Legal Definition and Related Resources of Common Employment

The doctrine of common employment has now been abolished either totally or severely limited in most states, both by statute and judicial decisions. The original doctrine was to the effect that where an employer employs competent workers, provides an adequate system of work and through the fault of a fellow servant an employee suffers injury , then the employer is not liable .

This is a phrase used in the law of master and servant to express the relation between servants of a common master which relieves the master from liability for injury received by one through the fault of the other. Common employment is service of such kind that, in the exercise of ordinary sagacity, all who engage in it may be able to foresee, when accepting it, that through the negligence of fellow-servants, it may probably expose them to injury. 39 N. J. Law, 119. The phrase in some, perhaps in most, jurisdictions, is used to mean co-operation by the servants concerned, the usual performance by them of duties, the performance of which brings them into habitual consociation promotive of the exercise of a cautionary and corrective influence by each over the other. (134 111. 209; s. c. 146 111. 603). It came into the law as a consequence of the doctrine laid down in Priestly V. Fowler (1838), 3 M. & W. 1, followed by Hutchinson v. York, etc. R. Co. (1850), 5 Exch. 343; Wigmore v. Jay (1850), 5 Exch. 364; Lovell v. Howell (1876), (C. P. D. 161) and finally confirmed by the case of Barton hill Coal Co. v. Reid (1860, 3 Macq. Ap. Cas. 266). This doctrine was that the general maxim qui facit per alium, etc. (q.v.) had no application to the principal in this relation and with later delimitations stating more precisely what constituted common employment, denied to the injured workman a right to damages from his employer in many cases where, however it might be in logic, not merely humanity but social and commercial expediency required that he be compensated. The ultimate consequence, in England, was the employer’s liability law (q.v.), by which in all such cases the refinements of the doctrine of contributory negligence were put out of the way. The application of the doctrine of common employment is a matter of almost infinite detail for which there is here no room. It is, however, in substance the same as the question who are fellow-servants. The Workmen’s Compensation Acts now in force in nearly all states have greatly reduced the importance of the fellow-servant doctrine.

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Common Employment in Historical Law

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This definition of Common Employment is based on the The Cyclopedic Law Dictionary . This entry needs to be proofread.

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