Development of Common and Employer's Liability Law in Kansas

by Domenico Gagliardo

May 1941 (Vol. 10, No. 2), pages 155 to 174.
Transcribed by lhn;
digitized with permission of the Kansas Historical Society.

TWO fundamentally different systems of legal relationships regarding liability for compensating industrial injuries prevail in Kansas: the common law and the modern system of workmen's compensation. The unmodified common law was the basis for settling all damage suits for only a few years, as statutory modifications were soon introduced in the form of employers' liability laws. The workmen's compensation act of 1911 established a radically different set of principles and procedures, adoption of which was made optional. But in employment not covered by workmen's compensation, the common law alone, or the common law as modified by employers' liability acts, is still the basis for determining liability. Furthermore, in the occupations covered by the compensation law, employers electing to pay benefits as provided in that act may in some cases plead the common-law defenses against workers electing not to accept, but these defenses are not available to employers rejecting the compensation law if their employees accept. Thus the common law, employers' liability acts and workmen's compensation are all integral parts of our labor code today. It is the object of this article to describe the development in Kansas of the common law and its modification by statutes

THE COMMON LAW

The legal relationships between employer and employee in Kansas regarding compensation for injuries were at first determined by the common-law doctrines of reasonable care, assumption of risk, contributory negligence and coservice. [1 ]

DUTIES OF THE EMPLOYER

According to the doctrine of reasonable care, it is the master's duty to exercise reasonable care and diligence in providing a safe place in which to work, safe machinery, tools and materials, suitable

(155)

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some one else, and the risks here concerned cannot be attributed to the fault of the master. [8]

CONTRIBUTORY NEGLIGENCE

It is a general rule of the common law that where the plaintiff's negligence in conjunction with that of the defendant contributes to his injury, the plaintiff cannot recover. In Kansas, three degrees of negligence were at one time recognized: slight, ordinary and gross. Slight negligence did not bar recovery, [9] but ordinary negligence did, even though the worker's negligence was less than that of the employer, unless of course the employer's was willful or wanton. [10] A worker who at the express command of the master incurs a danger not so inevitable or imminent that an ordinarily prudent man would refuse to incur it and is as a result injured, is not guilty of contributory negligence. [11] This "academic" classification of negligence into three degrees came to be ignored, and was definitely eliminated from the body of law by the supreme court in 1908, and the rule now is merely that, there is negligence when "the care, diligence or skill demanded by the peculiar circumstances of the particular case" has not been exercised. [12] Kansas courts have consistently held that contributory negligence is an affirmative defense and must be pleaded and proved by the employer. Where no evidence is introduced on this point it is assumed as a matter of law that there was no contributory negligence. [13]

COMPARATIVE NEGLIGENCE AND "THE LAST CLEAR CHANCE"

The doctrine of comparative negligence, which is, briefly, that where both employer and employee are guilty of negligence contributing to an employee's injury the worker may recover proportionate damages, provided. his negligence is less than that of his employer, has never prevailed in Kansas aside from statutory enactment. 14 But the doctrine of the "last clear chance" is accepted.

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and competent fellow workmen, and to warn of hidden or unusual dangers known to him but not to the servant. [2] For an injury resulting from failure or neglect to perform any part of this duty, the master is liable for damages, whether the failure or neglect is his own or that of one to whom the performance of this duty has been delegated.[3] But the master's negligence is never presumed; it must be proved by the plaintiff.

ASSUMPTION OF RISK

The servant assumes all the ordinary risks and hazards incident to or attendant upon his employment; that is, all those risks and hazards which are purely fortuitous or open to common observation and are as fully known to him as to his master, or which he is, or may reasonably be expected to be, capable of knowing and measuring. 4 And even though it is the employer's duty to furnish a reasonably safe workplace, machinery, tools and materials, yet if any of these are deficient or defective and the employee knows or should know of the deficiency or defect, and appreciates or should appreciate the consequent danger, and continues in the employment without any promise on the part of his employer that it will be remedied, or continues for more than a reasonable time with that promise, he is deemed as a matter of law to have assumed the risk of injury from such deficiency or defect. [5] Extraordinary risks are assumed only if known to and appreciated by the employee. [6]

Two reasons are offered in justification of this doctrine: first that, knowing he will be exposed to these risks, the servant in effect contracts to bear them; second that it best promotes the public interest by making injuries less liable to occur to the servant himself and to third persons. [7] Floyd R. Mechem says the real reason is that a loss must rest where it falls unless it can be attributed to the fault of

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According to this rule, the test of wrongful conduct is that if just at the very moment when an accident occurred or became inevitable only one party had power to prevent it and neglected to do so, then the legal responsibility was his alone. But if each had power to prevent it and each neglected to use that power, then neither can recover from the other. [15]

FELLOW SERVANT

The widest common-law principle governing liability is that every person shall be liable to others only when he is at fault. The rule of respondeat superior, which holds that the master is Vicariously liable to a stranger for the misconduct of his servants, i. e., railways to their passengers for the misconduct of their servants, is an exception to this wider principle. The suggestion that respondeat superior might be interpreted to make the master liable to one servant for injuries caused by the negligence of a fellow servant was first made in England in 1837 by counsel for plaintiff in Priestly v. Fowler, but was not accepted.16 In Murray v. South Carolina Railway Company, an American case decided in 1841, it was held that respondeat superior did not apply in cases of this kind, but the decision was divided, did not become well known, and did not settle the question.17 The question first received mature consideration in Farwell V. Boston and Wooster Railway Corporation, 1842.18 There it was decided that the rule did not apply; and the fellow-servant rule, that employers are not liable for injuries caused by the negligence of fellow servants, was firmly established. The fellow servant rule was introduced into Kansas by the supreme court in 1871, in its first decision disposing of a damage suit arising out of an industrial accident to an employee. 19 Dow, a brakeman, was injured while coupling freight cars, allegedly because the conductor carelessly, negligently and unskillfully conducted the train, and he sued for damages. He alleged everything necessary to recover except that he carefully avoided alleging that the railroad was negligent in employing or retaining the conductor who caused the injury. An elaborate and able brief was prepared by the defense. The action was apparently brought for the mere purpose of getting the fellow-servant rule established in Kansas. The court

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In an exceedingly brief opinion, considering the importance of the question involved, the court held for the company. "It is probable," said the court, "that both authority and reason are with the defendant." Why so? Because it is the "policy of the law to make it to the interest of every servant or agent of the railroad company to see that every other servant or agent of the company is competent and trustworthy." Workers are in the best position to know who is incompetent and careless, and either they should inform the company "of every act of any other employee showing a want of skill, care or competency," or quit. If an employee is willing to work with an incompetent or untrustworthy fellow worker without informing the company, "let him bear the consequences." And if he is willing thus to endanger the lives of other human beings, "he deserves punishment." This reasoning showed but little understanding on the court's part of modern industry and the position occupied in it by the worker.

For the negligence of a more fellow servant the master is liable only if he employs the servant without due inquiry as to his fitness; or employs him with notice of unfitness; or, having notice of unfitness, continues him in his service; or where the servant's unfitness is so gross and notorious that for the master not to know it constitutes negligence.20

"SUPERIOR SERVANT" RULE

Because in modern industry there are many grades of labor, it was inevitable that in applying the fellow-servant doctrine it would frequently be difficult to determine who are fellow servants. The superior-servant rule was developed as a solution of these difficulties. Two theories underlie the cases involving the rule. The first is that the doctrine of common employment is sometimes not applicable because the negligent servant was of a higher grade than the injured servant, the second that it does not apply because the negligent employee was at the time performing some task which it was the master's absolute duty to perform with reasonable care. Considerable confusion resulted.

That this confusion is reflected in the Kansas decisions is not surprising. As between co-employees, the Dow case seemed to establish

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that only higher officers were representative of a company and that the company was responsible only for the negligence of these higher officers, but that case did not clearly establish a. foundation for the superior-servant doctrine. The distinction between superior and inferior servants was apparently made to lie in the fact that it is the duty of the former to hire and discharge the latter. 21 In later cases, however, the master's liability was clearly based upon the nondelegability of certain duties irrespective of the rank involved. The rule was stated clearly by Mr. Justice Valentine, in words quoted as authoritative in many states and by the U. S. supreme court, as follows

And at common law, whenever the master delegates to any officer, servant, agent or employe, high or low, the performance of any of the duties above mentioned, which really devolve upon the master himself, then such officer, servant, agent or employe stands in the place of the master and becomes a substitute for the master, a vice-principal, and the master is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence. 22

But the clearness of this principle was dimmed in subsequent decisions. In a case involving injury to an engineer caused by the negligence of a section foreman, the reasoning of the court is confused, but the conclusion was finally in line with previous decisions. 23 In 1898, in a case involving injury to a brakeman because of a conductor's negligence, the court held that the doctrine of common employment was not applicable simply because the negligent servant was of a higher grade than the injured servant. 24 This decision was based directly on the United States supreme court decision in the Ross case, 25 already branded as "extreme" by the Kansas court, 26 from which the United States supreme court had already receded 27 and which it expressly repudiated in I899. 28 It was later cited as authority for other decisions. 22 The theory was soon repudiated, however, and the court readopted the theory that the master's liability is based on the nondelegability of certain duties, irrespective of the rank involved. 30

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It has been said that Kansas "is probably one of the states in which an employer is not absolved on the ground that the negligence of the vice-principal was committed in doing work usually done by a servant." 31 But that is not and has never been true. As early as 1905 it was held that `'A foreman under whom workmen are employed is a fellow servant with the workmen when engaged with them in accomplishing the common task or object." 32 Four years later, two laborers were pushing a loaded truck which became stalled, and the foreman jerked one of the wheels. The sudden turning of the shafts which resulted injured a worker. The court ruled that this was the negligence of a fellow servant. 33 Again it was held that a city park superintendent driving a team and wagon was performing an act of a workman and that the city was not liable for his negligent driving. 34 Still later it was held that a foreman assisting others move a stove is a fellow servant.35

CONSOCIATION AND DEPARTMENTAL RULES

Kansas has also been cited as a state where the rule of association or consociation prevails. That rule limits application of the coservice principle to those servants employed by the same master who are cooperating in the particular work being done, or who are in habitual association or in such relations that each can exercise some influence promotive of proper caution over the conduct of the others and in this way provide to some extent for their own security. Although discussed at different times by the court, this rule was not used as a basis upon which to rest decisions involving fellow servants. 36 Nor did the Kansas supreme court follow the "departmental" rule, which limits the doctrine of coservice to those servants working in the same general department. The rule in Kansas has always been that "all employees of the same master, engaged in the same general business, whose efforts tend to promote the same general purpose and accom plish the same general end, are fellow servants." 37 It was held, however, that if different departments are so far disconnected that each one may be regarded as a separate undertaking, then the rule

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of co-service is not applicable. [38] Both the consociation and departmental rules are offshoots of one of the reasons advanced for the rule adopted in the Farwell case; namely, that fellow servants, because of their association in employment, were so situated that each could observe and influence the conduct of others, could inform the master of any misconduct, incapacity or negligence of any other servant, and in these ways secure their own safety.

MODIFICATIONS OF THE COMMON-LAW RULES

Thus, under the common law, three elements are essential to the existence of actionable negligence on the part of the employer: (1) a duty on the employer's part to protect the worker from the injury he received, which implies knowledge of the danger and power to prevent harm, and realization that the employee did not or was not likely to realize the danger; (2) a failure of the employer to perform that duty; and (3) an injury caused by that failure. All three elements must be proved by the injured worker, and the absence of any one of them bars recovery. The employer has the three powerful affirmative defenses of assumption or risk, contributory negligence, and coservice. That framework of law was too narrow and rigid for an expanding and changing economy and statutory changes became necessary. Modifications of the common-law rules in certain employments began early in Kansas.

RAILROAD LIABILITY FOR DAMAGES TO PERSONS OR PROPERTY

In 1870, railroads in the state were made liable "for all damages done to persons and property, when done in consequence of any neglect on the part of the railroad companies." [39] The language of the act is sufficiently vague to admit of almost any interpretation. Was it the legislature's intention to wipe out the contributory negligence and fellow-servant rules? The supreme court interpreted the law to mean that a railroad company would be liable for damages to an injured servant only when it was negligent "as a company," but not for the negligence of a fellow servant. [40] Nor did the act abolish the doctrine of contributory negligence. [41] According to these interpretations, the act made no change in the common-law liability of railroads to their workers, except that by confirming a right to damages already existing put it on a firmer basis and in the class of

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rights which, as a matter of public policy, may not be contracted away. [42] The exact purpose of this law was never clear to the Kansas supreme court, for its wording was exceedingly general and therefore vague. [43] The chief justice believed that it was intended to abolish the doctrine of contributory negligence, which in his opinion would have made the act unconstitutional. [44] A study of its legislative history reveals the interesting fact that the law was never intended as a labor law at all. It began its career as a bill "to compel railroads to fence their roads, or pay for stock injured," and was amended to make railroads liable for all damages, but without any idea that its purpose was thereby being changed. [45]

RAILROAD FELLOW-SERVANT LAW OF 1874

A second attack on the common law was made in 1874, when every railroad company organized or doing business in the state was made liable for all damages done to any person, including its own employees, in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees. [46] Although liability was stated in general terms, the act was intended to, and did, abolish the fellow-servant doctrine. When first enacted, the law was practically identical with the Iowa statute of 1862 on the same subject. [47] The Iowa supreme court had interpreted the law as applying only to those engaged in such work of operating railroads as is hazardous. [48] Since this interpretation preceded the Kansas act, our supreme court followed the general rule applicable in such

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cases and adopted the Iowa interpretation as to its scope. [49] Furthermore, if an employee knew that a fellow servant was incompetent or habitually negligent, and, without protest and without inducement on the company's part that a change would be made, continued to work with that servant, he assumed the risk of such negligence and could not recover despite the law. [50] Judges have generally interpreted such situations as being within the rule of assumption of risk, and the law did not specifically abrogate that rule. [51] Contributory negligence also barred recovery. [52] The act applied only to railroad corporations. Individuals, partnerships and firms having servants or employees engaged in hazardous work upon roads or trains of railroad corporations were not included. [53]

The constitutionality of the act was duly challenged, and upheld almost without argument. [54] It was challenged again in 1885 on the grounds that railroads were deprived of property without due process of law, and denied the equal protection of the laws guaranteed by the federal constitution. Again the Kansas supreme court upheld the act. [55] An appeal was then taken to the United States supreme court. 56

The company there contended that the law of 1874 imposed a liability without any wrong or negligence on its part for injuries caused by the negligence or incompetency of a fellow servant, a liability which previously did not exist and in the enforcement of which property could be taken, and that therefore the law authorized the taking of property without due process. In answer, the federal supreme court pointed out that a state may prescribe the future liabilities of corporations organized under its laws unless its power in this respect is limited by the terms of its charters. The law was held merely to extend to employees the liability of railroad companies for damages suffered by passengers through the negligence or incompetence of its servants. If hardship or injustice exists in the one case it exists in the other, and relief lies with the legislature. Railroad operations involve sufficiently peculiar hazards to warrant

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special legislation for the protection of employees and the public. The law was held not to violate either the due process or the equal protection clauses. The question of constitutionality was again brought before the United States supreme court. The Kansas supreme court had ruled that a bridge carpenter injured while unloading timbers was covered by the act. [57] The railroad contended that bridge carpenters were not exposed to peculiar hazards incident to the use and operation of railroads, and that if they were included within the scope of the law of 1874, then the law Violated the equal protection clause of the federal constitution. The United States supreme court insisted that although the worker concerned was a bridge carpenter by trade, yet when injured he was performing work which was directly connected with the operation of the railroad, and held against the company. [58] Thus the constitutionality of the law was definitely established.

An interesting situation arose in 1908 involving the fellow-servant act of 1874. A railroad and an express company had a contract whereby the express company assumed the risk of all costs and damages for injury to its employees and agreed to hold the railroad company harmless from them. The express company in turn contracted with its employees that neither the railroad nor the express company should under any circumstances be liable to them for damages for any injury received while at work on the railroad's trains. An express messenger was killed in a railroad wreck and his widow sued the railroad company for damages on the ground of negligence.

The trial court held the contract binding as between the railroad company and the worker and gave judgment accordingly. The Kansas supreme court upheld the judgment, on the ground that although the railroad as a common carrier generally does not deal on an equal footing with its customers and consequently a contract waiving liability will generally be regarded as having been secured by extortion, yet in the carriage of express matter a railroad company does not act as in ordinary cases, since the services performed are of a private and not of a public nature. Therefore the contract as between the two companies was considered valid; and the express company could transfer this risk back to its employees as a part of the employment agreement.

Three justices dissented from this position. Shortly after the opinion was filed, Mr. Justice Greene, who had voted with the ma-

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jority, died and was replaced by Mr. Justice Benson. On a rehearing of the case, Mr. Justice Benson voted with the three justices previously dissenting, and the judgment of the court was reversed with direction to enter judgment for the widow. The contract in question was declared void because the statute of 1870 making railroads liable for all damages to persons or property in consequence of any negligence on its part put the right to damages in the class of rights that cannot be contracted away, and because of the law of 1874 abrogated the fellow-servant rule. [59] It was conceded by the court that at common law the contract would have been valid.

THE RAILROAD LIABILITY ACT OF 1911

In 1911 the Kansas legislature adopted what is a virtual copy of the federal employer's liability act. [60] The object was to stop the practice by railroads of taking cases to the state or federal court depending upon which body of law was the more favorable to them. [61] Railroads were made liable in damages for injury or death to workers resulting in whole or in part from the employer's negligence, or from insufficiency in the clearance of obstructions, strength of roadbed, tracks, machinery, equipment, lights, signals, rules and regulations, number of employees, or from any defect in any equipment due to the negligence of the employer. The employer was deprived of the defense of contributory negligence, but the doctrine of comparative negligence was introduced and it was provided that damages should be reduced in proportion to the employee's negligence. However, in cases where violation by any railroad offIcial or any of the road's employees of any federal or state railroad safety act contributes to the injury or death, the defenses of assumption of risk and contributory negligence are not available to the employer. [62] Contracts, rules, regulations or any other devices designed to exempt railroads from the liability imposed by this law are void. [63]

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The same rules of law control under both the state and federal acts. [64] Since almost the entire railroad industry in Kansas is interstate in character, the law applicable is practically all federal and will not be discussed here.

COAL MINING ACT OF 1883

A series of mine disasters led, in 1883, to the enactment of a law regulating the conduct of the coal mining industry. [65] Miners and operators were consulted in drafting the bill, and there was no opposition. [66] The act provided that a map or plan of every coal mine should be made, prescribed detailed regulations for safeguarding openings, workplaces, ventilation, escapement shafts and hoisting and signaling apparatus, established the office of mine inspector, and made compulsory the employment of an inside "mining boss" to oversee the ventilating apparatus, airways, traveling-ways, pumps and drainage, and to secure loose coal, slate and rock from falling upon the traveling-ways, and the appointment of a "competent person" to inspect gaseous mines. A right of action was allowed for any injury or death occasioned by violation of the law.

In construing the law in 1902, the state supreme court refused to hold that because it prescribed the appointment of a "fire-boss" and his duties, it therefore superseded the common-law duty of the mine operator to furnish a safe place in which to work, nor that it made the "fire-boss" a fellow servant of other mine workers. But it held on the contrary that the master was liable for the negligence of the "fire-boss" in failing to perform the duties imposed upon him by law. [67] Again, in 1914, it was held that a mining company was liable for damages to a miner for an injury which resulted because a mule driver neglected to deliver props needed to support the roof. [68]

As interpreted by the southern department of the Kansas Court of Appeals in 1896, the law was held not to abolish the defenses of assumption of risk and contributory negligence. [69] Later, however, it was held that these defenses were abolished. In 1908 the state supreme court held that "A miner, in performing the work assigned to him, although bound to exercise due care for his own safety, may assume, in the absence of notice to the contrary, that the owner and

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the overseer have performed their duty. . . ." [70] And later, that the law "in effect debars the defense of contributory negligence," that it "entirely shifts the risks of the employment from the laborer to the employer. Care for his own safety may impel a miner to watch for treacherous mine roofs, but he is not legally required to do so. . . ." [71] That the law abolished the defense of assumption of risk was definitely settled in 1913. [72]

ROAD AND BRIDGE LAW

A road and bridge law of 1887 which gave to anyone who without contributory negligence on his part sustained damages by reason of defective bridges, culverts or highways a right to recover such damages, under certain conditions, from a county or township, was designed for the benefit of travelers. [73] Yet it was held to apply to workers as well as to travelers. [74] A law enacted in 1931 made state and local public corporations except boards of education, fire or police departments, jointly and severally, liable with their motor operators or chauffeurs for damages caused by the latter's negligence while driving on highways in the course of their employment. [75] That law was held to abrogate the fellow-servant rule. [76]

THE FACTORY ACT

In 1903 a factory act was passed which requires that elevators, hoisting shafts and well-holes be secured, that stairways be equipped with handrails and secured at the sides and ends, that certain doors open outward and be kept unlocked, requires fire escapes, and provides for the guarding of dangerous machinery and appliances where practicable. A right of action for damages is given in case of injury, and in order to recover damages it is only necessary to prove in the first instance that the accident resulted from or was directly contributed to by the failure to provide the safeguards required by law. [77]

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Just what modifications this act made in the common law did not appear for some time. As early as 1906, the Kansas supreme court, following what it considered to be well-settled law, held that the factory act did not exclude the defense of contributory negligence, [78] At that time the question of assumed risk was not involved, and so, although mentioned and discussed, was not decided. Some lower courts, however, proceeded on the theory that the common law of assumed risk was in no way affected. [79]

In 1907 the question of whether the factory act did or did not abolish assumption of risk was squarely before the supreme court. [80] An exhaustive inquiry was made and great difference of judicial opinion noted. In the leading federal case holding that such acts do abolish the rule, Judge Taft had argued that since assumption of risk is a term of the employment contract, to allow it where a safety act exists is essentially to waive the benefits of the statute, and that considerations of public policy will not permit such a waiver to be given effect. [81] The state supreme court had already accepted these general propositions, [82] but it had never before had occasion to apply them. It now held that in Kansas assumption of risk could not be pleaded in cases involving a violation of the factory act. [83]

Three years after it had interpreted away the assumption of risk defense, the court again considered the question of contributory negligence. At that time the general rule was that factory acts did not abolish this defense, and in conformity with that rule the de fense had previously been held available. [84] But judicial opinion throughout the country was undergoing a change, though that had not as yet proceeded very far. [85] The Kansas court was by this time satisfied of the injustice of the general principle, and aligned itself with the new trend by reversing itself and holding the defense no longer available. [86] The court saw clearly the inadequacy of the common-law doctrines as applied to modern industry. These doctrines, it said, "took their rise at a time when shoes were made at

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the bench, the weaver had an apprentice or two, and the blacksmith a helper." [87] But "common experience everywhere, registered in tables of gruesome statistics, affords fresh demonstration every day of the inadequacy of the common-law doctrine of reasonable care to provide places and instrumentalities reasonably safe against foreseeable occurrences to meet the situation of men, women and children who must manipulate, and must work in the midst of, the mechanical products of modern inventive genius." [88] The court held that "the factory act cuts squarely across the common-law doctrine of reasonable prudence and supplies that foresight in reference to the places, structures and appliances which it specifies." It further stated that "to submit to a jury the question of prudence and foresight where the law has been ignored [by the employer] would be to reopen a subject which the legislature has closed by a final decision." [89] It is interesting to note that the original bill contained a provision, eliminated by amendment, excusing an employer guilty of gross negligence if he could prove equal negligence on the part of the injured worker. [90]

The court went far in liberally interpreting the scope of the factory act, which was held to apply to any worker regardless of his rank or grade, to any duty of a worker, whether ordinary and general or exceptional and occasional, and to any accident caused by the absence of a prescribed safeguard even though such accident could not have been anticipated with reasonable prudence by the employer. And the court went so far as to hold that if an injury is caused or directly contributed to by the absence of safeguards, then the plaintiff need not prove the practicability of such safeguards, but that the burden of proving safeguards impracticable is on the employer. [91] The act does not, however, add to the common-law rights of the father of a minor son to sue for the loss of services resulting

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from an injury by reason of a violation of the act. Only the minor can recover. [92] Because the act is chiefly remedial in nature and intent, rather than penal, it is controlled by the two-year statute of limitation. [93]

The constitutionality of the factory act was upheld by the state supreme court in Caspar v. Lewin as a legitimate exercise of the state's police power. The remedy prescribed for its enforcement was held not obnoxious to either the state or the federal constitution. An appeal from this decision was taken to the federal supreme court, but it was dismissed without consideration, per stipulation of counsel. [94] The constitutionality of the act was later passed upon and upheld by the United States supreme court. A superintendent of the Lawrence Paper Manufacturing Company, whose duty it was, among other things, to provide safeguards for the machinery, was crushed and killed by unguarded rolls. His widow sued for damages under the factory act. The main contention of the company was that the superintendent's control of safety details removed him from the class of employees protected by the factory act. But the Kansas supreme court ruled that the act was intended to protect all employees regardless of employment, rank or grade. [95] From this decision the company appealed. It contended that the interpretation put upon the act by the Kansas court was repugnant to the federal due process clause, because the superintendent's employment contract provided that he himself was to see to the safeguarding of the machinery. The United States supreme court held it strictly constitutional to impose an absolute duty to provide safeguards of which no employer may relieve himself by any form of contract.96 The company also contended that the law violated the equal protection clause of the federal constitution, because corporations can only carry out the duty of safeguarding machinery by contracting with agents and employees, while individual employers may perform this duty themselves. The supreme court pointed out the obscurity of this reasoning, and suggested that it rested upon a misconception, for the law imposed an absolute duty binding upon corporations and individuals alike.

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RECOVERIES

No investigation has ever been made of the amounts recovered by Kansas workers or their dependents under the common-law principles of liability. The data are not available. No doubt only a few cases arose where the unmodified common law was applicable, for legislative modifications were made early in Kansas history. But the experience of other states suggests that the percentage of recoveries and the amounts involved were probably not great. The common-law defenses of the employer were almost invulnerable. Nor has any study been made of the recoveries under the common law as modified by employer's liability acts. Here, too, it seems reasonable to infer that the experience of other states has been repeated in Kansas. The percentage of recoveries was certainly greater after employer's liability acts than before them.

Table I combines the recoveries in fatal cases investigated in three states prior to 1911. The percentage of fatal cases in which no compensation was received is high, amounting to almost a third of the total. In almost half of the cases the amount received did not exceed $500. Compensation exceeding $1,000 was received in very few cases. In some of these, the figures were well above $5,000.

TABLE I.-Recoveries in 604 fatal cases under employers' liability laws in three states prior to 1911*

* 227 cases by the New York State Liability Commission; 323 cases from Pennsylvania by Crystal Eastman; and 54 cases from Minnesota. This material is taken from Rubinow, I. M., Social Insurance. . . . (Henry Holt & Co., New York, N. Y., 1913), pp. 93-95.

Some idea of the small number of recoveries in cases of nonfatal accident may be obtained from the following figures for Wisconsin.97

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The following figures on recoveries in Kansas are not adequate, but are offered for what they are worth. From 1871 to 1911, when Kansas enacted its first workmen's compensation law, there were fifty-nine suits settled by the state supreme court in which workers were awarded damages for injury. The average amount of compensation received was $4,320. This appears to be a higher average than is usually reported, and it is no doubt very much higher than the average recovered in all cases, including those settled out of court. For undoubtedly most accidents were either not settled for at all, or were settled for out of court; and it is usually the cases involving large sums that are carried to the state supreme court. The highest award was $15,000, which was paid by a railroad company to an individual for the loss of both legs.98 The average compensation awarded for nineteen fatal accidents was $5,135, only slightly more than the average award for injury. This also appears to be larger than the amount usually reported. The largest amount received for a fatal accident was $10,000; the lowest, $500.

Supreme court records for the years 1871-1911 show that contested cases were seldom disposed of in less than three years after the accidentoccurred. The average time was four years, both for injury and death. In many cases there was a delay of five, six and seven years. Three cases were in the courts for more than nine years, and one for more than ten years. Following is a distribution of sixty-six cases definitely disposed of by the state supreme court during the years 1871-1911, inclusive, on the basis of time involved.

The doctrines of assumption of risk and contributory negligence account for almost all the failures to recover up to 1902. After the defenses of contributory negligence and assumption of risk were no longer available under the various acts designed to protect workers,

174 KANSAS HISTORICAL QUARTERLY

recoveries became more numerous. This probably helps to explain the willingness of many employers to adopt workmen's compensation laws. Recoveries were based in about equal numbers on the grounds of failure of the employer to furnish safe tools or equipment, unsafe workplaces, and the negligent acts of an agent or vice-principal.

Notes

1. Another rule limiting recovery was the general maxim that actio personalis cum persona moritur. That rule was abolished by the wrongful death statute of 1868, which gave personal representatives of fatally injured persons any right that the deceased might have had to sue for damages.-The General Statutes of the State of Kansas . . 1868, ch. 80, Sec. 422, Article XVIII of the Code of Civil Procedure. A supplemental act conferring the same right, under special circumstances, to other than personal representatives, was adopted in 1889.-Laws, Kansas, 1882, ch. 131, upheld in Berry v. K. C. Ft. s. & M. Rld. Co., 52 Kan. 759. Principles to guide in the assessment of damages were laid down by the supreme court. see Union Pacific Rly. Co. v. Milliken, 8 Kan. 647; A. T. & S. F. Rid. Co. v. Brown. Adm'r., 26 Kan. 443.
2. Allen v. Shell Petroleum Corp., 146 Kan. 67; west v. Packing Co., 86 Kan.. 890. In a place where conditions and hazards are constantly changing as the work progresses, the hazards incident to the work are assumed by the worker.-McCoy v. A. T. & s. F. Rly. Co., 129 Kan. 781.
3. Dow v. Kansas Pacific Rly. Co., 8 Kan. 642; A. T. & S. F. Rld. Co. v. Moore, 29 Kan. 632, 646; Brice-Nash v. Barton Salt Co., 79 Kan. 110; Tuttle v. Detroit, etc. Rly., 122 U. S. 189.
4.Brown, Adm'r. v. A. T. & S. F. Rld. Co., 31 Kan. 1 ; Fritchman v. Chitwood Battery Co., 134 Kan. 727. "The maxim volenti non fit injuria is a terse expression of the individualistic tendency of the common law, which, proceeding from the people and asserting their liberties, naturally regards the freedom of individual actions as the keystone of the whole structure."-Francis H. Bohlen, Studies in the Law of Torts (Bobbs-Merrill Co., Indianapolis, 1926), p, 441.
5. Morbach v. Mining Co., 53 Kan. 731; Tachreppel v. Missouri-Kan.-Texas Rld. Co., 134 Kan. 251.
6. A. T. & S. F. Rld. Co. v. Schroeder, 47 Kan. 315; Rly. Co. v. Johnson, 69 Kan. 721; Lively v. Railway Co., 115 Kan. 784; Monteith v. Litchenburger, 144 Kan. 70.
7. Dow v. Kansas Pacific Rly. Co., 8 Kan. 642.
8. Mechem, Floyd R., A Treatise on the Law of Agency . . . (Callaghan and Co., Chicago, 1914), 2d ed., v. I, pp. 1210, 1211.
9. Union Pacific Rly. Co. v. Rollins, 5 Kan. 167; sawyer v. Sauer, 10 Kan. 466, 472; Gibson v. Wyandotte, 20 Kan. 156 (1878); Union Pacific Rly. Co. v. Adams, 33 Kan. 429.
10. Union Pacific Rly. Co. v. Young, 19 Kan. 488. Justice Valentine said in this case: "There are we suppose a few exceptions where a person who has himself not exercised ordinary care may recover, but these exceptions are very few."-p. 496.
11. St. Louis, etc., Rly. Co. v. Morris, 76 Kan. 836.
12. Railway Co. v. Walters, 78 Kan. 39, 41.
13. Kansas Pacific Rly. Co. v. Pointer, 14 Kan. 37, 50; Central Branch Union Pacific Rly. Co. v. Walters, 24 Kan. 504.
14. Laws, Kansas, 1911, ch. 239, sec. 2 ; Kansas Pacific Rly. Co. v. Pointer, 14 Kan. 37; Railway Co. v. Walters, 78 Kan. 39. Rly. Co. v. Davis, 37 Kan. 743, does seem to lend countenance to the doctrine, but later cases positively repudiate it.
15. Dyerson v. Railroad Co., 74 Kan. 528. See, also, Himmelwright v. Baker, 82 Kan. 569, and Whately v. Chicago G. W. Rld. Co., 123 Kan. 187.
16. 3 M. & W. 1 (1837).
17. 1 McMull, L. S. Car. 385, 36 Am. Dec. 268 (1841). 18. 4 Metc. 49, 38 Am. Dec. 339.
19. Dow v. Kansas Pacific Rly. Co., 8 Kan. 642, following the Farwell case. specifically noted that more solicitude was entertained concerning the question involved and in the precedent to be established than concerning the case itself, and implied that the defense was responsible even for the presentation of the plaintiff's case.
20. Railroad Company v. Doyle, 18 Kan. 58.
21. But see Bridge Co. v. Miller, 71 Kan. 13, 26.
22. A. T. & s. F. Rld. Co. v. Moore, 29 Kan. 632, 644.
23. St. L. & S. F. Rly. Co. v. weaver, 35 Kan. 412. see, also, Mo. Pac. Rly. Co. v. Peregoy, Adm'x., 36 Kan. 424.
24. Walker v. Gillett, 59 Kan. 214.
25. Chicago, M. & St. P. Rly. Co. v. Ross, 122 U. S. 377. 26. St. L. & s. F. Rly. Co. v. Weaver, 35 Kan. 412.
27. B. & O. Rld. Co. v. Baugh, 149 U. S. 368.
28. New England Rld. Co. v. Conroy, 175 U. S. 323.
29. Foundry Co. v. Secrist, 59 Kan. 778; Refining Co. v. Peterson, 8 K. A. 316; Mirick et al., v. Morton, 64 Pac. 609.
30. Bridge Co. v. Miller, 71 Kan. 13.
31. Labatt, C. B., Commentaries on the Law of Master and Servant . (Lawyers Cooperative Pub. Co., Rochester, N. v., 1913), 2d ed., v. IV, p. 4364, citing Refining Co. v. Peterson, 8 K. A. 316, 55 Pac. 673. see, also, Clark, Lindley D., The Law of the Employment of Labor (The Macmillan Company, New York, N. v., 1911), p. 162.
32. Crist v. Light Co., 72 Kan. 135, Syl. 3.
33. Lunn v. Morris, 81 Kan. 94. see, also, Henry v. Boiler Works, 87 Kan. 571, 574.
34. Nelson v. City of Salina, 123 Kan. 522 (1227).
35. Barnaby v. sears, Roebuck & Co., 132 Kan. 447.
36. see St. L. & s. F. Rly. Co. v. Weaver, 35 Kan. 412.
37. Bridge Co. v. Miller, 71 Kan. 13; Burroughs v. Michel, 142 Kan. 814.
38. Bridge Co. v. Miller, 71 Kan. 13.
39. Laws, Kansas, 1870, ch. 93.
40. Kansas Pacific Rly. Co. v. Salmon, Adm's., 11 Kan. 83, 91, 93.
41. K. C. Ft. S. & G. Rld. Co. v. McHenry, 24 Kan. 601.
42. Sewell v. Rly. Co., 78 Kan. 1, 16, 24.
43. Kansas Pacific Rly. Co. v. Salmon, Adm's., 11 Kan. 83; St. Jos. & D. C. Rld. Co. v. Grover, 11 Kan. 302, 307; Sewell v. Rly. Co., 78 Kan. 1, 16, 21.
44. K. C. Ft. s. & G. Rld. Co. v. McHenry, 24 Kan. 501, 504.
45. senate Bill No. 13, session of 1870; Senate Journal, p. 455; Kansas Daily Commonwealth, Topeka, March 3, 1870; Kansas State Record, Topeka, March 2, 1870.
46. Laws, Kansas, 1874, ch. 23, sec. 1, effective March 4, 1874; General Statutes, Kansas, 1876, ch. 84, sec. 29. It should be observed that the liability established was not merely to an injured employee, but to any one injured. Furthermore, there was no intention to make a distinction between agents and engineers and other employees, or between negligence and mis-management.-Missouri K. & T. Rld. Co. v. Kellerman, 39 Tex. Civ. App. 274; 87 S. W. 401.
47. Laws, Iowa, 1862, ch. 169, see. 7. Upheld as constitutional in McAunich v. the M. & M. Rly. Co., 20 Iowa 338. The Kansas law was amended in 1903, to provide that notice of injury, |Kansas, stating time and place, must be given within ninety days after its occurrence. Laws, , 1903, ch. 393. This time limit was extended to eight months in 1905, and for injured Workers in hospitals or under charge of the company or unable to give notice because of injuries, the time limit does not begin to run until after discharge from the hospital or from the care of the company. such notice may be served upon any person designated by the railroad company, upon certain specified persons, or by leaving a copy at any of the company's depots, in the county in which the action is brought, with the ticket agent, or the person in charge. It need not state whether or not the worker intends to bring suit.-Laws, Kansas, 1905, ch. 341, sets. 1, 2. In 1207 it was provided that notice was unnecessary where an action was commenced within eight months after injury, or when the injured employee died within that time as a result of his injuries.-Laws, Kansas, 1907, ch. 281, sec. 1.
48. In Deppe v. The Chicago R. I. & P. Rld. Co., 38 Iowa 522, 595, it was held that unless limited to those engaged in the hazardous work of operating railroads, the act would be manifestly unconstitutional as class legislation.
49. Union Trust Co. v. Thomason, 25 Kan. 1.
50. McQueen v. C. B. U. P. R. C., 30 Kan. 689; Jackson v. K. C. L. & S. K. Co. Kan. 761; Kansas Pacific Rly. Co. v. Peavy, 29 Kan. 169; Railway Co. v. Green, 75 Kan. 504, 513.
51. Railway Co. v. sledge, 68 Kan. 321; Brinkmeier v. Railway Co., 69 Kan. 738.
52. Union Pacific Rly. Co. v. Young, 19 Kan. 488. / . the plaintiff must have exercised ordinary care, and not have been guilty of ordinary negligence, or he cannot recover." -p. 496. see, also, Mo. Pac. Rly. Co. v. Mackey, 33 Kan. 298.
53. Beeson v. Busenbark, 44 Kan. 669.
54. Mo. Pac. Rly. Co. v. Haley, Adm'r., etc., 25 Kan. 35.
55. Mo. Pac. Rly. Co. v. Mackey, 33 Kan. 298.
56. Missouri Rly. Co. v. Mackey, 127 U. S. 205. Meanwhile the act had again been upheld by the Kansas court in A. T. & s. F. Rid. Co. v. Koehler, 37 Kan. 463.
57. C. K. & W. Rid. Co. v. Pontius, 52 Kan. 264. A stonemason employed on a depot was held not covered:-Railway Co. v. Medaris, 60 Kan. 151.
58, Chicago, etc., Rid. Co. v. Pontius, 157 U. S. 209.
59. Sewell v. Railway Co., 78 Kan. 16; Kansas Pacific Rly. Co. v. Peavy, 29 Kan. 169; Railway Co. v. Fronk, 74 Kan. 519. The railroad company carried this case to the United States supreme court, but it was dismissed with costs on motion of the railroad company's counsel.-215 U. S. 612.
60. Laws, Kansas, 1911, ch. 239.
61. Topeka Daily Capital, February 25, 1911.
62. Defenbaugh v. Railroad Co., 102 Kan. 569. There have been very few Kansas acts prescribing detailed requirements for the safety of railroad employees. Frogs, switches and guardrails on tracks must be filled, blocked and guarded in a proper manner. Laws, Kansas, 1909, ch. 188. Sheds must be erected over tracks used exclusively to build or repair railroad equipment at division points where shops are located, to protect all men permanently employed.-Laws, Kansas, 1907, ch. 283. Detailed regulations are laid down regarding the construction of way cars or cabooses. Revised Statutes, Kansas, 1923, sees. 66-220. Attempts to enact full-crew and train-limit bills failed. House Journal, Kansas, 1913, H. B. 286 and 908.
63. The legislature made no attempt to fit the act into the scheme of laws already existing, but left that difficult task to the state supreme court. An analysis of the problem will be found in Fuller v. A. T. & S. F. Rly. Co., 124 Kan. 66. Other important cases in which the act was applied are: Palomino v. Railway Co., 91 Kan. 556; Hisle v. Railway Co., 91 Kan. 572; Rockhold v. Railway Co., 97 Kan. 715; Harwood v. Railway Co., 101 Kan. 215; Defenbaugh v. Railroad Co., 102 Kan. 560.
64. Kasper v. Railway Co., 111 Kan. 267; Koshka v. Railroad Co., 114 Kan. 126.
65. Laws, Kansas, 1883, ch. 117.
66. Topeka Daily Capital, February 23 and 24, 1883.
67. Schmalstieg v. Coal Co., 65 Kan. 753; see, also, Cheek v. Rly. Co., 89 Kan. 247, 267. Relatively few cases have been brought under the mining act, and these for the most part not until after 1900.
68. LeRoy v. Rly. Co., 91 Kan. 548.
69. Cherokee & P. Coal & Mining Co. v. Britton, 3 K. A. 292; 45 Pac. 100.
70. Barrett v. Dessy, 78 Kan. 642, Syl. 4.
71. Baisdrenghein v. Rly. Co., 91 Kan. 730.
72. Cheek v. Rly. Co., 89 Kan. 247, 267, 268, following the line of reasoning previously applied to the factory act, for which see below.
73. Laws, Kansas, 1887, ch. 237; General Statutes, Kansas, 1897, ch. 42, sec. 48.
74. Vickers v. Cloud County, 59 Kan. 86; Cloud County v. Vickers, 62 Kan. 25; Hollinger v. Dickinson County, 115 Kan. 92.
75. Laws, Kansas, 1931, ch. 80, sec. 23.
76. Cashin v. State Highway Comm., 136 Kan. 659, Mr. Justice Burch dissenting.
77. Laws, Kansas, 1903, ch. 356. None of its sections was borrowed from any other state, and this left the supreme court free to follow its own ideas in interpreting it. Two years later an act for the protection of building workers was passed. Any workman noticing dangerous or defective scaffolding, staging or other supporting appliances, elevator, derrick or hoist, or missing or improper safeguards on construction, repairing or painting jobs, may report the same to the state factory inspector, who is required to make an inspection and notify the proper person of any defects that should be remedied. The person in charge must then remove the danger, and failure or refusal to do so is made a misdemeanor punishable by a heavy fine. Laws, Kansas, 1905, ch. 527.
78. Madison v. Clippinger, 74 Kan. 700.
79. Ibid.,; also Manufacturing Co. v. Daniels, 72 Kan. 418.
80. Manufacturing Co. v. Bloom, 76 Kan. 127.
81. Narramore v. Cleveland, C. C. & St. L. Rly. Co., 96 Fed. 298.
82. The first in Railway Co. v. Bancord, 66 Kan. 81; the second in Kansas Pacific Rly. Co. v. Peavey, 29 Kan. 170.
83. Manufacturing Co. v. Bloom, 76 Kan. 127.
84. Madison v. Clippinger, supra.
85. Labatt, op. cit., v. V, p. 5047.
86. Caspar v. Lewin, 82 Kan. 604. Just three months before the court had remarked that "The statute . . fairly admits of a construction which would exclude contributory negligence as a defense as well as assumed risk, but does not do so expressly, and the courts have presumed that such was not the intent and have permitted the commonlaw defense."-Lewis v. Salt Company, 82 Kan. 163, 167.
87. Caspar v. Lewin, 82 Kan. 631, 632. Three years later the court said: "The doctrines of assumption of risk and contributory negligence are not the creatures of any constitution or of any legislative enactment. They are court-made rules, invented to meet certain ideals of justice respecting certain social and economic conditions and relations. Should the conditions and relations be completely changed, and those ideals wholly fail of realization, the reason for the rules, which is the life of all rules of the common law, would then be wanting, and the court which would go on enforcing them would be a conscious minister of injustice and not of justice."-Burgin v. Railway Co., 90 Kan. 194, 198 (1913).
88. Caspar v. Lewin, 82 Kan. 624.
89. Ibid., p. 625.
90. Senate Bills, Kansas Legislature, 1903, Bill No. 4.
91. Caspar v. Lewin, 82 Kan. 604, overruling part of Henschell v. Rly. Co., 78 Kan. 411. To this two justices dissented, holding that the plaintiff would still have to prove safeguards practicable. See, also, Gambill v. Bowen, 82 Kan. 840, and Slater v. Rly. Co., 91 Kan. 226, 237. It has been held that an employee injured while at rest under the direction of the employer is engaged in the performance of duty and included within the act.-Brick Co. v. Fisher, 79 Kan. 576. The court refused to limit the scope of the act by interpreting that section requiring belt shifters or safe mechanical contrivances for throwing on or off belts or pulleys as applying only to workmen engaged in shifting belts, but interpreted it to apply also to workers operating the machine.-Rank v. Packing Box Co., 92 Kan. 917.
92. Gibson v. Packing Box Co., 85 Kan. 346.
93. Slater v. Railway Co., 91 Kan. 226.
94. Lewin v. Caspar, 223 U. S. 736.
95. Smith v. Bowersock, 95 Kan. 96, following Caspar v. Lewin.
96. Bowersock v. Smith, 243 U. S. 29.
97. Taken from James H. Boyd, Workmen's Compensation and Insurance (1912), v. 1, p. 61.
98. Dowell v. Railway Co., 83 Kan. 562. This is a striking example of the wide discrepancy that is often found in the amounts awarded for injuries by juries. In not a single case of death in Kansas, so far as the data available to the writer go, did the award exceed $10,000; and injuries more serious than the one sustained in this case, and under circumstances as bad or worse, were awarded much less. The next highest amount of compensation awarded for injuries was $12,000.-See Railway Co. v. Lloyd, 68 Kan. 369.

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