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of the fourteenth amendment requiring equal protection of the

> Mobile & B. R. Co. v. Holborn, 84 Ala. 133, 4 So. 146.

» Missouri P. R. Co. v. Mackcy, 127 U.S. 205, 8 Sup. Ct. 1161.


laws, because it is special in its character. When legislation
applies to particular bodies or associations, imposing upon them
additional liabilities, it is not open to the objection that it
denies to them the equal protection of the laws, if all persons
brought under its influence are treated alike under the same
conditions. The hazardous character of the business of operat-
ing a railway would seem to call for special legislation with
respect to railroad corporations, having for its object the pro-
tection of their employees as well as the safety of the public.
The business of other corporations is not subject to similar
dangers to their employees, and no objections, therefore, can be
made to the legislation on the ground of its making an unjust
discrimination. It meets a particular necessity, and all railroad
companies are, without discrimination, made subject to the
same liabilities."

Special laws relating to mine labor ^ receive judicial support
on the grounds set forth in the case just cited.^

Section 91. Promise to Repair. — In cases where repairs
are needed, and the fact is known to the servant, the risk in-
volved in continuing in the service under the conditions of dis-
repair maj- be shifted to the employer by his giving a promise
to remedy the defective conditions, and the effect of the promise
is the same whether it is made in response to a complaint by
the servant or voluntarily.' The fact that a promise was made
does not suffice to conclude the investigation, however, but
serves only to introduce new facts for consideration. The

> Md., Acts 1902, ch. 412 ; Mo.. Acts 1907, p. 251 ; lU., R.S., ch. 93 ; Ohio,
Acta 1910, p. 52.

» State V. Murlin, 38 S.W. 923 (Mo.) ; Wilmington Star Min. Co. v. Fill-
ton, 205 U.S. 60, 27 Sup. Ct. 412.

» Virginia & N. C. Wheel Co. v. Chalkley, 98 Va. 62, 34 S.E. 976.


promise must be made by the employer or his representative,
and must be the inducement for the employee's continuance in
the situation where the injury occurred.^

Though the effect of such a promise is not entirely excluded
from consideration in cases where it was given before the be-
ginning of work, the doctrine applies chiefly to cases where it
was made subsequent to such beginning. It is then held to
rebut for a reasonable length of time the presumption that the
employee assumed the risk or that he was guilty of contributory
negligence in remaining in a place of known danger, though it
does not of itself entitle an injured employee to recovery.^

Section 92. Direct Orders. — The fact that an employee was
acting under direct orders at the time his injury was received is
also influential in determining his right to recover where such
order had been given.^ The order must be given by the em-
ployer or his representative acting with due authority, though it
may reach the employee through an intermediary ; it must also
be the cause of the action which resulted in the injury and it
must be of itself negligent under existing circumstances.* When
these conditions are met, a presumption is raised in the em-
ployee's favor, either that he was excusably ignorant of the
risks to which his obedience exposed him or that his action was
in some degree coerced, so that the employer's customary de-
fenses of assumed risk and of contributory negligence are pro-
portionately, though not absolutely, negatived. If the order

» Bodwell V. Mfg. Co., 70 N.H. 390, 47 Atl. 613.

» Counaell v. Hall, 145 Maaa. 468, 14 N.E. 530 ; Virginia Stagg V. Edward Western Tea & Rpice Co.. 169 Mo. 489. 69 R.W. 391 :
Green v. Braincrd & N. M. R. Co.. 85 Minn. 318, 88 N.W. 974 ; Stodden v. Mfg.
Co.. 138 Iowa 398, 116 N.W. 116.


employment should be substantial; that it should be in obedi-
ence to the orders of a competent person; and that the order
given be negligent.^ The mere fact that the work was not that
for which the employee contracted is not enough, since a com-
mand of the employer and obedience without objection by a
person of mature years and ordinary capacity present in them-
selves no conditions of culpability. If, however, the master
knew of some unfitness on the part of the servant or of some
increased danger in the new situation of which the employee
was uninformed, the giving of the order may be considered as
negligent. In the absence of grounds on which to support the
charge of negligence, workmen will generally be considered as
assuming the risk of the new undertaking, in so far as they are
known or are of that open and patent character that charges a
person of ordinary intelligence with a knowledge of them.^

Contributory negligence is not ordinarily allowed as a defense
to an employer giving orders for a departure from the usual line
of service, the reason therefor being practically that given above
where the question of obedience to direct orders was discussed,
i.e., that a person will not be heard to say that it is negligence
to carry out his own orders. One cannot, however, enter upon
a work involving obvious and extreme risks and claim the em-
ployer's protection in so doing, nor can he enter on work for
which he knows himself to be essentially unfitted but as to
which he makes no protest or objection. Still the presumption
that the employer is better informed as to the conditions of the
work and the necessary qualifications for doing it properly, and
the rule of the customary duty of obedience to a superior, will
serve to relieve the employee even in such cases.

» Galveston Oil Co. c. Thompson, 76 Tex. 235, 13 S.W. 60.
« Felton V. Girardy, 43 C.C.A. 439. 104 Fed. 127.


The variety of facts involved in cases presenting the question
of course of employment is so great that it would practically
require an enumeration of the decisions to present the attitude
of the courts thereon. The general rule has been mentioned,
i.e., that the employer is not liable for injuries incurred by em-
ployees going beyond the scope of their employment. They
approximate the condition of volunteers, with whom they are
sometimes classed. By the term "volunteers" is meant per-
sons not in the service of the employer prior to their engaging,
without authorization, in the employment at which they received
the injury complained of, and their situation is in general no
better than that of trespassers. They are held to have assumed
the hmitations of servants without acquiring the right to claim
the performance of a master's duties toward them.^ They will
be protected from wanton injuries at the hands of the regular
employees, however,^ and the circumstances may be such that
they will be held to warrant a service rendered at the invitation
of persons not ordinarily authorized to hire employees so as to
give to injured volunteers a right to recover.^ Or it might be
said that the situation of the persons so employed is modified
so that they are no longer regarded as volunteers, at least not as

The reason for the rule as to volunteers is that no one can be
subjected to the obligations of an employer, which are the result
of contract, without his consent thereto, either express or im-
plied. This being the case, the situation of a person under-

» Langan v. Tyler, 114 Fed. 716 (C.C.A.).

> Kentucky C. R. Co. r. Gastineau. 83 Ky. 119; Evarta r. St. Paul, M. &
M. R. Co.. 56 Minn. 141, 57 N.W. 459.

» Bradley r. New York C. R. Co., 62 N.Y. 99 ; Barstow r. Old Colony R. Co.,
143 Mass. 535, 10 N.E. 255.


taking to render service, either on his own motion or at the
invitation of an unauthorized person, gains nothing from the
fact that the danger was not appreciated.

Section 95. Details of Work. — A general limitation of the
obligations of the employer is to be found in the rule that he is
not bound to supervise the purely operative details of his em-
ployees' undertakings. He will not be responsible, therefore,
for merely transitory dangers, "existing only on the single oc-
casion when the injury was sustained, and due to no fault of
plan or construction, or lack of repair, and to no permanent
defect or want of safety in the defendant's works, or in the
manner in which they had been ordinarily used." ^ So, also, if
the danger arises in the progress of the work and is one of the
understood conditions of such progress, no liability attaches
to the employer.

The improper use of suitable instrumentalities, or failure to
use those furnished, erroneous choice of methods of work, or
improper orders and assignments of subordinates to duty are
acts of a superior, for which the employer will not in general be
held responsible.^ In order that the employer may be so re-
lieved, however, it has been held to be necessary that the in-
jured employee should have knowledge of his superior's lack of
authority in respect of the order given.^ In the same category are
found the giving of signals, the transmission of orders, and the
manipulation of instrumentalities (e.g., cars on railway tracks)
during the progress of work.^ The adjustment of temporary
structures and appliances used in the course of the work are
within the rule of nonliability.

» Meehan v. Spiers Mfg. Co., 172 Mass. 375, 52 N.E. 518.

» CuUen V. Norton. 126 N.Y. 1, 26 N.E. 905.

« Waiczenko v. Oxford Paper Co., 106 Me. 108, 75 Atl. 328.

* Martin v. Atchison, T. & S. F. R. Co., 166 U.S. 399, 17 Sup. Ct. 603.


The reverse has been held where the appHance causing the
injury was furnished by the employer himself, where there was
an implied undertaking that the appliance furnished should be
in a completed condition, where the employer failed to furnish
suitable material for the preparation of an instrumentaUty,
where the employee did not have free choice in the selection of
materials, and where the danger resulted from conditions which
might properly be classed as permanent.

Section 96. Contracts with Labor Organizations. — A factor
of minor importance hitherto, but involving possibilities of
considerable moment, is one appearing in connection with con-
tracts in which associations of workmen retain for themselves
the right to indicate the employment of certain persons as fel-
low-workmen, foremen, or for the performance of special duties
in connection with the emplo3''er's undertaking Such a contract
operates as a restriction on the employer's right to freely con-
tract for and direct the services of his employees, and in equal
measure diminishes his liability for their actions. Thus, where
a contractor deals with representatives of an organization, who
furnish him the desired number of men, with a foreman, none of
them being of his selection, he will not be held responsible for
the injury of a workman resulting from the negligence of the
foreman ; ^ and the same view was taken in a case involving the
emplojonent of a shot-firer by the members of a union made up
of the employees in a minc.^ A contrary conclusion was reached
in a case involving much the same conditions, the court saying
that it was, in any case, incumbent on the employer to make
reasonable effort to ascertain the competency and fitness of an

» Fanner v. Kearney, 115 La. 722. 39 So. 967.

» Edward's Admr. v. Lam., 132 Ky. 32, 119 S.W. 175.


employee requiring special qualifications, regardless of his con-
tract with the association ; ^ in view of the nature of the contract
and the clear intention of the parties to secure to the union the
ordering of the very details involved in the arrangement, it
would seem that the better reason sustains the views of the
courts of Louisiana and Kentucky.

Section 97. Employers' Insurance against Liahility. — Em-
ployers' liability insurance is a form of insurance by which the
insuring company assumes either the liability of the employer
for injuries to his employees, or the duty of making good the
losses of the employer on account of such liability The com-
pany usually agrees to undertake the defense in case action is
brought in a court of law, and conditions in the policy as to
notice of accidental injuries and of proposed suits must be com-
plied with ; 2 though the courts will give a reasonable con-
struction to the language used.^ Where the policy limits the
company's liability to a reimbursement of sums paid out by the
insured employer on account of damages paid after trial of the
issue, no action lies by an employee of an absconding employer,*
nor an insolvent one,^ since it is the employer and not the em-
ployee who is insured, and, no payment having been made by
the former, no liability under the policy rests on the company;
or, as said in another case, such a policy is not a contract of
insurance against liability, but of indemnity against loss by

1 Pearson v. Steamship Co.. 61 Wash. 560, 99 Pac. 753.

> Deer Trail Consol. Mining Co. v. Maryland Casualty Co., 36 Wash. 46, 78
Pac. 135.

» Columbia Paper Stock Co. v. Fidelity, etc., Co. of New York, 104 Mo. App.
157. 78 S.W. 320.

* Connolly v. Bolster, 187 Mass. 266, 72 N.E. 981.

» Carter c. iEtna Life Ins. Co., 76 Kan. 275, 91 Pac. 178.


reason of liability.' The company's contract to defend in an
action against an employer is valid and its interest is sufficient
to protect it against the charge of wrongfully maintaining the
employer in the suit against hira.-

In case of the insolvency of an insured employer, an assign-
ment of assets is equivalent to a settlement of a perfected claim
against himself, so far as the company is concerned, and it be-
comes at once liable for the pro rata sum that the judgment of
the injured employee would produce in the settlement of the
estate of the insolvent, and no more ; the injured employee may
by a cross-bill in action against the company by the trustee
secure the payment of such amount to himself.^ A settlement
by the company made in good faith with an employer for a
judgment obtained against him cuts off all recovery as against
the company, however, even though it transpires that the em-
ployer was in fact insolvent at the time, and had paid nothing
on the judgment ; "• a fortiori, a settlement of a judgment against
an insolvent employer by the payment by him of an agreed
reduced sum, such sum being known to the employee as coming
from the insuring company, will prevent any further recovery
from the company by the employee.^

If the policy insures the employer against liability on account
of injuries to employees, however, the company assuming the
defense in legal proceedings and settlement of any loss ; or if it
stipulates that the company shall pay "all damages with which
the insured might be legally charged, or required to pay or for

» Frye r. Gas & Electric Co., 97 Me. 241, 54 Atl. 395.

» Breeden v. Frankfort, etc.. Ins. Co., 220 Mo. 327, 119 S.W. 576.

» Moses r. Travelers' Ins. Co., 63 N.J. Eq. 260, 49 Atl. 720.

« Kinnan v. Fidelity «fe Casualty Co., 107 111. App. 407.

• Breeden r. Frankfort, etc., Ins. Co., supra.


which it might become liable," the contract inures directly to
the benefit of the employee to such an extent that he may, after
judgment against the employer and without waiting for settle-
ment, secure the payment to himself of the amount of the judg-
ment by proceedings in garnishment against the company,^
and the fact of the employers' making an assignment in bank-
ruptcy before the suit was begun does not reduce or otherwise
affect the claim of the employee against the ompany,^ since the
liability is fixed on the happening of the injury giving rise to the
claim, even though the amount thereof has not yet been deter-

Where the employer takes out a blanket policy, and separate
certificates are issued to the individual employees, from whose
wages deductions are made by the company for the payment of
premiums, the failure of the insurance company to pay the
amount of the policy entails no obligation on the employer,
only the company being liable.*

A policy covering accidental injuries was held to require an
insurance company to reimburse an employer who had been
compelled to pay damages on account of bodily disease con-
tracted by an employee who was put to work in an insanitary
employment ; ^ a policy will not be construed to extend to
classes of employees hired during the term of its existence, but
engaged in a different kind of employment from that contem-

1 Hoven v. Employers' Liability Assurance Corp., 93 Wis. 201, 67 N.W. 46;
Anoka Lumber Co. v. Fidelity & Casualty Co., 63 Minn. 286, 65 N.W. 353 ;
Pickett V. Fidelity & Casualty Co., 60 S.C. 477, 38 S.E. 160.

* Anoka Lumber Co. v. Fidelity & Casualty Co., supra.

' Boston & A. R. Co. v. Mercantile Trust & Deposit Co., 82 Md. 535, 34 Atl.
778 ; Ross ». Am. Emp. Liability Ins. Co., 56 N.J. Eq. 41, 38 Atl. 22.

* Carpenter v. Chicago & E. I. R. Co., 21 Ind. App. 88, 51 N.E. 493.

* Columbia Paper Stock Co. v. Fidelity, etc., Co. of New York, supra.


plated by its terms,^ but employment necessarily incidental to
the operations embraced by the policy will be held to be covered
thereby, even though not strictly of the class of operations
described in it.^ On the other hand, the similarity of construc-
tion work to repair work will not bring the former within the
provisions of a policy intended to cover only the latter.' If the
contract of insurance stipulates that the company will not be
liable for injuries resulting from the employer's failure to main-
tain the safety devices and appliances prescribed by law, the
company cannot withdraw from the defense of an action on the
mere charge of such failure, but must proceed until the question
is determined in the course of trial.'* Such a provision in a
policy is not repugnant to a general undertaking to indemnify
the insured employer against loss from common law or statutory
liability to his employees.^ Nor will the provision in a policy
prohibiting compromises by employers bar the emploj'or's
claim to an indemnity where the company denied its liability
and refused to defend, and the employer compromised the claim
against him.^ Where the company assumes the defense of an-
action and conducts it negligently, to the loss of the employer,
it is liable to him for the loss sustained,''

> Wollman v. Fidelity & Casualty Co., 87 Mo. App. 677.

* Fidelity & Casualty Co. of New York v. Lone Oak Cotton Oil & Gin Co.,
35 Tex. Civ. App. 2G0, 80 S.W. 541 (carpenter employed to install machinery in a
cotton oil mill) ; Hoven v. Employers' Liability As.surancc Corp., 93 Wis. 201, 67
N.W. 46 (policy covering operations connected with business of iron and steel
works embraces construction of building for use of employer in business).

' Home Mixture Guano Co. v. Insurance Co., 176 Fed. 600.

* Glens Falls Portland Cement Co. v. Travelers' Ins. Co., 162 N.Y. 399, 56
N.E. 897.

* Chicago-Coultervillc Coal Co. v. Fidelity & Casualty Co., 130 Fed. 957.
•St. Louis Dressed Beef, etc., Co. v. Maryland Casualty Co., 201 U.S. 173,26

Sup. Ct. 400. 7 Attleboro Mfg. Co. v. Insurance Co., 171 Fed. 495.


The stipulation that the insuring company shall be liable for
only those damages with which the employer may be charged
after a compliance with the law would of itself point toward
nonliability where a person was employed contrary to statute,
though the employer might be himself liable. Policies contain-
ing a provision that the company is not liable for injuries to
children employed in violation of minimum age laws therefore
allow no recovery in case such an illegally employed person is
injured, though judgment runs against the employer.^

The states of Illinois ^ and South CaroUna ' have laws looking
to the formation of mutual insurance companies by employers,
with a view to affording members insurance or indemnity in
cases of loss on account of accidents occurring in connection
with their business. The Illinois law restricts membership to
persons engaged in the same class of manufacturing or mining,
and requires not less than twenty incorporators.

Section 98. Insurance of Employees. — A law of Maryland *
provided for cooperative insurance, in the form of a fund to
which steam and street railway companies, owners of mines and
quarries, and municipalities engaged in sewer construction and
similar work might contribute according to a fixed scale adjusted
to the nature of the employment. An amount equal to one half

Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 15 of 32)