other persons as often and as effectively as it was to actions by workmen.

Suppose that the legislature, without enacting a Workmen's Compensation Act, had expressly abolished all three of the above defenses so far as suits by workmen are concerned. What would the effect have been? The abolition of the first defense would have put the workman upon an equal footing with an outsider. As to the second and third defenses he would have been put in a better position than an outsider. The abolition of the defense of contributory negligence, so far as workmen are concerned, would have had a far-reaching effect. Whether confining the abolition of this defense to suits by workmen only would not be an unjust discrimination in favor of that class, is an interesting question. We do not, however, pause to discuss it; because we think that the doctrine of contributory negligence, as applied to any or all plaintiffs (i. e., to plaintiffs in general), is a decadent doctrine, which will ultimately disappear from the law.20

29 The term "contributory negligence" should properly be applied only to those cases where the negligent acts of plaintiff and defendant each constituted a part of the legal cause; and not applied where the negligent conduct of one party was merely an antecedent condition and the negligent conduct of the other party was the entire legal cause.

Under the common law rule in England, and in many of the United States, the plaintiff is barred if his negligence constitutes any part, however small, of the compound legal cause, although the defendant's negligence may have constituted a much larger part. This drastic rule is extremely unpopular; and, if adhered to, is likely to lead to the entire abolition of the doctrine that a plaintiff's contributory negligence bars his action. A very different rule prevails in the maritime courts of some nations. See 13 Law Quarterly Review, 17. In some countries, including the United States, and, until recently, England, in a case of collision between two ships, where the fault of each is part of the cause, the loss is equally divided. In some other countries, in such a case, the loss is divided proportionately to the respective faults of the two vessels; and this rule has now been virtually adopted by statute in England. "... the damage or loss shall be in proportion to the degree in which each vessel was in fault." English Act of Dec. 16, 1911; 1 & 2 Geo. 5, chap. 57, § 1. (If the latter rule had been generally adopted in common-law courts, the doctrine of contributory negligence would have been much less unpopular. But common-law judges might often hesitate to allow juries to make a division of loss on this basis. In the maritime courts of this country, where there is no jury, the judge might be willing to trust himself to make the division.

Able counsel, in an argument before the United States Commission, contend that, where the sum recoverable under the Workmen's Compensation Act is only about half the actual damage, the statute, in effect, divides the loss in the case of the workman's contributory negligence. They say:

"Few now would venture to maintain the justice of regarding contributory negli

All three of the above defenses are now practically abolished wherever the ordinary Workmen's Compensation Act is in force. The continued existence of these common-law defenses is incompatible with the rule of absolute liability imposed by the "compulsory" form of the Workmen's Compensation Act. A clause of express abolition would generally be superfluous.21

Forty years ago, depriving a culpable employer of these three defenses would probably have satisfied the demands of the great majority of workmen. But to-day they make the far more important request that an employer should be made absolutely liable to them, even though he is entirely free from blame. And the passage of a Workmen's Compensation Act is a virtual granting of this request, so far as relates to industries within its scope.

Some comments upon, or descriptions of, this kind of legislation, if such comments are viewed as disconnected statements, might seem to ignore the basic theory of the legislation and also the in

gence as a complete defense. This doctrine the civil and admiralty laws always have rejected. But simply to abolish the rule or contributory negligence and to make the employer liable for full damages just as if there has been no contributory negligence would not correct its injustice; it would merely shift the injustice from the servant onto the master. The compensation law solves this problem simply and justly by treating the cause of the injury as it is, namely, a joint fault, and dividing the loss accordingly, the employer paying his share in 'compensation."" 2 Report, United States Commission, 637.

But the learned counsel here assume that the cause of the injury is “a joint fault"; whereas the statute compels the employer to make partial compensation, even though he were in no fault whatever. And a workman may (under the English Act of 1897) recover against a faultless employer, even though the workman himself were negligent and his negligence contributed to cause the damage, unless his negligence amounted to "serious and wilful misconduct." This is very different from the case where the maritime law divides the loss between two parties both of whom are in fault. 21 Under the ordinary Workmen's Compensation Act, fault on the employer's part "is no longer an element of the employee's right of action. This change necessarily and logically carries with it the abrogation of the 'fellow-servant' doctrine, the 'contributory-negligence' rule, and the law relating to the employee's assumption of risks." Werner, J., in Ives v. South Buffalo R. Co., 1911, 201 N. Y. 271, p. 288.

Mr. Birrell, after speaking of the provision in the English Act of 1897 as to serious and wilful misconduct, says: "But for this exception, negligence" (i. e., in cases falling within the limits of the act) "has disappeared, taking with her common employment, contributory negligence, and volenti non fit injuria.” Birrell on Employers' Liability, 89.

The defense of contributory negligence, if not actually abolished, has been so vastly modified in most of the Workmen Compensation Acts, "that it is of very little practical value to the employer." 6 Maine Law Review, 286.

consistency between that theory and the fundamental principle of the modern common law of torts.

It is sometimes alleged that a Workman's Compensation Act does not make any change in the law of torts. Eminent jurists have said that "in strictness it stands outside the law of torts altogether"; that it "is a law of compulsory insurance, and quite beyond the region of actionable wrongs"; that it creates (or, in effect, is) “a statutory term of the contract of service"; and that the liability thus created is "quasi-contractual" rather than “delictal." 22 Again it is said: "It is not a regulation of any substantive duty, nor does it change the substantive law or the duty of the employer in any way. It is exclusively an economic readjustment of the burdens of industrial accident." It is "idle to try to borrow tort analogies, either for or against this legislation.” This legislation is "not founded on tort, but is founded on the supposed economic shift of a burden from shoulders which are believed to be unable to bear it, to the employer, who is supposed to be better able to bear it and to be able to get back that cost from the public." 23 "Such 'compensation' is not 'damages' nor meant in principle to be half damages. Neither is it based upon the idea of tort, or meant to be a reparation for a wrong. In principle it is the payment of the employer's share of a common loss in a common undertaking. It has, therefore, none of the injustice of the fictions of our law by which an employer without real fault is often held liable in full damages just as though he had done a wrong." It has also been contended that the statute is a legislative exercise of the taxing power, and not of the general police power; that it is not concerned with the adjustment of private duties or actionable wrongs, but is rather the imposition of an occupation tax upon employers in certain kinds of business; the sums levied constituting a fund for the relief of workmen who have been harmed in the conduct of the business.25

>> 24

But, notwithstanding these modes of characterizing this kind of

22 See Salmond on Torts, I ed., 99; Pollock, Torts, 6 ed., 105.

23 Mr. Reath, vol. 2, Report of U. S. Commission 122, 127.

24 Messrs. F. L. Stetson et als, 2 Report United States Commission, 438.

25 See Cunningham v. Northwestern, etc. Co., 1911, 44 Mont. 180, 209, 213; Mr. Alpheus H. Snow, in 59 Univ. Pa. Law Review, 287, 288, 291, 293–297; Mr. J. H. Boyd, in 10 Michigan Law Review, 438-439, and 1 Boyd on Workmen's Compensation, §§ 67, 70, 75, 83, 87, 88, 91.

legislation, two stubborn facts remain. First: the statute imposes upon an employer a duty of compensation, which did not exist under the modern common law of torts. Second: the theory underlying the statute, its basic principle, is in direct conflict with the fundamental doctrine of the modern common law of torts. The statute shows "a distinct revulsion from the conception that fault is essential to liability." It is "a distinct reversion to the earlier conceptions that he who causes harm, however innocently, is, as its author, bound to make it good." 26 This legislation "has taken a wholly new departure as regards the cases within it." 27 The magnitude of the change thus effected and its radical nature have been recognized by many jurists.

"The time-honored principles of the law of torts have been cast aside, a wider rule of responsibility has been framed, and no man can now say what will be the ultimate effects of the new doctrine.” 28

"The Workmen's Compensation Act (1897) marks the commencement of a new era in the history of our jurisprudence in relation to liability for personal injuries."

1129

"The Workmen's Compensation Act of 1897 was based upon, and introduced, a new and somewhat startling principle."'30

“. . . The Workmen's Compensation Act, 1897, introduced a new principle into English law."31

"In 1897, however, legislation took a completely new turn. The Workmen's Compensation Act of that year (60 & 61 Vict., ch. 37) introduced into the law the new principle that an employer must, subject to certain limitations, insure his workmen against the risks of their employment. . . . The law, lastly, secures for one class of the community an advantage, as regards insurance against accidents, which other classes can obtain only at their own expense. . . The rights of workmen in regard to compensation for accidents have become a matter not of contract, but of status." 32

. . There suddenly arises from all sides an apparently just claim that a common-law system of rules, which has occupied more

26 See language of Professor Bohlen, not used in reference to this legislation. 5′ Univ. Pa. Law Rev. 452.

27 Pollock, Torts, 6 ed., 95.

28 P. B. Mignault, 44 Am. Law Rev. 719, p. 735.

29 Minton-Senhouse on Accidents to Workmen, 2 ed., 109.

30 Ruegg, on Employers' Liability and Workmen's Compensation, 8 ed., 263.

31 Beven on Employers' Liability and Workmen's Compensation, 4 ed., 345.

32 Dicey, Law and Public Opinion in England, 281-283.

than three hundred years in building up, is ethically bad and economically unsound, should be thrown into the scrap-heap with other wornout machinery, and there should be substituted a new system based on wholly different principles unknown to the common or any other law until about twenty-five years ago.' 1133

. . . the principle underlying the act imports into British law the novel doctrine that an employer of labor, apart from personal or constructive negligence, is a compulsory insurer, against accident, of the workmen employed by him. . .

" 34

It has been said of the act that it has introduced a novel principle; but I consider that a misleading euphemism. So far from introducing a principle it has constituted a most unscientific departure from all the principles which make up and should make up the law of contract and tort. . . . I believe the contradictoriness of the legal conception has in a considerable degree contributed to the groping about of the judiciary in its efforts at defining and circumscribing the practical scope of the measure."35

In external form, there are some wide differences among the various Workmen's Compensation Acts which have been proposed or enacted in the United States. But none of these differences in any way affect our contentions, that the ultimate result brought about by each and all of these Acts is, in a large number of cases, utterly incongruous with the results which would be reached under the modern common law of torts, and that these Acts are all alike based on a theory entirely inconsistent with the modern common law.

There are differences as to the mode of payment. Sometimes it may be provided, as in the English statutes of 1897 and 1906, that the statutory compensation shall be payable directly by the employer to the workman. Sometimes the employer may be required to make periodical payments to an insurance fund (to be administered by the state or by a company); and it is provided that a damaged workman shall be paid out of the fund so constituted. The present tendency of legislation is to adopt a system of

Frank S. Streeter, of the New Hampshire Bar; Proceedings of the Maine State Bar Association, A. D. 1910-1911, p. 33.

Clerk v. Lindsell, Torts, 4 ed., 98.

5 Julius Hirschfeld, 13 Journal of the Society of Comparative Legislation, 119, October, 1912.