82
THE GREEN BAG
the courts have seized upon the element of discrimination to annul inconvenient stat utes. To avoid this very obvious risk, a workmen's compensation act ought to be based upon some clear and intelligible, and as far as possible unimpeachable, principle of classification. Such a principle, however, is not apparent in the Massachusetts bill. 3. The third difficulty to which attention should be called concerns the manner and extent of the application of the essential principle of the bill, namely, the rule of ab solute liability. It is clear that the liability created is quite independent of fault, for not even proof of an irresistible force, or of an act of God, will relieve the employer, but only the wilful or fraudulent misconduct of the employee. The bill therefore goes beyond the measure of liability established by the first radical acci dent legislation, that imposed upon railroads by the Prussian law of 1838, which allowed the defense of inevitable outward accident, and the principle of which has since been extended in Germany to other hazardous employments. It hardly goes, however, beyond the English act of 1897, under which the workman loses his right to compensation if the injury is due to his own "serious and wilful misconduct." A statute of Nebraska imposes upon rail road companies, with reference to their pass engers, a rule of liability at least as rigorous as that of the Massachusetts bill; for it excepts only cases where the injury results from the violation on the part of the pas senger of some express rule of the company, or from his criminal negligence, which has been denned as flagrant and reckless dis regard of one's own safety, and indifference to injury liable to follow. The validity of the statute has been sustained both by the highest court of the state and by the Su preme Court of the United States (183 U. S. 582). The federal Supreme Court has also recognized the rule of absolute liability in case of damage done to property by fire escaping from railroad locomotives (165
U. S. 1). On the other hand, the absolute liability, irrespective of negligence, of rail road companies for live stock killed or injured by the operation of trains has gener ally been held to be unconstitutional (58 Ala. 594, 8 Mont. 271, 6 Utah 253, 5 Wyo. 430, 2 Idaho 540, 1 Wash. St. 206, question left open in 18 Colo. 600). In view of the decisions in the live stock cases, it cannot be said that the validity of absolute liability is settled beyond question, even within the narrow limits of existing legislation. But the example of railroad liability is not a sufficient support for the proposed Massachusetts legislation. The railroad busi ness is not only exceptionally hazardous, but it is regularly carried on upon such a scale, that the burden of meeting the risk of accidental losses that must be expected to arise in connection with its operation, may be justly treated as part of its legitimate expense account. The Massachusetts bill, however, applies to every workshop in which manual manu facturing labor is carried on. But to a small concern the basic principle of abso lute liability, that he should bear the losses ordinarily accompanying an undertakingwho reaps the main benefit from it, finds only a very imperfect application, if any. The resources of the small employer are often not materially greater than those of his employees, and, if so, it is altogether unjus tifiable to visit upon him the consequences of their carelessness when he himself has used the utmost care. The English De partmental Committee on Workmen's Com pensation, in its report of 1904, very for cibly calls attention to the hardship inflicted upon the small employer by the Workmen's Compensation Acts of 1897 and 1900: "The financial position of a small farmer and the possible ruin that might be entailed upon him in the event of a serious accident happening to a laborer employed by him should be considered. For instance, a small farmer may not possess £300 capital and the annual profits from his farm available for
