much self-control under provocation; and this experience tends to enlarge the scope of thought, awaken the mind, and refine the manners. Independence, self-trust, and foresight are qualities which elevate the social condition of workingmen, and in no circle of activity are these qualities so developed as in the meetings and business of the brotherhoods.

And yet these lodges reveal various defects. They are so split up into numerous small bodies that much of the energies and funds of the members are wasted. By combination and federation the efficiency of the societies would without doubt be promoted and the basis for security made deeper and broader. If the local risk could be joined with that of a wide area the insurance would rest upon a firmer basis in times of local epidemics.

Ordinarily we find in the statutes of the organizations a provision similar to that formerly a part of the German sickness insurance law, to the effect that insured persons who have become ill through their own fault, as by engaging voluntarily in fights, or by drunkenness, or venereal vice, lose their claim for benefit or at least lose it in part. The society protects itself against fraud by means of examinations made by a physician or by visits of committees. When a man is member of several societies and the sum of benefits is greater than wages he is tempted to stimulate sickness in order to have a vacation at the expense of the funds. Some of the brotherhoods avoid this danger by having an understanding between the brotherhoods that the sum of all benefits shall not be greater than wages. This precaution is not always followed and neglect leads to occasional abuses.

The negroes have imitated the whites in the organization of fraternal benefit societies and their methods have peculiarities which correspond to race traits. When we

consider the situation of the millions of these "brothers in ebony" who stand in sore need of insurance, without legal organization or protection, we can more easily comprehend the force of an argument for a national movement for compulsory insurance. For the negroes themselves compulsary insurance would be a school of economy and thrift. As a matter of fact many thousand of this race remain without any sort of aid in times of sickness and unemployment and they either become a burden on poor relief or suffer the effects of semi-starvation. As an illustration of certain aspects of their societies we may cite a picture from a letter from Nashville, Tenn., by Miss Mary Woods, dated July 8, 1906:

There are many brotherhoods among the colored people. The Ladies of Queen Esther's Court on festival occasions wear purple hats and their queen wears a crown. At the funeral services of members there are ceremonies which remind one of children's plays. All the brotherhoods pay sick benefits and death benefits. Of late reports of dishonest treasurers have not been frequent, but formerly they were common, and probably there is still much imposition. The poor things are ignorant and easily fall victims to designing and shrewd men. One impostor was preacher, undertaker, and owner of a vault and cemetery. His enemies say that he had formed a partnership with certain physicians and hospitals by which he gained still more from the unfortunate people over whom he had gained power."

11 Much detailed information about the actuarial problems of the fraternal societies is found in the Consolidated Chart (published by the Fraternal Monitor, Rochester, N. Y.): in Analyses of Fraternal Societies and Illustrations of Premium Computations, by Abb Landis, 1906; in Friendly Societies and Fraternal Orders, by Abb Landis; and in Insurance, by W. A. Fricke, 1898; in papers of A. Warnock, F. A. Betts, M.D. Campbell, W. A. Fricke.

CHAPTER V

THE EMPLOYERS' LIABILITY LAW

The only forms of strictly legal relief of workingmen, in case of incapacity for labor caused by accidents, are poor relief and indemnity secured under the law which makes employers liable for damages caused their employees through negligence on the part of the employers. The right to poor relief is not one which can be enforced by legal process, and when such aid is granted it is insufficient, humiliating, and destructive of self-respect, so that it is dreaded and hated by every man who is not already pauperized in spirit. We have here to outline the chief facts in relation to the rights of injured workingmen under the liability law.1

I. THE LAW

The basis of all legislation and "judge-made law" in this field is the ancient English common law governing relations of masters and servants. According to that law the employee upon entering service was supposed to assume the

1 References: F. J. Stimson, Handbook to the Labor Law, 1895, pp. 161 ff.; Report of the Committee on Relations between Employer and Employee, Massachusetts (1904); Tenth Special Report of the Commissioner of Labor, Labor Laws (1904), and later Bulletins of the Bureau of Labor; S. D. Fessenden, "Employers' Liability in the United States," Bulletin of the Department of Labor, No. 31, November, 1900; E. Freund, Police Power, secs. 322, 633; C. B. Labatt, Commentaries on the Law of Master and Servant (1904); W. G. Clay, Abstract of the Law of Employers' Liability and Insurance against Accidents (1897); Annual Report of New York Labor Statistics (1899), Vol. XVII, pp. 555-1162; C. Reno, Law of the Employers' Liability Acts (2d ed., 1903); Industrial Commission, Report, Vol. V, pp. 76-87, Vol. XVII, pp. 970-1135, Vol. XIX, pp. 932-39; Bulletin of the Department of Labor, No. 40 (Weber); H. A. Schaffner, Railroad Coemployment (1905).

ordinary risks of the occupation-the doctrine of "assumption of risk." It was thought that a free man entering into a contract of service would usually be acquainted with the dangers attending that occupation and would have no claim upon his employer if he were injured. If, however, there were extraordinary dangers which should be known by the manager but not by the employee, such risks were not supposed to be assumed. It would be the duty of the employer to make these unusual dangers known to the workman, and if he failed to do so and harm resulted, the employer would be liable.

Another famous doctrine was the "fellow-servant" interpretation. According to this principle the employer could not be required to pay indemnity to an injured workman if the accident and hurt came from the carelessness of a companion in the service. This doctrine is of comparatively recent origin. About the year 1840 this rule was developed by courts in England and in the United States and employers were exempted by judicial decisions from payment of damages where the fault lay with a fellow-workman. Nor was this unnatural, if one starts from the idea of personal culpability; for in no proper sense is an employer directly to blame for an injury caused by another. The fact that the principle works hardship indicates a fault in the law itself not in its logical application.2

There is another aspect of the case, however, which introduces doubt; the employer is responsible for his agents, since he selects them and may be negligent in this selection and in giving them power to control the action and fortunes of subordinated workmen. In this view the negligence of a fellow-servant who is in position of director of others is the fault of the original manager and proprietor. Many

2 Pollock, Law of Torts, 7th ed., p. 96; Field, U. S. Supreme Court Reports (112 U. S.), p. 3867.

decisions have turned on this fact and made the employer liable for indemnity if the fellow-servant was unfit for his position, incompetent, drunken, or negligent so as to cause injury. It is not strange that judicial opinions should differ and that the course of legislation should be crooked. Thus we have in one direction the language of Justice Field (C. M. and St. Paul Railway Company vs. Ross, 1884, 112 U. S., 377); in holding that a corporation should be held responsible for the acts of a servant exercising control and management:

He is in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. This view of his relation to the corporation seems to us a reasonable and just one and it will insure more care in the selection of such agents, and thus give greater security to the servants engaged under him in an employment requiring the utmost vigilance on their part, and prompt and unhesitating obedience to his orders.

The United States is the only country now where this labored dispute has any significance; for with the introduction of the laws relating to the absolute liability of employers without regard to negligence and with the compulsory insurance laws the idea of negligence of fellow-servants has no meaning.

It is the duty of employers, under the common law, to provide in a reasonable way such machinery, buildings, and appliances as will insure safety. Only ordinary care is obligatory and the law does not demand the impossible in asking absolute security against harm, nor even the use of the most recent and costly devices, but only such as are found in a well-arranged establishment. If a defect is known to exist the employer is not held liable, although he may be required to give indemnity if it is shown that the injured workman has repeatedly called attention to the danger and asked for protection.