Page:The Green Bag (1889–1914), Volume 19.pdf/104

 EMPLOYERS' LIABILITY the support of himself and his family may not exceed £52 a year, and yet he might be called upon to pay the maximum compensa tion of £1 a week during period of disable ment, or £300 in case of death arising from an accident to a laborer to whom he was paying harvest wages, which would absorb all his available income for a lengthened period, or the whole of his capital." And further, in view of the fact that in all but the very largest establishments, abso lute liability means indirectly compulsory insurance, and that insurance companies often fix a minimum premium: "A small farmer who only employs an extra man for the haytime may not pay more than £10 a year for labor, and one who employs, say, a lad all the year round and a man . for the haytime, may not exceed £25 in his outgoings for labor, and yet either would have to pay as much for a policy as an employer who pays £100 or £i$o in wages." (English Report, §§ 279, 292-294.) Under the Massachusetts bill the hard ship to the small employer would even be greater, since the amounts payable are higher. It fixes the maximum of weekly payments at $10, while in England it is £1, i.e., less than one half; the maximum amount payable to dependents in case of fatal accident at $2000, while in England it is £300, i.e., one fourth less; the expenses of burial and last sickness at a maximum of $200, while in France the maximum is frs. 100, i.e., one tenth of the amount pro posed for Massachusetts. The liberality of the framers of the Massachusetts measure is out of proportion to the difference in money value or standard of living. If the heavy burden placed by the Eng lish law upon the small employers has not been felt as an_ intolerable grievance, it is only because, as the Committee Report in forms us, with regard to them, the act has remained in practice inoperative. But an

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American court would be compelled to in quire whether the impracticability of the measure does not point to a radical defect in its principle, and it might possibly come to the conclusion that a rule that can be sustained when applied to an industrial establishment conducted upon a large scale may be opposed to that equality of right which the Constitution guarantees, when it becomes a question simply of making A bear the burden of B's misfortune. Even, therefore, if the absolute liability of railroad companies were universally or un qualifiedly conceded, it would not commit any court to the wholesale acceptance of the principle in all other possible applications. If the proposed bill should meet the approval of the legislature, the courts of Massachu setts, in passing upon its validity, would have before them a novel problem and a free hand in dealing with it. And it is diffi cult to see how this particular measure, in view of the objections pointed out, can be sustained. It is, however, also true that none of these objections presents insuperable obstacles. The necessary provision for jury trial would probably not seriously interfere with the operation of the act; a more intelligible prin ciple of selection of employments could easily be found, and, above all, employers on a small scale should be relieved. This would be in accordance with the legislation of Germany, France, Italy, and other coun tries. The discrimination in favor of the small employer has also received the sanc tion of the Supreme Court of the United States (185 U. S. 203), so that it would be constitutionally safe. The bill proposed for Massachusetts goes beyond the rule of liability recognized in any other country, and there is no good reason why the first American movement in the right direction should not be of a more conservative character. Chicago, III., January, 1907.