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no fault of his own, thus taking his property without due pro-
cess of law.2

Laws following the principles of the elective law of New York
are found in other states.^ For employers who do not accept
the compensation act, but stand on the principle of liability, the
act may provide that the defenses of fellow-service and assumed

» Ives V. South Buffalo R. Co.. 124 N.Y. Supp. 920.

« Ives V. South Buffalo R. Co.. 201 N.Y. 271. 94 N.E. 431. It is of interest to
note in this connection that the court, while recognizing the force of the economic
argument in favor of the compensation law, yet concluding that it could not
validate the act under consideration, was traversing the same ground over which
the courts have frequently gone seeking reasons to justify the exception to the
rule of respondeat superior that is presented in the fcUow-scrvant doctrine,
though these courts reached the conclusion that the economic argument was
adequate. Sec sec. 78; also opinion Mass. Sup. Ct., July 24, 1911, on in-
surance bill.

» Cal., Act of April 8, 1911; 111., Act of June, 10. 1911 ; Kans., Act of March 13,
1911 ; N.H., Act of April 15, 1911 ; N.J., Act of AprU 4, 1911 ; Wis., Act of
May 3, 1911.



198 LAW OF THE EMPLOYMENT OF LABOR

risks shall be abrogated, and a rule of comparative negligence
enacted; while in New Jersey the defense of contributory-
negligence is done away with entirely. Instead of making the
loss of these defenses conditional, they may be restricted or
abrogated absolutely, by amendment of the liabiUty law, as in
California, New Hampshire, and New York.

The State of Nevada has a compulsory compensation law,^
applicable to a rather comprehensive list of employments desig-
nated as " especially dangerous." The employee has his choice
of a claim under the compensation act or a suit for damages,
the employer being deprived of the defenses of fellow-service
and assumption of risks, while that of contributory negligence
is restricted. Contracts exempting the employer from his obli-
gations under the act are prohibited, but claims may be settled
by compromise after the injury has been received.

' Act approved March 24, 1911.



CHAPTER IX



NEGLIGENCE OF EMPLOYEES



Section 101. The Liability of Employees for their Negligent
Acts. — An employee is liable to his employer for damages
caused by his negligence or misconduct in the performance of
his work,i a provision which is embodied in the Field Codes.^
The burden of proving that the damage was caused by such
negligence or misconduct is on the employer,^ and if the em-
ployer's failure to furnish suitable tools, materials, or appliances
concurred with the employee's lack of care or skill in causing the
damage, no recovery can be had/

It has been disputed whether an employee can recover dam-
ages against a fellow-servant for negligence causing injury,*
but the better doctrine is to the effect that he can ; ^ and clearly,
no sufficient reason appears why a man should be relieved from
liability for his misconduct merely because its victim is one who
is in the same employment with himself, such liability resting

> Mobile, etc., R. Co. r. Clanton, 69 Ala. 392, 31 Am. Rep. 15 ; Hillyard c.
Crabtree, 1 1 Tex. 264, 62 Am. Dec. 475.
» Cal., Civ. Code, sec. 1990.

• Newton V. Pope, 1 Cowcn 109 (N.Y.).
« Wilder v. Stanley, 49 Vt. 105.

• Albro V. Jaquith, 70 Mass. 99, 64 Am. Dec. 56; Stevens r. R. Co., 1 Ohio
Dec. 335.

• Hinds B. Overacker, 66 Ind. 547, 32 Am. Rep. 114 ; Hare o. Mclntire, 82 Me.
740, 19 Atl. 453 ; Osborne r. Morgan, 130 Mass. 102, 39 Am. Rep. 437 (overruling
the Albro case, aupra) ; Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237;
Brower v. N. P. R. Co., 109 Minn. 385, 124 N.W. 10.

199



200 LAW OF THE EMPLOYMENT OF LABOR

on the common law obligation to so conduct one's self as not to
injure another, and not on any contract relation.

A number of states have laws providing for penal proceedings
against employees who are negligent in the discharge of their
duties to the injury of third persons. The common law provides
for such liability generally, but the statutes in question fix
stated penalties for certain classes of offenses.^ These relate
most frequently to employees of common carriers, both by land
and water, often with varying penalties for negligence and gross
negligence,^ or for negligence endangering life and for that caus-
ing actual loss of life.^ Willfully damaging live stock or other
property, or unnecessarily frightening teams is also made a
ground for punishment.* In some jurisdictions, similar laws
exist relating to operators of steam boilers or other machinery,^
or even to persons in charge of animals.^

The question of requiring bonds from employees as a safe-
guard against the results of their negligence is taken up by a law
of Massachusetts,' by which common carriers are forbidden to
require of their employees any bond or other security against the
consequences of the employee's negligence except a bond to ac-
count for money or other property. A statute of New Mexico
looks only to the prohibition of the requirement of bonds by
foreign bonding companies, and forbids employers to charge a fee

> Ga., Pen. Code, sec. 115; Kans., G.S.. sees. 2007, 2008; N.Y. Con. L., ch.
40. sees. 1052, 1891, 1892; Mass., Acts 1906, ch. 463, Pt. II, sees. 243, 244; N.
Dak., R.C., sees. 8821, 8822, 8993, 8994.

« Mass., N.Y., N. Dak.

» Ala., Code, sees. 7666, 7807, 7808, 7810 ; Vt., P.S., sec. 4508.

«I11., R.S., ch. 38, sec. 191.

•Ariz., Pen. Code, sec. 308; Cal., Pen. Code, sec. 368; Minn., R.L., sees.
4886, 4889 ; N.Y., Con. L., ch. 40, sec. 1893.

• Minn., R.L., sec. 4886. » Acts 1909, ch. 614, sec. 24.



NEGLIGENCE OF EMPLOYEES 201

for bonds against loss from the acts of an employee against such
employee's wages unless the company writing the guarantee
maintains an office in the territory.^

A specific form of negligence adverted to by the laws of a
majority of the United States is the intoxication of employees.^
These laws relate in most instances to the employees of common
carriers, and have regard to the welfare and safety of the public
as well as of fellow-servants. A law prohibiting intoxicated
persons to enter or be in any mine, smelter, machine shop, or
sawmilP doubtless has regard less directly for the interests of the
public. In a number of states an employer who is a common
carrier is subject to a fine if he hires or retains in his service per-
sons of intemperate habits.* The statute may also declare him
liable in damages by reason of any injury caused by such em-
ployment,^ which is, however but a statement of the common
law controlling in such cases. The employee may also be de-
clared liable for all damages incurred or produced by reason of
his intoxication during employment;^ or, if he causes injury
to person or property by reason of such intoxication, he may be
fined or imprisoned.^

Section 102. Liability of the Employer to Third Persons. —
The doctrine of respondeat superior, i.e., that one is responsible
for the acts of his agents, operates to give third persons a right
of action against the employer as principal, as well as against

' C.L., sees. 2141, 2142.

* Ariz.. Pen. Code. sec. 356; Conn., Acta 1907, ch. 267; Ind., Acta 1907, ch.
272, sec. 3 ; Miss., Code, sec. 1350.

» Wyo.. Acts 1909, ch. 32.

Tenn., Acta 1907, ch. 541, sec. 4 ; Ky., Acts 1904, ch. 33 ; Nev., C.L., sec.
1187. ' Va., Code App., sees. 128, 129.

' La., Acta 1894. No. 58 ; Idaho, Code, seca. 658, 659.

* D.C. (U.S.), 34 Stat. 304, 848, 35 Stat. 641 ; Cal., Sims' Penal Code, p. 582 ;
III., R.S., ch. 48, aeca. 61, 62; N.Y.. Con. L., ch. 20. aeca. 170-189; Pa., Acta
1907. No. 90 ; N. J. Acts 1907. ch. 230 ; Ohio. Gen. Code. sees. 886-896.
P



210 LAW OF THE EMPLOYMENT OF LABOR

islature has the right to take notice of the fact that such agencies
are places where emigrants and ignorant people frequently
resort to obtain employment and to procure information," ^
and the evils of imposition and extortion that are known to have
been practiced by private agencies warrant their regulation by
statute.^ A provision limiting the amount of charges was held
unconstitutional in a California case,^ the language used by the
court being such as to suggest its disapproval of the entire law.
The better opinion is, however, clearly in their favor.

A few states require emigrant agents, i.e., agents undertaking
to procure employees for labor outside the state of residence, to
pay a tax for the privilege of transacting such business, not so
much, apparently, by way of regulation as for the sake of dis-
couraging it entirely. Such at least would seem to be a natural
inference from a tax rate of five hundred dollars for each county
in which the business is carried on,'* or even of one hundred
dollars ; ^ while a rate of one thousand dollars per county ®
could hardly receive any other interpretation. No license is
necessary where the hiring is done by the employer himself or
by his agent solely for him.'' The validity of this class of
laws, as taxing laws, was upheld in a case arising under the
tax law of Georgia of 1898, which fixed the rate at five hundred
dollars for each county in which the agent wished to operate.
The contentions that the act restricted the right of a citizen to

1 People ex rel Armstrong v. Warden, 183 N.Y. 223, 76 N.E. 11.
' Price V. People, 193 111. 114, 61 N.E. 844; State v. Napier, 63 S.C. 60, 41
S.E. 13.

5 Ex parte Dickey, 144 Cal. 234, 77 Pac. 924.

« Fla., G.S., sec. 476 ; Ga., Acts 1907, p. 25.

' N.C., Revisal, sec. 5108. « S.C, Acts 1907, ch. 259.



Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 17 of 32)