The Unfolding of American Labor Law: Judges, Workers, and Public Policy across Two Political Generations, 1790-1850

By Jeffrey Steven Kahana | Go to book overview

CHAPTER 9
The Fellow Servant Rule

It has been held, that a master who uses due care in the
selection and employment of his servants, is not respon-
sible to one of them for an injury received from the care-
lessness of another while employed in the master’s
service.

—Theophilus Parsons Jr., The Law of Contracts, 3rd
edition (1857)

In America during the 1830s and 1840s, the English common law’s status-based notion of liability was replaced by a conception of contract law that sought to promote both individual freedom and social responsibility. In place of a public necessity rationale and the imposition of absolute liability on various entities, contract law imposed liability on the basis of fault. This transformation in the law was driven by a fundamental change in society that recognized the benefits that accrued from interplay and competition among diverse interests. To advance the new conception of the public interest, contract law provided a legal mechanism that took into account individual potential, initiative, and responsibility while recognizing the symbiotic relationship between private accomplishment and public objectives.

One manifestation of this transition was the fellow servant rule, which held that in a workplace setting, employers were not

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