master from the obligation to use ordinary care for his safety. But be- 58 WORK ACCIDENT INDEMNITY IN IOWA cause he had continued at work knowing that the employer was negligent in the particular respect that caused his in- jury the law implies that the employee assumed the risk of being injured thereby. 397 For, it is reasoned, the employee is free to quit the service of a master who will not remedy a dangerous condition. 398 If, then, knowing the danger, he chooses rather to encounter it than to seek other employ- ment, he is barred from recovery under the ancient maxim, volenti non fit injuria (that to which one assents is no wrong) . 3 " The " assumption of risk" herein considered is to be sharply distinguished from so-called "assumption of ordi- nary risks", on the one hand, and from contributory negli- gence, on the other. The "ordinary risks of the employ- ment" are assumed by the servant in the sense that an in- jury arising therefrom, not being attributable to the mas- ter's negligence, affords no ground of action. The "extra- ordinary risks", on the contrary, are, by definition, those for which the master is prima facie responsible. 400 The ser- vant's assumption of these risks, therefore, operates to re- lieve the master of liability for an admitted wrong. 401 Con- tributory negligence, again, refers to the conduct of the injured person at the time of the injury ; assumption of risk refers to continuance at work with knowledge of a condition which menaces injury at an indeterminate time. Hence a workman may be debarred from recovery by his assumption of the risks that occasioned his hurt, notwithstanding he was exercising all due care at the time of the accident. Con- versely, he may be non-suited for contributory negligence in respect to a risk that he had not assumed. 402 Assumption of extraordinary risks is an affirmative de- fense which must be pleaded by the master and sustained by a preponderance of evidence. 403 To make good his con- tention on this issue the employer must prove (1) that the employee knew, or in the exercise of ordinary care should AN ANALYSIS OF EMPLOYERS' LIABILITY 59 have known, of the defect which occasioned his injury ; 404 (2) that he appreciated the extra hazard resulting there- from; 405 and (3) that with such knowledge and appreciation he continued at work, exposed to such abnormal hazard, without any special inducement so to do, other than unwill- ingness to join the army of the unemployed. 406 Actual knowledge of the dangerous condition need not be shown in order to charge the employee with assumption of the risk, since every person is held, in law, to know what, in the exercise of ordinary care, he ought to know. 407 Ordinary care requires the employee to use reasonable diligence to discover the open and obvious dangers around him, 408 and he is chargeable with knowledge of any danger which it would have been possible to discover by the exercise of such care as persons of ordinary intelligence may be expected to take for their own safety. 409 But he is not required to in- spect or search for obscure dangers or defects in his place of work, or in the machinery or appliances which are fur- nished to him. 410 Whether an employee is chargeable with knowledge and appreciation of a particular risk will depend upon his age and experience, 411 his opportunities for ac- quaintance with his surroundings, 412 the means of informa- tion at his command, 413 and the obviousness of the danger to which he is exposed. A minor is not as a matter of law incapable of assenting to, and assuming the risk of, a hazard created by the negligence of his employer. 414 But the age and experience of the employee are always important con- siderations in determining whether he knows or ought to know and appreciate the peril to which he is exposed. 415 An employee is chargeable with knowledge and apprecia- tion of all dangers which are open and obvious, 416 that is to say, discoverable by the exercise of reasonable care. 417 A bridge above a railway track too low to be cleared by a brakeman standing on the top of a box car, 418 a projecting girder in an elevator shaft, 419 or a coal chute in close prox- 60 WORK ACCIDENT INDEMNITY IN IOWA imity to a railway track 420 present dangers which must be patent to any person oi' ordinary intelligence. But where the risk is not apparent it is not assumed unless there are circumstances showing that it should have been appreciat- ed. 421 Assumption of risk relieves the master of all liability for the non-discharge of his common law duties. Recovery is thus barred for failure to provide a safe place to work 422 or safe machinery 423 and appliances, to hire competent ser- vants, 424 or to conduct the business on a safe system. 425 The law is less clear with reference to statutory duties of the master. It appears to be settled that a servant may ''consent" to his violation of a statute not expressly enacted for the protection of employees, 426 as an ordinance regulat- ing the speed of railway trains within the corporate limits of a city. 427 But it is not easy to reconcile the decisions un- der the safety laws proper. Under the act forbidding the employment of children to operate machinery it was held, in 1907, that children within the prohibited age are presumptively incapable of appreciat- ing the dangers, and assuming the risks, attendant upon such employment. "Public policy", it was said, "would seem to demand that the statute which undertakes to protect children against the hazards to which the recklessness and inexperience of childhood expose them shall not be defeated of its purpose by pleading that same childish recklessness and ignorance as a reason for exempting an employer from responsibility for his own wrong." 428 With respect to adults it was held in 1907 that an experienced bakery operative may assume the risk of being injured by an unguarded dough- mixer notwithstanding that the factory acts require such machinery to be guarded. 429 Four years later, however, the Supreme Court explicitly held that where the negligence charged constitutes the violation of a statute expressly en- acted for the servant's benefit the master can not avail him- AN ANALYSIS OF EMPLOYERS' LIABILITY 61 self of the plea of assumption of risk against the conse- quences of his own wrong. Said Mr. Justice Weaver, speak- ing to this point : To say that the Legislature in enacting these measures of pro- tection which iu some degree equalize the advantages of employer and employe and afford a needed protection to the persons and lives of the latter intended that the master might violate the statute to the injury or death of his servant, and then escape liability by pleading and proving that his offense against the law was habitual, obstinate and notorious, is inconsistent with justice and, it is hardly extravagant to say, repugnant to good morals. Such a rule offers a premium to contemptuous disregard of the statute, and robs it substantially of all value to the class in whose interest it was en- acted. 439 In the opinion last cited the bakery case of 1907 was con- strued as turning on the contributory negligence of the in- jured employee which left the servant's assumption of risk from the master's violation of a safety statute an open question. 431 But, though the later decision was evidently intended to establish a controlling precedent, the same court in the same term held that a laundry worker did not assume the risk created by the absence of a guard upon a mangle at which she was employed, not because the failure to provide a guard was a violation of the factory act, but because, being- inexperienced, she was not chargeable with knowledge that such a guard was practicable, nor with appreciation of the extra hazard arising from its absence. 432 Later still, the Court, reverting to the more humane view, has decided in several cases that an employee does not assume the risk of a violation of the safety laws, although he knows of such vio- lation and appreciates the danger incident thereto. 433 It may be concluded, therefore, that the law in Iowa now is that an employee can not in any case assume the risk of, or "consent to", his employer's violation of a statute enacted expressly for the safety of employees. This doctrine is cer- 62 WORK ACCIDENT INDEMNITY IN IOWA tainly more humane than the opposite view, and it seems also to be better supported by the decisions in other juris- dictions. 434 The rule which negatives assumption of risk in every such case has the further advantage of avoiding the great uncertainty and the numerous appeals which must result from making assumption turn on the particular facts of each case. 435 Even in actions founded solely on the common law, as- sumption of risk may be negatived by an affirmative showing that the servant was justified in continuing at work, although he knew and appreciated the danger to which he was exposed by reason of his master's negligence. Such justification may be afforded by several circumstances. First. An employee does not assume a risk of which he only becomes aware at the moment of his injury. No one is properly chargeable with knowledge of a peril unless, in the exercise of reasonable care, he might have become aware of it sufficiently in advance to enable him to protect himself therefrom. 436 Moreover, it would be unreasonable to re- quire an employee to abandon his master's service the in- stant he discovers a dangerous condition. He may wait a reasonable time to see whether, upon complaint, the danger will be removed ; and during such time he is not chargeable with assumption of risk. 437 Second. When the employee continues at work in reliance upon the master's assurance that a dangerous condition will be remedied, the employee's assumption of the risk arising from the condition promised to be remedied is suspended, eo instante, by such promise, and his right of recovery re- mains intact so long as he may reasonably expect the prom- ise to be fulfilled. 438 The master's promise need not be ex- pressed : it is sufficient if the servant has a right to believe that the defect will be remedied. 439 Nor need the promise be made by the master himself, since he is bound by the act of one having authority in such matters. 440 AN ANALYSIS OF EMPLOYERS' LIABILITY 63 It has been said, in at least one case, that a servant does not assume the risk of any defects in the things about which he is employed unless, knowing the defects, he remains in the employment of his master without objection or protest against their continuance. 441 Protest is here apparently treated as evidence of non-consent, and so as inconsistent with the theory of "voluntary assumption of risk". But so merciful a view, if it were really entertained, has not been adopted. It is now settled that complaint of a defect, with- out a promise of remedy, will not relieve the employee of assumption of the risk if he continues in the service. 442 Third. A servant may be justified by express command of the master or his representative in doing an act from which danger may reasonably be apprehended. 443 This rule is es- pecially applicable to employments like railroading in which due subordination and prompt obedience to orders are in- dispensable to the safety of life and property. But to justify a particular act the order must be specific ; 444 while even an express command will not excuse an employee in incurring an unnecessary danger which is apparent to him. 445 Fourth. A principle which is somewhat analogous to that just stated is, that a servant is entitled to place some reli- ance upon the assurance of his superior who is presumably better informed than himself that an appliance is safe or that an act may be safely done. 446 Either an express com- mand or an assurance of safety tends to negative both con- tributory negligence and assumption of risk, since the one implies a want of voluntary action and the other shows ex- cusable ignorance of the danger to be incurred. It has been seen that an act which would otherwise be con- tributory negligence may be excusable when the employee's attention is necessarily engrossed by the performance of duty so that a known danger is absent from his mind, or where an emergency exists requiring prompt action. It is clear, however, that circumstances such as these can not, in 64 WORK ACCIDENT INDEMNITY IN IOWA a logical point of view, be held to negative a contractual assumption of risk. For when a risk has been assumed, the master's negligence with respect thereto is waived, and this waiver can not be affected by the particular situation in which the employee may be placed, or the rapidity and promptness with which he may be required to act at the time of the accident. 447 Such is undoubtedly the general rule as recognized in this and other States. 448 Criticism of Assumption of Risk : — ■ Assumption of risk, in common with other employers' liability doctrines, finds its sanction in the laissez faire economics of our great grand- fathers. 449 That the real foundations of the doctrine are economic, rather than juristic, may be shown by reducing it to a series of propositions. First. No man owes any duty of protection to another beyond affording him the opportunity to protect himself. Second. Consequently, one who knowingly incurs a danger which he might have avoided can not complain of an injury thereby sustained (expressed in the maxim, volenti non fit injuria). 45 " Third. The employee is not bound to risk life or limb in the service of his employer. He may insist on wages proportionate to the risk he incurs, may decline an extra-hazardous employ- ment, or protest against unduly dangerous conditions and quit the service of a master who will not exercise proper care for his safety. 451 Fourth. If, therefore, an employee rather than quit his master's employment chooses to work in a sit- uation which exposes him to abnormal hazard, the risk of being injured thereby is his own. 452 The weakness of this chain of reasoning lies in the postu- late, that the wage-earner is free to choose the conditions under which he will work. It may be true, in an academic sense, that the wage-worker is at liberty to seek other em- ployment if he does not like his employer's methods. 453 His limbs are not fettered, he is not restrained by physical force AN ANALYSIS OF EMPLOYERS' LIABILITY 65 nor by threat of bodily harm, nor is be legally bound to con- tinue in a particular employment. Nevertheless, in practi- cal life, poverty, ignorance of other opportunities, scarcity of employment, dependence of family, and other economic circumstances often compel the wage-worker to accept em- ployment on any terms that are offered. 454 Men do not choose to work in fire-traps, or to couple moving cars with a link and pin, any more than they prefer to live in slums or to die of "phossy jaw"; but they are constrained by the fear of losing their jobs to face the chance of injury rather than of destitution. Practically speaking, the locomotive engineer just in from a twelve-hour trip can not decline to take out another train : to do so would be to incur dismissal and to court black-listing. The machine tender can not quit his post because he is exposed to an unguarded set-screw: in the absence of penal legislation he would find unguarded set-screws in other factories, even should he be fortunate enough to obtain a place in one of them. In short, the worker's liberty to protect himself against undue hazard by exercising his right to quit is, as even the courts are beginning to perceive, "a myth" 45 ° and "a heart- less mockery". 456 But this recognition of the involuntary character of the "servant's assumption of risk" leaves the whole doctrine without support in equity or morals. Statutory Modification of Assumption of Risk: — The rule which makes the employee remediless against even the gross negligence of his employer, if only that negligence is habitual and notorious, is so oppressive to workingmen 4 " that organized labor has, not unnaturally, long sought to secure its abrogation. The courts having declared their inability to modify the judge-made law in this respect, 458 the unions appealed to the legislature. Their first success was won in 1890, when the defense of assumption of risk was abolished as against violations of the automatic coupler and 66 WORK ACCIDENT INDEMNITY IN IOWA brake law enacted in that year. 459 They had to wait half a generation before they gained strength enough to carry a second outwork in the employer's fortress. A bill which would have enabled employees to relieve themselves of the assumption of extraordinary risks by notifying the master of defects in ways, works, or machinery was introduced at the legislative session of 1906 ; 46 ° but was defeated by the combined opposition of manufacturers and railways. 461 At the next meeting of the General Assembly, however, the Iowa Federation of Labor and the State Manufacturers' Association agreed upon a compromise measure which be- came law. 462 The Assumption of Eisk Act of 1907 is as follows : In all cases where the property, works, machinery or appliances of an employer are defective or out of repair and the employe has knowledge thereof, and has given written notice to the employer, or to any person authorized to receive and accept such notice, or to any person in the service of the employer and entrusted by him with the duty of seeing that the property, works, machinery or appli- ances are in proper condition, of the particular defect or want of repair or when the employer or such other person has been notified in writing of such defect or want of repair by any person whose duty it is under the rules of the employer or the laws of the state to inspect such works, machinery or appliances, or any person who is subject to the risk incident to such defect or want of repair; no employe after such notice, shall by reason of remaining in the em- ployment with such knowledge, be deemed to have assumed the risk incident to the danger arising from such defect or want of repair. 463 The labor unionists were by no means satisfied with this legislation. Particularly objectionable to them was the re- quirement that the employee give written notice of defects if he would avoid assuming the risk thereof. Some work- men, it was urged, are unable to write and many would probably be deterred by fear of discharge from filing notice of dangerous conditions. 464 Accordingly, vigorous efforts AN ANALYSIS OP EMPLOYERS' LIABILITY 67 were made to have the act of 1907 amended by the Thirty- third General Assembly, and the result was the Assumption of Risk Act of 1909 which reads as follows : Iu all cases where the property, works, machinery, or appliances of an employer are defective or out of repair, and where it is the duty of the employer from the character of the place, work, machin- ery or appliances to furnish reasonably safe machinery, appliances or place to work, the employe shall not be deemed to have assumed the risk, by continuing in the prosecution of the work, growing out of any defect as aforesaid, of which the employe may have had knowledge when the employer had knowledge of such defect, except when in the usual and ordinary course of his employment it is the duty of such employe to make the repairs, or remedy the defects. Nor shall the employe under such conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work ; but this statute shall not be construed so as to include such risks as are incident to the em- ployment. And no contract which restricts liability hereunder shall be legal or binding. 465 This statute has not yet been construed by the Supreme Court 466 so that its precise effect must be a matter of opin- ion. (1) The language of the act is that of the common law and it is apparently intended to abrogate the doctrine of assumption of risk due to the master's negligence. Hence it does not apply to working places, such as a miner's room, which by law or custom are in the keeping of the work- man; 467 nor to defects which it is the duty of the employee to repair, since the risk of injury in making such repairs is an "ordinary" risk of the employment, 468 while failure to make the repairs would be contributory negligence. 469 As to all other cases, the employer's knowledge of a defect is treated as equivalent, in common law, to a continuing prom- ise to repair. (2) Being remedial, rather than penal in character, the act probably will be broadly construed. If 68 WORK ACCIDENT INDEMNITY IN IOWA so, it will not be necessary to show that the employer had actual knowledge of a given defect if, in the exercise of rea- sonable care, he or his vice-principal would have known of it. (3) The language of the act does not embrace unsafe methods of work, nor failure to formulate rules, or to em- ploy a sufficient number of reasonably competent servants. As to these phases of the master's duty assumption of ex- traordinary risks apparently remains unaffected. 470 (4) The clause as to "risks incident to the employment" must be regarded as surplusage. Nothing in the statute would justify a construction transferring these risks from the employee to the employer. (5) The clause, "Nor shall the employee under such conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work", appears to be two-edged. It estops the employer from setting up the contention that the employee has "waived" the negligence under volenti non fit injuria, as distinguished from assump- tion of risk — a contention which, if the courts should adopt a narrowly technical view, might otherwise, in certain cases, defeat the object of the statute. 471 It leaves assumption of risk operative in those cases where in other jurisdictions continuance at work would constitute contributory negli- gence. How much this exception will amount to will evi- dently depend on what the courts hold to be a "danger im- minent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work". The act of 1909 is evidently more favorable to the em- ployee than that of 1907. It does away with the require- ment of a written notice of defects — a requirement that would, in many cases, defeat the remedial purpose of the statute. It prohibits contracting out — unless, indeed, the Supreme Court should revert to the view, adopted before the Temple Amendment with respect to the Kail way Li a- AN ANALYSIS OF EMPLOYERS' LIABILITY 69 bility Act, that an employer may, notwithstanding this pro- hibition, escape liability by maintaining a system of so- called ''voluntary relief". 472 It forecloses the defense of volenti non fit injuria as a substitute for assumption of risk. One might wish that the enumeration of negligent acts with respect to which assumption of risk is abrogated were more exhaustive and that provisions analogous to those of the Temple Amendment were incorporated in the contracting- out clause. Still, the statute as it stands strips the once- formidable doctrine of assumption of risks of most of its terrors for the employee. The Assumption of Risk Act of 1909 is general in its terms and railways are doubtless within its provisions. An as- sumption of risk clause was, none the less, incorporated by the Thirty-third General Assembly (1909) in the Contribu- tory Negligence Amendment to the Railway Liability Stat- ute. The clause reads as follows : Nor shall it be any defense to such action [for the personal in- jury or death of an employee] that the employe who was injured or killed assumed the risks of his employment. 473 This language might seem to refer to ordinary risks, but the phrase "nor shall it be any defense" clearly indicates risks due to the negligence of the railway corporation since assumption of ordinary risks is not a matter of defense — injuries due to such risks afford no ground of action at com- mon law (see above, p. 22) nor under the Railway Liability Statute (see above, p. 44). As a part of the Railway Lia- bility Statute, the assumption of risk provision is doubtless restricted to injuries arising from hazards peculiar to rail- way operation (see above, p. 42) and is fully guarded against "contracting out" (see above, p. 45). As to in- juries within its scope the railway assumption of risk clause is apparently broader than the general Assumption of Risk Act. 70 WORK ACCIDENT INDEMNITY IN IOWA SUMMARY OF EXISTING EMPLOYEES' LIABILITY As the law now stands in Iowa a workman who has been injured in the course of an ordinary employment may re- cover if he can show, by a preponderance of evidence, that his injury was immediately caused by his employer's failure to exercise ordinary care for his safety and was not in any degree proximately contributed to by any want of ordinary care on the part of the injured workman. Conversely, he can not recover if his injury was due to an " ordinary haz- ard" of his employment, or to the negligence of a fellow- workman, or to a defect, although produced by his employ- er's negligence, which it was the employee's duty to repair or which was so manifestly and immediately dangerous that a "reasonably prudent person would not have continued in the prosecution of the work". By way of exception a rail- way worker is permitted to recover for an injury arising out of the operation of trains notwithstanding that the in- jury may have been immediately caused by the negligence of a co-employee and although it may have been in some measure contributed to by the negligence of the injured workman himself. IV THE PRACTICAL WORKING OF EMPLOYERS' LIABILITY The foregoing pages have set forth the system of accident indemnity worked out in the course of half a century by the joint labors of the courts and the General Assembly of Iowa. How does this system work? Does it distribute the pecun- iary burden of work accidents in an equitable manner, as judged by current morality? Is it prompt, certain, and economical in operation? Does it conduce to harmonious relations between employers and employees? Does it offer adequate incentive to those who have the power to avoid preventable injuries? If defective in any or all of these respects, can its defects be remedied by the modification of certain details without abandoning the basic principle that there can be no recovery except where the employer was "at fault"? To answer these questions it will be necessarj^ to consider in some detail the practical working of the existing law. WHO BEARS THE LOSS Detailed statistics gathered by the Imperial Insurance Office show that only one-eighth of the industrial injuries in the German Empire are due to ' ' defective apparatus, or ar- rangements, etc.", "Absence of or defective safety appli- ances", "Absence of or defective regulations, supervision", or other "fault" of the employer or his responsible man- ager, supervisor or foreman, 474 so as to afford any ground of recovery under the Iowa law. In the absence of first-hand domestic statistics this Ger- man experience may be accepted as somewhat indicative of 71 72 WORK ACCIDENT INDEMNITY IN IOWA the proportion of work accidents for which the Iowa law provides indemnity. To be sure, the great attention paid to accident prevention in Germany operates to reduce the per- centage of industrial casualties attributable to the fault of employers. But this fact is largely offset by the much lower standard of care set up by the common law, by reason of which many accidents that would in Germany be attributed to the employer's fault are with us assigned to the "ordi- nary risks" of the employment. In Wisconsin it has been estimated that less than twelve per cent of factory accidents are chargeable to the employer 's want of * ' ordinary care ' \ 475 Experts of the Minnesota Bureau of Labor estimate that less than one-sixth of the work accidents of that State could be prevented by "ordinary care" on the part of em- ployers. 476 Data for such an estimate have not hitherto (1911) been gathered in Iowa, but there can be no reason- able doubt that the existing law grants compensation for only a small minority of industrial injuries — certainly not more than one out of six, probably not more than one out of eight. What has just been said refers only to the proportion of work injuries for which the employer is legally responsible. In practice, of course, the payment of compensation often depends on other factors than the bare legality of the claim advanced. In the first place, the employer may grant relief from motives of policy or humanity where no legal liability exists, or he may compromise a claim which he believes to be unfounded rather than incur the expense and annoyance of a law-suit. In the second place, juries notoriously are prone to award verdicts for the plaintiffs in employers' liability cases, partly out of sympathy with necessitous claimants combined with enmity toward wealthy defendants, partly because of an ill-defined but wide-spread belief that the ex- isting law is inequitable. 477 On the other hand, the burden of proof resting upon the plaintiff in an employers' liability PRACTICAL WORKING OF EMPLOYERS' LIABILITY 73 case is a heavy handicap. Necessarily the witnesses in his favor are his co-employees ; and these, whatever their secret sympathies, commonly are afraid to testify against their employer's interests. 478 Hence the injured workman fre- quently fails to make out a prima facie case and finds him- self non-suited for lack of testimony. This fact, and the power which is pretty freely exercised by both trial and appellate courts 479 to set aside verdicts as being unsupport- ed by the evidence, at the very least fully off-set the bias of juries in favor of the plaintiffs. Add the overwhelming strategic advantage, in a contest where Providence is most often on the side of the longest purse, of a great employing corporation over a penniless litigant, and it will appear probable that the number of work accidents for which sub- stantial recovery is had does not much exceed the number for which the employer is legally responsible. These a priori conclusions are borne out by such limited investigations as, in the absence of full records, constitute our only sources of information as to the actual working of employers' liability in common law jurisdictions. Thus, the investigators of the Pittsburgh Survey found that of 258 families who were bereft of husband and father by a single year's work accidents in Allegheny County, Pennsyl- vania, 59 received nothing whatever from the employer, 65 were paid bare funeral expenses, 40 obtained some assist- ance but less than $500 each, and only 48 received more than one year's wages of the lowest paid worker. 480 The de- pendents of unmarried men fared worse, for 65 per cent of such dependents received nothing above funeral expenses. As to non-fatal injuries, 56 per cent of the married men, 66 per cent of the single men contributing to the support of others, and 69 per cent of the non-contributing men received nothing to make up for lost income. Of 27 men who suffered mutilation entailing permanent partial disability — such as the loss of an eye, a leg, an arm, or two fingers — not oiie 74 WORK ACCIDENT INDEMNITY IN IOWA received more than $225, that is, not one was in any way in- demnified for the permanent impairment of his earning ca- pacity. 481 Investigations in other States than Pennsylvania yield analogous results. In Cook County, Illinois, the dependents of 70 out of 149 victims of fatal work accidents, were wholly uncompensated, 38 obtained an average of $700 by settle- ment out of court, and 40 had claims pending after the lapse of eighteen months or more. 482 In Erie County, New York, $500 or more was paid for only 22, and $2000 or more for only 8 out of 115 married men killed. In Manhattan Borough only 4 out of 67 families recovered as much as $2000 for the death of the head of the house. Recovery of more than $2000 was had in 2, and of less than $500 in 35, of 57 fatal cases investigated by the New York Department of Labor. Of 10 men totally disabled for life, 9 failed to get any substantial indemnity and the remaining victim was still seeking damages at the close of the investigation. In 54 of 71 permanent partial disability cases no substantial recovery was had, while more than $500 was recovered in but six cases. No substantial indemnity was paid in 708 out of 902 temporary disability cases. In other words, substantial, though generally inadequate, indemnity for loss of earning capacity was paid in but 214 of 1222 work accident cases investigated in New York State — or about 17 per cent of the total. 483 The Minnesota Bureau of Labor found that compensation amounting to substantial relief was paid in 11 per cent of the fatal cases, 30 per cent of the permanent disability cases, and 50 per cent of the temporary disability cases investigated. 484 In Wisconsin, of 306 workmen se- riously but not fatally injured, 72 received nothing from their employers, 99 received doctor bills only, 44 were paid less than the cost of medical attendance, and only 91 re- covered even a part of the wage loss. 485 Even more significant than any of these very limited col- PRACTICAL WORKING OF EMPLOYERS' LIABILITY 75 lations of cases is the experience of companies writing em- ployers' liability insurance. Nine of the largest of such companies in three years' time (1906-1908) settled 414,681 claims, paying compensation in but 52,427 cases or 12.64 per cent of the total — about one in eight. 480 The case for the existing law of employer's liability as a system of indemnifying work accidents is nowise strength- ened by a comparison between the losses sustained and the damages recovered on account of such accidents. In the Pittsburgh District, 139 families concerning whom all the facts were ascertained suffered an income loss of $109,262 yearly and recovered a total of $74,305, from which is to be deducted their lawyers' fees (at least $25,000) and medical and funeral expenses of not less than $100 each, leaving an average net indemnity of $254 for the death of a bread- winner. 487 The average compensation for a workman's eye in the same community, to judge from reported cases, is $56.64; for a leg, $117.50; for an arm, $33.33; for a finger, $7.14. 488 Reckoning a life at only three years' wages, cer- tainly less than the actuarial value, and counting in expenses of burial and medical attendance, it appears that in the State of New York, in investigated cases, the injured workmen and their dependents bear 83 per cent of the financial cost of fatal injuries, 90 per cent of the cost of permanent dis- ability, and 71 per cent of the losses from temporal inca- pacity. 489 In Minnesota, according to data collected by the State Bureau of Labor, after deducting legal, medical, and funeral expenses, a workman's family receive, on an aver- age, $536 for his death. 490 On the same basis, the industries of that State pay $123.22 for an eye, $557.50 for a hand, $1931.50 for an arm, $88.22 for one or more fingers, $156.40 for a leg, and $256.66 for a foot. 491 In Michigan, the average compensation in 35 fatal cases was $388.53 and in 7116 non- fatal cases was but $10.91. The wage loss incurred by 614 employees on account of temporary disability was 76 WORK ACCIDENT INDEMNITY IN IOWA $58,189-77; the total compensation (inclusive of attorney's fees) amounted to $24,189.78. 492 The investigations from which the above illustrations are taken were so limited in time and scope that no great signifi- cance can be attached to the particular averages quoted. It is to be remembered, moreover, that recent legislation has made the law in Iowa more favorable to the work- man than it was in any of the above-mentioned ju- risdictions at the time to which the foregoing data refer. Still, when all allowances are made, the gen- eral results of these impartial investigations in six widely separated States fairly represent the working of an employers' liability law like that of Iowa. The conclusion to which these investigations lead is inescapable — the pe- cuniary cost of work accidents in Iowa falls almost wholly upon the victims thereof. The workman who is killed or in- jured in the course of his employment may be provided with medical attendance or a decent burial by the policy or hu- manity of his employer, 493 but ordinarily he has no legal claim thereto. The stricken family may be aided by neigh- bors scarcely less necessitous than themselves, 494 or, by de- claring themselves paupers, they may receive humiliating assistance from the poor-law authorities or the associated charities. But in at least five cases out of six there is no indemnity for the income loss occasioned by the accident. Courts have often remarked, in justification of this dis- tribution of the cost of work accidents, that the ordinary and expectable risks of the service are taken into considera- tion in fixing the terms of employment, so that the wages paid include compensation for the hazards incurred as well as for the labor performed. 495 Such a theory may have had some support in English classical economics, 496 but it is founded on assumptions which have long since been ex- ploded 497 and which notoriously are contrary to fact. If employers and workmen stood on an equal footing in the PRACTICAL WORKING OF EMPLOYERS' LIABILITY 77 negotiation of wage agreements; if the loss of his place were a matter of trivial consequence to a wage-earner; if laborers possessed exhaustive knowledge of relative pro- fessional risks, and of opportunities for employment throughout the industrial world; if local attachments or the want of means presented no obstacle to removal from Chi- cago to Honolulu; if a locomotive engineer could, without loss of time or efficiency, transfer his specialized knowledge and ability to type-setting or rail-rolling — wages might conceivably be adjusted to risks. But the unreality of these hypotheses is now conceded even by orthodox economists of the straitest sect. 498 In point of fact, as things actually are, occupational hazards appear to have very little effect on wages. 499 Competition does not suffice to shift the cost of work accidents upon employers. Under existing law the pecuniary burden of such accidents rests finally where it falls in the first instance — upon the injured workmen and their dependents. When the economic situation of wage-earners is called to mind, and when it is remembered that a large majority of those killed or injured while at work are responsible for the maintenance of others as well as of themselves, 500 the reader will be prepared to learn that the ; ' by-products ' ' 501 of employers' liability are want, dependence, child labor, and the breaking up of homes. But the actual findings of investigators in various common law jurisdictions are such as to startle even those whose personal observation has familiarized them with the working of employers' liability. Of 147 families, numbering 558 members, who, in Cook County, Illinois, applied for out-door relief in consequence of industrial injuries, 104 had no wage income whatever, and 43 were earning on the average $6.88 per week, largely the wages of children under sixteen years of age. 502 Of 86 accident-made widows in Cuyahoga County, Ohio, 48 found employment at an average weekly wage of $5.51 ; of 45 chil- 78 WORK ACCIDENT INDEMNITY IN IOWA dren between the ages of twelve and eighteen years, 27 were put to work. 503 Out of 132 families in the Pittsburgh Dis- trict, 55 widows and 22 children went to work, 13 families went to live with the parents of the widow or of her husband, and 35 other families were kept together only by the aid of relatives. 504 In Wayne County, Michigan, 26 families, num- bering 118 members, who became dependent as the result of fatal work accidents, enjoyed aggregate earnings of $78.70 per week. 505 These experiences are typical. When a skilled craftsman is killed or injured in the course of duty, the children are taken out of school, the family removes to less comfortable quarters in a more undesirable neighborhood, the mother takes boarders or goes out to work, the boys sink to the rank of the unskilled, and the girls marry beneath the economic class in which they were born. When a similar calamity befalls a common laborer the widow and the older children eke out such scanty earnings as they can at casual work or in the sweated trades ; if the family are numerous or the chil- dren young, the pitiful struggle often ends in dependence or crime. 506 DELAY AND UNCEETAINTY OF THE LAW The existing system of employers' liability not only de- nies indemnity for all but a small minority of work acci- dents, but it grants relief, when at all, only after delays that often make the final recovery little better than none. It is immediately following an industrial injury, when medical and funeral expenses are to be met and when the ordinary wage income has been cut off, that aid is most needed by the stricken family. After a few months, when the sufferer has died or returned to work, when the mother and the older children have found employment, and when the family budget has been re-adjusted to a diminished income, the need is much diminished. Yet settlement through the courts PRACTICAL WORKING OF EMPLOYERS' LIABILITY 79 frequently is delayed until the economic consequences of the death or disability have worked out their worst results and the evil is beyond repair. In Ohio it requires two years, on the average, to reach final judgment in a fatal accident case. 507 In Cook County, Illinois, of 42 suits begun in 1908 only two had been decided by October, 1910. In 30 non-fatal cases in the same county the average length of time required to reach a settlement by "due process of law" was more than two and one-half years, while 15 out of 45 cases were still pending in court after periods ranging from four to eighty-four months and aver- aging nearly four years. 508 In New York State the ' ' waiting period" in employers' liability cases lasts from six months to six years, with a marked tendency toward the higher figure in populous centers where work accidents are most numerous and court calendars most crowded. 509 In individual cases the delay is indefinitely greater. In Cook County, Illinois, a switchman who lost a leg in October, 1905, recovered $200 in December, 1908. A steel worker, blinded in November, 1907, settled his claim out of court in May, 1910. A switchman who had both legs amputated in November, 1903, had his suit pending in November, 1910. Of forty-seven court cases examined in that State, eleven were still pending after intervals ranging from three to seven years. 510 In an Iowa case it required six years' time, four juries, and four appeals to the Supreme Court to determine a car- penter's right to indemnity. 511 The claim of a railway brakeman for injuries sustained in Appanoose County, Iowa, though diligently prosecuted through successive courts, only reached final decision twelve years after the accident occurred. 512 "With all this deliberateness the courts might fairly be expected to apply their own doctrines with some approach to exactness and equality, according like treatment to like 80 WORK ACCIDENT INDEMNITY IN IOWA cases. In point of fact, however, employers' liability ad- judication can only be likened to a lottery. The utterly hap- hazard operation of this branch of the law has been noted by all investigators of the subject 513 and may be demon- strated from the court records of any industrial community. The dependents of nineteen men killed by ''defective ma- chinery, ways or works", in Cook County, Illinois, received $30,105 in the way of indemnity ; but the families of nine of these men got $22,388 and the families of the remaining ten $7,767. 514 The total compensation for forty-seven fatal railway accidents in Erie County, New York, was $45,824.52, whereof $19,351 went to two families. 515 Of six men totally disabled for life in Minnesota one received $150, one $175, one $4,500, and three got nothing. 516 Two railway switch- men, each of whom had lost both legs in the service, re- covered respectively $17,619, and $2,138. 517 Of 38 persons partially incapacitated for life in "Wayne County, Michigan, 19 received nothing and 7 were paid more than three-fourths of the total amount recovered. 518 An indemnity system which tediously grinds out such results as these is no better than a gamble — "a gamble which awards a few prizes to injured persons and deludes all other injured persons into thinking they are going to draw prizes, too, when, as a matter of fact, they are going to draw blanks; a gamble which makes the employer pay preposterous sums to certain people and so prevents him from paying reasonable sums to all. It is on the same level as faro." 519 What the existing law of Iowa at its best secures to the injured workman is "a right to retain a lawyer, spend two months on the pleadings, watch his case from six months to two years on a calendar and then undergo the lottery of a jury trial with a technical system of law and rules of evi- dence, and beyond that, appeals and perhaps reversals on PRACTICAL WORKING OF EMPLOYERS' LIABILITY 81 questions that do not go to the merits. ... If he wins, he wins months after his most urgent need is over." '-" Such delay and uncertainty are not merely a hardship to the particular litigants involved; they strongly tend to reduce the average recovery in employers' liability cases. The sufferers from work accidents are nearly always neces- sitous and often are destitute. They must have immediate relief. They know that immediate relief through the courts is out of the question, and ultimate relief highly uncertain. They have every inducement, therefore, to accept whatever settlement is offered by the claim agent of the employer or of the liability insurance company, and they frequently sign releases for absurdly inadequate amounts. WASTEFULNESS OF THE SYSTEM The benefits accruing to workmen from the existing lia- bility law are small enough, but the burden imposed by it upon employers is by no means light. This result is due rather to the wastefulness of the indemnity system than to the indemnities actually paid. Litigious justice is necessarily wasteful, for success in litigation often depends more upon the skill or unscrupu- lousness of the attorneys employed than upon the legal merits of the claims advanced or opposed. 521 But the cost of employers' liability suits is increased by the very poverty of the claimants for whose redress the law ostensibly ex- ists. Having no resources of their own, these plaintiffs can only secure counsel upon contingent fees. Since the court costs in unsuccessful suits — about one-half of the whole number of such actions brought 522 — must be paid by the attorneys themselves, the fees in successful cases must be large enough to recoup these losses and remunerate counsel for time and labor spent in winning and losing cases alike. Accordingly, of the damages awarded by courts, from one- fourth to one-half are pocketed by counsel for p3aintiffs. 523 82 WORK ACCIDENT INDEMNITY IN IOWA The contingent-fee system and the uncertainty of the law further multiply waste by multiplying litigation. The spec- tacular damages occasionally awarded by juries and af- firmed by courts of last resort act like the few high prizes of a lottery, tempting claimants to bring suits on the chance of recovering what, in their eyes, amounts to a fortune. This they are all the readier to do since, having no pecuniary responsibility, a losing suit costs them nothing. Personal liability lawyers take shrewd advantage of the gambling- instinct thus invoked, encouraging claimants to sue no mat- ter what the legal merits of their claims. Employers fre- quently compromise such suits rather than incur the heavy expense of even a successful defense — and the enterprising attorney pockets a liberal share of the amount paid in set- tlement. In this way has grown up a regular profession of ''ambulance chasers", who, personally or by " runners", pursue the wounded or the family of the slain, soliciting permission to bring suit, and who sometimes anticipate the visit of the claim agent himself. 524 The enormous waste entailed by such a system of admin- istering "justice" is well shown by the experience of em- ployers in the State of New York. In 1907 it appears that 327 firms in that State paid out on account of work accidents $255,153.17, which was distributed as follows : — TABLE I 525 Employers' attorneys, court costs and claim de- partments $ 14,557.24 Profits and expenses of employers' liability in- surance companies .... Plaintiffs' attorneys and court costs . To claimants, in settlements and damages To employees' benefit associations Medical, hospital, and funeral expenses Aggregate waste ..... Total received by injured workmen and their dependents 143,504.01 or 56% 73,338.00 23,753.92 80,888.88 13,365.01 49,250.12 111,649.16 or 44% PRACTICAL WORKING OF EMPLOYERS' LIABILITY 83 That is to say, of every $100 paid out by these employing firms on account of work accidents but $56 reached the in- jured workmen and their dependents. But this showing is unduly favorable to the law, for at least $50,000, or one-fifth of the total amount considered, was voluntarily paid by em- ployers in contributions to relief associations in medical expenses, and the like, outside the law. A fairer test of employers' liability is afforded by the $192,538 paid by these same employers as the result of law suits or to avoid law suits, whereof only $80,888, or forty-two per cent, reached the beneficiaries. 526 The percentage of waste is noticeably higher where the employer resorts to liability insurance. Ten companies writing such insurance made the following record in three years ' time : — TABLE II 527 Collected from employers $23,523,585 Absorbed by companies, in profits and expenses . 14,963,790 Received by plaintiffs' attorneys, (about) . . 1,900,000 Received by injured workmen or their dependents, (about) 6,660,000 In other words, of every $100 paid out by employers for protection against liability to their injured workmen, $28 is paid to those workmen ; $8 goes to the attorneys who aid them in recovering this amount ; and $63 goes to attorneys and claim agents whose business it is to defeat the claims of the injured, to the costs of soliciting liability insurance, to the expenses of administration, and to the profits of the in- suring companies. Iowa employers, during the ten years from 1902 to 1912, paid for liability insurance $1,592,770, whereof $814,037, or fifty-one per cent, was expended in settlement of claims. 528 There are no records to show how much of the last-men- tioned sum reached the ultimate beneficiaries, but if New York experience is any guide the actual indemnities could not have much exceeded $600,000. Employers' annual 84 WORK ACCIDENT INDEMNITY IN IOWA premiums in this State are now close to $300,000, and the annual waste must be near two-thirds of this amount. And yet, for all its wastefulness liability insurance is a necessity for all but the largest employers. The accident rate and the cost of settling accident claims are fairly con- stant and so calculable for a whole industry or for a great employing corporation, but they are so variable as to be wholly unpredictable for a single establishment of moderate size. Hence the small employer can better afford to pay even excessive premiums for liability insurance than run the risk of being ruined by an exceptional number of acci- dents or by a few very large verdicts against him. More- over, despite the heavy overhead charges the liability com- panies, with their thoroughly organized claim departments and their highly specialized legal talent, can settle a given aggregate of claims at less cost to the defendants, if also with less benefit to the claimants, than could the employers themselves acting individually. Accordingly this type of insurance has grown with the growth of capitalistic indus- try. From $56,471 in 1902 employers ' liability premiums in Iowa rose to $280,577 in 1911. 529 Such a rate of increase strongly indicates that liability insurance fills an economic need under present conditions. The waste of the present accident indemnity system is not adequately described by saying that it takes from employers at least three dollars for every dollar that it gives to injured employees and their families. Employers' liability litiga- tion imposes a heavy charge upon the State as well as upon employers. Competent authorities estimate that such liti- gation employs one-fifth of the time of the very expensive judicial machinery of New York State. 530 Adding this to the other items of waste it appears probable that not more than one-fourth of the whole cost of employers' liability is devoted to its social purpose of relieving the victims of work accidents. PRACTICAL WORKING OF EMPLOYERS' LIABILITY 85 EFFECT ON THE RELATIONS OF EMPLOYERS AND EMPLOYEES The system of settling claims for accident indemnity de- scribed in the foregoing sections is not merely wasteful : it breeds disharmony and ill-will between employers and em- ployees. The small employer would very often be prompted by humanity and personal interest to give generous relief to a faithful workman injured in his service. But this his lia- bility policy forbids. He can not grant anything beyond first aid without securing a waiver of further claims — that is, without driving a hard bargain. He commonly is re- quired, indeed, to leave all negotiations to the cold-blooded claim agents of the liability insurance company, who earn their salaries by securing settlements at the smallest pos- sible cost. For the employer to provide a physician, or even to visit the injured man, might be taken as an acknowledg- ment of liability which would embarrass the claim agent in reaching an adjustment. Such a policy is admittedly harsh, but practically it is forced upon employers and liability com- panies alike by the menace of costly damage suits. Large corporate employers usually maintain their own claim departments, which commonly are managed on the same purely "business" basis as the like departments of liability companies, and with similar results. It is only where the employer, disregarding his legal rights, indemni- fies injuries through genuine "relief departments" or otherwise, that reasonable satisfaction is attained, not un- der, but in spite of, the law. 531 And even "relief depart- ments" not infrequently are used as a sort of liability in- surance, carried mainly at the expense of employees. 532 The injured workman almost invariably feels that he has a just claim to compensation. He has shed his blood in his employer's service and he resents the harshness and, as he considers it, the injustice of the latter 's efforts to deprive 86 WORK ACCIDENT INDEMNITY IN IOWA him of what he believes to be his deserts. He is the more ready, accordingly, to embrace the alluring hopes held out by the contingent-fee lawyer. But to file suit is to provoke the resentment of the employer who usually is convinced that the accident was not his fault and that he ought not in justice to be held in damages. To prosecute the claim is to engender more than the ordinary bitterness of law-suits, for the one party is convinced in advance of the unfairness both of the law and the judge and the other of the prejudice of the jury. The ill-feeling thus engendered affects not alone the par- ticular workers injured but their fellows, both through sym- pathy with their stricken comrades and through anticipa- tion of the evil day when they themselves may stand in the like case. The resultant antagonism between employer and employee is, to employers at least, one of the most deplor- able results of the present unhappy system. 533 EFFECT ON ACCIDENT PREVENTION The bill of complaints against the existing system of em- ployers' liability already is a long one; but the most serious count in the indictment is yet to be made, namely, it does little or nothing to reduce the number of work accidents. An indemnity system may promote safety either by stimulating caution on the part of workmen or by making accident pre- vention greatly to the interest of employers. The existing liability system is ineffective in both of these respects. Chief Justice Shaw and those jurists who were inspired by him have often enough asserted that "the moral effect of devolving these [work] risks upon the employees them- selves would be to induce a greater degree of caution, pru- dence and fidelity than would in all probability be otherwise exercised"; 534 and, conversely, that to make the employer unconditionally liable for work accidents "would be an en- couragement to the servant to omit that diligence and cau- PRACTICAL WORKING OP EMPLOYERS' LIABILITY 87 tion which .... are a much better security against any injury the servant may sustain .... than any recourse against his master for damages could possibly af- ford." 535 But this is arguing that men deliberately incur death or mutilation in order that they or their heirs may sue for damages — an argument which refutes itself. 530 Irrespective of indemnity, workmen have the strongest possible incentive to care in the instinct of self-preservation. Such recklessness as they undeniably are guilty of springs from temperament, habit, haste, and over-strain, not from calculation ; and the corrective is to be found in rigid disci- pline enforced by the employer rather than in appeals to self-interest. Employers, on the other hand, are, as regards accident prevention, more amenable to pecuniary motives. Not that employers are more mercenary than workmen or that the former are more often guilty of intent to murder than the latter of attempted suicide; but the preventive measures open to employers call for no change of habit or dis- position; they require only that a portion of that acumen and forethought which is now devoted to increased output and larger sales shall be directed to safer methods of work. The discovery and installation of safety devices, the in- spection of plant, materials and equipment, the framing of working rules, and the enforcement of discipline with regard to safety as well as speed, necessitate research and experi- mentation and entail heavy expenditures. Such measures may, in exceptional instances, be undertaken from humani- tarian motives, but they are far more certain of adoption if accident prevention is made to save employers more in dol- lars and cents than it costs. This is precisely what the existing liability system fails to accomplish. The law only requires ordinary care, and ordinary care may be exercised by following the usual prac- tice of the trade. Hence so long as a safety appliance, how- 88 WORK ACCIDENT INDEMNITY IN IOWA ever efficacious, is not in common use no one is legally ''at fault" for not employing it. To install the safer equip- ment would mean a large, certain, and immediate outlay; whereas the injuries that might be prevented by it promise, at most, a future and wholly problematical expense. Ex- perience has accordingly shown that such safety devices as automatic couplers, air brakes, guards on machinery, belt shifters, fire escapes, safety cages, emergency exits from mines, and countless others have been adopted tardily and only in consequence of penal legislation — not from the pressure of accident liability. 537 The unregenerate fellow-servant and assumption of risk doctrine (so far as these still are in force) even put a premium upon disregard of safety, in that reckless ex- posure of the lives of employees if habitually practiced and constructively assented to saves expense while entailing no increased liability. "Great corporations finding that dili- gence and humanity only increased their liabilities, natu- rally selected officers who were careful not to know too much about the faults of servants or of implements. The loss of life and the amount of human suffering which have ensued from the want of adequate pressure upon the great carry- ing companies to protect their servants from injury in their service have been appalling. ' ' 538 The failure of the common law to further the saving of life and limb is not merely a conclusion from a priori argu- ments nor an inference of competent observers. Its impo- tence in this respect has been demonstrated by unimpeach- able statistics. During the ten-year period, 1897-1906, the fatal accident rate, per 10,000 employees, was 31 in the coal mines of the United States as against 13 in those of Great Britain, and 25 on American as compared with 10 on Ger- man railways. 539 American industries, under the common law regime, kill and cripple two or three times as many workmen, relatively to the number employed, as do the like PRACTICAL WORKING OP EMPLOYERS' LIABILITY 89 industries of Europe where accident prevention is a busi- ness proposition. FINAL ESTIMATE OF THE EXISTING LAW To recapitulate the conclusions reached in the foregoing paragraphs, the existing law of employers' liability in Iowa (1) imposes the pecuniary burden of work accidents mainly upon the injured workmen and their families, (2) is exces- sively slow, uncertain, and wasteful in operation, (3) fos- ters antagonism rather than good will between employers and their workmen, and (4) offers no adequate incentive to accident prevention. Enough has already been said of the patent inefficiency of the present system. The existing law is no less defective when tested by current standards of social justice. Since work injuries are inevitable concomitants of that mechani- cal industry which has made modern civilization possible and the products of which are enjoyed in fullest measure by the classes least exposed to its hazards, since the victims of these injuries are precisely those least able out of their own meagre incomes to provide against death or disability, and since the evils of poverty affect not alone the families imme- diately concerned but the State as well, enlightened public opinion is coming to demand that those who are crippled in the production of the community's wealth and the depend- ents of those who are slain shall be indemnified by the public for whom they wrought. 540 Injustice and ineptitude are, then, the outstanding char- acteristics of the present law. These defects, moreover, inhere in the basic principle of the law itself. No system which makes compensation to depend upon proof that the employer was "at fault" can provide indemnity for more than a minor fraction of work injuries or can avoid the un- certainty, delay, waste, and bitterness incident to litigation. The most sweeping modification of the common law will not 90 WORK ACCIDENT INDEMNITY IN IOWA reach the root of the evil so long as the fundamental prin- ciple of no liability without fault is retained. It follows that the present situation can only be remedied by legislation on radically different lines from any hitherto enacted in this State. The foregoing conclusions are not merely those of the present writer: they represent the concensus of opinion among all who have given careful thought to the subject. The Employers' Liability Commission of the State of New York, after the most thorough and extensive investigation yet made into the working of employers' liability in the United States, concluded that "the present legal system of employers' liability in force in this State [New York] (and practically everywhere else in the United States) .... is fundamentally wrong and unwise and needs radical change." 541 A similar commission in Illinois found the present system "unjust, haphazard, inadequate and waste- ful, the cause of enormous suffering, of much disrespect for law and a badly distributed burden upon society. ' ' 542 The National Association of Manufacturers, who, if anyone, should favor the existing law, have recorded their convic- tion that it is "unsatisfactory, wasteful, slow in operation and antagonistic to harmonious relations between em- ployers and wage-workers. ' ' 543 The semi-official organ of social workers has editorially declared that the common law, in this respect, is opposed to "economics, philosophy and morals." 544 Former President Roosevelt has pronounced it "neither just, expedient nor humane". 545 Law writers and teachers of law in leading universities are all but unani- mous in condemnation of the rules which it is their business to expound. 546 Most significant of all, the law of negligence as a basis of indemnifying work accidents has been "dis- carded as barbarous and out of date" 547 by nearly all na- tions except our own. 548 In lieu of the discredited law of negligence most foreign PRACTICAL WORKING OF EMPLOYERS' LIABILITY 91 countries have provided indemnity systems which are speedy, certain, and economical in operation and which measurably realize current ideals of social justice. Even a brief survey of some of these foreign systems may be ex- pected to throw some light upon what is desirable and pos- sible in Iowa. WORK ACCIDENT INDEMNITY ABROAD Indemnity for work accidents, almost everywhere outside the United States, is based on the theory of occupational risks. It will be convenient, therefore, to preface the actual analysis of foreign indemnity systems with a short state- ment of this underlying principle. 549 The theory of occupational risks may be summarized as follows: (1) The consumers of economic goods should bear all the money costs incurred in the production thereof. (2) Among those costs are to be reckoned the pecuniary losses from deaths and injuries occurring in the regular course of production — the expenses of burial and medical attendance for the dead and the injured and the wages lost to workmen and their dependents through the death or dis- ability of bread-winners. (3) Wage-earners, if forced to bear these losses in the first instance, are unable to recoup themselves in the form of compensatory wages or otherwise. (4) The pecuniary cost of work accidents ought, therefore, to be treated like other costs of production under the entre- preneur system — that is, borne by the employers in the first instance and by them shifted in the form of enhanced price upon the consumers of those goods in the production of which the injuries were sustained. 550 Two general methods of giving effect to the theory of oc- cupational risks are in use, and are commonly known as the "Compensation Plan" and the ''Insurance Plan". Many variants of both systems exist, but a summary statement will make clear the main features of each. By the simple compensation plan each employer is held 92 WORK ACCIDENT INDEMNITY ABROAD 93 individually responsible for injuries sustained in his em- ployment, though he is permitted and even encouraged to insure his risks. This is the system of Belgium, Denmark, France, Great Britain, Greece, Russia, Spain, Sweden, and most of the self-governing British colonies. Insurance in an authorized company usually relieves the employer of per- sonal liability. Not content with this encouragement of insurance, Belgium and France maintain guarantee funds to secure compensations due from uninsured employers; and Belgium requires the capitalized value of uninsured death or permanent disability benefits to be deposited with the State. Finland, Italy, and the Netherlands require in- surance of liability, but permit a choice of insurers. To lessen the burden upon employers, the Netherlands and Sweden conduct state insurance departments and Italy has created a national cooperative insurance institute — all of which operate side by side with private liability companies. The insurance plan differs from the foregoing in making the employers of each industrial group collectively respon- sible for the compensation of injuries occurring in that group. This is the method adopted by Austria, Germany, Hungary, Luxemburg, Norway, and Switzerland. In Aus- tria and the German Empire indemnities are provided by employers' mutual associations organized industry-wise. In Hungary, Luxemburg, and Switzerland, owing to the smallness of most industrial groups, single national asso- ciations are provided. In most of these countries the rau- tuals are self-governing bodies under state supervision, but the Administrative Council (Verwaltungsrath) of the Swiss Accident Insurance Institution (Unfallversicherungsans- talt) is named by the Federal Council upon the nomination of the trade organizations (Berufsverban.de). 651 Part of the administrative expenses is in every case borne by the state. Moreover, the Swiss government donated $1,000,000 toward the reserve fund of the Institute. In Norway, last- 94 WORK ACCIDENT INDEMNITY IN IOWA ly, indemnity insurance is conducted directly and solely by the state. The compensation and insurance plans having been de- veloped most typically in Great Britain and the German Empire, an outline of accident indemnity in these two coun- tries will sufficiently serve every present purpose. WORKMEN'S COMPENSATION IN GREAT BRITAIN The British "Workmen's Compensation Act of 1906 ap- plies to all employments and to all employees, except non- manual workers whose wages exceed 250 pounds per annum and persons casually employed otherwise than in the course of trade or business ; and it covers all injuries by accident "arising out of and in the course of the employment" which cause death or disable the workman for at least one week from earning full wages at the work at which he was em- ployed. The sole defense to a claim for compensation under the act is that the injury was caused by the "serious and wilful misconduct ' ' of the injured person, and even this de- fense is available only in cases of temporary disability. Nor is "contracting out" of liability under the act per- mitted, unless the Registrar of Friendly Societies certifies that the employer has provided a scheme of compensation not less favorable to the workmen than the act itself and acceptable to a majority of the workmen affected. The schedule of compensation is as follows: (1) in cases of death, where there are no dependents, reasonable medical and funeral expenses, not to exceed 10 pounds; (2) in cases of death, where there are persons wholly dependent on the deceased, three years' wages, but not less than 150 pounds nor more than 300 pounds ; (3) in cases of death where there are none but partial dependents, payments proportional to such partial dependency ; (4) in cases of total disability, one- half of weekly wages (full wages if less than 10 shillings per week) during disability; and (5) in cases of partial disabil- WORK ACCIDENT INDEMNITY ABROAD 95 ity, one-half of the loss of earning capacity. No compensa- tion is paid for disability lasting less than one week, nor for the first week where incapacity does not last more than two weeks. In other cases compensation dates from the time of the accident. To guard against simulation claimants are required to submit themselves for examination to a physi- cian selected and paid by the employer or to a medical referee appointed by the county court. Disputes under the act may be adjudicated (1) by an arbitration committee representing the employer and his employees, (2) by an arbitrator agreed on by the parties, (3) by a county judge, or (4) by an arbitrator appointed by him. Findings of fact, whether by an arbitrator or by a county judge, are final. On questions of law, appeals lie to to the Court of Appeals and ultimately to the House of Lords. In practice, nearly all claims are settled by agreement, only one-fifth of the death claims and one-half of one per cent of the disability claims being taken into court. The number of appeals to higher courts is likewise extremely small. Thus in 1908 it appears that 328,957 injuries were compen- sated; 5358 disputes were referred to county courts; 112 cases were carried to the Court of Appeals ; and 3 cases were taken to the House of Lords. Yet the county courts, al- though they adjudicate relatively few claims, perform im- portant administrative functions in connection with the law. Death benefits are paid into and administered by these courts and all agreements for the commutation of weekly payments into lump sums must be approved and registered by the same tribunals. A peculiar feature of the British system is the survival of the earlier employers' liability act alongside of the com- pensation law, so that an injured workman may make his claim under the latter and also bring suit under the former, though double recovery is not permitted. The number of 96 WORK ACCIDENT INDEMNITY IN IOWA actions brought under the employers' liability act is, how- ever, very small and is steadily diminishing. WORK ACCIDENT INSURANCE IN THE GERMAN EMPIRE 552 The German plan differs from the British in substituting compulsory mutual insurance for individual liability of em- ployers and in requiring contributions from the workmen. Like the British Act of 1906, the German plan covers all employments, includes all manual workmen and other low- paid employees (those who receive in wages or salary less than 5000 marks per annum), applies to substantially all industrial accidents of any consequence, and bases compen- sation upon the wages of the injured person. The benefits provided are: (1) medical and surgical at- tendance, medicines and therapeutic appliances and hos- pital care where needed, (2) a monthly pension to injured workmen continuing during disability and equal in cases of total disability to two-thirds of the average wages earned during the year preceding the accident, and in cases of par- tial disability to two-thirds of the loss of earning capacity imputable to the accident (full wages are allowed during disability if the constant attendance of another person is required) ; (3) a burial allowance in all cases of death re- sulting from work accidents ; and (4) a pension to the sur- viving dependents of a workman who dies as the result of a work accident, not exceeding one-fifth of the average earn- ings of the deceased to any one dependent, or three-fifths thereof to all dependents. The foregoing pensions are regarded, by the government at least, as full indemnity for the pecuniary losses incurred by workmen on account of industrial injuries. The disabled workman at two-thirds pay is thought to be as well off, finan- cially, as he was when at work, regard being had to the ordinary lay-offs and to the extra cost of tools, working- clothes, street-car fare, and the like, which the invalid is WORK ACCIDENT INDEMNITY ABROAD 97 spared. Similarly, forty per cent of full wages is consid- ered no more than a fair deduction from the family income for the personal expenses of the deceased. To provide these benefits employers are organized in- dustry-wise in mutual accident insurance associations which levy annual (or semi-annual or quarterly) assessments upon their members. These assessments are a per centage of pay roll ascertained by comparing, for the whole industry and for each distinct branch, the actual expenditure on ac- count of accidents with the aggregate pay roll for a period of years and taking the average ratio as the basis for the levy of the current year. The contribution of each employer depends, of course, upon his average (computed) pay roll together with his rating in the risk tariff as thus construct- ed. Where an employer has men engaged in different branches of the same industry his rating is combined from the several partial ratings. And where he is engaged in more than one industry he may belong to more than one association. A rating higher than the normal may be im- posed upon any given establishment for failure to comply with the accident prevention regulations prescribed by the association. Since under the German plan indemnities are paid, not in lump sums but in the form of pensions terminable only by the death of the recipient or by the cessation of inca- pacity or dependence, the real cost of indemnity in any given year is the capitalized value of all pensions due to accidents occurring in that year. On the other hand, the expenditure of a given year includes all annuities accrued from past years that are still in force. If, then, assessments were based on the present worth of current liabilities the rates would be high from the very outset but would not increase except for changes in the scheme of compensation or in acci- dent frequency. The employers, however, have preferred to base assessments on current expenditure so that the rates 98 WORK ACCIDENT INDEMNITY IN IOWA are low at first but increase gradually with the accumulation of pensions accrued in past years. The results of this mode of assessment are: (1) that the maximum cost will be higher than the average cost under an adequate actuarial reserve plan; (2) that a part of the costs of current business enterprise is thrown upon employ- ers of the future; (3) that new firms are burdened with the cost of the past accidents of old establishments; (4) that surviving firms must meet the deferred payments of con- cerns that have failed or withdrawn from business. These criticisms, however, are fully met, in the view of German employers, by the following considerations: — (1) To accumulate adequate reserves, securely invested, would tie up a vast capital, or at least withdraw it from those in- dustries which are most rapidly expanding. (2) A grad- ually increasing cost can be more readily incorporated in the price of the product than a great and sudden increase, such as would have been necessary had the full reserve plan been adopted at the inauguration of the insurance scheme. Hence employers of the future will, in reality, be no more burdened than those of the present since they will be equally able to shift this item of cost upon the consumer. (3) At any given time, the accident insurance cost of a particular- industry is a definite known charge which new firms must reckon with, as with all other known costs, in deciding wheth- er to enter the business. (4) A reserve is unnecessary to in- sure the solvency of the associations, since the accident liabil- ities of an industry are a lien against the assets of all the em- ployers engaged therein. Membership in the appropriate as- sociation being compulsory the funds needed to meet current liabilities can be raised at any time. 553 But, while yielding in large measure to the views of em- ployers, the German government has insisted upon some reserves both to assure ultimate solvency and partially to offset the effects of the current expenditure assessment plan. WORK ACCIDENT INDEMNITY ABROAD 99 The reserve funds of the industrial associations amounted to $61,000,000 in 1908 as compared with receipts of $47,000,- 000 during that year. About $4,000,000 are annually added to the reserves, and it is expected that by 1921 the interest on these funds will, in the older associations, counterbalance the increase of accrued pensions and secure reasonable stability of rates. The immediate administration of the accident indemnity system is in the hands of employers' mutual insurance asso- ciations, of which there are 66 for industrial and 48 for agricultural establishments, so constituted that each asso- ciation is thoroughly homogenous as to the character of the establishments included in it. Most of the associations cover the whole empire : only those for iron and steel, other metals, textiles, wood-working, and the building trades are divided territorially. The associations are bodies corpo- rate, have all the rights of persons, are governed by consti- tutions adopted by a general meeting of the members, and are managed by elected boards of directors and periodical general meetings. The most noteworthy feature of this plan is that under it employers manage their own insurance. Not only is mem- bership in the appropriate association compulsor}- upon all employers, but no other form of liability insurance is per- mitted by law. Private insurance companies are entirely excluded from this field. Of course, the associations are not free to administer the accident relief system as they choose, but are, in character- istic German fashion, closely checked and controlled by gov- ernment officials. The chief supervising agency is the Im- perial Insurance Office, which is both the administrative head of workmen's insurance and the court of last resort in con- troversies respecting the accident and the invalidity insur- ance. This institution is organized in the form of a Senate with a president and other permanent members appointed 100 WORK ACCIDENT INDEMNITY IN IOWA for life by the Emperor upon the nomination of the Bundes- rath, six temporary members chosen by the Bundesrath, six five-year members representing the accident insurance as- sociations, and six five-year members elected by insured workmen from the associate judges of the insurance arbi- tration courts. The Imperial Insurance Office is charged with the expla- nation of the insurance law, the approval of constitutions of accident associations, of risk tariffs, and of rules for accident prevention, the supervision of the associations, the auditing of accounts, the settlement of controversies relating to risk ratings, assessments, premiums, penalties, and the like, and the determination of appeals from the arbitration courts. In addition to the Imperial Insurance Office there are State insurance offices in Bavaria, Saxony, Wiirtemburg, Baden, Hesse, Mecklenberg-Schwerin, Mecklenberg-Stre- litz, and Reuss-Greitz, which discharge similar functions but the jurisdiction of which is limited to associations com- posed wholly of firms located in their respective States, and to State public works departments. Claims for accident indemnity are passed upon, in the first instance, by the executive committee of the local sec- tion of the accident insurance association. Disputes are referred to an arbitration court composed of equal num- bers of employers and insured persons with a government official as umpire. Appeals lie from this court to the Im- perial Insurance Office. The costs of such trials are small as compared with court costs in the United States and are borne in part by the associations and in part by the govern- ment. In practice about eighteen out of every one hundred cases are carried from the committees of the insurance as- sociations to the arbitration courts and, about one-sixth of the decisions rendered by these courts (or about 3 per cent of all claims arising) are appealed to the Imperial Insur- WORK ACCIDENT INDEMNITY ABROAD 101 ance Office. In other words, nearly four-fifths of all acci- dent claims are finally disposed of by the employers' com- mittees, and the decisions of these committees are affirmed in about four-fifths of the cases appealed. Of litigation, in the common law sense, there is none. The accident insurance system thus far described ap- plies only to serious injuries — those causing disability for more than thirteen weeks. For minor injuries, compris- ing some five-sixths of all industrial casualties, the follow- ing benefits are provided: (1) medical and surgical at- tendance, medicines, hospital care, and the like; (2) one- half wages from the third day to the end of the fourth week; and (3) two-thirds wages from the beginning of the fifth to the end of the thirteenth week. The increase in the pension after the fourth week is paid by the employer in whose establishment the injury occurred. The remaining benefits are paid out of the sick insurance funds, whereof one-third is contributed by employers and two-thirds by the insured workmen and which are jointly managed by employers and employees. It is estimated that the minor injuries provided for in this way cause about one-sixth of the total expenditure for industrial accidents, so that the employees directly pay some eleven per cent (two-thirds of sixteen per cent) of the cost of accident indemnity. Since, however, employers pay one-third of the sick insurance premiums, and since accident relief represents but a small part of the expenditures of the sickness insurance funds, it is believed that employees really contribute not more than eight per cent of the whole cost of accident indemnity. 554 This contributory feature of the German plan was adopt- ed not so much to lighten the burden upon employers, as for administrative reasons. The accident insurance asso- ciations must be very large, both in numbers and in terri- torial extent, to distribute the heavy burden of accident relief. Such organizations are at a disadvantage in admin- 102 WORK ACCIDENT INDEMNITY IN IOWA istering the great number of small benefits necessitated by minor injuries, and they are also much less efficient in de- tecting simulation and malingering than are small local societies of workmen. The contributory principle also se- cures the active cooperation of the workmen's organization in preventing minor accidents. COMPARISON OF THE BRITISH AND GERMAN SYSTEMS Even a cursory examination of the British and German indemnity systems, such as is contained in the foregoing pages, shows that the latter is decidedly superior by every test that may fairly be applied. The German insurance system does, while the British compensation plan does not, provide adequate indemnity in accordance with the principle of occupational risks already expounded. Not only is the British schedule of payments insufficient to make good the wage loss from work accidents, but the absence of provisions for medical attendance and the mode in which the payments are made and secured de- tract much from the benefits conferred upon injured work- men and their families. Free medical treatment does more than relieve the vic- tims of work accidents of a heavy financial burden: it se- cures prompt and expert attention to every case. Both the employers' associations and the sick insurance societies in Germany have a pecuniary interest in restoring the earning capacity and stopping the pension of the injured as soon as possible. Accordingly they maintain hospitals, ambu- lances, and staffs of accident experts, and see to it that even cuts and bruises, which the workers themselves would ignore, are antiseptically treated, thus forestalling many cases of disability. 555 In Great Britain, where workmen select and pay their own physicians, minor injuries receive no attention until they become serious by infection or ag- gravation; and even serious cases are often treated by half- WORK ACCIDENT INDEMNITY ABROAD 103 baked general practitioners without special accident ex- perience. All observers agree that a monthly pension is a far bet- ter provision for a workingman's family than a lump-sum payment. Yet death benefits in Great Britain are always paid in lump and disability payments very commonly are commuted into lump sums. To make matters worse igno- rant and necessitous claimants are sometimes forced or ca- joled into unfair settlements by threats of litigation or the wiles of liability adjusters. These abuses are only par- tially corrected by the supervision of the county courts and the provisions for the purchase of annuities. The ultimate payment of all accident liabilities is practi- cally certain under the German plan, whereas insolvency of uninsured employers is by no means rare in Great Britain. The German plan, far better than its rival, realizes the ideal that the cost of work accidents should ultimately be borne by the consumers of the products that occasioned the accidents. This is accomplished by the system of compul- sory employers' insurance, whereby the cost of accident indemnity is distributed over the whole industry and made a fixed charge upon the business, as regular and as cal- culable as any other operating expense. In Great Britain, where some employers insure their liability and others do not, there is no such uniform distribution, and consequent- ly no such complete shifting of the burden of accident in- demnity. The German system is far more economical. Under the "Workmen's Compensation Act, as under the common law, the possibility of ruinous losses obliges most employers, except the very smallest and the very largest, to insure in private companies, with resultant waste and loss hardly less than in the United States. Advertising, solicitors' com- missions, and other expenses of competitive underwriting, unknown to the German mutuals, absorb nearly one-fifth of 104 WORK ACCIDENT INDEMNITY IN IOWA the premiums paid by employers to the British liability companies. 558 Enterprisers' profits are normally high in the one mode of insurance and permanently absent in the other. Costs of management and of the investigation and settlement of claims are much greater in the case of com- peting private companies than of mutual associations which enjoy complete monopolies in their respective fields, which pay no managers' salaries, employ no adjusters, and con- duct investigations through their own members, the local workmen's societies and the police authorities. Expenses of litigation, which are almost nil in Germany, continue to be heavy in Great Britain, where the liability companies seek not only to defeat claims but to discourage claimants by fighting doubtful cases. Moreover, the "capitalized re- serve" plan, necessary to secure the solvency of a stock company or a voluntary association, adds greatly to the current cost of insurance in Great Britain. Lastly the Ger- man government assumes a far larger share of the purely administrative expenses of accident indemnity than does the British. The net result is that of every dollar paid in premiums to the British liability companies hardly more than fifty cents finally reaches the beneficiaries ; 557 where- as of each dollar collected by the German employers' asso- ciations nearly eighty-seven cents is ultimately paid to in- jured workmen and their dependents. 558 In other words, the waste of the British plan is four times as great as that of the German system. The German plan is far more effective in promoting acci- dent prevention. The premium tariffs of the British lia- bility companies are rather crudely based on occupations and make little attempt to discriminate between establish- ments of the same class. Paying a flat rate, the employer has little incentive to prevent accidents in his own estab- lishment, and, though interested in reducing the trade risks of all establishments in his own class, he has no means of in- WORK ACCIDENT INDEMNITY ABROAD 105 fluencing his fellow employers. The insurance companies possess no such equipment for the study and enforcement of accident prevention as is available to employers' asso- ciations. The insurance companies, moreover, are deterred by the fear of losing patronage from exerting adequate pressure upon their clients. The Workmen's Compensa- tion Act has had some effect in stimulating large employers, who are their own insurers, to adopt preventive measures, and it has lessened opposition to the enforcement of safety laws; but its results in both directions have been disap- pointing to its advocates. 559 On the other hand, the German system of establishment risk tariffs penalizes the careless and rewards the careful employer. The associations not only have a strong incen- tive to keep down assessments by reducing the number of accidents, but, composed as they are of similar establish- ments, they are in a position to devise, and to enforce, ef- fective measures to that end. In this work of prevention the associations are aided not only by efficient government inspectors but by the very full and well-digested records of the Imperial Insurance Office — records incomparably su- perior to the accident statistics of any other country. These facts, together with German thoroughness and scientific method in applying experience to practical problems, large- ly account for the long lead of the German Empire in the matter of accident prevention. Not all the shortcomings of the British Workmen's Com- pensation Act are inherent in the character of the plan of itself. It would be entirely practicable, without altering the fundamental features of the law, to increase the com- pensations paid, to provide medical care at the expense of employers, to require that all payments be made in weekly or monthly installments, and to make insurance of liability obligatory upon all employers. But no private insurance plan can rival the economy of the German system of com- 106 WORK ACCIDENT INDEMNITY IN IOAVA pulsory employers' insurance in homogenous mutual asso- ciations, or the efficiency of that system in accident preven- tion. The great superiority of the German system in these two vital particulars is recognized by all students of acci- dent indemnity. 560 In point of economy the Insurance Institution of Norway is the equal of the German mutuals, but it is by no means so efficient for accident prevention. A part of its shortcom- ings are gratuitous, being due to the administration of in- surance and inspection by separate bureaus with no close correlation between them. 561 "Were the two functions com- bined and inspectors' reports made the basis of establish- ment risk ratings, better results would probably be attained. Still, no governmental department can have the same inti- mate familiarity with working-place conditions, nor the same power of discipline as are possessed by the German mutuals. VI INDEMNITY LEGISLATION IN THE UNITED STATES The employers' liability situation in Iowa, already de- scribed, is of a piece with that of the country at large, for the United States still holds the unenviable distinction of maintaining the least enlightened system of accident in- demnity in Christendom. Similarly, the reform movement which has lately gathered way in our own State is but one manifestation of a nation-wide awakening. Within the space of three years, commissions to investigate the ques- tion and recommend legislation have been appointed by twenty-four States and by the Federal government, 562 and legislation on the lines suggested by European experience has been enacted in sixteen Commonwealths. 563 In the single legislative year of 1911 twenty-three States 564 either enacted statutes upon principles novel to American juris- prudence or created commissions to consider the advisabil- ity of such legislation. A compensation act is pending in Congress, and the reports of fourteen State commissions are to be acted upon during the coming sessions of the legis- latures. All this activity, extending literally from Maine to Cali- fornia, and from North Dakota to Texas, gives to the move- ment in Iowa a more than local significance and augurs that a State which holds fast to the common law principles of accident relief will shortly find itself out of line with the nation at large. Since the campaign for employers' liability reform in Iowa is thus seen to be part of a national movement, spring- 107 108 WORK ACCIDENT INDEMNITY IN IOWA ing from the same causes, dealing with the same problems, and subject to much the same limitations as the similar campaign in other States, a review of what has been done or attempted in these other States may contribute to an under- standing of what can and should be done in Iowa. The results of the reform movement to date (1912) are: (1) an awakened public interest, evidenced in the legislative activity above noted; (2) the reports of twelve commis- sions; and (3) sixteen workmen's compensation or insur- ance statutes. WORK OF THE COMMISSIONS The commissions which have thus far reported are those of Illinois, Iowa, Massachusetts, Maryland, Michigan, Min- nesota, New Jersey, New York, Ohio, Washington, Wis- consin, and the United States. The commissions still in existence are similar in powers and functions, so that a summary of the reports already issued will sufficiently illus- trate the work of all the commissions that have been created. Seven of the commissions — those of Illinois, Massachu- setts, Michigan, New York, Ohio, Wisconsin, and the United States — undertook original investigations into the actual working of the then existing laws. The scope and manner of these investigations is indicated by the condensed outline here given. Very imperfect accident records were obtained for Man- hattan Borough and Erie County, New York; Cuyahoga County, Ohio ; Cook County, Illinois ; and Milwaukee Coun- ty, Wisconsin. These records cover the number of fatal and serious accidents occurring in certain employments within specified time limits, the wages of the workmen killed or injured, the number of dependents, the medical and fu- neral expenses incurred, the compensation received from employers (and from other sources in the New York in- vestigations), the time and mode of settlement, and the eco- INDEMNITY LEGISLATION IN THE UNITED STATES 109 nomic effects of the accident upon the family. It is not to be understood that all of the inquiries covered the same ground or that all these facts were ascertained as to each accident case investigated, but only that each of the fore- going points was included in one or more of the investiga- tions. Similar data, still more incomplete but for a much greater number of accidents, were gathered by the State bureaus of labor in Illinois, Minnesota, New York, and Wisconsin, and were utilized by the commissions of these States. The accident experience of 52 large employers in New York, of 120 in Massachusetts, and of 466 in Michigan was obtained to show the expenditure incurred by employers on account of work accidents and the proportion thereof that actually reached the beneficiaries. The New York and Min- nesota commissions obtained similar data, on a far greater scale, from the principal casualty and employers' liability companies doing business in those States. The Illinois com- mission examined the files of leading personal injury law- yers to ascertain what proportion of the damages recovered are absorbed by the fees of counsel for the plaintiffs. The New York commission made use of similar information gathered by the State Department of Labor. The Federal commission obtained and tabulated the experience of rail- road companies operating approximately one-half of the railway mileage of the United States. These investigations were hampered by the limited time and money at the disposal of the commissions, by the wholly inadequate accident records of the States in which thej^ were conducted, and by the failure of some of the commis- sions 565 to employ trained investigators even when the funds to do so were available. The usefulness of the data secured was further gratuitously impaired by the want of intelligent editing. The published statistics in many cases are neither classified nor adequately tabulated. The tables 110 WORK ACCIDENT INDEMNITY IN IOWA presented are often not clearly explained. Few of the re- ports are conveniently indexed, or summarized, or provided with analytical tables of contents. Ostensibly intended for the use of busy legislators, most of the reports are little bet- ter than unorganized magazines of facts from which intel- ligible information can be collated only with infinite labor. Despite these limitations the reports mentioned, together with those of the Pittsburgh Survey, are altogether the most authentic and considerable extant source of informa- tion on the actual working of employers' liability in the United States. All the commissions, save that of Washington, held public hearings, took testimony, and sent questionnaires to em- ployers, labor union officers, lawyers, judges, and others, not so much with a view to discover the evils to be remedied as to test and stimulate public interest in the proposed legis- lation. Seven commissions 566 reported on foreign systems of ac- cident indemnity, not at first hand but from secondary sources and for the purposes of obtaining suggestions for the measures they meant to propose and of supporting their own recommendations by the experience of other countries. Since all of the commissions proposed radical departures from the existing legal system it was deemed essential to assure the legislatures that the recommendations made could be enacted into law. Accordingly, seven of the com- missions submitted briefs, prepared by members of the commissions or by counsel employed for that express pur- pose and covering the constitutional questions involved. The New Jersey commission sought to attain the same end by means of a questionnaire to judges and prominent at- torneys ; while in Massachusetts resort was had to the happy expedient, impossible in other States, of requiring the Su- preme Court to commit itself in advance of legislation. The recommendations made by the several commissions, INDEMNITY LEGISLATION IN THE UNITED STATES 111 and the legislative action thereon, are exhibited in the fol- lowing table : TABLE III RECOMMENDATIONS OF COMMISSIONS Commis- sions Recommendations Endorsed by Legislation Illinois Compensation bill 2 Insurance bills Majority 567 Compensation Act Iowa Compensation bill Majority 568 Maryland Various bills Individuals 569 Permissive Act Massachu- setts 1 Compensation bill Individuals 570 Insurance Act Michigan Compensation bill Entire Commis- sion Compensation Act Minnesota Compensation bill Majority None New Jersey Compensation bill Entire Commis- sion 571 Compensation Act New York 2 Compensation bills Majority 572 1 Compensation Act 1 Permissive Act Ohio Insurance bill Majority 573 Insurance Act United States Compensation bill Entire Commis- sion None Washing- ton Insurance bill Entire Commis- sion Insurance Act Wisconsin Compensation bill Entire Commis- sion Compensation Act LEGISLATION ENACTED Of the sixteen statutes thus far enacted, eight are based upon the recommendations of investigative commissions; the rest were passed without prior study by such bodies. 574 Five 575 establish accident insurance systems of widely vary- ing types ; the others are compensation acts after the Brit- ish model, though differing from each other, and from their common prototype in many particulars. All seek to provide prompt, certain, and definite indemnity, irrespective of neg- ligence, for all accidents occurring in the employments cov- 112 WORK ACCIDENT INDEMNITY IN IOWA ered, and to secure the determination of claims, so far as possible, by non-litigious proceedings. The more important features of the new legislation are shown in the outline be- low, and in the accompanying tables. It will be observed that the compulsory Workmen's Compensation Act of New York and the Montana Coal Miners' Insurance Act, though held invalid by the courts, are here included for the sake of comparison. BASIS OF RECOVERY As to injuries within their scope all of the acts under re- view give compensation irrespective of fault. But thirteen States make "gross negligence", "wilful misconduct", or "intention to inflict injury on self or others" on the part of the injured person a bar to recovery ; 57G and eight grant ad- ditional compensation, or additional rights of action, for injuries caused by the employer's violation of the safety acts or by his personal gross negligence or deliberate inten- tion to cause the injury. 577 SCOPE OF INDEMNITY ACTS The statutes under review differ somewhat widely in scope, though none is so comprehensive as most of the Eu- ropean systems. The Montana act is restricted to coal mine workers. 578 The acts of Arizona, Illinois, Kansas, Nevada, New Hampshire, New York, and Washington are limited to specified employments declared to be especially hazard- ous. 579 The laws of Massachusetts, Michigan, and Rhode Island exclude farm laborers and domestic servants. 580 The Ohio and Rhode Island statutes apply only to em- ployers of five or more persons ; and that of Kansas only to employers of fifteen or more workmen. 581 Finally, the acts of California, Maryland, New Jersey, and Wisconsin extend to all employments. 582 All employers of the State and its subdivisions are included in California, Michigan, and Wis- consin, and in Washington if engaged in work of an extra- TABLE IV Indemnity Legislation in the United States 1 1 Year State of 1 Act Character of Plan Scope of Act emi'i.oymknts Covered Injuries COVKUKI> Employees Included Arizona 1912 Compulsory compensation Specified dangerous employments All arising out of and in course of employment All in specified dangerous employments California 1911 Elective compensa- tion. Compulsory on State and its subdivisions All All growing out nf employment All except casual Illinois 1911 Elective compensation Specified dangerous employments employing at least 15 workmen All arising out of and in course of employment All exposed to necessary hazards of business. casual excepted Kansas 1911 Elective compensation Specified dangerous employments All arising out of and in course of employment All regularly engaged in the business Maryland 1912 Elective insurance All All arising out of and in course of employment All employees Massa- chusetts 1911 Elective insurance All except domestic servants and farm laborers All arising out of and in course of employment All except casual employees Michigan 1912 Elective. Compulsory for State and its subdivisions. Com- pensation or insurance All except domestic servants and farm laborers All arising out of and in course of employment All but casual employees Montana 1909 Compulsory insurance All in coal mines and washers All in course of employment from causes arisingtherein All except office employees Nevada 1911 Compulsory for employer. Elective for employee. Compensation Specified dangerous employments All arising out of and in course of employment All engaged in manual or mechanical labor New Hampshire 1911 Elective compensation Specified dangerous employments All arising out of and in course of employment All engaged in manual or mechanical labor New Jersey 1911 Elective compensation All All arising out of and in course of employment All New York 1910 Compensation. Com- pulsory on employer, elective for employee Specified dangerous employments All arising out of and in course of employment All manual and mechanical laborers in specified employments Ohio 1911 Elective for employer. Compulsory for employ- ee if employer elects Cooperative insurance AH establishments employing 5 or more workmen All sustained in course of employment All Rhode Island 1912 Elective compensation All but domestic ser- vice or agriculture and employers of less than 6 workmen All arising out of and in course of employment All but casual and those earning over $1800 annually Wash- ington 1911 Compulsory insurance Specified dangerous employments All sustained in course of employment All in listed employ- ments, & others when emploj ei and work- men elect under law Wis- consin 1911 Elective. Compensa- tion. Compulsory on State and municipalities All All growing out of employment All except casual 113 TABLE [V — Continued State Election Defenses Abrogated Liabilities Abrogated By Employer By Employee Arizo- na Compulsory Election after injury Common law defenses abrogated Acceptance of compensation excludes other liabilities Cali- fornia Affirmative by written notice. Compulsory on public bodies Presumed unless notice to contrary If employer does not elect under act : assumption of risk, fellow servant. Contributory neg- ligence becomes comparative Election under act cancels all other liabilities of employer Illinois Presumed unless notice to contrary Presumed unless notice to contrary If employer does not elect under act: assumption of risk, fellow servant, contributory neg- ligence becomes comparative Election under act cancels all other liabilities of employer Kansas Affirmative by statement Presumed unless notice to contrary If employer does not elect under act: assumption of risk, fellow servant, contributory negligence Election under act cancels all other liabilities of employer Mary- laud By contract with employees filed with Insurance Commissioner By contract with employer Contract must provide for liability regardless of negligence Contract abrogates all other liabilities Massa- chu- setts Affirmative by written notice Presumed unless notice to contrary If employer does not elect under act: assumption of risk, fellow servant. Contributory neg- ligence subject for jury Election under act cancels all other liabilities of employer Mich- igan Affirmative by written notice Presumed unless notice to contrary If employer does not elect under act: assumption of risk, fellow servant rule, contributory negligence Election under act excludes all other liabilities Mon- tana Compulsory Contribution com- pulsory, damage suit optional after injury No provision Acceptance of benefit releases employer from all other liabilities Nevada Compulsory Election after injury Assumption of risk and fellow servant rule abolished. Contributory negligence graded comparatively Acceptance of compensation excludes other liabilities New Hamp- shire Affirmative by notice Election after injury If employer does not elect under act: assumption of risk, fellow servant Acceptance of compensation excludes other liabilities New Jersey Presumed unless notice to contrary Presumed unless notice to contrary If employer does not elect under act: assumption of risk, fellow servant rule, contributory negligence Election cancels all other liabilities of employer New York Compulsory Election after injury Not mentioned Application for benefit under act releases employer from all other liabilities Ohio Affirmative by paying premhims Compulsory if employer elects Assumption of risk, fellow servant rule, and contributory negligence abolished Election under act cancels all other liabilities of employer Rhode Island Affirmative by written notice Presumed unless notice to contrary If employer does not elect under act: assumption of risk, fellow servant rule, contributory negligence Election under act cancels all other liabilities of employer Wash- ington Compulsory Compulsory If employer default in premium payments, workmen may main- tain action at law, and assump- tion of risk and fellow servant rule are abrogated. Contributo- ry negligence made comparative State insurance benefits exclude all others Wis- consin Affirmative by notice Presumed unless notice to contrary. Compulsory on public employees If employer does not elect under act: assumption of risk, fellow servant Election under act cancels all other liabilities of employer 114 TABLE IV — Continued State Gross Neglioence oe Wilful Misconduct Funds Pro- vided BY Employer's Vol- i'ntaev Relief Adminis- tration Of Employer Of Employee Arizona No provision No provision Employer Valid if not less favorable to employee than act Attorney General Cali- fornia Gives employee option of damage suit Forfeits compensation Employer Valid but benefits are in addition to those un dor act Industrial Accident Board Illinois Gives employee option of damage suit Forfeits compensation Employer Kansas Gives employee option of damage suit Valid if not less favorable to employee than act Forfeits compensation Employer Valid if as much as benefit covered by em- ployee's contribution plus benefit under act Mary- land Forfeits compensation Employer, one half. Employees, one half Employers in- surance fund by Insurance Commissioner Massa- chu- setts Doubles compensation to employee Forfeits compensation Employer No other benefits affect liability under act Industrial Accident Board Mich- igan Not mentioned Forfeits compen- sation under act. Gives contributory negligence defense at law to employer Employer No other benefits affect liability under act Industrial Accident Board Mon- tana Not mentioned No provision From employer, Ic per ton mined from employee 1% of wages Not mentioned State Auditor Nevada No provision No provision Employer Not mentioned New Hamp- shire Gives employee option of damage suit Forfeits compensation Employer Not mentioned New Jersey No provision Forfeits compensation Employer Not mentioned Court of Common Pleas New York No provision Forfeits compensation Employer Not mentioned Ohio Gives employee option of damage suit Forfeits compensation From employer 90%, from em- ployees 10% of premium Not mentioned State Liability Board of Awards Rhode Island No provision Forfeits compensation Employer Must be as favorable to employee as act, and approved by Superior Court Superior Court "Wash- ington lves compensa- tion under act and right of damage suit for excess of damage Forfeits compensation Employer Not mentioned Industrial Insurance Department Wis- consin No provision Forfeits compensation Employer Valid but compensa- tion under act not reduced by em- ployee's contribution Commission 115 TABLE IV — Continued State Medical Aid Total Disability Compensation Continuance Arizona No provision 50% full time wages semi-monthly During incapacity. Limited to $4000 California Limited to 90 days and $100 65% average weekly wages Limited to 15 years and 3 years' wages Illinois Limited to 8 weeks and $200 50% average weekly wages $5 to $12 Limited to death benefit. There- after 8% death benefit yearly Kansas No provision 50% average weekly wages $6 to $15 During incapacity. Limited to 10 years Maryland No provision 50% weekly wages During disability Massachusetts Limited to first 2 weeks 50% average weekly wages $4 to $10 Total not to exceed $3000 500 weeks Michigan Limited to first three weeks 50% average weekly wages $4 to $10 Total not to exceed $4000 500 weeks Montana At discretion of State Auditor $1 for each working day paid monthly During disability Nevada No provision 60% average weekly wages $3000 New Hampshire No provision 50% average weekly wages Limited to $10 300 weeks New Jersey Limited to first 2 weeks and $100 50% average weekly wages $5 to $10 400 weeks New York No provision 50% average weekly wages Limited to $10 8 years Ohio At discretion of Board but limited to $200 66 2-3% average weekly wages $5 to $12 During disability Rhode Island Limited to 2 weeks 50% average weekly wages $4 to $10 500 weeks Washington No provision Not married $20 per month Married $25 per month Children each $5 per month Total limited to $35 per month During disability Wisconsin Limited to 90 days 65% average weekly wages $4.69 to $9.38 Full wages if more is required 15 years or 4 times average annual wage 116 TABLE IV — Continued State Partial Disability Waiting Time Specified Ikjukiks Compensation Continuance Arizona 50% wage loss semi-monthly During disability. Limited to $4000 2 weeks. Compensation from date of accident No provision California 65% weekly wage loss 15 years 1 week No provision Illinois 50% weekly wage loss During disability 1 week For.permanem disfigurement. Maximum limit V4. death benefit Kansas 25% to 50% weekly wage loss. $3 to $12 During disability. Limited to 10 years 2 weeks No provision Maryland Difference between total disability benefits and earnings after injury During disability 1 week Specific fractions of total disability payments Massachusetts 50% weekly wage loss. Limited to $10 300 weeks 2 weeks Specified compensation Michigan 50% weekly wage loss. Limited to $10 300 weeks 2 weeks. Compensa- tion from date of accident if disability continues 8 weeks Specified compensation Montana No provision except for specific injuries 12 weeks Specified compensation Nevada 60% wage loss $3000 10 days Specified compensation New Hampshire 50% weekly wage loss. Limited to $10 300 weeks 2 weeks No provision New Jersey Proportionate to disability weeklv $5 to $10 300 weeks 2 weeks Specified compensation New York Not to exceed wage loss nor be less than V2 wage loss. Limited to $10 8 years 2 weeks No provision Ohio 66 2-3% weekly wage loss. $5 to $12 6 vears or $3400 1 week No provision Rhode Island 50% weekly wage loss. Limited to $10 300 weeks 2 weeks Specified compensation Washington Monthly sum proportionate to disability $1500 Not mentioned Specified compensation Wisconsin 65% weekly wage loss 15 vears or $3000 1 week. Compensa- tion from beginning if injury lasts 4 weeks No provision 117 TABLE IV — Continued State Death Total Dependents Partial Dependents Alien Dependents Mode op Payment No Dependents Arizona 1200 times daily wages. Only to widow and minor children. $4000 limit Same as to total dependents Not mentioned Lump sum Medical and burial expenses Cali- fornia 3 years' wages $1000 to $5000 Proportionate to dependency Not mentioned Weekly. Burial expenses. Maximum $100 Illinois 50% wages for 8 years $1500 to $3500 Proportionate to dependency Not mentioned Weekly Commutableto lump sum by order of court Burial expenses. Maximum $150 Kansas 3 years' wages $1200 to $3600 Proportionate to dependency Non-resident aliens receive sum not to exceed $750 Lump sum Burial expenses. Maximum $100 Mary- land 3 years' wages. Minimum limit $1000 3 yrs.' wages of deceased less 6 yrs.' wages of dependent Not mentioned Lump sum or weekly according to contract Medical and burial expenses $75 to $100 Massa- chu- setts 50% wages for 300 weeks $1200 to $3000 Proportionate to dependency Not mentioned Weekly. Commutableto lump sum after 6 months Burial expenses. Maximum $200 Mich- igan 50% weekly- wages for 300 weeks $4 to $10 Proportionate to dependency Not mentioned Weekly Medical and burial expenses. Maximum $200 Mon- tana $3000 $3000 Non-resident aliens receive no compen- sation Lump sum Nevada 3 years' wages $2000 to $3000 Half the compensation to total dependents Not mentioned Lump sum Burial expenses. Maximum $300 New Hamp- shire 150 weeks' wages. Maximum limit $3000 Proportionate to dependency No compensa- tion to aliens unless resi- dents of State Lump sum Burial expenses. Maximum $100 New Jersey Widow 25% w'klv wages. Orphans 25 to 60% w'kly wage. Widow and 1 child 40% weekly wage. Each child to 4, 5% extra. 300 weeks. $5-$ 10 per week Grand parents, grandchildren, incapacitated or minor brothers or sisters, 25% w'k- ly wages300w'ks No compensa- tion to aliens not living in United States Weekly. Commutableto lump sum by order of court Burial expenses. Maximum $200 New York 1200 times daily wages Maximum limit $3000 Proportionate to dependency Not mentioned Lump sum Medical and burial expenses. Maximum $100 Ohio 66 2-3% 6 years' wages $1500 to $3400 Funeral $150 additional 36 2-3% w'ges for period det'rm'n'd by Board. Funer d $150 addit'nal Not mentioned Weekly. Commutableto lump sum by Board Medical and hos- pital expenses, limited to $200. Burial $150 Rhode Island 50% weekly wages for 300 weeks $4 to $10 Proportionate to dependency Not mentioned Weekly Last sickness and burial expenses. Maximum $200 Wash- ington Widow $20 a mo. till re- marriage. $240 dower. Children $5 each addi- tional. Orphans $10 a mo. each. Maximum $35 a mo. Funeral $75 50% average monthly support received from deceased Non-resident aliens except father and mother not considered Monthly. Sub- stitution of lump sum if beneficiary be or move out of State Burial expenses. Maximum $75 Wis- consin Four years' weekly wages - $1500 to $3000 Proportionate to dependency Act gives non-resident aliens same benefits Weekly. Board may commute to lnmr> sum Burial expenses. Maximum $100 118 INDEMNITY LEGISLATION IN THE UNITED STATES 119 hazardous nature. 583 The employments most usually ('nu- merated as especially dangerous are : railway construction and operation (except as to inter-State commerce), manu- facturing of every sort wherein power-driven machinery is used, logging, stevedoring, the erection, repair and demoli- tion of buildings, bridges and other structures (sometimes of specified dimensions), tunnel driving, well drilling, sub- aqueous or sub-terranean construction, and work necessi- tating dangerous proximity to explosives. The list of enu- merated employments varies, of course, with the industrial character of the several States. All employees in the employments covered appear to be within the benefits of the Maryland, Nevada, Ohio, and Washington statutes. 584 The acts of Arizona, Montana, New Hampshire, and New York are limited to persons engaged in mechanical or manual labor, 585 and the Illinois act to those who are exposed to the necessary hazards of the extra- hazardous employments. 586 California, Illinois, Kansas, Massachusetts, Michigan, New Jersey, Rhode Island, and Wisconsin exclude casuals and persons employed otherwise than in the ordinary course of the employer's business. 587 Rhode Island also excepts employees whose remuneration exceeds $1800 yearly. 588 Most of the statutes under review provide compensation only for "personal injury by accident arising out of and in the course of the employment". 589 This language, borrowed from the British Workmen's Compensation Act, has been judicially construed and has acquired a technical connota- tion. Under the British act three conditions must concur to justify indemnity : (1) the injury must have been produced by an unforseen and undesigned event; (2) it must have been sustained by an employee acting as such; and (3) it must have been caused by a risk incident to the w T ork which it was the employee's duty to perform. 590 The Maryland, Ohio, Washington, and Wisconsin statutes, which allow re- 120 WORK ACCIDENT INDEMNITY IN IOWA covery for all accidental injuries sustained in the course of employment, are apparently broader in scope than their British prototype. 591 A principal employer who sublets any part of the work undertaken by him in the line of his own trade or business, to be performed upon the principal's premises or under his control, is, by the acts of Illinois, Kansas, Massachusetts, Nevada, and New York, answerable to the employees of his contractor or sub-contractor as if they were employed di- rectly by him. 592 In Washington the principal, under such circumstances, is surety for the contractor or sub-contrac- tor, 593 and in the other States just named he has a right to recover from the intermediate employer the compensations paid on his behalf. ELECTION One of the gravest difficulties that confronted the com- missions in drafting bills, and the legislatures in enacting them, was how to make the legislation effective upon the persons intended to be included therein. On the one hand, if the acts were compulsory, they might be held by the courts to deprive employers or employees of rights guaranteed under the State and Federal constitutions. On the other hand, if permissive only the laws would have no substantial effect — employers can, and some of them do, without ex- press statutory authorization, compensate accidents sus- tained in their service irrespective of "fault". In the face of this dilemma, three different courses were adopted by the several States which have enacted indemnity legislation. These methods may be termed, respectively, the compul- sory, the quasi-elective, and the permissive plans. Despite constitutional doubts, Arizona, Montana, Nevada, New York, and Washington made their indemnity acts com- pulsory upon employers, 594 and Washington denied any election (except as to injuries caused by the master's de- liberate intention) to employees as well. 595 Of these com- INDEMNITY LEGISLATION IN THE UNITED STATES 121 pulsory acts, however, one (that of Montana) is restricted to coal miners and the others to enumerated dangerous trades ; while two have been overthrown by the courts. The acts of California, Michigan, and Wisconsin are compulsory only as respects public employers and employees. 596 Ten States sought to avoid constitutional objections, and at the same time give practical effect to their enactments, by making the acts elective in form while imposing heavy penalties upon those employers or employees who elect to stand upon their common law rights. In pursuance of this plan, employers who fail to bring themselves within the statutes are stripped of some or all of their common law defenses ; whereas employers who elect to compensate work injuries in accordance with the acts are either saved these defenses or (as in New Hampshire and Ohio) are altogether exempted from liability suits founded on ordinary negligence. 597 The fellow-servant and assump- tion of risk doctrines are thus conditionally abrogated by California, Illinois, Kansas, Massachusetts, Michigan, New Hampshire, New Jersey, Ohio, Rhode Island, and Wiscon- sin (the fellow-servant rule is repealed by Wisconsin only as to employers of four or more persons in the same com- mon employment). 598 The defense of contributory negli- gence is similarly repealed by Massachusetts, Michigan, New Jersey, Ohio, and Rhode Island, 599 and is modified by California, Illinois, Kansas, and New Hampshire. 600 In most of the States which have quasi-elective acts the employer who wishes to avail himself thereof must make affirmative election by filing written notice with the proper administrative authority. 601 In Illinois and New Jersey, however, such election is presumed unless the employer gives formal notice to the contrary. 602 Affirmative election once made is usually binding for one year, and thereafter is annually renewed of its own force unless notice of with- drawal is given before the expiration of the period for which 122 WORK ACCIDENT INDEMNITY IN IOWA election was made. In eight States the employer's election to come under the statute carries with it that of his em- ployees unless they severally notify him to the contrary. 6 " 3 In New Hampshire the employer's affirmative election re- lieves him of common law liability 604 and in Ohio the mere continuance in an employment with notice that the em- ployer has subscribed to the State Insurance Fund consti- tutes a binding waiver, on the part of the employees, of all rights save those under the statute. 605 Arizona, Montana, Nevada, and New York permit the employee to elect after injury whether he will take compensation under the statutes or pursue his remedy at common law or under the employ- ers' liability acts of those States. 606 California, Illinois, Kansas, New Hampshire, and Ohio allow such election as to injuries caused by the employer's violation of the safety laws. 607 Maryland and New York have enacted permissive legis- lation, defining the terms upon which employers may, by providing voluntary accident relief, exempt themselves from their common law and statutory liability for ordinary negli- gence. 608 It is probable that some large employers in both States will take advantage of these statutes, but the acts are not so drawn as to exert effective pressure in the direction of liability without fault. The Maryland law of 1912, here- in classed as indemnity legislation, is of this permissive character ; whereas the New York statute discussed through- out this chapter is the compulsory workmen's compensation act of 1910 which was held invalid by the Court of Appeals. SCHEDULES OF COMPENSATION The indemnities provided include medical care, funeral, death, and disability benefits. Medical, surgical and hospital services and supplies for injured workmen are provided by eight of the sixteen stat- utes. But such relief is limited to ninety days and a total INDEMNITY LEGISLATION IN THE UNITED STATES 123 of $100 in California, to eight weeks and $200 in Illinois, to two weeks in Massachusetts and Rhode Island, to three weeks in Michigan, to two weeks and $100 in New Jersey, to $200 in Ohio, and to ninety days in Wisconsin. 609 Reasonable funeral expenses, commonly limited to $100, are provided for those who leave no dependents by fifteen States, and for all who die as the result of work accidents by only Ohio and Washington. 610 Death benefits 611 to persons wholly dependent upon the deceased are three years' wages in California, Kansas, Maryland, Massachusetts, 012 Michigan, 618 Nevada, New Hampshire, 614 and Rhode Island; C15 and four years' wages in Arizona, 610 Illinois, New York, 617 Ohio, 618 and Wisconsin. In New Jersey and Washington the death benefits vary ac- cording to the number of dependents, ranging from one- fourth to three-fifths wages for three hundred weeks in the former State and from $20 to $35 per month in the latter. The abortive coal miners' insurance act of Montana pro- vided a fixed benefit of $3,000. Those States which make compensation proportionate to wages prescribe certain maxima and minima, the lowest sum payable in any State being $1,000 (in Maryland) and the highest $5,000 (in Cali- fornia). Where there are no wholly dependent persons, compensation proportionate to dependency is, in most cases, allowed to partial dependents if there are any. Death pay- ments are, by seven of the statutes, made in lump ; 619 in the other States surviving dependents receive periodical pen- sions, but such pensions are, under certain restrictions, com- mutable into lump sums. 620 To the totally disabled 621 most of the acts grant weekly or bi-weekly payments, ranging from fifty per cent of full wages in ten States to sixty-six and two-thirds per cent in Ohio. The California act allow r s full wages in cases of such utter helplessness as to require the constant attendance of a nurse. The Washington law bestows $20 to $35 per month 124 WORK ACCIDENT INDEMNITY IN IOWA according to the number of persons dependent upon the in- jured workman; while the defunct coal miners' insurance act of Montana gave a flat monthly stipend of $1 for each working day. The periodic payments usually are subject to certain minima and maxima; and the duration of such payments is limited to fifteen years in California and Wis- consin; to ten years in Kansas, Massachusetts, Michigan, and Rhode Island ; 622 to eight years in Illinois, New Jer- sey, 623 and New York ; and to six years in New Hampshire. 624 Illinois, however, awards an annual pension of eight per cent of the death benefit after the expiration of the eighth year. Lastly, the aggregate disability benefits for any one injury are restricted to the amount of the death benefit by the acts of Arizona, California, Illinois, Massachusetts, Michigan, Nevada, and Wisconsin. Payments continue until death in Ohio and Washington. Indemnity for partial incapacity 625 usually bears the same proportion to the total disability benefits as the re- duced earning capacity, in the same or a different employ- ment, bears to the former earnings of the injured. The Ne- vada and Wisconsin acts, however, consider only the diminu- tion of earning capacity in the employment in which the in- jury was sustained. Under the Maryland act, compensation for partial disability equals the total disability benefit di- minished by earnings (actual or potential) after the injury. For certain enumerated injuries, constituting permanent partial disability, Maryland, Michigan, New Jersey, and Rhode Island award fixed percentages of wages for speci- fied lengths of time, and Washington grants specified lump sums. 626 For similar injuries Massachusetts and Nevada grant indemnities additional to the partial disability bene- fits ; while the Illinois act allows such additional compensa- tion, not to exceed one-fourth of the death benefit, for per- manent disfigurements. 627 A "waiting period", during which no disability benefits INDEMNITY LEGISLATION IN THE UNITED STATES 125 are paid, is exacted by most of the compensation acts.' This period is one week in California, Illinois, Maryland, Ohio, and Wisconsin, ten days in Nevada, two weeks in Arizona, Kansas, Massachusetts, Michigan, New Hamp- shire, New Jersey, New York, and Rhode Island, and twelve weeks under the Montana coal miners' insurance act. But if disability continues for more than two weeks in Arizona and Michigan, four weeks in Wisconsin, or three months in Montana, compensation is allowed from the date of the accident. These "waiting periods" are, of course, intended to discourage malingering or simulation by the slightly injured. As a further check upon feigned disabili- ties, pensioners are required, upon demand of the employer or insurer, to submit themselves periodically to medical examination. 629 To protect the beneficiaries from improvident contracts or unconscionable bargains, practically all of the compen- sation acts make indemnities thereunder non-assignable and exempt from lien, attachment, or execution. 030 The best protection is, of course, the payment of all indemnities in weekly installments — a safeguard which is sufficiently secured by few of the American statutes. RESPONSIBILITY FOR PAYMENTS With respect to responsibility for the payment of the foregoing indemnities nearly every plan employed in Eu- rope has been adopted by one or more of the American commonwealths. Arizona, California, Illinois, Kansas, Nevada, New Jer- sey, New York, Rhode Island, and Wisconsin follow Great Britain in making each employer directly responsible for the compensation of injuries sustained in his employment and in not requiring any insurance of liability. 031 Insur- ance is, however, expressly permitted by four of these States ° 32 and is doubtless lawful in all of them. Some se- 126 WORK ACCIDENT INDEMNITY IN IOWA curity is afforded, except in Kansas, by making accrued indemnities preferred claims upon the employer's assets. 633 Two States make the employer directly responsible for compensations, but require him to secure the payment thereof in some manner designated by the statutes. In New Hampshire the employer who accepts the compensa- tion act must satisfy the Commissioner of Labor that he is financially able to comply with its provisions or must file with the Commissioner a bond to discharge all liability incurred thereunder. 634 Michigan allows four options : (1) direct compensation by the employer upon satisfying the Industrial Accident Board of his solvency and pecuniary responsibility; (2) insurance in any liability company au- thorized to assume such risks in the State; (3) insurance in any employers' insurance assocation organized under the laws of Michigan; and (4) administration of benefits by the State Commissioner of Insurance. 635 With respect to the last-mentioned option, it is provided that, upon the re- quest of five or more employers who employ not less than three thousand persons subject to the compensation act, the Commissioner of Insurance shall create an accident fund, shall levy and collect premiums in accordance with a risk tariff to be by him constructed, and shall pay all claims which may accrue. 636 Michigan has also a law designed to encourage the formation of employers' mutual insurance associations. 637 Massachusetts seeks to secure collective, rather than in- dividual, responsibility by means of an employers' mutual called the Massachusetts Employees' Insurance Associa- tion — a corporate body which assumes all compensation liabilities of its members. 638 Each subscriber to the Asso- ciation has one vote and one additional vote for each five hundred employees, but not more than twenty in all. The Board of Directors, elected in the general meeting, is au- thorized to distribute the members into risk groups, make INDEMNITY LEGISLATION IN THE UNITED STATES 127 risk tariffs, fix rates and collect assessments sufficient in each annual period to meet the indemnities payable in that year. The Association is empowered to make and enforce rules for accident prevention and may doubtless penalize subscribers who fail to comply therewith by increasing their insurance rates. Employers who do not become mem- bers of the Association, and who elect to come under the compensation act, must insure in some liability company authorized to do business in the State. Three American legislatures have adopted the Norway plan of exclusive State insurance. The Montana act of 1909 (since held invalid) was, as already explained, limited to coal mines, and as to these the law was compulsory. Premiums were fixed at one cent per ton of coal and one per cent of pay roll, the latter to be deducted from the wages of employees. The fund so provided was admin- istered by the Auditor of State. 639 State insurance is ob- ligatory, in Ohio upon all employers who accept the com- pensation plan, and in Washington upon all who carry on any of the enumerated hazardous employments. Risk classes and premium rates are fixed by the statute in Wash- ington, subject to legislative revision. In Ohio the classes and rates are determined by the Liability Board of Awards, which employs a permanent actuary for that pur- pose. Establishment premiums in both cases are a per- centage of pay roll obtained by combining the risk ratings of the several classes of employees. The administrative boards, expressly in Washington and by fair implication in Ohio, are authorized to raise the risk rating of any em- ployer who maintains "unduly dangerous" conditions of employment. Disbursements in both States are made di- rectly by the administrative boards and payment of the as- sessed premiums into the State fund relieves the employer of every other liability except for wilful wrongs. 640 Maryland requires an employer who accepts the terms of 128 WORK ACCIDENT INDEMNITY IN IOWA the permissive act either to insure his employees against work accidents in some casualty company organized under the laws of that State or to establish a trust fund in- violably appropriated to the purposes of such insurance. The latter option is restricted to employers of not less than fifteen hundred workmen. It will be observed that the Maryland plan provides for "workmen's collective acci- dent" as distinguished from "employers' liability" insur- ance. 641 Summing up, it appears that of the fourteen statutes which have thus far survived the courts, eight make the employer individually liable for the compensations pro- vided, two impose individual liability but exact some form of guarantee that the payments will be forthcoming when due, three create collective liability (two by means of State insurance and one by an employers ' mutual with an option of stock company insurance), and one allows the substitu- tion of workmen's collective accident insurance for em- ployers' liability. BUKDEN OF INDEMNITIES The burden of indemnifying work accidents is, by thir- teen of the statutes under review, imposed exclusively upon the employer. One-tenth of the insurance premiums in Ohio 642 and one-half in Maryland 643 may be deducted from the wages of insured employees. The Montana act allowed coal mine operators to deduct one per cent from the gross earnings of all employees affected by the act. 644 The aggre- gate of such deductions would probably equal or a i um inous discussion of this point see Bohlen's The Vol- untary Assumption of Risk in the Harvard Law Review, Vol. XX, p. 18, footnote. 384 Annotated Statutes of Indiana, 1901, Sec. 359 a. 3S5 Arkansas (violation of railway sixteen-hour law), Digest of the Statutes of Arkansas, 1904, Sec. 6654; Georgia (railway safety laws), Acts of Georgia, 1909, No. 289; Indiana (railway safety laws), Acts of Indiana, 1909, Ch. 62; Iowa (railway safety laws), Laws of Iowa, 1909, p. 117; Michigan (railway safety laws), Laws of Michigan, 1909, p. 211; Mississippi (railway safety laws), Laws of Mississippi, 1908, Ch. 95. 386 jr or ^g a( j m iralty rule see Woodrop-Sims vs. Jones, 2 Dod- son's Admiralty Reports 83, 85 (England, 1815) ; and Beach on Contributory Negligence, Third Edition, Sees. 402-404. ' ' The rule of admiralty in collisions, apportioning the loss in case of mutual fault, is peculiar to the maritime law. It is not derived from the civil law. ... It emanated from the ancient maritime codes". — The Max Morris, 28 Federal Reports 881, 883 (1886). The rule applies to all cases of marine tort founded on negli- gence. — Atlee vs. Packett Company, 21 Wallace 389 (United States, 1886). 387 rpk e YU Y e f < < proportional negligence " is to be distinguished from that of ' ' comparative negligence ' ', with which it is sometimes confused. By the latter rule, which formerly obtained at common law in Illinois, recovery is allowed only where the negligence of the plaintiff was slight and that of the defendant gross by comparison. — See Beach on Contributory Negligence, Third Edition, Sees. 89-95. Some of the statutes cited in notes 388-393 below establish the rule of "comparative", rather than that of "proportional", negli- gence, the distinction not being deemed important in the present connection. 388 Laws of Ohio, 1910, p. 195. 389 Annotated Code of the District of Columbia, 1906, Ch. 129. 390 Laws of Nevada, 1907, Ch. 214, p. 437. 391 Laws of Maryland, 1902, Ch. 412, p. 595. NOTES AND REFERENCES 259 392 Laws of Oregon, 1911, Ch. 3. 393 Georgia, Laws, 1909, No. 289, p. 161 ; Iowa, Laws, 1909, p. 117 ; Michigan, Public Acts, 1909, No. 104, p. 211 ; Nebraska, Laws, 1907, Ch. 48; Nevada, Laws, 1907, Ch. 214, p. 437; North Dakota, Laws, 1907, Ch. 203 ; South Dakota, Laws, 1907, Ch. 219 ; Texas, Revised Civil Statutes, 1911, Sec. 6649; Wisconsin, Annotated Statutes, 1906, Sec. 1816. In Tennessee, at common law, plaintiff's negligence affects only a mitigation of damages. 394 United States Statutes at Large (1908), Vol. XXXV, Ch. 149. 395 Laws of Iowa, 1909, pp. 117, 118. 396 See above, pp. 42-44. 397 Labatt's Employers' Liability, Ch. XVII; Greenleaf vs. Illi- nois Central Railroad Company, 29 Iowa 14 (1870) ; Kroy vs. Chi- cago, Rock Island and Pacific Railway Company, 32 Iowa 357 (1871) ; Perigo vs. Chicago, Rock Island and Pacific Railway Com- pany, 52 Iowa 276 (1879) ; Duffey vs. Consolidated Block Coal Com- pany, 147 Iowa 225 (1910). 398 < * rj^g ru i e fi n( j s it s support in the reason that the continuance of the servant in the employment of his master is purely voluntary, and if he so continues without objection, w r ith knowledge of defects in machinery or the incompetency of his co-employees, he is pre- sumed to have waived the right to insist upon indemnity for in- juries resulting from such incompetency and defects." — Kroy vs. Chicago, Rock Island and Pacific Railway Company, 32 Iowa 357, 361 (1871). 399 That the doctrine of assumption of risk is but a particular application of volenti non fit injuria see Thomas vs. Quartermaine, Law Reports, 18 Queen's Bench Division, 685 (England, 1887) ; Gorman vs. Des Moines Brick Company, 99 Iowa 257 (1896) ; Cowles vs. Chicago, Rock Island and Pacific Railway Company, 102 Iowa 507 (1897) ; Miller vs. White Bronze Monument Company, 141 Iowa 701, 712, 713 (1909). 400 See Labatt's Employers' Liability, Vol. I, p. 620. 401 "Assumption of risk has come to be used in a twofold sense. 260 WORK ACCIDENT INDEMNITY IN IOWA It is often said that an employee assumes the ordinary risk that is incident to his employment. This form of assumption of risk is often pleaded by defendants in personal injury cases, although it is quite unnecessary to do so. Assumption of risk in its true sense has reference to those risks arising out of the negligence of the mas- ter when such negligence is known to the employee, and the danger therefrom appreciated by him. In the first form herein indicated a specific pleading of assumption of risk of the ordinary dangers incident to an employment is a mere amplification of the general denial, and adds nothing to it in a legal sense. In the second form herein indicated it is an affirmative defense and must be specifically pleaded as such." — Mr. Justice Evans, in Duffey vs. Consolidated Block Coal Company, 147 Iowa 225, 228 (1910). The two forms of "assumption of risk" are quite fully distin- guished in Martin vs. Des Moines Edison Light Company, 131 Iowa 724 (1906). 402 ' ' 'Assumption of risk' is, in effect, a waiver of defects and dan- gers, and a consent on the part of the employee to assume them, no matter whether he be careful or negligent in his conduct. . . . In such cases the injured party may at the time be in the exercise of all the care which the law requires, and still have no right of recovery. ... Of course, facts showing contributory negli- gence may also prove assumption of risk; but rarely, if at all, will proof that one did not assume risk also show that at a given time he was in the exercise of ordinary prudence for his own safety. . . . Assumption of risk is a matter of contract, express or implied ; while contributory negligence is a matter of conduct. ' ' — Mr. Justice Deemer in Miller vs. White Bronze Monument Company, 141 Iowa 701, 712, 713 (1909). Compare Gorman vs. Des Moines Brick Com- pany, 99 Iowa 257 (1896). In both these cases the plaintiff was absolved from assumption of risk but denied recovery on the ground of contributory negligence. 403 Martin vs. Des Moines Edison Light Company, 131 Iowa 734 (1906) ; Mace vs. Boedker and Company, 127 Iowa 721 (1905) ; Cinkovitch vs. Thistle Coal Company, 143 Iowa 595, 601 (1909) ; Duffey vs. Consolidated Block Coal Company, 147 Iowa 225 (1910). 404 ' ' Knowledge, either actual or imputed, because of what should NOTES AND REFERENCES 261 have been known by the exercise of ordinary prudence, is abso- lutely essential before the risk may be said to have been assumed. ' ' — Wilder vs. Great Western Cereal Company, 130 Iowa 263, 269 (1906). Compare Coates vs. Burlington, Cedar Rapids and North- ern Railway Company, 62 Iowa 486 (1883), and the cases cited in note 403 above. 405 Carver vs. Minneapolis and St. Louis Railway Company, 120 Iowa 346, 347 (1903). — "Mere knowledge of a dangerous custom is not sufficient to throw the risk thereof upon the person having such knowledge unless he has also appreciated the danger involved." See also Mace vs. Boedker and Company, 127 Iowa 721 (1905) ; Mayes vs. Chicago, Rock Island and Pacific Railway Company, 63 Iowa 562 (1884) ; Cinkovitch vs. Thistle Coal Company, 143 Iowa 595, 601 (1909), and cases there cited. 4oa <, 41-44; reference to, 69; existing system of indemnity for, 70; amount of indem- nity for, 73-76; delay and uncertainty in securing indemnity for, 78-81 ; compen- sation for, in Great Britain, 94-96; in- demnity for, in Germany, 96-102; basis of recovery of compensation for, 112; list of, included in indemnity provisions, 113; conditions justifying compensation for, 119, 120; schedules of indemnity for, 122-125, 161, 162, 186-191; report of, 130, 131 ; proportion of, indemnified, 146, 147, 271; records of, in Iowa, 157; basis of indemnity for, in Iowa bill, 159; rules for prevention of, 163; burden of indemnity for, 180-183; standards of legislation relative to inclusion of, 184- 186 (see also Accidents) Inn-keepers, liabilities of, 15 Inspection, duty of employer relative to, 18, 30; necessity of, 87 Inspectors, 193 Insurance, lack of, among workmen, 7 ; provisions for, 125-128; cost of, 145; de- fects in statutes relative to, 148-153; pro- visions of Iowa bill relative to, 162, 163; provision for, in minority report, 165; need of compulsory, 168, 169-171, 202; standards of legislation relative to, 172- 180; overhead expenses of, 175; exemp- tion from, for railways, 177 (see also State insurance, mutual insurance, etc.) Insurance associations, operation of, in Germany, 97-102 Insurance companies (see Liability Insur- ance Companies) Insurance Institution of Norway, 106 Insurance plan, 92 ; statement of, 93 ; countries adopting, 93 ; working of, in Germany, 96-102 Insurance rates, relative level of, 150; variations in, 153 (see also Premiums) Insurance systems, adoption of, in five States, 111 332 WORK ACCIDENT INDEMNITY IN IOWA Intermediate employers, 184 International Harvester Company, 168, 201, 207 Intoxicants, sale of, 138 Intoxication, 166, 185 Interurban railways, 39 Investigations by commissions, 108-111 Investigations by Iowa commission, 157, 158 Iowa, discrediting of employers' liability law of, 1; reference to, 4, 108, 111, 258, 259, 280, 281; deaths and injuries from work accidents in, 8, 9 ; basis of system of accident indemnity in, 11; need of analy- sis of employers' liability in, 17 ; importa- tion of fellow-servant rule into, 29; ap- plication of rule of vice-principalship in, 30, 31; attitude, toward department of service rule in, 32, 33 ; earliest decision relative to fellow-servants in, 34; railway liability act in, 38-48 ; modification of contributory negligence in, 56, 57; doc- trine of assumption of risks in, 61, 62; modification of assumption of risk in, 65- 69 ; summary of employers' liability law in, 70, 89-91; ground for recovery under law in, 71 ; working of employers' lia- bility in, 71-91; absence of data in, 72; cost of accidents in, borne by victims, 76 ; laws in, favorable to workmen, 76; delay in securing indemnity in, 79 ; rights of injured workmen in, 80, 81; wastefulness of indemnity system in, 83, 84; increase in employers' liability premiums in, 84; situation in, relative to employers' lia- bility, 107 ; inadequacy of employers' liability law in, 156; Employers' Liability Commission of, 156-166; accident records in, 157; competition of products of, 175; alleged disadvantage to employers in, 189- 191 Iowa Bureau of Labor Statistics, incom- pleteness of records of, 8, 9 ; reference to, 192, 193, 198 Iowa Federation of Labor, 1, 66, 156, 194 Ireland, 37 Italy, workmen's compensation in, 93 ; refer- ence to, 303 Jefferson, Thomas, teaching of, 14; inau- gural address of, 211 Johnson, Eliza, acknowledgment to, xi Judges, inherited tendencies of early, 14; attitude of, toward liability of master, 36; lack of fitness of, for administration, 196 Juries, prejudice of, against employers, 72 Jury, ability of, to decide questions, 55 Jury trial, provisions for, 132, 133 ; refer- ence to, 134, 166; alleged violation of right of, 140-144; constitutional guaran- tee of, 198; pretext for, taken away, 197 Kansas, 112, 113-118, 119, 120, 121, 122, 123, 124, 125, 126, 129, 131, 132, 134, 145, 150, 152, 189, 190, 191, 240, 280, 281, 284 Kellogg, Prank B., 304 Knapp, E. V., 305 Labor Legislation in Iowa, History of, vii, i* Ladd, Scott M., opinion of, 230, 248 Laissez faire, effect of movement of, 13 ; reference to, 16, 64, 177 ; philosophy of, 56 Law, due process of, 135-138, 170; changes in, 136; equal protection of, 138-140 Lawyers, profit of, out of employers' lia- bility cases, 81-84, 109 Lee, W. G., 303, 305 Legislation, recent, in United States, 107- 155; general character of recent, 111, 112; problem of insuring effectiveness of, 120; restrictions on scope of, 138 Levy, compensation exempt from, 162 Liability, contracting out of, 45-48, 68, 69, 94, 128, 129, 162; abrogation of, 114; provisions of minority report relative to, 165; exemption from, 172 (see also Em- ployers' liability) Liability companies, fate of, at stake, 152 ; service rendered by, 153 ; lack of data on part of, 174 Liability insurance, necessity of, 84 ; pro- visions for, 125-128 ; relative cost of compensation and, 148 ; defects in statutes relative to, 148-153; wastefulness of com- petitive, 149, 150, 177; rates of, 150; present stage of, 153; study of, 157, 158; variation in, 190, 191 (see also Insur- ance, etc.) Liability Insurance Companies, amount of indemnity money taken by, 82, 83 Lien, exemption of indemnities from, 125 ; reference to, 162 Link-and-pin couplers, 19 Litigation, 17; wastefulness of, 81-84; cost of, to State, 84, 196; amount of, in Great Britain, 95, 96; absence of, in Germany, 100, 101 ; attempts to minimize delay and expense of, 131; costs of, 158, 173; small outlays for, 174 ; necessity of elimi- nating, 196-198 INDEX XY.l Locomotives, operation of, with link-and-pin couplers, 19 Logging, 119 Loss, distribution of, 71-78 Louisiana, 280 Lowell, James A., 304 Luxemburg, workmen's insurance in, 93 ; compulsory laws of, 159; reference to, 303 McAunich vs. Mississippi and Missouri Rail- road Company, decision in case of, 39, 40 McClain, Emlin, opinion of, 251, 263, 264 Machine guards, omission of, 20; removal of, 186 Machine industry, revolution wrought by, 16 Machinery, complicated character of, 3 ; dif- ficulty in adapting human nature to, 3, 4 ; increase of accidents with development of, 11; effect of operation of, 53, 54; act forbidding operation of, by children, 60; reference to, 119 Magna Charta, 136, 155, 295 Maine, 107, 280 Malingering, 125, 187 Manhattan Borough, work accidents in, 74, 108 Manufacturers, bill defeated by, 16; refer- ence to, 147, 175, 179; accident records of, in Iowa, 157 Manufacturers, National Association of, opinion of employers' liability by, 90; reference to, 168 Manufacturers' Association, Iowa, 1, 66, 156, 194 Manufacturing, 119 Marginal utility theory, 17 Market facilities, differences in, 190 Maryland, modification of contributory negli- gence in, 56; reference to, 108, 111, 112, 113-118, 119, 122, 123, 124, 125, 127, 128, 132, 134, 148, 240, 280, 281, 288 Maryland Employees' Insurance Act, 129 Massachusetts, 108, 109, 110, 111, 112, 113- 118, 119, 120, 121, 123, 124, 125, 126, 129, 130, 131, 132, 134, 140, 141, 142, 147, 149, 150, 151, 152, 153, 158, 159, 176, 179, 180, 195, 211, 240, 280, 281, 284, 288, 289 Massachusetts Employees' Insurance Asso- ciation, operation of, 126, 127 Massachusetts Indemnity Association, 150 Massachusetts Supreme Judicial Court, de- cision by, 28 Master, reasons for restriction of liability of, 14, 15; limitation on obligation of, to protect servant, 20; liability of, for Safety of servant, 22, 28; liability of, for in- juries inflicted by servants, 25; exception to rule of liability of, 20; assumption of risks due to negligence of, 27 ; non dele- gable duties of, 30; concurrent negligence of, and fellow-servant, 88; attitude of judges toward liability of, llll ; contribu- tory negligence not defense of, 51; re- sponsibility of, for ordinary risks, 58; release of, from liability by assumption of risk, 60; statutory duties of, 60 (see also Employers) Mechanic's lien, 184 Mechanical industry, hazards of, 2, 4, 5; inevitable concomitants of, 89 Mecklenberg-Schwerin, 100 Mecklenberg-Strelitz, 100 Medical care, provision for, 116; failure to provide, 145 Medical examination, requirements relative to, 125, 162, 191 Medical examiners, fees of, 197 Medical expenses, 78, 82, 92, 96, 101, 108, 122, 161, 165, 182, 187, 190 Michigan, 75, 76, 78, 108, 109, 111, 112, 113-118, 119, 121, 123, 124, 125, 126, 129, 130, 131, 132, 149, 150, 152, 173, 176, 195, 240, 258, 280, 284, 288, 289 Mill, John Stuart, 53, 212, 267 Milwaukee, 148 Milwaukee County (Wisconsin), 108 Mine law, 193 Mines, work accidents in, in Iowa, 8, 9 ; modification of contributory negligence relative to, 56 ; fatality rate in, 88 ; emergency exits from, 88 Minnesota, 6, 72, 74, 75, 80, 108, 109, 111, 190, 191, 222, 240, 256, 272, 280, 281 Minor, assumption of risk by, 59 Minority report of Iowa Commission, 165, 166 Mississippi, 240, 258 Mississippi Valley, accident rates in, 151 Missouri, 190, 191, 240, 280 Monotony, effect of, 53 Montana, 112, 113-118, 119, 120, 121, 122, 123, 124, 125, 127, 128, 129, 130, 131, 133, 134, 140, 141, 142, 170, 240, 280, 281, 287, 288 Montana Coal Miners' Insurance Act, 112, 140 Mutual association, 147, 168, 175, 176; ad- vantages of, 174, 175, 176, 177 Mutual insurance, effect of, 150, 151; need of compulsory, 152; bill providing for, 159; advantages of, 172, 173, 176, 177; 334 WORK ACCIDENT INDEMNITY IN IOWA standards of legislation relative to, 177- 180; reference to, 182, 189, 201 Natural rights philosophy, 13, 14 Nearing, Scott, investigations by, 6 Nebraska, 190, 191, 240, 259, 280 Negligence, instances of, 20; insufficiency of proof of, 21; reference to, 30, 31, 33, 34, 35, 65, 68, 111, 112, 121, 137, 139, 140, 160, 166, 170, 172; concurrent, 33; prevalence of, 52, 53; causes of, 53, 54; need of definition of, 55 ; rule of propor- tional, 56; discarding of law of, 90; es- tablishment of rule of proportional, 156 Netherlands, The, workmen's compensation in, 93 ; reference to, 303 Nevada, modification of contributory negli- gence in, 56; reference to, 112, 113-118, 119, 120, 122, 123, 124, 125, 133, 134, 240, 259, 280, 281, 284, 288 New Hampshire, 112, 113-118, 119, 121, 122, 123, 124, 125, 126, 129, 133, 134, 145, 149, 150, 151, 173, 280, 281, 284, 288 New Jersey, 108, 110, 111, 112, 113-118, 119, 121, 123, 124, 125, 129, 130, 131, 133, 134, 145, 147, 150, 152, 158, 196, 240, 280, 284, 288 New South Wales, 303 New York, 7, 108, 109, 111, 112, 113-118, 119, 120, 122, 123, 124, 125, 133, 134, 148, 158, 169, 240, 280, 281, 288; work accidents in, 74, 75 ; distribution of in- demnity money in, 82, 83 ; cost of liti- gation in, 84 ; opinion of Employers' Liability Commission of, 90; Workmen's Compensation Act of, 112 New York Court of Appeals, reasoning of, 135, 170; reference to, 140, 142, 144, 171, 296 New Zealand, 303 Non-delegable duties, 29, 30 North Carolina, 36, 240 North Dakota, 107, 190, 191, 240, 259, 280 Norway, workmen's insurance in, 93, 94, 106; plan of, adopted in America, 127; effect of adoption of plan of, 152; suc- cess of insurance plan in, 173 ; reference to, 175, 303 Occupational diseases, 185 Occupational risks, burden of, 17, 22-25, 136; reference to, 35, 137, 180, 181; analysis of theory of, 92 ; methods of giv- ing effect to theory of, 92, 93 ; indemnity should be based on principle of, 167, 168; extension of principle of, 184; legislation on principle of, 303 Ohio, 56, 79, 108, 111, 112, 113-118, 119, 121, 122, 123, 124, 125, 127, 128, 129, 130, 131, 133, 134, 140, 141, 142, 143, 144, 149, 150, 151, 152, 153, 158, 169, 176, 181, 188, 240, 280, 281, 288, 299 Oklahoma, 240, 280 Optional system, necessity of large reserves under, 176 Ore mills, modification of contributory negli- gence relative to, 56 Oregon, 56, 240 Ottumwa, 158 Pacific Coast, accident rates on, 151 Packer, Launcelot, 158, 304 Padrone, 184 Pal, A., 305 Passengers, damages for injuries to, 137, 138 Pennsylvania, 74, 280 Pennsylvania, University of, 6 Pensions, 6, 173; provisions for, 96, 97, 101, 123, 150, 161, 162, 187, 191; com- mutation of, 162; reasons for, 191 Philippine War, casualties in, 2 Physicians, fees of, 165; free choice of, 187 Piece worker, 184 Pittsburgh, 7 Pittsburgh District, wages in, 6 ; work ac- cidents in, 75, 78 Pittsburgh Survey, facts discovered in, 54, 55, 73; reference to, 110, 207, 272 Plaintiff, burden of proof on, 21 Police power, 136, 137, 138, 141, 142, 143, 177 Policies, 192 Political influence, guarding against, 193, 194 Poverty, 8 Pratt, Mr., 158 Premium rates, 127, 149, 163 Premiums, deduction of, from wages, 128; high rates of, 149; absorbtion of, by ex- penses, 150, 173 ; adjustment of, 152 ; amount of, in Iowa, 157; portion of, placed in reserve fund, 163; data for computation of, 174; treating of, as operating costs, 175 ; reference to, 176, 179, 192, 195; determination of, 180 Price, C. W., 201, 207 Priestley vs. Fowler, decision in case of, 26, 27, 28 Private liability companies, employers at mercy of, 149 INDEX 335 Private liability insurance, objection to, 151; reference to, 152; ineffectiveness of, 153 Private property, protection of, 13 Production, costs of, borne by consumers, 92 Property, absence of, among workmen, 6, 7 ; taking of, without due process of law, 136; deprivation of, by compensation acts, 143 Protest, necessity of, 63 Proximate cause, necessity of proving em- ployer's negligence to be, 21, 22 ; refer- ence to, 33, 55; determination of, in question of contributory negligence, 49, 51 Quasi-elective acts, 121, 122, 142; consti- tutionality of, 143, 144; bills for, 156 Quasi-elective plan, operation of, 145-148; bill providing for, 159 ; shortcomings of, 169; constitutional doubts relative to, 170; reference to, 171 Quebec, 303 Queensland, 303 Railroad Commissioners, 198 Railroad companies, liabilities of, for in- juries to employees, 27, 28 ; act relative to duties of, 39 ; relief departments op- erated by, 45-48; experience of, 109 Railroad transportation, 139, 199 Railway brotherhoods, 168 Railway cars, automatic couplers on, 20 Railway fellow-servant statute, 156 Railway Liability Act, Iowa, provision of, 38; applicability of, 39; constitutionality of, 39, 40; judicial construction of, 40- 47; employees within scope of, 41-44; at- tempt to defeat purpose of, 45-47 ; refer- ence to, 57, 68, 69 Railway trainmen, representative of, 157 Railways, work accidents on, in Iowa, 8, 9 ; abrogation of fellow-servant rule relative to, 37, 38; liabilities of, in Iowa, 38-48; modification of contributory negligence relative to, 56, 57; bill defeated by, 66; fatality rates on, 88 ; construction and operation of, 119; liability of, 137, 138; modifications of laws relative to employees on, 156 ; exemption of, from insurance, 177; reference to, 240 Ranney, G. A., 303 Rates of indemnity, comparison of, 189, 190 Reasonable man, defects in standard of, 53, 54 ; reference to, 55 Rebating, prevalence of, 153 Recovery, proof of negligence not ground for, 21; basis of, 112 ; bar to, 166, 171 Reform movement, evidences of, 107; re- sults of, 108 Relief departments, operation of, 85 Remedies, exclusion of, 172 Repairs, duty <>f employers t" make, 67 Reserve fund, 163, 180; contribution to, by State, 179 Reserve system, effect of, 174 Reserves, necessity of large, 176 Respondeat superior, doctrine of, 25, 26, 29, 36 Reuss-Greitz, 100 Rhode Island, 112, 113-118, 119. 121, 123, 134, 125, 128, 129, 133, 134, 151, 196, 280, 281, 284, 286, 288, 289 Ricardo, David, 212, 266 Risk, assumption of, 32, 48, 49, 57-69, 88, 160; judicial decisions relative to, 60, 61 ; doctrine of, in Iowa, 61, 62 ; criticism of, 64, 65 ; statutory modification of, 65- 69, 156; abrogation of, 121 Risk groups, establishment of, 126, 127, 149, 163 Risk ratings, 127, 180, 192, 195 Risk tariffs, making of, 126, 127 Risks, burdens of occupational, 18, 22-25; determination of ordinary, 23, 24 ; negli- gence of co-employees among ordinary, 33, 34, 35 ; assumption of extraordinary, 58, 66; assumption of ordinary, 58; analysis of theory of occupational, 92 Roosevelt, Theodore, opinion of, 90 Royal Commission on Labour, 37 Ruffin, Chief Justice, 35 Rules, duty of employer relative to, 18; necessity of, for safety, 87 Russell Sage Foundation, 168 Russia, workmen's compensation in, 93 ; reference to, 303 Russo-Japanese War, casualties in, 2 Sabath, A. J., 304 Safety, duties of employer relative to, 18- 20; alleged promotion of, by fellow-servant rule, 35, 36; need of standards of, 154 Safety appliances, adoption of, by employers, 19, 20; need of, 87, 88 Safety cages, 88 Safety device, removal of, 166 Safety exhibit, 194, 201, 202 Safety laws, violation of, by employer, 56, 61, 112, 122, 160, 161, 166, 172; barring of recovery for violation of, 60; penalties for disregard of, 177; standards for, 198- 202 Safety regulations, 192; making of, 200, 201 Savings, lack of among workmen, 7 336 WORK ACCIDENT INDEMNITY IN IOWA Saxony, 100 Schedules of compensation, 122-125, 161, 162; standards of legislation relative to, 186-191 Sehwedtman, Mr., 168 Servants, duty of employer relative to, 18, 30; limitation on obligation of master to protect, 20; assumption of risks by, 22- 25, 27, 58; liability of master for in- juries inflicted by, 25; relief of, of con- tributory negligence, 32 (see also Em- ployees) Settlements, time and mode of, 108; reports of, 129 ; encouragement of friendly, 197 Shambaugh, Benj. P., editor's introduction by, vii ; acknowledgment to, x Shaw, Chief Justice, formulation of fellow- servant rule by, 28, 29; dictum of, 34; statement by, 86, 87, 209 Sherman, P. Tecumseh, 158 Sherwin, John C, opinion of, 231, 233 Shop-keepers, liabilities of, 15 Simulation, 125, 187 Sinclair, R. S., 305 Sioux City, 158 Small, A. J., acknowledgment to, x Smelters, modification of contributory negli- gence relative to, 56 Smith, Adam, teaching of, 14 Solvency, showing of, 149, 173 South Carolina, 211, 240 South Carolina Court of Errors, decision by, 27, 28 South Dakota, 191, 259 Spain, workmen's compensation in, 93; reference to, 303 St.ily, John O., 157 Standards of indemnity legislation, 167-202 State, cost of litigation to, 84; cost of acci- dents to, 196 State aid to indemnity association, 178, 179 State insurance, provisions for, 127; refer- ence to, 144, 172, 189, 192, 197, 201; effect of, 150, 151 ; attempts to defeat, 151 ; need of compulsory, 152 ; advantages of compulsory, 172, 173; disadvantages of, 176 (see also Insurance, Mutual In- surance, etc.) State insurance department, 173, 175, 176, 182; advantages of, 174, 175 State insurance fund, 139 State Mine Inspectors, 193, 198 States, commissions appointed by, 107; recent legislation by, 107-155 Statisticians, 193 ; need of appointment of, 195 Statistics, necessity of, 180 Steel Corporation, 168 Stevedoring 119 Stevens, John L., 156 Stock companies, premiums of, 150; low rates made by, 151; reference to, 152, 154, 172, 174, 175, 178; failure of in- surance by, 168; need of substitute for, 173 Stone quarries, 201 Street railway companies, 39 Sub-aqueous construction, 119 Sub-contractors, liability of employer for injuries to employees of, 120, 160, 184 Sub-terranean construction, 119 Suicide, 186 Supervision, need of, 192 Supreme Court of Iowa, application of rule of vice-principalship by, 30, 31; attitude of, toward department of service rule, 32, 33 ; interpretation of railway liability act by, 39-47 ; decision of, relative to relief departments, 47 ; Temple Amendment up- held by, 48 ; decisions of, relative to as- sumption of risk, 60, 61 ; reference to, 67, 68, 197 ; members of commission nomi- nated by, 163, 193, 194; character of, 171 Supreme Court of United States, Iowa rail- way liability act upheld by, 41 ; Temple Amendment upheld by, 48 ; decision of, 170 Sweden, workmen's compensation in, 93 ; reference to, 303 Switzerland, workmen's insurance in, 93 ; compulsory laws of, 159; reference to, 179, 188, 303 Tables, 82, 83, 111, 113-118, 130, 132, 133, 150, 190, 271, 280, 303 Taxation, 179 Temple Amendment, adoption of, 47, 48 ; provisions of, 48 ; upholding of, by courts, 48, reference to, 68, 69 Tenement labor, 201 Tennessee, 259 Texas, 107, 240, 259, 280 Thorn, Alfred P., 215, 304 Titanic, sinking of, 2 Tools, duty of employer relative to, 18, 30 Trains, negligence in speed of, 19, 20, 60 Transvaal, 303 Trolley wires, 20 Tunnel driving, 119 Unions, activities of, 47, 66 United Mine Workers, 157 United States, abandonment of employers' liability principles in, 1 ; deaths and in- INDEX 337 juries caused by work accidents in, 1, 2 possibility of reducing number of acci dents in, 2 ; average of wages in, 6 modification of contributory negligence in 56, 57 ; fatality rates in coal mines in, 88 systems of indemnity outside of, 92 ; unen lightened system of indemnity in, 107 indemnity legislation in, 107-155; refer ence to, 108, 110, 111, 165, 215, 280 necessity for progress in, 155; analyses of indemnity acts of, 158 Urban utilities, 179 Urick, A. L., 302 Ventilation, 200 Vice-principal, 68 Vice-principalship, 29, 30 32 Voluntary relief, 115 Votes, distribution of, in indemnity asso- ciation, 178, 179 Wage-earners, inability of, to pay cost of accidents, 6-8 ; lack of sympathy of judges with, 14; rule of contributory negligence a hardship to, 52 ; limitation of freedom of, 65 ; effect of work accidents on, 77, 78 Wages, indemnity for loss of, 5 ; average of, in United States, 6; effect of loss of, 7, 8; reference to, 64, 108, 150; proportion of, paid as indemnity, 96, 97, 101, 123- 125, 161, 162, 186-191 ; deduction of premiums from, 128; differences in, 190 Waiting period, provisions for, 117, 124, 125 Want, effect of fear of, 8 Waple, Wallace D., acknowledgment to, x Warning signals, 200 Washington, 8, 9, 108, 110, 111, 112, 113- 118, 119, 120, 123, 124, 127, 129, 130, 131, 133, 134, 140, 141, 142, 145, 149, 150, 153, 168, 170, 240, 280, 281, 288, 299 Washington Industrial Insurance Commis- sion, 158 Wausau Employers' Mutual of Wisconsin, 150 Wastefulness of employers' liability system, 81-84 Waterloo, 158 Watson, E. E., acknowledgment to, x Wayne County (Michigan), work accidents in, 78, 80 Weaver, Silas M., opinion of, 61, 230 Well drilling, 119 West Virginia, 280 Western Australia, 303 Wilful misconduct, 115, 186 Wisconsin, 7, 9, 72, 74, 108, 109, 111, 112, 113-118, 119, 121, 128, 134, 12S, 129, 180, 181, 133, 134, 141, 142, 111, IP., 150, 151, 152, 153, 158, 169, 176, 188, 1H9, 190, 191, 192, 195, 200, 201, 840, 256, 259, 280, 281, 288 Witnesses, fees of, 197 Women, wages received by, 6; forcing of, into unsuitable employments, 8 Work Accident Indemnity (see Indemnity) Work accidents (see Accidents) Working place, safety of, 18, 201 ; duty of employer relative to, 30 Workmen, wages received by, 6; inability of, to pay cost of accidents, 6-8 ; de- pendents of, 7, 8 ; deaths and injuries of, in Iowa, 8, 9; effect of fellow-servant rule on safety of, 35, 36; contributory negli- gence of, 48-57 ; accidents due to fault of, 52; inherent shortcomings of, 52-54; as- sumption of risk by, 57-69 ; Iowa law relative to assumption of risks by, 65-69 ; recovery by, for injuries under existing law, 70; investigations of amounts of in- demnity received by, 73-76, 109 ; law in Iowa favorable to, 76; cost of work acci- dents borne by, 77 ; delay and uncertainty in securing indemnity for, 78-81 ; rights of injured, under Iowa law, 80, 81; small benefits accruing to, 81; proportion of indemnity actually received by, 81-84; relations between employer and, 85, 86; interest of, in preventing accidents, 86, 87; insurance of, in Germany, 96-102; contribution by, to insurance funds in Germany, 101, 102; lack of freedom of, to make election, 143 ; imperfect protection to, 149; reference to, 152; proportion of compensation received by, 158; schedules of compensation to, 161, 162; sharing of burden of indemnity by, 180-183 ; clothing of, 200 (see also Employees) Workmen's collective accident insurance, 128, 180 Workmen's compensation, workings of, in Great Britain, 94-96 Workmen's compensation acts, power to make awards under, 141, 142 Wrightman, G. A., 302 Wiirtenburg, 100 UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE UNIVERSITY LIBRARY University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. UNIVERSITY of CALIFORNT UC SOUTHERN REGIONA Vi LIBRARY FACILITY AA 000 960 619 5 I ■ a H a B PLEA C E DO NOT REMOVE THIS BOOK CARD AXtUBRARYt?/- ^ £. University Research Library