a passenger, for negligence which had caused his death, that he had in his lifetime been paid, and had accepted, a sum of money in full satisfaction of all claims.

Contracts between masters and servants, by which the latter agree to waive the benefits of the Act, need not be in writing; though, for obvious reasons, it is, in practice, expedient to commit such a contract to writing. It might be concluded by posting up in mills or works printed regulations or notices, provided the workmen saw them before they were engaged (g).

A workman who has been injured may lose the benefit of the Act by accepting a sum as compensation for injuries which he has sustained (h); on the other hand, he will be deprived of all right to any penalty if he brings an action under the Act for the same cause of action (i). If a servant, who has been injured in circumstances which entitle him to compensation from his master, has been induced by fraud to give a receipt in full discharge, or execute a release, the receipt or release will not be conclusive, and need not prevent him from suing. The plaintiff in Lee v. Lancashire & Yorkshire Ry. Co. (k), had been injured in a collision on the defendants' railway, and gave on October 18th, 1865, a receipt for £400, " in discharge of my claim in full for all loss sustained." On the 6th Nov. of the following year, he commenced an action for £600, alleging that his injuries were more serious than had been supposed. The receipt which he had given was, in the view of the Court of Appeal, no bar to an action, if the plaintiff could show that it had been given upon the distinct understanding that it was not to be conclusive (1). In Hirschfield v. London, Brighton, & South Coast Ry. Co. (m), a release under seal had been given; but it was

(g) Carus v. Eastwood (1875), 32 L. T. N. S. 855.

(h) Addison on Torts, 4 ed. p. 46; Wright v. London General Omnibus Co. (1877), L. R. 2 Q. B. D. 271 (award of compensation by a magistrate under 6 & 7 Vict. c. 86, s. 28, against a driver of cab, bar to action against his employers by person in

jured).

(i) Sec. 5.

(k) (1871) L. R. 6 Ch. 527; 25 L. T. N. S. 77; 19 W. R. 729.

(1) See also Stewart V. Great Western Ry. Co. (1865), 2 D. J. & S. 319.

(m) (1876) L. R. 2 Q. B. D. 1; 46 L. J. Q. B. 94; 35 L. T. 473.

UU

held to be a good reply to a defence founded on the deed that the defendants' officer had induced the plaintiff to execute the release, by fraudulently representing to him that the injuries were of a trivial character, and that if they turned out to be serious, he might obtain further compensation.

Insurance.

Employers have sought to insure themselves against liabilities under the Act. The usual plan is for an insurance company to agree, in consideration of annual payments varying with the amount of wages and nature of the employment, to indemnify employers against claims under the Act. An employer has an insurable interest, and such contracts are no doubt valid. An insurer who pays an assuree is, as a rule, subrogated to the remedies of the assuree, and this may have important consequences. (1) If the former indemnifies the latter for claims made by a workman injured by reason of the negligence of a foreman, what is the position of the insurer? The employer might sue his foreman, or the insurer after payment might, in the employer's name, also do so (n). (2.) If the insurer indemnifies the assuree for claims made under sec. 1, sub-sec. 1 of the Act, what is the position of the assuree? Suppose, for example, that A. purchased a crane from B. warranted to lift three tons. Under a strain of only two tons it broke, and one of A.'s workmen was injured. What is the position of C. the insurer? The workman would have no right to recover against A. unless A. himself or some one within sec. 2, sub-sec. 1, had been guilty of negligence. A. could not recover from B. in respect of damages which were the result, not of a breach of warranty, but of the negligence of A. or his agent; and C. would be in no better position (nn).

(n) Leake on Contracts, 754; May on Insurance, 554; Commercial Union Assurance Co. v. Lister (1874), L. R. 9 Ch. 483; Hebdon v. West (1863), 3 B. & S. 579; Shilling v. Accidental Assurance Co. (1858), 1 F. & F. 116.

(nn) Ovington v. McVicar, (1864), Macph. 1066. (O. paid damages to the relatives of a workman killed by the breaking of a chain. O. brought an action against M. who supplied the chain. Held, that the action did not lie).

The Effect of the Act on the Common Law.

(1.) The statute does not wholly do away with the doctrine of common employment. It does not affect such decisions as Lovell v. Howell (o). It merely specifies certain classes of servants for whose acts employers are liable to fellow servants. This is clearly affirmed in Robins v. Cubitt (p), where a workman who was injured by the improper lowering of a pail failed to recover; the accident having been caused by the negligence of two fellow workmen not in positions of authority, who were employed to lower the pail. The Employers' Liability Act, said Cave, J., in Griffiths v. Dudley,“ provided that in five specified classes of cases, a workman might bring his action as if he had not been a workman, which I take to mean nothing more than this-viz.: that, when a workman brings his action within these five specified cases, the employer shall not be at liberty to say, 'You occupied the position of a workman in my service, and therefore you must be taken to have impliedly contracted to bear the consequences arising from the negligence of your fellow workmen in these five cases "In the five cases specified in sec. 1 of the Act, the workman shall not be held to have impliedly contracted to bear those risks" (pp).

(2). The statute does not apply to all servants, but merely to those who are defined as "workmen" by sec. 8 of the Employers and Workmen Act, 1875. Accordingly it does not apply to domestic servants or seamen, or to servants who are not engaged in manual work. Apparently the Act includes all railway servants of whatever grade, and whether engaged in manual labour or not (q). The Act does not seem to affect such decisions as Degg v. Midland Ry. Co. (r).

(3.) A workman's remedy at Common Law for injuries sustained in circumstances described in Chapter XXIX. is not

(o) (1876) L. R. 1 C. P. D. 161. (p) (1881) 46 L. T. N. S. 535. (pp) 47 L. T. p. 19.

(q) Sec. 8.

(r) (1857) 26 L. J. Ex. 171. Infants are within the definition of

"workmen." As to the liability of infants who are employers for torts, see Burnard v. Haggis, 14 C. B. N. S 45; 32 L. J. C. P. 189; Walley v. Holt (1876), 35 L. T. 631.

abolished. No doubt the terms of sec. 1 are unqualified; in the cases therein mentioned they appear to do away entirely with the doctrine of common employment. But, having regard to the other sections of the Act, and especially to the frequent recurrence of the phrase "under this Act,” it is conceived that sec. 1 applies only to actions brought under the statute (s).

(4.) The statute merely places a workman in the same position as if he "had not been a workman of nor in the service of the employer, nor engaged in his work." Consequently all defences of which an employer might avail himself if a stranger were to sue him are open to an employer in resisting claims under the Act. (A.) One of these is contributory negligence. This has already been mentioned in Chapter XXVIII.; and it is enough to refer to such cases as Radley v. London and North Western Ry. Co. (†), and Slattery v. Dublin, Wicklow, &c., Ry. Co. (u). (B.) Acceptance of the risks of employment is another defence. See as to this, Woodley v. Metropolitan Ry. (x). (c.) A third defence is the fact that a servant who was negligent was not acting within the scope or sphere of his duties (y). (D.) The framers of the Act have defined the position of workmen by reference to an indefinite standard. They do not seem to have sufficiently borne in mind that several classes of persons with different rights are comprised in the negative description, "as if not workmen, &c." To trespassers who know the existence of defects in machinery or dangers, there may be no liability, even if such defects or dangers are known to the persons upon whose property they trespass (z). Servants are at Common Law

(s) Campbell's edition of Fraser's Law of Master and Servant, p. 173. (t) (1876) L. R. 1 Ap. C. 754; 46 L. J. 573.

(u) (1878) L. R. 3 Ap. C. 1155; Ellis v. L. B. & S. W. (1857), 26 L. J. Ex. 349.

(x) (1877) L. R. 2 Ex. D. 384; also Brooks v. Courtney (1869), 20

L. T. 440; Corby v. Hill (1858), 4
C. B. N. S. 556.

(y) See Chap. XXVIII.

(z) Degg v. Midland Ry. Co. (1857), 26 Ex. 171. See Ilott v. Wilkes (1820), 3 B. & A. 304. The exact rights of a trespasser who is injured do not appear to be clearly defined.

in the same position as volunteers, licensees, or guests; that is, they are expected to take care of themselves against all but latent and extraordinary dangers, or what in some of the cases are called "traps" (a). Thus, in Seymour v. Maddox (b), an actor who, while passing from the stage, was injured by falling through a trap door which had been left open unfenced, failed to recover damages against his employer, on the ground that he had suffered from one of the risks of his employment. Persons who go to premises upon the express or implied invitation of the occupier and upon his business are in another category. Their position was defined in Indermaur v. Dames (c). A journeyman gasfitter had been sent by his employer, at the request of the defendant, who was a sugar refiner, to test the action of a gas regulator in the premises of the defendant. While the plaintiff was on the premises, he accidentally, and, as the jury found, without negligence, fell down a shaft which was open and unfenced. Mr. Justice Willes, stating the law with respect to such persons as the plaintiff, said: "We consider it settled law that he (that is, a person going by express or implied invitation upon business concerning the occupier), using reasonable care on his part for his own safety, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger, which he knows or ought to know" (d).

Owing to the peculiar manner in which the Act is drawn, its effect is not easily ascertained. It does not conduce to lucidity to say in the first section that "workmen" shall be treated as if they were not workmen, without taking account of the fact that "not workmen" include several classes with different rights; to use different language to describe the same thing (e); to re-state the Common Law

(a) Southcote v. Stanley (1856), 1 H. & N. 247; Bolch v. Smith (1862), 31 L. J. Ex. 201; Gautret v. Egerton (1867), L. R. 2 C. P. 371; Sullivan v. Waters (1864), 14 Ir. C. L. 460.

(b) (1851) 16 Q. B. 326; 20 L. J. Q. B. 327.

(c) (1866) L. R. 1 C. P. 274.

(d) See also White v. France (1877), L. R. 2 C. P. D. 308, and Heaven v. Pender (1882), L. R. 9 Q. B. D. 302; 30 W. R. 749.

(e) See sec. 8, and the expressions used in sec. 1 and sec. 5 to denote persons entitled in case of death.