Page:The Green Bag (1889–1914), Volume 09.pdf/493

 454

indebted for their practice. But, small as the award was, the Court of Exchequer set it aside and held that Priestly could not recover because the liability of the master would lead to alarming consequences under such circumstances. Reason might have suggested that if the master is liable for the act of his agent, as, for example, when a servant, con trary to his master's orders, drives rapidly down a street he has been forbidden to enter and runs over a pedestrian, the same liability should attach to the act of an agent engaged in loading a butcher's van. But the Court of Exchequer thought differently, and the doctrine of common employ ment was invented in the praiseworthy effort to save the employer from making compensation for possibly unreason able claims. Lord Abinger, who delivered the judgment, suggested a number of imaginary difficulties which might arise in domestic employment and which, he contended, justified the court in formulating the new doctrine; but as this was when railways were in their infancy, and long before street travel and traction had assumed their present proportions and when mills and foundries and workshops were small affairs, his views are not entitled to the weight they then received. He would doubtless have been startled had he known to what extravagant and ridiculous lengths this doctrine of common employment would have been pushed. Here, as late as 1865, it was held that a miner was a fellow-servant with the certified manager of a colliery appointed pursuant to a statutory obligation, and, therefore, though the miner was killed by the negligence of the manager, the widow could receive nothing from the proprietor of the colliery. In 1880 the law was modified in an effort to remedy this intolerable feature, although the doctrine, in general, was preserved. It was provided that an employer should be answerable to his workmen for the negligence of anyone in his employment whose orders the injured workman was bound to obey, unless the one thus injured knew of the defect which caused the accident and did not give information thereof to his superior. The Employer's Liability Act of 1897 applies only to railway men, miners, quarrymen, engineers, factory hands, building operations on a large scale and laundries worked by mechanical power. Within these trades it provides at the sole cost of the employer a limited scale of compensa tion for all accidents disabling a man for a fortnight or more, arising in the course of the employment, and not due to the willful misconduct of the victim himself. The sums which the workman may thus recover are, judged by the standard oí the awards of American juries in cases of

actions for damages for injury to the person, ridiculously small, but no objection appears to have been made to the Act by trades unions or workmen on this score. In fact, the force which has impelled the bill through its various stages at this session, where other measures of much impor tance have been crowded out, is that which has been generated by organized labor movements, and the opposi tion has come from employers. Such a law would undoubtedly be strenuously opposed by the lawyers in America, but here the contingent fee is unknown and, in consequence, damage suits form but a very small part of the volume of litigation; and when verdicts are recovered they commonly range from $50 for slight injuries to Si,ooo for graver ones. The courts closed nominally on the 1 2th of August, but practically several days earlier, and will not reopen until the last week in October. During all this time there will be no opportunity for work by those who desire it or who are compelled to live by it. The layman suffers as well as the lawyer, for all remedies, except those of an extraordinary nature, are denied him. Such a state of things is a con stant source of irritation to both branches of the profession and to the community generally. Unfortunately those in whose hands alone the matter of reform lies are the judges, by whom always a vacation is gladly welcomed, and the leaders of the bar, whose labors, while the term lasts, are excessive, and whose emoluments are so large that they can take their well-earned rest without considering either the expense of it or the temporary deprivation of their incomes. These fortunate individuals are, however, no matter what their weight of influence, not more than live or ten per cent, in point of numbers, of those to whom the long period of enforced idleness is an occasion of complaint and even suffering. There are now no less than ten j udges of the High Court who have completed the statutory term of fifteen years' service and are, therefore, eligible for retirement on pen sion. At the head of the list is the Master of the Rolls (Lord Esher), who recently celebrated his eighty-second birthday and who has been on the bench over twenty-nine years. There are others who have completed nearly a quarter of a century. Mr. Justice Carr has resigned, his resignation to date from the end of the long vacation. Lord Justice Lopes has been elevated to the peerage and is in poor health, so that it is probable that he may retire, but the others give no indication of yielding their comfortable places to younger men. STUFF Govvx.