April 16, 2010:NWLP
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10:04 AM
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‘Fellow Servant Doctrine’
Compensation for job injuries began with English common law
In England in 1837, a butcher’s
driver was injured when another
worker overloaded his cart. Out of this
landmark case, Priestly vs. Fowler,
emerged the first time a clarification of
what protection or compensation a
worker was entitled to for injury on the
job.
Prior to this case, it had been well
established English law of negligence
that a master could be held liable for
an injured third party for injuries
caused by negligence by the master’s
servant.
However, in the 1837 case, Lord
Abinger refused to apply this general
rule to a situation in which the injured
third party was another servant of the
same master.
He denied recovery, declaring that
it would be absurd to hold an employer
responsible for injuries to one em-
ployee arising from the negligence of
another of his employees. This origi-
nated the “fellow servant doctrine” as a
defense for an employer sued by an in-
jured employee.
The English rule, relating to recov-
ery in industrial accidents, was almost
immediately adopted in the United
States. In the first recorded case in this
country in 1841, a South Carolina
PAGE 4
court denied recovery to a locomotive
fireman who had been injured by the
negligence of the engineer under
whom he worked.
From that time on until the second
decade of the 20th century, legal re-
sponsibility for industrial accidents in
the United States was judged largely
according to the basic doctrines for-
mulated in these early decisions.
The common-law rules of employ-
ers’ liability were almost useless by
current standards, but at the time it
sounded fair. An employer, for exam-
ple, had to use reasonable care to pro-
tect his workers from injury. This in-
cluded providing them with a safe
workplace — including tools and ap-
pliances — and to establish rules of
conduct, which would warn them of
special dangers.
To recover damages, a worker had
to convince a judge that his employer
was negligent. If the employer was not
proven negligent, the judge would dis-
miss the case. Also, even if the em-
ployer was negligent, the employee
had to prove that he was not negligent,
too, in order to win the case.
Another employer loophole was
that management could escape pay-
ment of damages by contending that
the injured employee had “assumed”
the risk which resulted in his injury and
had waived his right to recover.
There was still another factor which
hurt the worker’s chances of recovery.
It was costly for the employee to take
legal action, and few had the resources
to initiate it.
Early unions and others agitated
strongly for both basic changes and
modification of these laws. Some
states did adopt statutes, which wipe
out the “fellow servant” rule, usually
directed at railroad accidents. First to
take such action was Georgia in 1856,
followed by Iowa in 1862.
Other states took similar action, and
there was gradual expansion of cover-
age to other workplaces. By 1910,
most states had laws varying from af-
firmation of common-law doctrines to
those which actually gave the injured
employee a little better chance in court
to recover damages.
A breakthrough was made by the
federal government in 1908. A law was
enacted granting certain of its employ-
ees the right to compensation when an
injury was sustained in the course of
employment. This was replaced by a
stronger law, with extended coverage
and benefits, in 1916.
NORTHWEST LABOR PRESS
Montana was the first state to pass a
compulsory workman’s compensation
law in 1909. It provided for a state co-
operative insurance fund in the coal
mining industry maintained by contri-
butions from the employer on a per
tonnage basis and from employees
based on their earnings. A $3,000
death benefit was provided and a $1 a
day maximum for permanent disabil-
ity.
By 1911, 13 states had appointed
investigative commissions, which were
followed by meaningful workman’s
compensation laws the following two
years. To Kansas and Washington go
the credit for being the first states to
pass such laws, although Wisconsin
was the first state to put its laws into
operation.
A joint commission was appointed
by the American Federation of Labor
(AFL) and the National Civic Federa-
tion, an organization which included
employers, in 1913. It undertook a
study of the new statutes and con-
cluded that they were the type of com-
pensation laws most desirable. This en-
couraged more states to act.
By 1932, only four states —
Arkansas, Mississippi, Florida, and
South Carolina — did not have “injury
pay” laws.
In 1948, Mississippi became the
last state to enact one.
(Editor’s Note: This article is from
the archive room of the Northwest La-
bor Press. It was written by Harry
Conn of Press Associates Inc., in Au-
gust 1971.)
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APRIL 16, 2010