Proceedings, Third National Conference Workmen's Compensation for Industrial Accidents
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Title: Proceedings, Third National Conference Workmen's Compensation for Industrial Accidents
Author: National Conference on Workmen's Compensation for Industrial Accidents
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*** START OF THE PROJECT GUTENBERG EBOOK PROCEEDINGS, THIRD NATIONAL CONFERENCE WORKMEN'S COMPENSATION FOR INDUSTRIAL ACCIDENTS ***
Proceedings
Third National Conference
Workmen's Compensation For
Industrial Accidents
Chicago, June 10-11, 1910
Including
A Brief Report of
The Second National Conference
Washington, January 20, 1910
Copies may be had at fifty cents each from
JOHN B. ANDREWS, _Assistant Secretary_,
Metropolitan Tower, New York City.
GENERAL OFFICERS.
_Chairman_ CHARLES P. NEILL
Commissioner United States Bureau of Labor
_Vice-Chairman_ CHARLES MCCARTHY
Chief Wisconsin Legislative Reference Library
_Treasurer_ HENRY W. FARNAM
Yale University
_Secretary_ H. V. MERCER
Chairman Minnesota Employees Compensation Commission
_Assistant Secretary_ JOHN B. ANDREWS
Secretary American Association for Labor Legislation
EXECUTIVE COMMITTEE.
(In Addition to the General Officers).
HENRY R. SEAGER, _Chairman_,
Vice-Chairman, New York Commission
WILLIAM E. MCEWEN,
Member Minnesota Commission
A. W. SANBORN,
Chairman Wisconsin Commission
EDWIN R. WRIGHT,
Secretary Illinois Commission
JAMES A. LOWELL,
Chairman Massachusetts Commission
WILLIAM B. DICKSON,
Chairman New Jersey Commission
WILLIAM J. ROHR,
Chairman Ohio Commission
HENRY W. BULLOCK,
Delegate from Indiana
JAMES V. BARRY,
Delegate from Michigan
MILES M. DAWSON,
Member-at-large
Proceedings
Third National Conference
Workmen's Compensation For
Industrial Accidents
Chicago, June 10-11, 1910
Including
A Brief Report of
The Second National Conference
Washington, January 20, 1910
CONTENTS
PAGE.
I. INTRODUCTORY NOTE, INCLUDING BY-LAWS 3
II. PROGRAM 5-6
III. PROCEEDINGS 7
1. Friday Forenoon Session, June 10 10
2. Friday Afternoon Session, June 10 39
(1) "Worker's Compensation Code," An Outline for Discussion 40
3. Saturday Forenoon Session, June 11 82
APPENDIX,--Brief Report of Washington Conference, January 20, 1910 124
INDEX 136
Princeton University Press
Princeton, N. J.
INTRODUCTORY NOTE.
The National Conference on Workmen's Compensation for Industrial
Accidents was organized at Atlantic City, July 29-31, 1909. The
second meeting was held in Washington, January 20, 1910. The third
meeting, June 10-11, 1910, was in Chicago. The nature of the
Conference is clearly set forth as follows:
BY-LAWS.
1. The name of this organization shall be the National
Conference on Workmen's Compensation for Industrial Accidents.
2. Its purpose shall be to bring together the members of
the commissions and committees of the various States and of
the National Government, representatives to be appointed by
the governors of the different States, and other interested
citizens, to discuss plans of workmen's compensation and
insurance for industrial accidents.
3. Its officers shall be a chairman, a vice-chairman, a
secretary, an assistant secretary and a treasurer, to be
elected annually and to hold office until their successors
shall have been elected.
4. The business of the organization shall be conducted by an
executive committee, consisting of the officers and of other
members, said committee to represent at least ten different
States.
5. The voting members of the Conference shall be the members,
secretaries and counsels of all State Commissions or committees
on the subject, one or more representatives to be appointed by
the governors of different States, and ten members at large to
be elected at any regular meeting of the Conference.
6. Individuals and associations of individuals may be
admitted as associate members, and as such, be entitled to
the privileges of the floor and to receive the publication of
the Conference upon the payment of $2.00 per annum for each
such individual member, and $25.00 per annum for each such
association.
7. No resolution committing the Conference to any fixed
program, policy or principle, shall be deemed in order at any
of its meetings, except upon unanimous vote.
8. The funds of the Conference shall be derived from
contributions from the commissions and committees on the
subject, and from voluntary subscriptions.
The proceedings of the Atlantic City Conference are published in a
volume of 340 pages, and copies may be had, at fifty cents each,
from H. V. Mercer, of Minneapolis. The proceedings of the Chicago
Conference (including as an Appendix on pages 124-135 a brief report
of the Washington Conference, the proceedings of which have not been
printed _in extenso_), may be had at fifty cents a copy by addressing
John B. Andrews, Metropolitan Tower, New York City.
PROGRAM
Third National Conference on Industrial Accidents and Workmen's
Compensation
Auditorium Hotel, Chicago
June 10-11, 1910
_Chairman_ CHARLES P. NEILL
Commissioner United States Bureau of Labor
_Secretary_ H. V. MERCER
Chairman Minnesota Employees' Compensation Commission
_Assistant Secretary_ JOHN B. ANDREWS
Secretary American Association for Labor Legislation
FRIDAY FORENOON SESSION, 9:30
BRIEF REPORTS FROM STATE COMMISSIONS
_Minnesota_: H. V. Mercer, William E. McEwen, George M. Gillette.
_Wisconsin_: A. W. Sanborn, E. T. Fairchild, John J. Blaine, Wallace
Ingalls, C. B. Culbertson, Walter D. Egan, George G. Brew.
_New York_: J. Mayhew Wainwright, Joseph P. Cotton, Jr., Henry
R. Seager, Crystal Eastman, Howard R. Bayne, Frank C. Platt,
George A. Voss, Cyrus W. Phillips, Edward D. Jackson, Alfred D.
Lowe, Frank B. Thorn, Otto M. Eidlitz, John Mitchell, George W.
Smith.
_Illinois_: Ira G. Rawn, E. T. Bent, Robert E. Conway, P. A.
Peterson, Charles Piez, Mason B. Starring, M. J. Boyle, Patrick
Ladd Carr, John Flora, George Golden, Daniel J. Gorman, Edwin R.
Wright.
_New Jersey_: William D. Dickson, J. William Clark, Samuel Botterill,
John T. Cosgrove, Harry D. Leavitt, Walter E. Edge.
_Massachusetts_: James A. Lowell, Amos T. Saunders, Magnus W.
Alexander, Henry Howard, Joseph A. Parks.
_Ohio_: (Members to be appointed by the Governor.)
GENERAL DISCUSSION "Workers' Compensation Code"
(Outline for Discussion)
Representatives of the Federal Government, Members of State
Commissions, Delegates designated by Governors of States,
Representatives of Manufacturers' Associations and Trade
Unions, Insurance Companies, Russell Sage Foundation and
Association for Labor Legislation, and other interested
organizations and individuals.
FRIDAY AFTERNOON SESSION, 2:00
WORKERS' COMPENSATION CODE (Discussion continued).
SATURDAY FORENOON SESSION, 9:30
SPECIAL DISCUSSION:
Classification of Hazardous Employments.
Repeal of Common Law and Statutory Remedies.
Contract vs. Absolute Liability.
Limited Compensation vs. Pension Plan.
Court Administration vs. Boards of Arbitration.
PROCEEDINGS
Third National Conference
Workmen's Compensation For Industrial Accidents
Chicago, June 10-11, 1910
The third meeting of the National Conference on Workmen's
Compensation for Industrial Accidents brought together from widely
separated parts of the United States a large number of those who
represent the serious thought of the country on this most urgent
question. Members of State Commissions in Minnesota, Wisconsin,
Illinois, New York and Massachusetts were present and submitted
reports. Thirty-eight official delegates were appointed by the
governors of States, and, in addition, representatives were present
from manufacturers' associations, trade unions, insurance companies,
the Russell Sage Foundation, the Association for Labor Legislation,
and other interested organizations. Many individuals from the shops,
the offices and the universities, attended the various sessions and
listened to the arguments of the speakers or participated in the
discussions.
Among those present who took an active interest in the meetings were:
Jane Addams, Hull House, Chicago; T. W. Allinson, Henry Booth House,
Chicago; W. A. Allport, Member Illinois Commission on Occupational
Diseases and State Delegate; L. A. Anderson, State Insurance Actuary,
Madison, Wis.; John B. Andrews, Secretary American Association for
Labor Legislation, New York City.
James V. Barry, State Delegate from Michigan; William P. Belden,
Cleveland Cliffs Iron Company, Mich.; E. T. Bent, Member Illinois
Commission; John J. Blaine, Member of Wisconsin Commission and
State Delegate; M. J. Boyle, Member of Illinois Commission; Frank
Buchanan, Structural Iron Workers' Union, Chicago; Henry W. Bullock,
representing Indiana State Federation of Labor.
Patrick Ladd Carr, Member Illinois Commission; Robert E. Conway,
Member Illinois Commission; Clarence B. Culbertson, Member Wisconsin
Commission and State Delegate.
Edgar T. Davies, Chief Factory Inspector of Illinois and State
Delegate; Miles M. Dawson, Insurance Actuary, New York City; F. S.
Deibler, Northwestern University, Evanston, Ill.; M. M. Duncan, State
Delegate from Michigan.
Crystal Eastman, Secretary and Member New York Commission; Herman L.
Ekern, Deputy Commissioner of Insurance, Wisconsin.
Henry W. Farnam, President American Association for Labor
Legislation, New Haven, Conn.; John Flora, Member Illinois
Commission; Lee K. Frankel, Metropolitan Life Insurance Company, New
York City; Ernst Freund, University of Chicago and President Illinois
Branch A. A. L. L.
John H. Gray, University of Minnesota and President of Minnesota
Branch, A. A. L. L.; John M. Glenn, Director Russell Sage Foundation,
New York City; George Golden, Member Illinois Commission; Daniel J.
Gorman, Member Illinois Commission.
Walter D. Haines, Member Illinois Commission on Occupational Diseases
and State Delegate; Alice Hamilton, Expert Investigator Illinois
Commission on Occupational Diseases; Samuel A. Harper, Attorney
Illinois Commission; Leonard W. Hatch, Statistician, New York State
Department of Labor; Charles R. Henderson, Secretary Illinois
Commission on Occupational Diseases and State Delegate; J. C. A.
Hiller, Missouri Commissioner of Labor and State Delegate; Frederick
L. Hoffman, Statistician Prudential Insurance Company, Newark, New
Jersey.
Wallace Ingalls, Member Wisconsin Commission and State Delegate.
Sherman Kingsley, United Charities, Chicago.
Thomas F. Lane, Missouri State Delegate; Julia Lathrop, Director
Chicago School of Civics; James A. Lowell, Chairman Massachusetts
Commission.
Charles McCarthy, Chief Wisconsin Legislative Reference Library;
Edwin M. McKinney, Chicago; Ruben McKitrick, University of Wisconsin;
Floyd R. Mechem, University of Chicago; H. V. Mercer, Chairman
Minnesota Commission and State Delegate; H. E. Miles, National
Manufacturers' Association and Racine-Sattley Company, Racine, Wis.;
John Mitchell, Member New York Commission; William H. Moulton,
Sociological Department, Cleveland Cliffs Iron Company, Mich.
Cecil Clare North, De Pauw University, Indiana.
Irene Osgood, Assistant Secretary American Association for Labor
Legislation, New York City.
Joseph A. Parks, Member Massachusetts Commission; P. A. Peterson,
Member Illinois Commission; Charles Piez, Member Illinois Commission;
Ralph F. Potter, Attorney Ocean Accident and Guarantee Corporation,
Chicago.
Samuel Rabinovitch, Milwaukee Relief Society; G. A. Ranney,
International Harvester Company, Chicago; Benjamin Rastall,
University of Wisconsin; A. Duncan Reid, Ocean Accident and Guarantee
Corporation, New York; C. T. Graham Rogers, Medical Inspector New
York Department of Labor; David Ross, Secretary Illinois State Bureau
of Labor.
Amos T. Saunders, Member Massachusetts Commission; A. W. Sanborn,
Chairman Wisconsin Commission and State Delegate; Ferd. C.
Schwedtman, National Association of Manufacturers, St. Louis; Henry
R. Seager, Member New York Commission and President of the New York
Branch, A. A. L. L.; A. M. Simons, Chicago; Geo. W. Smith, Member New
York Commission; John T. Smith, Secretary Missouri State Federation
of Labor; Mason B. Starring, Member Illinois Commission; H. Wirt
Steele, Charity Organization Society, Baltimore, Md.; Ethelbert
Stewart, United States Bureau of Labor; Charles A. Sumner, City Club,
Kansas City, Missouri.
Edward G. Trimble, Employers' Indemnity Exchange, Houston, Texas;
James H. Tufts, University of Chicago.
Paul J. Watrous, Secretary Wisconsin Commission and State Delegate;
Agnes Wilson, United Charities, Chicago; Edwin R. Wright, Member and
Secretary Illinois Commission.
FIRST SESSION, FRIDAY, JUNE 10, 1910, 9.30 A. M.
In the absence of Commissioner Charles P. Neill, of the United States
Bureau of Labor, who was detained in Washington by urgent official
matters, the first session of the Chicago Conference was opened by
the Secretary, H. V. Mercer, Chairman of the Minnesota Employes
Compensation Commission, and he was unanimously elected temporary
chairman for the Chicago meetings.
In formally opening the Conference and assuming the chair, Mr. Mercer
said:
CHAIRMAN MERCER: According to the program here, the first order
of business for this meeting is brief reports from the different
state commissions. I understand there are seven States that have
commissions working on the question of compensation for industrial
accidents, or perhaps, more properly speaking, for injuries occurring
in the course of and arising out of the industries in which they
are employed,--for "accidents," according to the courts in some
States, do not mean what we want to cover. Some courts use that term
in the popular sense; some use it as including, and some use it as
excluding, any idea of fault or negligence.
In view of the fact that you have made me temporary chairman, it
would hardly be proper for me to open this meeting with a report from
Minnesota, and hence I will call upon the other States first.
(Upon the Call of States by the Chairman, the following responses
were given.)
WISCONSIN.
SENATOR JOHN J. BLAINE: Our Committee is a legislative committee made
up of three members of the Senate and four members of the Assembly.
The committee was appointed at the last session of the Legislature
in 1909. They have been diligently pursuing the course of their
investigations with the object of arriving at a bill which the
committee can recommend to the Legislature for its adoption. It was a
few months before we got to work after our appointment and it was not
until last April that we drafted the first tentative bills.
I would state briefly that the first tentative bills were drafted
with the object of drawing out discussion on the part of the
employers and employes. We had held some meetings previously, and
those who appeared before us were somewhat in the dark as to just
what we intended to do and wanted to do, and therefore we drafted
tentative bills to which they should direct their fire of criticisms
and suggestions.
The first bill presented was a bill destroying the common law
defenses, assumption of risk, the co-employe doctrine, and modifying
contributory negligence to that of comparative negligence. The second
of the first tentative bills was a compensation measure. The purpose
of the first bill was to use a "constitutional coercion," as we have
termed it, making the compensation bill practically compulsory, but
not in the language of the bill declaring it compulsory, hoping
in this way to bring it within the constitution. That destroyed
the common law defenses and then gave the employer the right to
come under the compensation act. Also in that bill the employe was
presumed to be acting under that bill unless he contracted to the
contrary at the time of entering his employment.
The matter of compensation and the details of the bill are not of
particular interest to the Conference, because they are questions
concerning which there is very little contention, and they resolve
themselves practically to the point of working out the question
of arbitration and the measure of compensation and the manner of
arriving at compensation, and such court procedure as is necessary,
in detail.
We found that our first tentative bills performed the exact object
which we intended they should. Neither the committee nor any of
its members, I believe, had any idea that the first tentative
bills represented their individual ideas or even the idea of the
committee as a whole; but they certainly resulted in bringing about
discussion, and after those bills were sent about the State to
employers and employes they all got busy and we had very valuable
and helpful discussions upon those bills. We held a conference in
Milwaukee lasting about a week. There appeared before the committee
representatives of the Merchants' and Manufacturers' Association of
Milwaukee, and from the northern part of the State representatives
of the lumber and various other industries. We also had the State
Federation of Labor.
After that meeting we met again in May and drafted our second
set of tentative bills, the first bill destroying the defense and
assumption of risk, and also the co-employes doctrine as a defense,
but embodying the question of contributory negligence. That bill,
if enacted into law, independent of every other act, would make all
employers of every nature subject to the law, whether the employer
was a farmer, a manufacturer or whatsoever he might be. The second
bill provided practically the same as our other bill.
We found at these public hearings that the question of who shall
pay for the insurance, as it is called, is not a matter of great
contention in Wisconsin. I think the larger manufacturers, and
the great majority of all of them, favor paying the compensation
themselves and either assuming the obligation, or organizing
mutual insurance companies or protecting themselves with liability
insurance policies. There are a few who believe that the employes
should contribute a small portion toward the compensation, but I do
not believe that is the general sentiment among the employers and
manufacturers in Wisconsin.
I think the only serious problem we have to meet is whether we shall
take away the common law right from the employe. The Federation of
Labor of Wisconsin is very much opposed to that feature of our bill,
and personally I am opposed to it. I have expressed that opposition
at all the hearings and directed many questions along that line to
ascertain the sentiment of employers and employes.
Our bill creates the presumption that an employe is acting under
the act unless he contracts to the contrary at the time of his
employment, and of course the idea of that is to get around the
constitutional provisions; therefore, there will be consent to act
under the law, and consent to arbitration, and hence it will no doubt
be constitutional. But the employes, through their representatives,
believe that they should have the right of selection after the injury
has occurred. The Federation bill that they have prepared, follows
practically the same lines as the English act, giving the double
remedy of a common law right of action, and then also compensation
in case of their failure to recover under the common law; but they
have gone so far, through their representatives, as to state that
they would not ask for that provision in its entirety. While I am
not going to speak authoritatively as to just what they will or will
not do, I think it is their idea that if they are given the right
to elect at the time or within a reasonable time of the injury,
whether they shall proceed under the common law remedy or accept the
provisions of the compensation act, that they will be willing to
waive the double remedy, and whichever act the employe chooses to
proceed under, will be a waiver of all other remedies.
That question is going to be debated by both sides and I think if
we are going to meet with any danger of defeat in promoting this
legislation it will be upon that one subject, and personally I hope
that the employers will find that under a reasonable bill, with
reasonable compensation and protection drawn about them, so there
will be no danger to mulct them in any great damages, that they will
be willing to accept some provision giving the employes the right of
election at the time of the injuries.
Under the second tentative bill we have had public hearings
throughout the State, particularly in the industrial centers,
and concluded those hearings last Friday. We expect to meet as a
committee, redraft our bills and get them into substantial form, and
then I suppose, after we have determined what the committee intends
to do as a committee in submitting its report to the Legislature
on the essential points, we will then have public hearings and the
questions that are debatable will be debated before that committee at
these hearings, and then we will make our report accordingly.
NEW YORK.
MISS CRYSTAL EASTMAN: The New York Commission is in a peculiarly
fortunate position. Our bills have both passed and one of them has
already been signed by the Governor, so that to-day our labors would
be all over and we could return to rest, except for the fact that we
still have to inquire into the causes and prevention of industrial
accidents, the causes and effects and remedies of non-employment, and
the causes and remedies for the lack of farm labor in New York State.
You will see from this that we received a life sentence on the New
York Commission. The Legislature evidently thought it would give to
us the solution of all the problems of modern industry and keep the
reformers quiet for fifty years. However, we have finished up the
Employers' Liability part of our job and we feel that we have done
our part of the work in that regard and now have put it up to the
Legislature.
When I was planning what I should say here, I rather thought I would
discuss the two bills which we have introduced, and passed, and leave
out the discussion of how we did the work, but since I have come here
I believe it is more important to tell you how we did it, and take it
for granted that you know about the bills and are familiar with them.
Our work, to my mind, is divided into five different sections. In the
first place we had reports specially prepared for the Commission,
one on the Employers' Liability Law in New York State and the other
States. That was prepared by our counsel and sent to every member of
the Commission early last summer. Then we had a report prepared on
the Foreign Systems of Compensation and Insurance: That was mailed
to the members of the Commission for their information. Then we had
a report on Relief Associations in New York State, which was very
voluminous and was not generally mailed, but was kept in the office
for reference.
The next section of our work was printed inquiries sent to all the
employers whom we could get the names of from the State Department of
Labor, and to all labor unions on record. These inquiries were just
about the same as those sent to the employers, and in a general way
we asked both the labor unions and the employers what they thought of
the present law on employers' liability, how they thought it met the
situation; and we asked them how they would like a law on workmen's
compensation, describing it very briefly. We received replies from
only a small proportion of the inquiries we sent out, but a large
enough number to give us some general idea of the feeling of both the
employers and the laboring people in the State on this subject. I can
say positively, however, that we found no satisfaction; practically
nobody liked the law. The employers disliked it for one reason and
the workmen disliked it for another, and so nobody was satisfied with
it.
Another printed inquiry we sent to the insurance companies. This was
more in the line of investigation, however, as we got from them not
opinions so much as figures showing how much they had received in
premiums from employers for liability insurance, and what proportion
of this had been spent in paying actual claims, thus showing us what
proportion was, so to speak, wasted in the business of defending
claims.
We then wrote letters, not printed inquiries, but letters containing
a list of questions to a great many lawyers, and to all the judges in
the State, asking their opinion about the constitutional questions
involved. That, I think, ended the inquiry section of our work.
Then we held public hearings, five or six up the State and as many
in New York City, and tried to make the invitations as general as
we could. Many of us felt that those hearings were not going to be
important and perhaps were a waste of money, but after we had them
I believe we all felt that they were worth while. They perhaps did
not furnish us with any definite statistical information, but they
did put us in touch with the feelings of the people of the State
on this subject, and gave us a more concrete view of the subject
than we could have gotten by correspondence or by any statistical
inquiry, and brought us in touch with the people on both sides of
the question, who were interested in the problem. But quite apart
from the value to us, of these written inquiries and of the public
hearings, in informing us on the situation, they were valuable in
arousing interest all over the State, and in educating the public in
regard to the problem.
We were particularly gratified to see the way in which labor unions
seized the opportunity to become interested and to educate themselves
in regard to employers' liability and workmen's compensation. When
we started out last fall most of the labor unions that answered our
inquiries did not know what we were talking about, and now I hardly
think there is a union of any size in the State that is not in a
position to know what it wants in the matter of employers' liability
and workmen's' compensation.
The next section of our work was statistical inquiry--a regular
statistical investigation. The bulk of this was done for us under Mr.
Hatch's direction at the New York State Labor Department. A study
was made of some fourteen hundred actual industrial accident cases,
both injury and death, to show what was the loss of income to the man
injured, how much he received from the employer, how much he paid to
a lawyer and what was the effect of the accident upon his family; in
other words, a study of the economic cost of work accidents.
In addition to that Mr. Hatch conducted an inquiry into the cost
of industrial accidents to some three hundred employers, showing
how much they paid in a year on account of industrial accidents and
into what different channels that money went; how much of it went to
employers' liability and insurance premiums; how much went to the
workmen and how much to the hospitals and so forth. All of this was
exceedingly valuable in giving us information as to the conditions in
our own State.
In addition to this the Commission conducted a similar investigation
of three hundred fatal industrial accident cases to determine their
economic effect upon the family and the income loss, of compensation
received and all that. These fatal accident cases we secured in a
perfectly impartial way by taking a year's fatal industrial accidents
reported to the coroners of Manhattan Borough and Erie County,
where Buffalo is situated. As a result of these two inquiries we
have a mass of statistics on this subject. We were able to put
into our report a statement, from the statistics, of just about
what proportion of workmen who were injured received anything to
compensate them for the income loss, and with regard to the workmen
killed, what proportion of the dependents received anything. Those
four divisions, I think, cover our preliminary work.
Then came the business of preparing and writing the report. The rough
draft was prepared by two or three members of the Commission, and
the counsel, in different sections. When it was in printed proof for
the first time, Senator Wainwright, the chairman, called the whole
Commission together and informed us that he intended to make us read
the whole report aloud, all sitting together, so that every member of
the Commission might feel that he had written the report and that it
was his report. That idea astounded me, I will admit, when I first
heard it, because I thought it was going to take us the rest of the
year to do it; but it turned out to be a very excellent plan, and
we actually did that. We sat down for three days without stopping,
except for meals, and read the report aloud, and there is no member
of the Commission who did not make suggestions, and valuable
suggestions, and I think I may say that we all feel that it is our
report.
When it came to the bills which we introduced we followed somewhat
the same plan. We went over every line and word of the bills, of
course in much greater detail than we did the report, and the bills
are the result of a giving in here and a giving in there, as you can
readily imagine. They did not represent just exactly what every one
of us wanted to do, but they represent what we could agree to do, and
the Legislature has done us the honor to take our advice.
And now just a word in regard to these bills. The first one is
called the Optional Bill. It does two things: It remedies the glaring
injustice of the present law on the basis of negligence by modifying
the fellow-servant rule, by making all fellow-servants in positions
of authority vice-principals instead of fellow-servants; by doing
away with the extreme application of the assumption of risk rule
which allows an employe to assume the risk of an employe's negligence
by remaining in employment, and changes the burden of proof of
contributory negligence over to the defendant. Those three things
we felt it to be necessary to change in the employer's liability
law on the basis of negligence, even if we never changed it in any
other particular. In addition to this feature of the bill, there
is afforded to the employes and employers, if they wish to escape
this situation, by an amendment to the employer's liability law, the
opportunity of making a contract. That is the option feature of the
bill; there is nothing particularly interesting or original about
that. Some members of the Commission were for it because it would
force the employers into compensation, and some members were for it
because they thought it remedied an injustice in the present law
which they could not stand for, but, at any rate, all but two of us
were able to agree on that.
Then the second bill, which we call the Compulsory Compensation Act
for dangerous trades, is our solution of two difficulties which we
met and which, no doubt, all of the other commissions are having to
meet. These two difficulties are the constitutional difficulty, the
fact that we have written constitutions limiting our powers along all
these lines; and, secondly, the interstate competitive difficulty,
the fact that in this country our laws are made by States and we have
state legislative lines, but no state competitive lines--the old cry
of the manufacturer, that if you put a burden upon him in New York
State he cannot compete with a manufacturer in Pennsylvania and New
Jersey, and will, therefore, either have to go out of business or out
of the State. That difficulty of interstate competition we felt to be
a real one. Whether it would actually drive the manufacturer out of
business or not, it would inevitably hinder the passing of our bill,
because the manufacturers of the State in a body would oppose it.
The constitutional difficulty, to be a little more definite, in
our case seemed to be pretty serious; we had only two lawyers in
the State who wrote us that they thought a general compulsory
compensation act similar to the English law would be constitutional,
but we had a great deal of advice to the effect that if we could draw
our bill so it would apply to the risk of the trade, and make the
compensation depend upon the inherent risk of the trade, that that
would be constitutional.
With these two difficulties in mind we drew the bill applying to
dangerous trades. As you know, it provides compensation for all
workmen injured in eight specially dangerous trades, if they were
injured either through the fault of the employer or any of his
agents, which is plainly perfectly constitutional; or if they were
injured in any sense through any risk inherent or necessary as a risk
of the trade. The bill does not take away any statutory or common law
rights that the workman now has, but he must choose between one or
the other. If he begins proceedings under the compensation act, he
loses his right to sue and _vice versâ_.
The importance of this bill, in my mind, is very great. I think
that is the way to go at it in this country. If the employer and
the workman both profit by the enterprise they should both assume
the risk of the trade, and that principle, I think, is what is
established by our compulsory compensation bill.
I want to make clear that the list of dangerous trades in this law
is not an inclusive list of dangerous trades by any means. There
is no reason why we should draw the line where we did draw it. Our
reason in selecting these dangerous trades instead of all dangerous
trades, as we originally had our list drawn, was a purely utilitarian
opportunist reason. It was our solution of the second legislative
difficulty in this country; that is, the interstate competition. We
thought that it would be a good plan to get our entering wedge in on
the industries which did not directly compete with other industries
outside of the State. For instance, the builder in New York State
competes with the builder in New York State, generally speaking; and
the railroad in New York State competes with the railroad in New York
State, generally speaking, and not with the outside railroads. We are
quite frank in saying that we thought we could get this bill passed
if we did not make it hit the manufacturer to begin with. We intend
that it shall cover him in time, and just as soon as we can, make it
cover him; but it seemed a fair as well as a wise thing to introduce
the principle and get the employers used to the burden, and get
the insurance rate adjusted for injuries, so that it would not be a
serious competitive difficulty.
Those two reasons, then, explain this bill; we limited it to the
risks of trade instead of having it cover all accidents in the course
of employment, as the representative list did, because we believed
that that was the constitutional line for us to act on, and we
limited it to those dangerous trades which, generally speaking, are
not involved in interstate competition, because we thought we could
pass it easier and it would be fair to try it out on those employers
first.
PROF. HENRY R. SEAGER (New York): I should like to add just a
word along the line of the practical difficulties that all of our
commissions face when it comes to getting legislation. Some members
of the New York Commission felt that it would be a mistake to try to
make any report at all this last winter when the proposal was first
advanced. We felt that we had a very big problem. That, in addition
to studying the experience in this country and getting reports on
European laws, we ought to send some one over or go over ourselves
to the other side and see just how the European laws operate. The
consideration that finally led us to make a report, and try to get
legislation, was the political situation in New York.
As the winter advanced it became very clear that it was a highly
opportune time to get through legislation that had popular sentiment
behind it. The legislative members of our Commission were so
impressed by that aspect of the matter that they were impatient, some
of them, to bring in bills without any report at all to back them
up, and that consideration finally led all of us to feel that we
should hurry as much as we could and get in the best report we could
in the short time that was allowed, with the hope that the bills
we recommend, if reasonable and fair, would be passed. It was that
situation that led us to make a report which at some points was not
altogether satisfactory to the members of the Commission; and that
consideration, I think, justified our action because, as it turned
out, the Legislature was in a mood to act on our recommendations. The
voluntary law was a bill, aside from the compensation feature of it,
that had slumbered in Albany for five or six years in spite of the
efforts of the labor representatives to have something done. That
it was a favorable situation was shown by the comparative ease with
which that bill was passed, in somewhat modified form, when we put
ourselves behind it.
It is those practical considerations, gentlemen, it seems to me, that
we must consider quite as much as the ideal solution of this question
for many years in this country. I say that because as a professor of
political economy, as a theorist, I perhaps would not be expected to
take that view of the matter.
GEORGE W. SMITH (New York): I was sort of a moderate edition of the
employers' representative on the New York State Commission. I was one
against about thirteen. Of course, you can imagine that my advice
could not have been considered very seriously, but I am willing to
say that they certainly did give me considerable consideration, for
the reason that I was not really a radical against any legislation
that would be fair; and I feel that the employers of New York State
felt largely as I did.
I cannot help but remark, however, about the point that Professor
Seager raised, of the opportunity that seemed to present itself
at this session of our Legislature. I do not suppose I ought to
criticise, but I hope that similar conditions will not exist in other
States at the time this legislation is up, because I think it is of
a very important character, and should not be put through for any
personal reasons or in order to bring political capital to any of the
legislative members. I suppose it is pretty well known that there
were a great many shattered reputations in the Legislature of New
York State this year, and it is always a pretty handy thing to have
around an opportunity to do something for the boys that work hard for
a living. I do not blame those that were in favor of this legislation
for taking advantage of that very favorable opportunity, but it
certainly was a good opportunity and was well taken advantage of.
I had to smile, however, on a number of occasions at the attitude
of some of the labor representatives. They did not seem to realize,
a good many of them, how important this legislation was and how
beneficial it was to them; but if they could have gone behind the
scenes, and had a heart-to-heart talk with some of the employers,
they would have realized that the employers did not like it very well.
As for one of the bills being designated as a voluntary or optional
bill by the removal and absolute wiping out almost of all of the
employers' defenses, it practically makes that almost a compulsory
bill. However, I believe that all the employers in the country
realize that the time has arrived when some fair legislation must be
enacted, and the only thing that I think should be well considered
is not to go so far that you are going to put the country in a bad
financial state.
PROF. SEAGER: If Mr. Mitchell would say something about the labor
situation when we started out I think it would be very interesting.
JOHN MITCHELL (New York): The measures have been discussed so
thoroughly by the other members of the Commission that I shall
not attempt to discuss them now. When this Commission was first
appointed in New York State, as Miss Eastman stated, the workmen
knew very little about the systems of compensation in Europe, and
they knew little about the principles of workmen's compensation.
The Commission was appointed not because of a demand for workmen's
compensation, but because of a demand for a comprehensive system of
employers' liability. But after the Commission was appointed, and
it was suggested that they go into an investigation of workmen's
compensation, the unions took the matter up and made investigations
on their own account, and drafted bills which they thought would
cover the matter to their satisfaction. Of course, as was to be
expected, they asked for a rate of compensation that was very much
higher than anything that prevailed in Europe.
While I, personally, was in sympathy with the workmen in their desire
to have the very best system of compensation that it was possible
to obtain, and one better than any they have in Europe, yet I think
that the more conservative of the trade-union workmen recognized that
we could not go very far beyond the system prevailing in England or
in Great Britain until other States, and particularly the adjoining
States, should also take up the matter. The consequence is, however,
that as the matter was developed, and as the workmen were brought
into the discussion of the matter with the Commission, that very many
of them modified their original demands and were willing to accept
the principles laid down both in the optional and in the compulsory
bills which have passed the Legislature.
It is, of course, not to be expected, either in New York or anywhere
else, I assume, that the bill passed by the New York Legislature
meets at all the desires of the workingmen. That is to say, they
will continue to ask what they will eventually succeed in having, a
compulsory law that will include all the trades. I think there is
no special demand for a bill to include agricultural and domestic
service.
The great difficulty right now in New York is concern as to the scale
of compensation. The New York workmen are not satisfied with one-half
wages. They have asked recently that the bill be made full wages. I
think, however, that somewhere between one-half wages and what they
are asking will be accepted as a final solution of the difficulty.
I want to make this one personal observation about these measures,
and in this respect I think my views are not quite in accord with
the views of all of my fellow-workers. I think the purpose of all
this legislation should be first to do substantial justice to the
workingmen, and I think the second consideration should be to take
out of the courts all this long and expensive litigation, in order
that the money that is not paid by employers, or whatever is paid
by them, may be used for the relief of those who are suffering from
industrial accidents. I do not believe, however, that the workmen
should have the right to sue his employer, and, failing to win his
suit, to go back and receive his compensation. I differ with most
workmen in that respect, because I think if he has the right first
to sue, and, failing to win his suit, to then accept the scale
of compensation, that it is a temptation, an almost irresistible
temptation, for him to sue, because it costs very little to enter the
suit, and inasmuch as he knows in advance that if he fails to win the
suit he will have his compensation any way, too many workmen would
elect to sue perhaps on a contingent fee, and then go back if they
failed to win and take the compensation. I do believe, however, that
he should have the choice of suing under the employer's liability law
or accepting the compensation, but, as I say, I do not think he ought
to have both rights. I believe that perhaps the labor men who have
made the most thorough investigation into the subject will agree with
me that it is a fair proposition to give him his choice, but not both
choices.
ILLINOIS.
MASON B. STARRING (Illinois): The Chairman of the Illinois
Commission, Mr. Rawn, is unavoidably absent to-day and probably will
not be able to attend the conference to-morrow. This second Illinois
Commission is young. The act creating it was passed at a special
meeting of the Legislature, and the appointments to membership on
the Commission are of very recent date. In convening the Commission,
the Governor of the State of Illinois expressed the hope that the
members of the Commission would not indulge in deliberation or
consideration of the features of a bill until first they had fully
advised themselves as to the facts which would necessarily and
properly govern the conclusions which they hoped to attain. Illinois,
therefore, is in the position of being a student of this matter, and
the progress and work of its Commission so far, I believe, to be
largely that of investigation. We come here to learn. And were it not
for the fact that the question of age destroys the illusion, when we
heard the lady from New York (Miss Eastman) speak, we certainly would
have felt that we were "sitting at the feet of Liberty Enlightening
the World."
I want to suggest to this meeting, Mr. Chairman, that there is no
one connected with our Commission so familiar with all its workings,
looking at it both from the side of the employer and the employe, as
is our secretary. The Commission is composed of six men chosen from
among the most respected and eminent leaders of the workingmen in
the State of Illinois, supplemented by a selection by the Governor
of six men from the ranks of the employers. The Chairman is Ira G.
Rawn, president of the Monon Railroad, and the Secretary is Edwin
R. Wright, president of the Illinois State Federation of Labor. I
would suggest, Mr. Chairman, that it might please the members of this
meeting, and certainly it would please the members of the Illinois
Commission, if you would ask Mr. Wright to speak to you.
EDWIN R. WRIGHT (Illinois): We have not in Illinois progressed far
enough to make any report showing any particular progress. So far we
have been trying to find ourselves, and to find a starting point from
which we can work. It took us a meeting or two to become acquainted
with each other, and another meeting or so to try and understand the
different points of view.
For years and years we have been going to the Legislature in Illinois
pleading for protection; a measure that would protect our lives,
a measure that would protect those who are dear to us, and year
after year we have failed, until at the present time patience has
almost ceased to be a virtue. We expect this Commission will make an
investigation into how the men in the State of Illinois work and the
compensation that is paid the injured workmen when any compensation
is paid at all, and the relief that is given a man's family after the
breadwinner is sacrificed on the altar of industry. The conditions
are bad in Illinois; I do not believe they are any worse anywhere.
I do not believe a man's' life is worth very much in Illinois. I am
quite sure of it, and before we get through with the investigation I
believe we can show that an employer owning a cart or a wagon, two
good draft horses attached to this wagon and a good driver on the
wagon, if an accident should occur blotting out the team, wagon and
driver, that the employer, through our court system, values each of
the horses attached to the wagon and the driver at about the same
value; one is worth about as much as the other under our present
court system. That is entirely wrong. At least, we believe so.
To the men who are injured at the present time there is very little
being paid. I believe, and I am speaking my own belief, I am sorry
to say, instead of speaking the opinion of the Commission, that we
should have an automatic compensation law in the State of Illinois,
where the man will know absolutely what he is going to receive if
he is injured; what his family is going to receive if he is killed.
It does not make much difference whether we have a double or single
liability. I prefer, of course, a double liability, but I find that
under our court system a man does not get nearly as much under
the double liability as he could expect to receive under a single
liability law, and that if we would insist upon a double liability in
this State we would have to cut down the other provisions of the bill
to secure it.
We have progressed far enough to put just exactly this provision in
a circular form in the hands of every trades unionist in the State
of Illinois at the present time, and we are going to find out what
the rank and file of the workers want. Just as soon as the six labor
members on the Commission find out what the workers of the State want
we will then try to incorporate it into the bill. A circular has
also gone forth from the Commission to the employers of the State,
trying to crystallize their ideas into a concrete proposition, and
then the six members of the Commission representing the employers
and the six members representing the workingmen will sit down at
a table and thresh this out just as a committee would do that was
trying to settle a wage scale, and I believe we will arrive at some
understanding; and when we arrive at an understanding with our
employers who represent organized capital in the State of Illinois,
and six trade unionists representing the organized workers in the
State of Illinois, I believe that that position will be accepted by
both sides, and that when we go to the next Legislature they will
incorporate that into law, and it will be signed by the governor and
put into full force and effect.
I want to say just a word as to why we were anxious to have the
Commission organized as it is. The original plan of the provision
provided that the public should be represented, but the public is not
particularly interested in this matter, not nearly so much as the
other parties. The life of the employer is at stake in this matter.
If we build up conditions so high that he will have to leave the
State or abandon his property, he cannot afford to pay wages to the
workingmen. We, on the other hand, have all we have to lose; we have
not only our trade, but we have our lives at stake, and the public
has no voice in it. Organized capital, through the Manufacturers'
Association, the Mine Operators' Association, and so forth, has a
voice. Organized labor has a voice, but if the public has any voice
at all it does not amount to a great deal in the State of Illinois.
We who have put everything that we possess into the balance in this
matter expect to get something out of it which is definite, just and
fair; and we have good reason to expect that after we have taken
this matter up and threshed it out from one end of the State to the
other that it will be to the advantage of the Legislature to meet us
half-way. I have been in the Legislature as a labor lobbyist for some
years and I have had a little experience in such matters.
I do not know, Mr. Chairman, as I can enlighten you very much on what
we are going to do. We have taken up the State Bureau of Labor report
which we received from the secretary of the Bureau of Labor, who is
here present, and we tried to get at the real meaning of that report.
We intend to take up the state factory inspector's reports also, and
try to get at and understand the real meaning of all these figures
in these reports. It is one thing to publish column after column of
figures which nobody reads and nobody pays any attention to, but it
is an entirely different proposition to get back of those columns of
figures and see what they stand for. These columns of figures stand
for men's lives and they stand for the happiness of the family; yes,
and they stand for the prosperity of the employer as well.
In looking up a state report the other day I found an analysis that
interested me. It showed apparently that every householder in the
State of Massachusetts was paying $30 a year indirectly on account of
the industrial accidents and occupational diseases that occurred in
that State. That is where the public comes in; it costs the public
too much. Should not that be shifted back upon the employer, and if
it is shifted back upon the employer, the employer will, if possible,
prevent the accidents, because it costs a great deal less to furnish
suitable protection for the machinery than it does to pay damages to
the injured employe or to the families of those who are killed.
I want to say this for the trades unions; we do not wish to rob the
employer; we do not wish any bill that will materially injure the
employer. We want to stop the accidents. We do not want damages from
the employers; we want our brothers to remain alive and able to do
their work.
CHAIRMAN MERCER: Is there any member of the first Illinois Commission
present?
PROF. ERNST FREUND (Illinois): Professor Henderson asked me a few
years ago to give a little assistance in the drafting of the measure
that the Commission had decided upon, and that is the only share I
had in the work of that first Illinois Commission. That Commission
was appointed for the sole purpose of reporting upon schemes of
insurance. The whole matter of compensation was, therefore, only
indirectly involved; at the same time the report as to insurance
was unlimited, as far as I know, and not limited to accidents, but
the Commission thought wise to confine their recommendations to an
insurance scheme covering simply the matter of accidents.
They found that it would have been extremely difficult to recommend
or try to secure some plan of compulsory insurance, and for that
reason it was finally suggested that there should be an opportunity
offered for the employers to make a contract with the employes by
which the employers and the employes together might substitute for
the liability under the common law or statute a plan of insurance
which was worked out with some care, to some extent upon the basis of
the English act, one of the main features being that the employers
and employes should contribute each one-half of the insurance
premium. But the whole scheme was a tentative one, especially this
feature, which was so much opposed, of the sharing of the cost of
insurance between the employers and employes, and it was by no means
suggested as a final solution. The whole matter was a tentative
method of dealing with this problem, it being believed that in this
way the plan of insurance might get a foothold in the State and might
approve itself by experience.
At the same time there was a very strong opposition and perhaps Mr.
Wright could speak to that point, because Mr. Wright was one of those
who opposed that scheme very strongly, and nothing came of it. I
may say that in the same year Massachusetts passed a very similar
measure, and that measure has been in effect now for several years, I
believe, with very little practical result.
I think the failure or lack of suggestion of the plan of
Massachusetts was due to the fact perhaps that the public was not
sufficiently familiarized with the scheme, and no determined effort
was made to introduce it.
As I say, the matter was suggested in Illinois as a tentative
solution, not by any means as anything final; and I think it was felt
that a compensation scheme of some kind would probably be called for
sooner or later, and that was the reason the Legislature was urged to
make provision for a compensation commission, which commission is now
studying the problem.
MASSACHUSETTS.
JAMES A. LOWELL (Massachusetts): I am the last thing in commissions,
together with these other gentlemen with me. We are just about a day
old, and not quite that old. We were appointed in a great hurry when
the bill went through, in order to get here to listen and find out
what was being done by the other States, and in order to make up our
mind what should be done in Massachusetts.
The only thing I desire to say now is to explain the kind of a
commission this is. Massachusetts has got so far under the resolution
appointing us that they say, "We want other laws." We are not to
investigate the question of whether other laws would be good or not;
the Legislature has said, "We want other laws. The present laws are
not satisfactory, and we will appoint five residents of Massachusetts
to look into the matter and to see what kind of other laws are
proper," and it is their command to us that we report at the next
Legislature before the middle of next January some kind of a bill to
change the law relating to injuries of workmen in Massachusetts.
As perhaps most of you know, there have been two commissions
in Massachusetts, or, rather, one Commission and a Legislative
Committee. The first Commission sat in 1904, and Carroll D. Wright
was the chairman. A great many things were referred to that
Commission, not only this subject, but the subject of injunctions
and the subject of blacklisting, and so on. That Commission reported
a workmen's compensation act framed after the English act. That has
come up before each succeeding Legislature since then. Then in 1907,
I think it was, a Legislative Committee was appointed and a great
many things referred to them, not only this present subject, but also
boycotting and things of that kind. That committee did not report or,
rather, the minority of it reported in favor of the same act which
the former Commission reported in favor of, but it has never been
passed, although it has come up at every session, and we have annual
sessions in Massachusetts. So this Commission has now been appointed
with the mandate to bring in some kind of a bill to change the law.
I might be pardoned for saying a word about what seems to me to be
the Massachusetts situation as it differs from others. Our industry
there is largely factory industry. Of course, we have cotton mills
and woolen mills, and boot and shoe factories, and all that sort of
thing. It is a kind of an industry where, take it by large numbers,
the injuries are probably a good many, but not very serious, so that
a bill which might work well with a State where there were a good
many hazardous trades, such as mining and not much manufacturing,
might not work well in Massachusetts. Therefore what this Commission
has to consider is some kind of a bill which we must report relating
to the industries of Massachusetts which will be financially possible.
Of course, we also have the same difficulty which everybody else has
as to getting a constitutional bill. I suppose a voluntary bill would
be constitutional, but, as Professor Freund has just said, we have
had a voluntary bill in Massachusetts for two years which allowed, in
the first place, the employers to propose a scheme for compensation
and thereby get out from under our employer's liability law, and
which the next year was amended so the employes could propose the
scheme. That has been on the statute books for two years, and no
one has ever made the slightest attempt to come in under it, so that
as far as our present situation goes the voluntary system is of no
use in Massachusetts. After a great deal of advertisement, nobody at
the present time cares about it. It seems to me that some kind of a
compulsory law would be necessary to effect anything, and the great
legal difficulty is in getting one which will stand the test of the
courts.
JOSEPH A. PARKS (Massachusetts): I listened very attentively to the
delegates from New York, and while they have done some work there,
I was a little disappointed, on the whole. I do not think they have
gone far enough to please your humble servant. I notice that they
have not included any manufacturing establishments whatever. Of
course, that touches me, because I happen to be a mill operative for
about thirty years, and we have mostly mills in my State.
I have introduced the bill for workmen's compensation in the
Massachusetts Legislature for the last four years, the bill Mr.
Lowell referred to, and, as has been stated, they have reported two
different measures in two different years, and no one took any notice
of them. In the mills in the city where I live, and in all the mill
cities in Massachusetts, they have a great many more small accidents
than they do of the serious ones. That is especially true in the
weaver room, and I happen to be a weaver. We have a lot of things
that are liable to take a finger off or injure an eye, or the shuttle
is liable to come out of the loom suddenly, or you are liable to
slip and get caught in the machinery. The machines are all crowded
together, and a girl is liable to get her skirts or her hand caught
in the machinery, and when little things like that occur, injuries
that will possibly lay the employe up for a week or two, or three
or four weeks, the employe should be protected. The operatives do
not care much about the loss of a finger or the loss of beauty, or
any such thing as that. The particular thing that the operative is
interested in is, if he is a man of family, how his family is going
to make out while he is on a sickbed and unable to work. He does
not make large enough earnings so that he can lay aside his little
savings for a rainy day. Unfortunately, the mill operative is the
worst paid employe in the United States, without any doubt. They
contribute a good deal to the prosperity of the commonwealth which I
have the pleasure in part to represent, but they get very little of
the cream of the industry.
The industry in Massachusetts, as you all know, is a big success,
and we are proud of it and want it to stay there, and do not want
to do anything that will drive it out of the State; but we do want
to do something for the mill operatives, at least I do, and I think
that the Commission which has been appointed will bring about some
system that will give them protection. They make all the way from $6
to $10.50 in the cotton mills. The average, I believe, is about $7 in
Fall River to-day, so that you can see that a mill operative getting
injured has not anything to fall back on. He wants to be assured that
his family is going to be taken care of. The operative has recourse
to the employer's liability act, but it takes too long. It is about
two years before a case comes to court in our State, and while he is
waiting his family is waiting for that income that has been cut off.
I hope the New York delegation will pardon my referring to their
having left out the manufacturers. There is some reason, no doubt,
and I suppose in part it is due to interstate competition, and that
is something we will have to look out for. If we have the time, Mr.
Chairman, before this convention is over, I would like to hear from
the New York delegation in regard to that feature.
JOHN MITCHELL: I think perhaps Mr. Parks did not understand. As I
remember it, both Miss Eastman and Professor Seager called attention
to what was done for those employed in manufacturing in New York.
While our bill did not include those engaged in manufacturing in
express terms, it has provided for them. That is to say, we have
taken from the manufacturer a great many of his defenses from suits
for damages, so that those who are engaged in hazardous occupations
may sue under the employers' liability law, and the employer sued
cannot set up as a defense the assumption of risk; while mill
employes, not only in Massachusetts, but in all the New England
States, are denied redress simply because they assume the risk of the
industry. Those who are employed in industries where they get their
fingers nipped off and other accidents which are not necessarily
fatal, but nevertheless cause a loss of two or three or four months'
time, under the New York law can bring suit under the employers'
liability law, and, no doubt, in most cases would be able to make
settlements without going through the slow process of the courts,
because there would be a liability on the part of the employer
in New York, whereas in the case of Massachusetts I understand at
present there is no liability at all. So that we have, while perhaps
not ample provision for them, yet so much better provisions than they
ever had before that I dare say that nine cases will be compensated
for in a suit for damages or settled because of the right to sue,
where only one would have been compensated for under the old law.
MR. PARKS: I was not aware of that. I thought the bill covered merely
those "dangerous occupations" Miss Eastman referred to.
MR. MITCHELL: No, we have two bills in New York.
NEW JERSEY.
MILES M. DAWSON (New York): I am sorry to say that I do not know very
much about what Governor Fort did in New Jersey, or what the New
Jersey Commission has done, because I am a resident of New York. I do
know, however, that a Commission has been appointed, and that several
gentlemen prominent in labor circles are on the Commission, and an
officer of the United States Steel Corporation, and an officer of
the Public Service Company, which operates nearly all of the trolley
lines and, I think, all the electric lighting systems in northern
New Jersey, are members of the Commission. From the make-up of the
Commission I should expect that they would do good work, but I do not
understand that they have as yet completely organized. I have not
heard of their appointing counsel even, although they may have done
so, and I do not think they have yet got down to work. The fact that
they are not represented at this Conference is an indication that
such is the case.
I do not think there is anything peculiar about their appointment
or any unusual situation in New Jersey, except, as I understand it,
that the Governor particularly and the Legislature to a large degree,
are interested as nearly everybody is becoming interested nowadays
in this general question, and so the Governor considered that there
ought to be something done in New Jersey.
FREDERICK L. HOFFMAN (New Jersey): I am not a member of the New
Jersey Commission and so am not in a position to say very much
about it. Mr. Clark, of the Clark Thread Company, is a member of
the Commission, in addition to the gentlemen whom Mr. Dawson has
mentioned. They have not as yet organized, so far as I know. They
have not elected counsel, and they have not declared their plans,
but I dare say when they get down to work they will follow very
largely the methods of the New York Commission.
OHIO.
Ohio was called, but the members of the Ohio Commission had not yet
been appointed by the Governor.
MICHIGAN.
M. M. DUNCAN (Michigan): There is no Commission in Michigan. The
Governor of Michigan, however, appointed a committee of seven
delegates to attend this convention in order that we might learn of
the progress that is being made and report back.
JAMES V. BARRY (Michigan): As Mr. Duncan stated, the Governor
appointed seven delegates to this convention. We are here simply
to observe what is taking place and to learn from the States that
have made progress what report to make to our own State. We are not
commissioned to prepare any legislation of any kind as are the States
which have already spoken.
MARYLAND.
CHAIRMAN MERCER: Maryland had a bill at one time. Is there any one
here representing Maryland? They had an act passed in 1902, and that
act was declared unconstitutional by one of their lower courts in
the spring of 1904, as I recall now, upon the ground that there were
judicial powers delegated to the insurance commissioner.
H. WIRT STEELE (Maryland): That is true; that act was declared
unconstitutional and is inoperative. We have no legislation in
Maryland covering the matter of workmen's compensation, and we have
simply been relegated to the old doctrine of master and servant. I
believe, however, that out of this Conference will perhaps come a
movement for a Commission similar to the ones represented here.
CONNECTICUT.
CHAIRMAN MERCER: Connecticut had a Commission that reported, I
believe, last year. Is there anyone present from Connecticut?
PROF. HENRY W. FARNAM (Connecticut): I am from Connecticut, but I do
not think there is very much to be said. I was not a member of that
Commission, although I have read their report. It is rather negative,
very cautious.
CHAIRMAN MERCER: Is there any other State Commission represented? We
cannot tell nowadays whether we will have a Commission the next day
or not, and there may have been two or three appointed since this
convention was called. If not, I will tell you briefly how we have
studied the question in Minnesota.
MINNESOTA.
CHAIRMAN MERCER: We have not pursued the same theory exactly in
Minnesota that has been pursued in any other State. We did not
commence as most of the States have commenced. The commencement
of the study of this question in Minnesota was originated in the
Minnesota State Bar Association. At their annual meeting in Duluth,
in the summer of 1908, a paper was read having reference to the then
unfortunate conditions at common law, and asking that something be
done in the way, or along the line, of or on, some compensatory plan.
Somebody made a motion that a committee be appointed to draft a bill
and to report it back to the next Legislature. Some of them were
afraid to have that done for fear the committee might draft a bill
that would not be rational, that would not be fair, and that it might
go through the Legislature as a bar association measure.
I was sitting in the front row, and I moved that the matter be
referred to the Committee on Jurisprudence and Law Reform, knowing
that I was not on that committee and could not be on it under the
then circumstances. The motion passed and then the convention
became frightened for fear that it had placed too much power in the
committee and resolved to have that committee report to a special
meeting of the bar association which would be called in St. Paul,
in January, so that they might go over the recommendations that
were to be made before they would be presented to the Legislature.
Up to the 20th of October absolutely nothing had been done on the
matter. Then it so happened that I was asked to resign from another
committee and take the chairmanship of that committee, its chairman
having resigned. The committee was composed of gentlemen whom it was
supposed would well balance the sentiment on the question. There was
one lawyer that had made a specialty of liability insurance defenses,
there was one country senator, the dean of the College of Law of the
Minnesota University, an attorney that earned most of his living from
the railroads and then I, neither a laborer nor a capitalist.
We took up the question, and found immediately after going over
it with different theorists and by correspondence that there was
no data in Minnesota or elsewhere that we could get upon which
to draw a proper bill. We looked at the experience of Maryland,
we looked at the reports, and the experience of New York down to
that time, and found that they had not passed a bill which had
been recommended for a permissive plan of contract; we looked at
conditions in Massachusetts and found they had not accomplished
very much there except a lot of work; we looked over the work of
the Illinois Commission and corresponded with them, and found that
their bill which had recommended a permissive plan of contract had
been defeated. We found in New York the constitutionality had been
questioned, and in Massachusetts it had been questioned by the
Commission.
In Illinois the reports showed that the plan they wanted to adopt
could not be adopted constitutionally, and they recommended the
permissive plan in lieu thereof. Connecticut, I think, at that time
had appointed a Commission, but it had not yet reported. The United
States had passed a law known as the Act of June 11, 1906, which
affected the comparative negligence rule and also provided certain
obligations with respect to offsetting settlements, and the Supreme
Court had declared that unconstitutional in January, 1908. Two
important measures had been presented to Congress with able arguments
to support them, and up to that time they had been practically
limited in their discussion to leave to print in the _Congressional
Record_.
Our philanthropic and other state institutions in Minnesota had no
data from which we could get any intelligent idea, according to the
correspondence that we had. The Associated Charities, both state and
national, had no sufficient data. The labor unions throughout the
United States had no sufficient data. The National Manufacturers'
Association had no sufficient data. I say this because I wrote to the
President, and the correspondence was referred to Judge Emory, and
we never got any information, because, as I understood, they had not
then studied the matter sufficiently. I wrote to Mr. Mitchell, and
he answered that he had no sufficient data, and referred me to Mr.
Gompers.
I wrote to Mr. Gompers concerning it and he answered practically
to the same effect, sending back a bill to establish comparative
negligence and some other provisions somewhat along the federal lines
that had been declared unconstitutional by the United States Supreme
Court, because covering business within the State as distinguished
from interstate business; that is, it related to both, as the court
construed it.
From Eugene V. Debs, representing, as I thought, another group of
men, I received an excellent letter explaining what had been done in
other countries, and referring me to the data, he having evidently
studied it considerably.
From James J. Hill, through his counsel, I received the answer that
they favored such legislation if it could be properly made.
Andrew Carnegie had his secretary write that he favored an act along
the lines of "Britain."
Now, I may confess to you that up to this time, neither the Minnesota
employers nor the labor unions were in this, and not because I was
a politician, but because I had had some experience, I concluded if
I could get some expressions from these various interests that it
might be valuable when we came to the Legislature with this bill,
if some bill along this line was drafted. I ransacked the libraries
at home, and communicated with the largest libraries in Boston and
New York and all over the country to secure the books and magazine
articles touching on the matter, but nowhere could we find any
sufficient argument as to the constitutionality of such a law, nor
any sufficient data to make an economic law. A paragraph by Professor
Freund, in his work on _Police Power_, and an article by P. Tecumseh
Sherman, a former commissioner of the State of New York, were about
all I found on the question of constitutionality.
Later we found that the Russell Sage Foundation had been looking into
the matter abroad, through two able men, Dr. Frankel and Mr. Dawson.
They were abroad that summer to study the matter and we afterward
got in touch with them. The result was that our committee, or rather
myself and one other gentleman, because we were not able to get
any of the others to meet with us, reported to the bar association
that we thought we ought to have three kinds of laws passed; one to
appoint a Commission to educate itself, another which would require
those persons who had accidents, both employers and employes, to
report data, and the third, one that would require the insurance
companies insuring such risks in Minnesota to make reports in detail
to the Commission, in order that they might study out precisely all
the results.
We found that New York and Wisconsin had valuable articles, and so
had Massachusetts and one or two other States, in their Labor Bureau
reports. Our correspondence with every labor department in the United
States did not develop very much more, except some valuable work by
the Illinois Commission, and some valuable work by some professors
in various institutions in the form of articles and a pamphlet, I
believe by the Chicago _Record-Herald_, that was put out while the
Illinois Commission had this work under consideration.
The bar association approved that report and asked us to send it on
to the Legislature with recommendations for those three bills. Just
prior to that we had arranged for meetings with the labor unions in
our State for political reasons, to find out what their views were.
Then with the president of the employers' association, again for
political reasons, to find out what their views were. Finally we got
the two together, and they had not been working together so well
up there as they might have been in some other places. But by the
time of the second meeting they passed a resolution which was to the
effect that they would join hands in trying to get a compensation
movement started in Minnesota, but that neither should undertake to
take any advantage of the other in the Legislature, while they were
both faithfully performing their part of that agreement, and they
stuck loyally by it.
Then we took up the question of how we should present the matter
to the Legislature, and the Governor said he would send a special
message to the Legislature recommending our plan. That was done, and
bills immediately began to appear in the Legislature from various
motives, but we all three stood on the position that we were going
to have an absolute plan on an intelligent basis if we could get it.
Along toward the end of the session the Legislature passed the three
bills which we had recommended.
Our Commission at the present time has thousands of reports of
accidents in its possession, with the dates of the accidents and all
the data concerning them, which we are not at liberty to make public
because the bill does not permit us to do so. We wanted a bill that
would prevent our doing so until we had our reports made, so that no
one could get in and get hold of this information and take advantage
of it.
In addition to that, we have the reports coming into the labor
department as to the actual injuries that occur. Those we have not
yet tabulated.
The Governor appointed George M. Gillette, who was a large
manufacturer; William E. McEwen, the State Labor Commissioner, and
myself on that committee. One of the first things we did when we
met was to take up the question of the foreign laws. We found that
they were not translated into English. One of the first things we
undertook then was to get the labor department at Washington to
translate all that were not translated. It agreed to do so. When
we held the Atlantic City convention a resolution was passed at
that meeting requesting the same thing. We wanted not only some
education, but some uniform action. So we started to correspond with
the members of the other commissions, like the New York Commission
and some others that had been appointed in the meantime, and asked
them to meet us and discuss matters. It was finally suggested that
invitations be sent out for a joint meeting. That was done under
my own name, representing the Minnesota Commission. We met down at
Atlantic City, and after that meeting was held, we held our second
meeting down in Washington, and this meeting is the third.
Mr. McEwen and Mr. Gillette have been abroad to study the question
and have just returned. I hoped they would be here, but they have not
arrived.
We have taken up the matter through correspondence, we have asked
special questions through the press, and we expect to get our bills
in shape so that they will be intelligible for discussion through
this convention and others, and then put them up to the public and
ask the manufacturers and the railroads and the labor unions and all
of the other representative bodies that will be affected by them, to
appoint men who may study the questions sufficiently to come before
us and discuss them intelligently, so that we may be educated to the
best possible theoretical standpoint.
In the meantime I shall probably go to Europe in July. Our report
will not be made until next January. The bill which passed the
Legislature requires us to study the conditions in this country and
abroad, and to report a bill or bills which we think are consistent
with the necessities of the case, and, so far as possible, to make
the bill or bills constitutional. The report of the Atlantic City
Conference, when it was printed, was sent to the Governor of each
State, to the attorney-general of each State, and to the labor
department of each State, and that report was quite a large volume.
Bar associations throughout the United States have quite generally
taken this matter up, and I should think in not less than eight or
ten States they have it under consideration now. The labor unions
in quite a number of States also have it under consideration.
We sent out invitations to the governors, and nineteen of them
appointed delegates to the Conference held in Washington, in January.
Fifteen States were represented. I do not know how many States are
represented here to-day, but all these delegates were accredited to
come to this convention.
We have done a lot of miscellaneous work up there, but we are trying
to get all our work in shape, so that when we do draft our bill we
shall know as nearly as we possibly can, at least theoretically, what
we are doing, and we are glad to see that New York and Wisconsin and
all these other States are moving ahead. You have good commissions
and we glory in the work you are doing. We only hope that we may be
able to profit a little by your experience and by your legislation.
We hope that the movement can be made as nearly uniform as possible.
Up to the present time we have been discussing very largely in
Minnesota the sort of a bill which has been sent out for discussion
this afternoon, and I shall not go into that matter at all, but as
temporary chairman. I wish to thank both you ladies and you gentlemen
for being present at this meeting and for taking part in this
discussion.
PROF. SEAGER: At the last meeting of the Conference a committee of
three was appointed to choose an Executive Committee of fifteen
members. It appears that I am the only member of that committee of
three present at this meeting, so I can offer a unanimous report.
[The recommendations of Professor Seager were accepted by the
Conference, which accordingly elected ten members of the Executive
Committee to serve as executive officials with the five general
officers. The complete list as finally elected is printed on the
second page of the cover of this volume.]
SECOND SESSION, FRIDAY, JUNE 10, 1910, 2.00 P. M.
Chairman Mercer called the second session of the Conference to order
at 2 P. M., and announced that the Reports of Committees was the
first order of business.
As chairman of the Executive Committee, Professor Seager submitted a
draft of by-laws, which was, with slight amendment, adopted by the
Conference. The final draft is printed in the Introductory Note to
this volume.
The report of the Committee on Nominations was then presented by
Miles M. Dawson, and upon motion adopted by the secretary casting the
unanimous ballot of the Conference for the election of the general
officers as printed on the second page of the cover of this volume.
This completed the order of business to come before the Conference,
and the discussion of the "Workers' Compensation Code" was taken up
as follows:
WORKERS' COMPENSATION CODE.
CHAIRMAN MERCER: There is one further committee, I think, that was
appointed to draft a bill for discussion, and we were so far apart
that we never got together. One was sent out, however, in printed
form, and I think all of you have had copies of it. A thousand copies
were distributed.
I will say before we begin the discussion of that bill that it was
meant to be drawn as an outline, and to be sufficiently broad in the
different sections to raise all the points for discussion and not
intended to be either technically correct, or what might be called
an artistic measure. It was intended to be broad enough to provoke
discussion as to all of the necessary elements of a bill. The formal
program, as outlined, involves this one that was distributed, and if
that brings out all the points which you want to discuss it might
be best to take that up section by section and hear your views on
that, or other schemes if you desire. It would seem hardly right,
however, since there are a number of other bills here, and they might
not all agree, to limit you to this specific bill, but you ought to
be permitted to discuss, I suppose, the principle involved in each
section as you take it up.
[The bill which was designed and used as an outline for the
discussion which follows is here reprinted.]
WORKERS' COMPENSATION CODE.
(OUTLINE FOR DISCUSSION).
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. _Dangerous employment defined._ That every employer
in the State of Minnesota conducting an employment in which
there hereafter occurs bodily injuries to any of the employes
arising out of, and in the course of, such employment, is for
the purposes of this act hereby defined to be conducting a
dangerous employment [at the time of such occurrence], and
consequently subject to the provisions of this act and entitled
to the benefits thereof.
Sec. 2. _Liability of employers._ That every such employer
shall be liable to pay to every such employe so injured,
or in case of his death, to the legal representatives, as
hereinafter defined and apportioned for all bodily injuries
received by such employe arising out of, and in the course
of, such employment in this State disabling such employe from
regular services in such employment for more than ten days
and according to the schedule of rates contained in Section 3
of this act, on the condition precedent only, that, in case
of dispute as to the amount to be paid for such injuries, or
the failure or refusal to agree upon or to pay the same, such
employe or the legal representatives thereof shall comply with
the provisions of this act.
Sec. 3. _Compensation allowed._ The compensation herein and
hereby allowed, if established as herein provided, having
arisen out of and in the course of such dangerous employment
within this State, shall be on the following basis:
(a) For immediate death or for death accruing within five years
as a result of such injuries, or for injuries causing total
incapacity for that service for five years or more, 60 per
cent. of the amount of wages the injured was receiving at the
time of the accident for a period of five years, provided, such
payment shall not continue longer than to aggregate $3000.
(b) For total or partial disability for less than five years,
60 per cent. of the wages the injured was receiving at the time
of the injury so long as there is complete disability for that
service and that proportion of the said percentage which the
depleted earning capacity for that service bears to the total
disability when the injury is only partial or after it becomes
only partial.
(c) In addition to the foregoing payments, if the injured loses
both feet or both hands, or one foot and one hand, or both
eyes, or one eye and one foot or one hand, he shall receive,
during the full period of five years, 40 per cent. of the
wages which he was receiving at the time of such accident; or
if he loses one foot, one hand, or one eye, the additional
compensation therefor shall be 15 per cent. of his said wages;
or if he be otherwise maimed or disfigured, then, for such
maiming or disfigurement, during the time it shall continue,
he shall receive therefor such proportion of 40 per cent. as
such maiming or disfigurement bears in depleted ability in
the employment to the relative loss of the members specified
herein; _Provided_, That in no case shall all of the payments
received herein exceed in any month the whole wages earned when
the injury occurs, nor shall the said 40 per cent. when all
received, or any portion thereof, and the said 60 per cent.
when all received, or any portion thereof, continue longer than
to make all sums aggregate $5000.
Sec. 4. _Repeal of other liabilities._ The right to
compensation and the remedy therefor, as herein specified,
shall be in lieu of all other causes of action for such
injuries and awards upon which they are based as to all persons
covered by this act, whether formerly authorized or allowed by,
or as the result of, either state, statute or common law, and
no other compensation, right of action, damages or liability,
either for such injuries or for any result thereof, either in
favor of those covered by this act or against such employer
based on state law, shall hereafter be allowed for such
injuries to any persons or for any of the injuries covered by
this act so long as this law shall remain in force, unless, and
then only to the extent, that this law shall be specifically
amended.
Sec. 5. _Conditions precedent to right of recovery._ That as a
condition precedent to such right to compensation, such employe
or the legal representatives thereof, as the case may be, shall
within ten days after knowledge of such injury, unless there be
valid excuse for delay and then immediately after such excuse
is removed, cause a written notice thereof in substantially
the form designated in paragraph ---- (form to be provided)
of this act, to be served upon the said employer by leaving
a copy thereof addressed to the employer with the person in
charge of such employe while he was so working, if that person
is still in said employ, or with some superior agent, officer
or person in charge of said business at any office thereof
within this State in the same way that a summons can now be
served; and in case of a dispute between the employe and the
said employer, or in case of the failure of such employer and
employe to agree upon such claim or in case of failure or
refusal of such employer to pay, such employe shall submit his
claim for compensation hereunder, both as to the nature of the
injuries and the amount to compensate therefor under this act,
to a board of three arbitrators, as hereinafter specified, in
substantial compliance with the form contained in section ----
hereof.
Sec. 6. _Board of arbitration and awards._ There is hereby
created a Board of Arbitration and Awards, known as "Board of
Awards" with jurisdiction throughout the State of Minnesota
to arbitrate the questions arising hereunder and make awards
consistent herewith, which is now and shall remain subdivided
into districts with the same numbers and co-ordinate with
the judicial districts of this State as they now are and may
hereafter be changed, which board shall consist of three
members from each judicial district, which members shall be
non-partisan in politics, appointed by .....................,
and hold their offices during a period of ............. years;
except for fraud, or want of jurisdiction the findings and
awards made herein shall be final and conclusive as to the
nature of the injuries and the amount of compensation.
Sec. 7. (The law shall provide for compensation, expenses and
secretary, and probably that the Clerk of Courts act as Clerk
and make annual report to Commissioner of Labor.)
Sec. 8. _Remedy._
(a) Every person claiming the benefits of compensation under
this act, may issue to the employer from whom he claims the
same a notice of claim in substantially the following form:
First: You are hereby notified that ...................... has
this day filed the original of this notice of claim against you
with the Clerk of the Board of Awards in District No. ........
and that you are required to answer the same with a copy served
upon the undersigned within ten days.
Second: Said ............................... was in your
employ as a ......................... at ..................
on or about the ....... day of ........ 19.... and received
an injury of the supposed general nature following:
.......................................................... by
reason of the following incident (describe it) and that such
injury arose in and out of the course of said employment and
has lasted more than ten days and it is claimed that you are
liable to pay compensation for .......... per cent. of the
wages which were $....... per ........ at the time of such
injury, and for ....... per cent. for maiming and crippling.
(b) Answer. The answer shall
1. Admit or deny the employment.
2. Admit or deny that an injury was received at the time and
place.
3. Admit or deny that the injury, if any, was in the course of
employment and that it arose out of the course of employment.
4. Set up the injury claimed if different from the injured's
claim.
5. Admit or deny or correct the amount of wages.
6. Give notice of any special claim to be urged to defeat
compensation.
(c) Reply. The reply shall so far as possible admit or deny the
specific statements of the answer which contradict or bar the
complaint.
(d) Hearing. As soon as the reply is filed with proof of
service the clerk shall set such claim for hearing in its order
at the earliest date possible and notify both parties by mail,
thereof.
Sec. 9. _Award._ The Board of Awards shall make its award upon
a full hearing, to both parties held after notice and shall
consider the whole record and may visit the premises if within
its district and make such award as it shall decide to be
consistent with the spirit and powers of this act, and in the
following form:
1. Title.
2. We find in the above case that the injured received injuries
arising in and growing out of the course of such employment
when he was receiving as wages the sum of $......... per
............ payable .................
3. That the injuries appear now to be and are as follows:
...........................................................
...........................................................
4. That for ................. disability the compensation
to be paid is hereby found and awarded against the employer
................... of ................. at ............ per
cent. of such wages payable to the following persons in the
respective proportions for ......... ........... and as said
wages were paid and (of injuries uncertain) ................
this proceeding is hereby adjourned to the ........ ........
day of ............... for further consideration.
Sec. 10. _How risk may be insured._ That any such employer,
or any association of employers, may keep the risks created
by this law fully covered by insurance, in associations, or
insurance companies approved by the insurance department of
this State, for policies covering the full liability under
this law, and thereby relieve themselves from any further
responsibility with respect to paying such compensation, and
if any such employer or employers shall so insure such risks
they shall be entitled to take and keep from the wages of their
laborers, on a pro rata basis, of the wages, .......... per
cent. of the amount necessary to pay the regular premiums for
carrying such insurance.
Sec. 11. All insurance and all benefits of compensation due or
to become due to any employe under this act shall be and remain
exempt from garnishment and all other forms of attachment.
Sec. 12. Provision defining the words and phrases, and covering
all tenses, pronouns and both sexes.
Sec. 13. Of course the jurisdictional features and all matters
of practice, rehearings, etc., must be worked out after we see
what substantive provisions are to be made.
CHAIRMAN MERCER: The reason for heading that, "Workers' Compensation
Code," was to cover the constitutional provisions in some of the
States, which prohibit a bill from covering more than one subject,
which shall be expressed in its title, and the fact that the term
"code" means a system of law. By the adoption of that scheme it was
our intention to raise the point, so that if you agreed to that
general idea you could adopt a law with a heading sufficiently broad
to codify the law of your State on that question, to allow you to
repeal such portions of the common law as you wanted to repeal as
a part of that chapter, and not be subject to the limitations of
the constitutions of a number of States which would prohibit your
covering more than one law. Do you care to waste any time on the
heading?
MR. DAWSON: I would like to ask one question about the heading and
that is why the word "workers" was used instead of "workmen?"
CHAIRMAN MERCER: Like everything else, that was used to provoke
discussion. Workmen's Compensation, or Workingmen's Compensation,
seems to have a technical meaning in this field of legislation. It
seems to be understood generally as covering this whole subject,
and yet when you come to define your bill and outline it and cover
it section by section, you must either leave something to the
construction of the courts, or else you must make provision to the
effect that workmen shall cover workwomen and children and boys and
girls and everybody connected with it. It seems to me it would cover
that point (although it seems to be revolutionary in form) if we used
the term "workers," because that would include everybody.
MR. DAWSON: Your idea then was, Mr. Chairman, that the word "worker"
is believed to have more comprehensive significance than the word
"workmen," and that it would be certain to be so held by the courts?
CHAIRMAN MERCER: That was my own idea. I think I am sound on it, but
I have tried enough lawsuits to know that a fellow is never sound
until he is done. Shall we pass to the first section and leave it
without any expression as to the heading?
MASON B. STARRING (Illinois): I would like to inquire in regard to
Section 1, as to what extent that applies to farm workers. Supposing
a man was driving a dredging machine in the field and his horses
became frightened and ran away and killed him. Is the farmer liable
under this act?
CHAIRMAN MERCER: He was intended to be, if you adopt that act.
JAMES A. LOWELL (Massachusetts): I should like to inquire why you say
"every employer conducting an employment in which there hereafter
occurs bodily injuries to any of the employes" shall be deemed to be
conducting a dangerous employment? Is that from some idea that if
you call an employment dangerous you thereby are allowed to change
the terms of it by your constitution, and if you do not call it
dangerous, you are not?
CHAIRMAN MERCER: The idea was that if you worded the first section
the way we have, it would provoke discussion on all those elements.
That was the first plan. The fundamental reason was that if the
employer was conducting an employment which was capable of being
dangerous, and he guarded his employes through the safety devices he
employed and the grade of men he employed, so that the whole scheme
of his business was conducted in such a way that he did not have any
accidents at all, that until he had some accidents he would not be
classified as being in a dangerous employment. In other words, two
men might run exactly the same institution with the same machinery
manufacturing the same article; one set of men will run it so there
will not be any accidents maybe in ten years; the other set may have
ten accidents in the first year by reason of the way they rush, and
their carelessness, and the grade of men they hire and their failure
to protect their machinery and all that sort of thing. It was the
intention to make that as broad as you possibly could make it, so as
to provoke discussion as to whether you wanted to say every industry
that had an accident should be liable, or whether you wanted to limit
it to some of the industries as they have done in New York and in
some of the foreign countries.
MR. LOWELL: Then it was not the idea that by calling a cotton factory
dangerous you thereby are allowed to put on certain provisions
of the law which, if you do not call it dangerous, might not be
constitutional?
CHAIRMAN MERCER: Not exactly, except this: The idea was involved
that it is within the province of the Legislature to declare an
employment dangerous if there is a reasonable basis for argument as
to whether it is a dangerous employment. That is our view of it. Now,
if a court gets hold of that and should say that there was no basis
for declaring that a dangerous employment, it would say that the
Legislature acted arbitrarily.
MR. LOWELL: I should judge your idea was that you could not impose
the law on a cotton factory simply as a cotton factory, but you could
impose it on a dangerous factory.
CHAIRMAN MERCER: My idea was that it was a safer way to impose it
on one that had accidents than to single out any certain line of
industry that might not be as dangerous as some others.
MR. LOWELL: I do not know that you quite get my point. My point is
that it may be impossible for the Massachusetts Legislature, we will
say, to put a certain kind of liability onto a cotton factory, which
it might put onto a powder factory. Would they, if that were the
case, make the situation any different by calling the cotton factory
a dangerous factory?
CHAIRMAN MERCER: Not unless there was some basis for it.
MR. LOWELL: They certainly do have dangers; we will assume that
people are injured there.
CHAIRMAN MERCER: It is my view of the decisions of the court that
that would be so. The reason that I put that that way is this: If you
have an industry that has one accident, as expressed by Mr. Roosevelt
in one of his messages, that is a dangerous industry to that man and
his family. If it kills one man, in his way of putting it, it is not
much consolation to his family or to him before he dies, to say that
you are crippled, or you are hurt, but not in a dangerous employment.
It was dangerous in his case. By defining it so that every employment
that has an accident is dangerous, and then making the liability
as one of the subsequent sections, exactly in proportion to the
accidents they have instead of defining certain lines as dangerous,
and others as non-dangerous, I think you have a better classification.
PROF. SEAGER: To put a strong case, do you think that the courts
would back you up in saying that the mere fact, we will say, that
an employe in a cotton factory slipped on a banana peel in going
to his machine in the morning and was injured, constituted that a
dangerous trade in a sense that would justify making an employer
liable for the injury as the latter sections of the act hold? Under
the latter sections of the act that would seem to be in the course of
his employment; going to his machine would be a necessary part of his
employment.
CHAIRMAN MERCER: If it grows out of the industry itself. In England
in determining what is within the course of the employment, they
have held that while two men might be working side by side in an
employment, and one of them might be hurt while he was there, yet if
he was hurt by reason of some horse play that he did on the side with
some other fellow, that that was not really a risk of that industry,
and that it does not grow out of the course of the employment. I
should think your banana peeling case would be very close to the
line, and it would depend upon whether it grew out of the employment.
JOSEPH A. PARKS (Massachusetts): Suppose that we use a bobbin instead
of a banana peel.
PROF. SEAGER: There was a case where a man's eye was put out by the
cork of a pop bottle when he was eating his lunch, and they held
that was in the course of his employment. Would our courts, in your
opinion, back us up in describing liability for accidents in that
sweeping way? I do not question at all the desirability of doing it;
it is only a question of the constitutionality of doing it.
MR. LOWELL: Do you think it is necessary in Minnesota to distinguish
between hazardous and non-hazardous employments? Apparently our
friends in New York think that it is constitutionally necessary;
that with certain risks, such as tunneling and railroad building and
bridge building, which every one knows are hazardous, that a law
applied to them would be constitutional, whereas if it applied to
things that were not so hazardous it would not be constitutional. Is
that your opinion of the law of Minnesota?
CHAIRMAN MERCER: In a measure, yes; that is, so far as classification
is concerned; you must have a reasonable basis for the classification.
If you do not cover all the accidents then you cannot cover part. It
would be my judgment, unless you have a reasonable basis for the
classification, that that would be true.
MR. LOWELL: The basis of classification would not be the fact then,
that accidents happen, but that a good many happen. That is, it is
not a hazardous business, but is a light business, as the insurance
people call it.
CHAIRMAN MERCER: I think that the courts in some of the cases would
maintain the idea that if you picked out the industries that had a
large number of accidents and were sure they would have accidents,
they would maintain that classification. But if you picked out
an industry that had a great many accidents and classified it as
dangerous, and let one alongside of it go that had fully as many
accidents, I think possibly the courts might hold that you had acted
arbitrarily, and therefore knock out your legislation, to use a
street phrase.
SENATOR A. W. SANBORN (Wisconsin): If I understand that first
section, it would include every employer, whether he is a farmer or a
man who keeps a house servant.
CHAIRMAN MERCER: It was meant to be broad enough, Mr. Sanborn, to
raise that question.
MR. SANBORN: That is what I understand this section, as now worded,
would embrace.
CHAIRMAN MERCER: Yes.
SENATOR JOHN J. BLAINE (Wisconsin): The point that worries me as
much as anything, is the question as to whether it is a dangerous
occupation. This first section provides that every employer
conducting an employment in which there hereafter occurs bodily
injuries is defined to be conducting a dangerous employment. Is
there any substantial difference between saying it in those words
and saying that every occupation is dangerous, because I do not
believe that we can conceive of any occupation that is not dangerous
or in which no accidents occur. Even a school boy stubs his toe
on the street. It is not in and of itself a dangerous occupation,
but he accidentally gets hurt. Now, where an employment in and of
itself would not be dangerous, but where through some unforeseen
circumstance an accident should occur, would that fact of itself make
an industry a hazardous industry?
CHAIRMAN MERCER: When they covered that matter in England, I
understand the definition was that the accident might occur in the
course of the industry and not occur outside of it; it might occur
outside of it and not occur within it. For instance, you might start
to go to work, if you are a laborer, and after you got on the ground
you might be traveling along the same as any other member of the
public. You would be going to your employment but you would not be
within the course of it. That is the way they defined it over there,
and in that case the accident would be treated simply in the same way
as an accident to any other member of the public. They might suffer
an accident and yet there would not be a liability to the employer.
SENATOR BLAINE: The point I can't distinguish is this: That the mere
fact that an injury happens to an employment, that in and of itself
makes that employment dangerous, any more than every industry is
dangerous.
CHAIRMAN MERCER: It has got to occur within the employment; that is,
it has got to be a result of the employment to make it dangerous.
SENATOR BLAINE: In the first place, is it possible to conceive of any
employment where there is not a hazard growing out of the employment?
If that is true, why not say that every employer shall compensate
under the terms of the act, regardless of whether he is engaged in
a hazardous occupation or not. In other words, can you define a
hazardous occupation by a legislative act? Will not that in the end
be the point around which the whole question will revolve; _i. e._,
is it not as a matter of fact from the evidence produced, a dangerous
occupation, no matter whether accidents have or have not resulted?
For that reason is it not quite impossible to define a hazardous
occupation?
CHAIRMAN MERCER: That question in fact is first determined by the
Legislature, as I understand it, as to whether it is a dangerous
employment.
SENATOR BLAINE: Can the Legislature intrude upon the judicial
functions of our government? Can they say that is a fact or must not
the courts do that themselves?
CHAIRMAN MERCER: No, the courts, as I understand it, take judicial
knowledge of the history and conditions out of which the legislative
act may grow, and I believe would follow the rule the power of the
State it is valid, although the judgment of the as laid down in
Lockner _vs._ New York, 198 U. S., where the Court said: "This is
not a question of substituting the judgment of the Court for that of
the Legislature. If the act be within Court might be opposed to the
enactment of such law."
The reason why we did not cover every employment was that it did
not seem to us every employment was dangerous, and if it was not
dangerous and we were relegated to the police power of the State
to define it, the law would be held invalid. But it seemed to me
individually, and I do not want anybody to think that this is the
judgment of the committee, because they could not all get together,
that if we based it on the fact that injuries did occur, nobody could
ever stand up in a courtroom or sit in comfortable court chambers
and write an opinion on the theory that this employment, when an
accident has occurred in the case, is not a dangerous employment if
the Legislature find it so. The idea was to cover all the States so
as to leave it as safe as we could get it.
SENATOR BLAINE: Certainly the section will do what you contemplated,
bring about discussion.
MR. DAWSON: On the point that has just been raised I would like to
say that this matter of the power of the Legislature to define a
thing was before the United States Supreme Court in an oleomargarine
case, originating, I think, in Pennsylvania. There had previously
been an act passed, I think, by the New York Legislature, which,
though not declaring oleomargarine deleterious to health, imposed
certain regulations amounting almost to prohibition.
That was tested through the various courts to the Supreme Court of
the United States, I think, and it was definitely held by that court
that the case had not been made out that it was deleterious. In
other words, it was virtually held that it was not, and so that the
law was not a proper exercise of the police power. Following this
the Legislature of Pennsylvania adopted a similar bill, containing
a declaratory provision that it is deleterious to health. That was
carried to the same court and the Court held that the Legislature was
entirely within its rights and had power to so declare. I think that
might have some bearing upon this question.
I would like to ask the Chairman if the effect of this is not
virtually to declare all occupations hazardous occupations in view
of the following facts: That the law would in any event be a nullity
if no accidents happened in any given employment, and the moment
an accident does happen in that employment, it is declared to be a
dangerous employment; and would not the law cover that very accident.
CHAIRMAN MERCER: The proposed law as I have since changed it has this
provision: "That every employer in the State of ---- conducting an
employment in which there hereafter occurs bodily injury to any of
the employes, arising out of, and in the course of, such employment,
is for the purposes of this act hereby defined to be conducting a
dangerous employment _at the time of such occurrence_." That was not
in the original draft and I do not know whether it is in the one you
have or not. I put it in recently. When I came to read that section
critically I concluded that the criticism you make is a good one.
I do not want to take your time, but there are two or three short
sentences here by the United States Supreme Court on that question
which I think are authoritative, and I would like to read them. In
the case of Holden _vs._ Hardy, 169 U. S., page 365, the Court says:
"The protection of the health and morals as well as the lives of
citizens is within the police power of the State Legislature."
Then again, on page 789, the Court said: "Of course it is impossible
to forecast the character or extent of these changes, but in view
of the fact that from the day the Magna Charta was signed to the
present moment, amendments to the structure of the law have been made
with increasing frequency, it is impossible to suppose they will not
continue and the law be forced to adapt itself to new conditions of
society, and particularly to the new relations between employers and
employes as they arise."
That was a case of regulating the hours of work in mining. After
reviewing a number of the decisions upon the police power and
establishing that it was within the power of the Legislature to
judge of those matters, the Court said: "These employments when too
long pursued, the Legislature has judged to be detrimental to the
health of the employes, and so long as there are reasonable grounds
for thinking that that is so, this decision upon this subject cannot
be reviewed by the Federal Courts."
I take that as pretty conclusive, and they have followed that rule
since.
SENATOR SANBORN: In discussing a bill like this, section by section,
it strikes me that we are going to reach practical results. There are
three fundamental principles that underlie this whole subject that
we ought to determine, or else we should proceed to draw either two
or three bills based upon the different views upon those underlying
principles:
First: Shall we prepare a bill that is compulsory upon the part of
the employer and optional as to the employe?
Second: Shall we prepare a bill that is compulsory upon the part of
the employer and compulsory upon the part of the employe?
Third: Shall we prepare a bill that is optional both with the
employer and with the employe?
To my mind those are fundamentals, and if we are going to get at what
is known as a uniform bill that will meet with the approbation of the
different States and meet the constitutional difficulties that we
find in the way, we must prepare a bill along lines that will meet
the different situations in the different States, at least in those
States that compete from a manufacturing point of view.
I am here for information and I feel that we want light along those
lines. While I am willing to concede for the sake of argument that
under the police regulation you can make this law compulsory on the
part of the employer, as New York has done, I am not yet willing to
concede that you can make that law compulsory on the part of the
employe. I think there is something yet there that must be overcome
before you can reach that result.
To illustrate what I mean for a moment, if you can imagine for
a minute that I own this building, I should contend that the
Legislature of the State of Illinois could not authorize you by your
negligence to destroy this building and give me in compensation ten
dollars; to make that the law. Of course my right arm may not be as
important to me as the building, but I do not yet believe that the
Legislature of Illinois can even authorize you by your negligence
to destroy that and thus destroy my means of livelihood and say that
I shall receive no compensation, or say that it shall be ten dollars
or say that it shall be one hundred dollars, or that it shall be
one thousand dollars which I shall receive for that arm; to destroy
my usefulness to myself and my family and fix the compensation at
one hundred dollars or a thousand dollars, without my consent. I
have cited that as a mere matter of illustration, that there are
difficulties to overcome if you are going to say that that is a
compulsory law upon the part of the employe without any election.
If we are drafting a bill that is compulsory upon the part of the
employer the first question we have to consider is in Section 1
of this bill; we have got to define the dangerous employment. You
can see then it is very material in that form of bill to define
a dangerous employment. If, on the other hand, we are drawing an
optional bill we have no interest in any such definition at all.
I just offer these as suggestions, if we are going at this subject
from a practical standpoint, and if we can I am perfectly willing to
go to the extent of saying that we will work along all three lines
and then determine which is the more likely to stand up and effect
the purpose that we are trying to accomplish.
SAMUEL R. HARPER (Illinois): On the question presented by the first
section of the tentative bill presented this afternoon, the rule, as
I understand it, is that the declaration by the Legislature that a
certain trade is hazardous is merely an indication of the legislative
judgment on that proposition and nothing more; and that that
judgment is revocable by the courts and is not conclusive unless the
declaration is based in some way on some reasonable classification of
hazardous trades and industries. If the classification is based on
some reasonable ground arising from the hazards of the business then
the courts will say that is a reasonable classification, that the
legislative classification is conclusive.
On the points suggested by Senator Sanborn, I agree with him that
the fundamental to adopt at the outset is whether or not we shall
adopt a compulsory system or whether it shall be elective. If it
is compulsory it must rest entirely within the police power of the
State. If it is an elective system then it is a matter of contract
and option with both parties. We ought to determine first what we are
going to do about that because if we have an elective system we need
not worry at all about the constitutional problem or the question of
police power.
I agree with the Senator on the proposition that a State under its
police power may establish a compulsory system of compensation so
far as the employer is concerned. It seems to me, however, when we
attempt to shift the basis of our present system from that of tort
to compensation we are simply reading into the oral contract of
employment between the employer and employe a guarantee on the part
of the employer that up to a certain limit he will protect and insure
the employe against the hazards of that trade. We all of us, of
course, are familiar with the doctrine of _respondeat superior_, and
that doctrine arose in exactly the same way over two hundred years
ago and it has never been questioned as yet. That arose not out of
any theory of natural justice, but upon the theory exclusively that
it was a proposition of safety, and that if the employer wished to
delegate his business or that part of it conducted by servants, to
those servants, he certainly should be responsible for their acts as
long as they were in the discharge of their duties.
Now, why isn't it, Mr. Chairman, just as reasonable to assume and
why is it in conflict with any theory of natural justice to say that
if an employer seeks to employ a man in a hazardous trade or in any
trade, he shall compensate him to a reasonable extent; he shall
guarantee to him a limited compensation and that he shall guarantee
him against the consequences of an injury while he is engaged in that
employment? Will not the courts read into that bill practically that
contract of guaranty?
We are talking about judge-made law on this proposition. The
Legislature has never attacked this proposition at all. The courts
have established this doctrine of respondeat superior and as to the
safety appliances, etc., is the form of a Workmen's Compensation Law.
PROF. SEAGER: The suggestion contained in this first clause seems to
me a very valuable and helpful one; that is, that judicial opinion in
this country may be ripe for taking this view other doctrines of that
kind, and we do not know what the courts would do if the proposition
were presented to them. I believe we lack courage a little bit on
that subject. I should think that the courts would welcome the
co-operation of the Legislature in changing this system. I believe
they are in hearty sympathy with the movement, as indicated by recent
decisions of the courts throughout the country. I believe that they
are themselves out of sympathy entirely with the worn out doctrines
which they are obliged to follow because of the precedents before
them; and if the Legislature would step in and give them a chance I
believe that they would be with them.
CHAIRMAN MERCER: In making this draft of a bill we fully appreciated
that the outlines which Senator Sanborn has given substantially
represents the different theories; but this bill was drafted on
the theory of bringing up for discussion the whole subject as to
whether or not you wanted to define your dangerous employments and
make them compulsory against the employer; to say that the employe
should not have any common law liability; that he should comply with
this law before he had any remedy; that he should be compelled to go
before a committee of awards and that the award when given should be
conclusive as to questions of fact, leaving the legal liability and
the jurisdictional questions open to the courts on appeal. That was
the scheme on which this was drawn.
PROF. SEAGER: The suggestion contained in this first clause seems to
me a very valuable and helpful one; that is, that judicial opinion in
this country may be ripe for taking this view that a few years ago
would have seemed rather revolutionary; the view that any industry
in which an accident occurs is to that extent a hazardous industry,
and therefore subject to special regulation under the police powers
of the States, and that the form of regulation that should be adopted
along with the regulations as to the safety appliances, etc., is the
form of a Workmen's Compensation Law.
The New York Commission, while some of us perhaps were inclined to
agree with the optimistic views that Mr. Harper has just expressed,
was not able, as a body, to believe that the courts would go quite
so far as this first clause contemplates. It was for that reason
mainly that we contented ourselves with enumerating extra-hazardous
occupations which came clearly under the police power of the State,
and limited the compensation in those employments to risks of those
employments as distinguished from accidents that merely happen in
connection with the employment or that might have happened in any
employment. I hope very much myself that the other States which are
working on this problem will be more courageous than we were, and
that they will place the matter before the courts in this extreme
form and determine what the courts will do with it. I think perhaps
there is more reason to expect a favorable decision from some of the
courts in the Western States than from the New York Court of Appeals.
Looking at the matter as a national problem, I think it would perhaps
be better to have the question come up first in some of the middle
Western States before the courts there rather than to come up in some
of our Eastern States.
At the same time I agree with the suggestion that Senator Sanborn
raised as to the necessity of protecting the rights of the
employes. I do not see how, on the basis of the whole scheme of
property rights, we can take away from the employe his right to
sue for damages when the injury is due directly and clearly to the
negligence of the employer, without a constitutional amendment. But
that difficulty can be met by a saving clause that in practice need
not interfere very much with the efficiency of the system. That
is the plan we adopted in our New York bill, merely putting in a
clause to the effect that except where the accident was due to the
personal negligence of the employer the compensation bill should
apply, leaving it to the courts to decide just how far that would
go. A safety clause of that kind in practice, in my opinion, would
be largely disregarded. After this system came into operation, the
advantage of getting a certain compensation would appeal to a great
majority of injured workmen as preferable to the gamble of a law
suit. So that from the point of view of the expense to the employer
such a provision need not impose a serious additional burden along
with the burden of the compensation law.
MR. PARKS (Massachusetts): In our State there is a bill before the
Committee on Labor in the Legislature, of which I am a member,
prohibiting the employment of minors under eighteen in trades which
are dangerous to health. The committee decided to refer the bill
to the State Board of Health, and an investigation by the State
Board showed that continuous employment in such industries as the
manufacture of cuff buttons and collar buttons, and so forth, was
deleterious to the health on account of the small pieces of bone and
other substances which had an injurious effect upon the health of the
operatives. One factory in particular was alluded to at a hearing
which we had on the matter, and after we passed the bill, and it
became a law, I understand that that factory changed over their whole
system, so that that particular industry instead of being as before
this act was passed a dangerous industry to health, it became a safe
industry to the health of minors. That was one effect of the naming
of a particular industry as a dangerous trade, so far as health is
concerned.
PROF. ERNST FREUND (Illinois): It seems to me there are two things
to be sought for in this matter, and that is, first, to find some
principle of classification and then to see what portion of that
principle we can reasonably hope to cover by legislation. When I
look at this section it does not seem to me that the principle is
what I could call a sound one, and I mean by that, one that appeals
to our sense of justice. It is true that the English act is very
comprehensive, but it has never appeared to me that the rule of
the English law by which the head of a household is liable to a
domestic servant for that domestic servant's carelessness is really
a reasonable and just principle of law. Therefore we ought to have
some particular reason for putting the liability upon the employer,
and that reason might well be some particular element of danger. By
calling an employment dangerous, I think, we do not make it dangerous
even if now and then accidents occur in it. I think there are certain
elements of danger which we could all point out, and that there are
some elements of danger which we could all agree upon as making an
occupation extremely hazardous.
We should also consider whether it would not be wise for the present
to confine the liability to concerns of some magnitude. I know that
it is very much questioned whether you can confine this extraordinary
liability to large concerns, because it is open to the criticism that
you simply make those pay who can afford to guard themselves through
liability insurance. However, I think there is a real difference of
principle based upon difference of size, because the relation of
the small concern to the employe is totally different from that of
the large concern, and it is only in the large concerns that these
conditions prevail which, under modern conditions, seem to demand a
shifting of the responsibility from the employe to the employer.
If you wish to be conservative, and not cover all the industries that
have some element of hazard, you have to decide the very difficult
question where to draw the line. When I read over the list of
employments singled out in the compulsory bill recommended by the
New York Commission, I was very much puzzled by the obvious fact
that certain obviously hazardous employments were excluded, until
I was informed that the principle was that of the non-competitive
industry. Now, if you say that these industries are selected
because they cannot get away from the law by moving across the state
line, the discrimination looks objectionable; if, however, you say
they are selected because they are not exposed to competition from
industries operating under laws more favorable to the employer, the
discrimination looks much more plausible. Even so, it is doubtful
whether the principle of selection would approve itself to the
Supreme Court of this State.
DR. W. H. ALLPORT (Illinois): It is evident we have in contemplation
here two methods of arriving at a tentative solution of this
question. (1) One method suggested by Professor Freund, which
looked to me like a modification of the German method; that is, the
method by which certain occupations have been gradually selected
as being more and more hazardous, and gradually including the less
hazardous occupations, until, I believe, in Germany the law covers
all occupations and almost all employments. That is, it now covers
farm employes, agricultural employes and the employes of our small
establishments. (2) The other method suggested by Senator Sanborn, as
a tentative law, follows more or less the English method, where the
law was made right away to cover practically all employments; that
is, the farming industry, domestic industry and other industries.
In considering this first clause of the tentative code, it would
seem to me as though it would be possible to arrive at some definite
definition. The English law has a section devoted entirely to the
matter of definition, and defines employer, employe, dependent, and
so forth, and some interesting questions have come up recently as to
what are dependents under the English law. But the English law omits
altogether to express what are hazardous employments. I will read the
first section of Chapter LVIII of the Workmen's Compensation Act of
1906, which is now the law of England:
"If in any employment personal injury by accident arising out of
and in the course of the employment is caused to a workman, his
employer shall, subject as hereinafter mentioned, be liable to pay
compensation in accordance with the first schedule to this act."
That covers all forms of employment, but it does not define any
employment as being hazardous or non-hazardous.
I suppose the basis of our effort in this tentative "workers' code"
is to arrive at something which will go behind our present courts
and bring us in line with the state and federal constitutions, which
will give the power to a State to enact a law which under ordinary
circumstances it would not have, and so, therefore, the effort is
made here to define dangerous employments. It is interesting to
note the ingenuity with which that point is reached; _i. e._, that
any employment becomes dangerous after an accident happens. In the
Wisconsin law the effort is made directly; there is no definition, so
far as I can see, in the Wisconsin law nor in the New York law. There
are certain employments which are defined as extra-hazardous and,
therefore, subject to state regulation.
There is another point in Section 1 and that is this: "An employment
in which there hereafter occurs bodily injuries to any of the
employes arising out of." To again recur to the English law, and also
the German law, the English law covers other points besides bodily
injuries; it covers in certain schedules dangerous diseases and
trades accompanied by dangerous diseases. The question, therefore,
which would arise in my mind is whether or not we should not in this
tentative law embody a consideration of certain dangerous diseases.
I happen to be a member of the Illinois Commission on Occupational
Diseases, and, therefore, perhaps would be expected to see that in
the bill, but aside from that fact it does seem to me that that is a
matter for careful consideration. That the bill should cover diseases
arising from mining work, diseases from deposits in the lungs where
men are engaged in the woolen industry and the lead industry and in
the match industry, and certain other dangerous occupations which are
dangerous not on account of the personal injuries sustained by the
employes, but on account of the danger to the health.
CHAIRMAN MERCER: Section 12 says. "Provision defining the words and
phrases, and covering all tenses, pronouns and both sexes," should be
put into the bill when it is finally drawn.
FRANK BUCHANAN (Illinois): I am a structural iron worker by trade and
have worked at it for many years, and I guess there would not be much
trouble in defining it as an extra-hazardous trade. We have a large
number of men injured and killed at that trade, and because of that
fact I have given this question of employers' liability much thought
and study. For that reason I am here as an interested party to-day.
I am not in harmony with that part of the law as drawn up here which
takes away the rights of a workman to bring an action in the courts.
I take that view, first, because I believe it is the constitutional
right of every worker to have action in the courts if he sees fit to
do so. Secondly, I believe that when we do have that right of action,
due to the negligence of an employer, that it is going to cause the
employer to be more careful of how he conducts that particular kind
of work, and the most important thing about this whole matter is to
secure something that will act as a preventive of accidents.
PROF. JOHN H. GRAY (Minnesota): Would you be in favor, Mr. Buchanan,
of a bill which gave the choice to the workmen?
MR. BUCHANAN: No; I favor the English law that gives him the right to
bring suit if he sees fit and then take the compensation if he fails
in his suit.
I had hoped, in view of the fact that they have brought this law
about in European countries, that some of our States might take
it up in the same manner. We have a problem here to confront and
overcome that they do not have in European countries, in that we
are largely governed by the laws of the various States, which, of
course, differ widely. In the manufacturing industry, that gives
ground for an argument against one State creating a law that does not
apply to another State, the claim being made that the competition is
not equal, and, of course, there is some ground for that argument.
I believe, however, it is going to take a long time and be a very
difficult thing to bring about the necessary uniform legislation
throughout the States. For that reason I had hoped that we might be
able to find some way to create a law affecting only those industries
that may not be in competition with the industries of other States,
such industries as have been referred to, as the building industry
and construction work, and so forth. There are more men killed and
injured in that industry than any other two, but due to the fact that
there is no competition in that industry it is possible to make a law
affecting that and let it be tried out. It might be a starting place
to find a way to cover the other industries without affecting those
industries in each State which are competitive or obstructing them in
any way.
I find, however, in reading the history of the British labor
legislation that the secretary of the Building Employers' Association
in one of the large cities there has stated that that law has not
obstructed the business, decreased the wages or decreased the
profits, and that the building employers are not justified in any way
in finding any fault with that law. It seems to me, therefore, there
ought to be some way in which to pass a measure that would apply
to that industry. Of course, it may be said that I am a structural
iron worker, and interested in that craft which is a building trade,
and am, therefore, more selfish about this matter. I feel, however,
a great interest in securing better protection for workers in all
industries. I know the dissatisfaction that is caused under present
conditions; I know the women that are condemned to the washtub
and the orphans to poverty, and, therefore, I am always willing
to exercise my best efforts to secure better protection for those
workers. In my opinion the present condition is the biggest blot that
we have on our civilization.
Take my own trade, for instance, I have some figures here which I
secured from our local secretary which may be of use to you. In 1906,
out of a membership of about 1200, we had 29 deaths from accidents
and 114 injuries. In 1907, when the work was very much reduced and
our membership was greatly reduced, due to the panic brought on at
that time, we had 132 injured and 12 deaths. In 1908, while still
suffering from the effects of the panic, and not so many men working,
probably seven hundred or eight hundred, we had 113 accidents and
7 deaths. In 1909, after we had recovered from the panic in our
industry, we had 175 injured and 8 deaths out of a membership of
about 1200.
In 1906, from the best information I could get, we paid out $12,060
in benefits to those who were injured or killed, and the average
length of time of disability of those who were disabled was six weeks.
In conclusion, I believe I am expressing the sentiments of the
trade-union people in the city of Chicago when I say that we are
opposed to any law that will waive the right of action now in the
hands of a workman. We think it should be as it is in Great Britain
at the present time. Personally, I am in favor of going even
further than that. I believe when a workman suffers an injury due
to the carelessness of an employer or a superintendent, that that
employer or superintendent should be sentenced to prison for that
negligence. I mean by that those who are in charge of that work and
who are responsible for that work. I claim that there should be a
penal offense attached to that negligent act, and I believe that
the majority of employers would have no objection to it; that is,
those who are willing to use the necessary care for preventing these
accidents. I hope that in the very near future the people in this
country will become awakened to the need of these measures, and I
believe the present facts obtainable will show that there can be
fair protective measures created without any hardship whatever on
the employer, although it may be necessary for them to add a small
price on the product or on the contract price when he is bidding on
construction work.
C. B. CULBERTSON (Wisconsin): I will assume a case in order that
I may ask the last speaker a question. Say that in Wisconsin last
year there was a loss, including the expense of court proceedings
and obtaining judgments and everything that you could put under that
head, of $460,000; that during that time the laboring men to whom
this money should have gone got only from 18 to 25 per cent. of it;
would he not prefer a law, if he could not get a better one, that
would give 90 per cent. of that $460,000 to the sufferers, even if
occasional large judgments should have to be waived?
MR. BUCHANAN: I always prefer getting the best we possibly can. We
must consider the conditions under which we are laboring. I do not
believe that the laboring people are willing to waive their right
of action in the courts for something that they do not consider
especially good. Of course, I am not here representing any laboring
body, but from my association with them I am led to believe that
I can speak as to their sentiments in the city of Chicago. I am a
delegate to the Chicago Federation of Labor, one of the largest
bodies of its kind in the country, if not the largest, and have heard
those matters discussed there, and I would say that we are willing
to accept nothing less than the best we can get, and we are willing
always to accept that.
JOHN MITCHELL (New York): I do not know whether there will be any
advantage in the discussion of the character of a bill that we should
want to adopt or as to the measure that any group would desire. I
hold no commission that gives me a right to represent the workingmen
of the United States, notwithstanding that I am an officer of the
American Federation of Labor. As a matter of fact, the American
Federation of Labor, which is representative of practically all
the organized workmen in the United States, has not itself decided
formally upon the character of a compensation bill that they would
favor. But I do have some knowledge of the general sentiment that
prevails in the country, and I think that in part I can say for the
workingmen of the United States, and they, after all, the ones most
affected by this legislation, they are the ones that are demanding
it, and it is for their relief that it is going to be enacted. I
believe I can say for them, as Mr. Buchanan has said, that the
workingmen will not be willing to waive their right to enter the
courts and sue for damages. To that extent, I think, he is correct,
and that the workmen would not be willing to waive their right to sue.
On the other hand, I believe that if they understood the
circumstances prevailing in Great Britain that they would not insist
upon their right to sue, and then failing to win their suit to
have their compensation. I do not have with me a table I have of
statistics giving the amount secured in suits for damages and the
average amount paid under the Workmen's Compensation Act of Great
Britain, but my recollection is that the workmen of Great Britain, in
cases where they have instituted suit under the employers' liability
law or the common law, have received approximately $852, and that the
average compensation paid under the Workmen's Compensation Act has
been $848. My recollection is that the workingmen of Great Britain
have received on the average more under the compensation act than
they have under the liability act, and I think can we take it for
granted that where men have sued under the liability laws of Great
Britain it has been in cases where there has been a likelihood of
responsibility on the part of the employer. Unless the workingman was
convinced that he had a reasonably good case, he would not proceed
under the liability laws, but would, on the other hand, proceed under
the compensation act.
Now, if the workingmen of Great Britain recover a larger amount under
the Workingmen's Compensation Act than they do under the liability
laws, is it not likely that they would do the same thing in the
United States? In other words, has not the right of the workingman
of Great Britain to proceed under the liability laws simply been
a temptation to him to sue in the hope, and the false hope, as it
turns out, that he might recover a larger amount than he would
under the compensation act; and if the figures I have given you are
approximately correct, has the result not been that the workingman,
lured by the false hope that he would secure a large verdict, has
given a large part of the money he would have received under the
compensation act to attorneys, because he has had to pay the costs
of the courts, he has had to pay his lawyers their fees, although
possibly not in as large an amount as would be the case here, because
in England the court fixes the amount of the attorney's fees; and has
he not taken from the employer money that ought to have been used
to compensate the men for accidents. Whenever a burden is put upon
the employer that means nothing to the workman, it simply deprives
the employer of the opportunity of paying a larger amount under the
compensation act.
Now, it is not because of any particular sympathy I have for the
employer in the matter, although I want to be absolutely just to him,
but it is because I want to protect the workingman and see that he
receives the largest possible amount as a reward or as a compensation
for his injury, that I am not in favor of giving the workman the
right to sue under the liability laws, and, failing to win his suit,
to then proceed under the compensation act. I think it is holding out
to the workman a false hope, and I know the practice in England has
been simply a lure, and has caused him to waste his own money and
waste the money of the employer without any benefit to himself.
On the other hand, when I say that I believe the workman should have
the right to sue, I believe that because I believe there should be
something done to cause the employer to prevent accidents, and I
think the fact that a workman once in a while may secure a verdict of
$5000, $10,000 or $15,000 is an incentive to the employer to prevent
accidents. And when all is said and done, gentlemen, one of the
principal purposes of this Conference should be to prevent accidents.
Your compensation, quite apart from preventing accidents, is
necessary, yet it is of a hundred times more importance that a life
be saved than it is that some man or his dependents should receive
$3000 or $4000 for his life. It is all very well to receive $1000 for
the loss of an eye or the loss of an arm, but it is much better, not
only for that man, but also for society, that the eye or the arm be
not lost.
Gentlemen, this gathering, if I may just make this general
observation, is perhaps one of the most important gatherings that has
met in the United States, because it is going to give impetus to a
great movement to change our entire system of employers' liability.
I doubt not but that within a very few years our courts will so
broaden their vision, and so broaden their decisions, that they
will find means, even under our present constitution, to recognize
the growing demand on the part of the people for relief from our
iniquitous system of employers' liability law. I do not know how fast
we can go; no doubt those of us whose lives have been spent among
workingmen, and who have daily been brought in contact with those
who are suffering either from accidents directly or the dependents
of those who have been killed, may grow impatient in our desire to
secure a remedy, but we cannot go faster than the courts will let
us go, and we cannot go faster than the Constitution of the United
States will let us go, but we ought to go at least as fast as they
will permit us to go. If some State will take the lead and adopt a
comprehensive system of compensation, and put it up to the courts
and have decisions rendered, we would then know just what we could
do. In any event, gentlemen, I believe that the workingmen will not
be at all satisfied either with the suggestion sometimes made of a
contribution on their part or with any law that removes from the
employer the incentive to prevent accidents.
SHERMAN KINGSLEY (Chicago): Gentlemen, in my duties as superintendent
of the United Charities of Chicago, I come in touch with a great many
families where the breadwinner has been removed, and where the burden
of supporting the family devolves upon the wife and the children. In
this State, within the year, as you know, we have met with a very
great disaster down at Cherry, where a large number of men were
killed in a very spectacular manner. The press of this city and
country was alive with the stories of that disaster for weeks. It was
debated in our Legislature, it was talked about in university halls
and preached about from the pulpits. I doubt if ever in the history
of industrial accidents 267 men ever had as much written, said and
thought and felt about themselves and their families as was the case
down at Cherry.
I was asked to read a paper at the National Conference of Charities
and Corrections at St. Louis, my subject being: "Compensation from
the Point of View of What a Relief Society Would Consider Adequate."
I tried to get a number of accidents equal to that of the victims
of Cherry; that is, accidents that happened one at a time in the
commonplace fashion, where, instead of having the press interested
in it for weeks, the man will get three lines in a paper in an
obscure corner, saying that So-and-so had his head cut off or had
suffered an accident which cost his life. I got from ten societies
similar to the United Charities of Chicago, in ten of the largest
cities of the country, something over one hundred accident cases,
and I have a couple of charts which show the kind of compensation
that was obtained by those one-at-a-time, obscure accidents, and
then what happened in the case of the men down at Cherry, where they
met their death so dramatically. One chart shows the compensation
they received, either through court action or from the employer, and
it shows what 50 families received where the man was killed in a
one-at-a-time accident in ten of the large cities of this country.
The second is a chart of 50 families in Cherry, and shows that they
received $1800 apiece; while the 50 one-at-a-time families only
received $8749, in amounts all the way from $3000 down to $7.
I suppose that a damage suit of $10,000 or $15,000 does have some
compelling effect upon an employer with reference to protective
machinery, but I think that the greatest thing in the world that will
happen in the way of preventing accidents is to make it dead sure
that every accident will receive some just measure of compensation.
Instead of having 50 accidents get $8749, if they come to $3000
apiece, making a total of $150,000, that fact will have a great deal
more effect in preventing accidents than has the present plan.
Now, I have another chart which shows the whole relief story
of Cherry, and indicates the effect of public opinion upon the
compensation received by the sufferers. The Red Cross Society, the
Legislature and the whole community became interested in Cherry.
The money contributed by the public, by the Legislature and by
the community generally amounted to $87,240 odd dollars. In our
one-at-a-time accidents something was done for the victims, of
course; they were cared for in day nurseries, in orphan asylums,
in hospitals and the county agents gave help and the charities
gave some help, but not in any such amount as the Cherry sufferers
received. Twenty-four of these one-at-a-time cases were cases where
the children were taken out of school and put to work or to begging,
or the family took in boarders, and in some instances the criminal
courts had played their part. Whatever it was, it was a certain
fixed amount. (Down in Cherry the amount contributed is to go to
the families in monthly payments, spreading over some five years,
and in amounts suited to the number of the children and the ages of
the children in the family.) The deterioration in the income of
the families, resulting from the one-at-a-time accidents, was 64
per cent. Notwithstanding the wife and the children did everything
they could, the income in these families has deteriorated almost
two-thirds. In one case, where there was permanent disability, a man
was awarded in one court $22,500. The case was appealed from court
to court during a number of years, and finally the man received
absolutely nothing.
Those are some of the general consequences, and I believe that in
this matter of prevention nothing is going to have so wholesome
and so certain an effect in the prevention of accidents as to have
accidents cost money, and cost about what they ought to cost, and
cost it with a certainty. You can see what happened in the case of
these 50 families, where the accidents happened one at a time; those
families only cost something like $8000, and some of that even, in
fact, quite a large part of it, was a gift from the employer and not
compensation.
(A motion was adopted thanking Mr. Kingsley for his graphic
presentation of the facts.)
JOHN FLORA (Illinois): I see in this tentative "code" no provision
for doing away with the defenses of the employers before the courts.
The Chicago Federation of Labor, which I directly represent on the
Illinois Commission, holds that any compensation bill in the State
of Illinois is not worth the paper it is written on, unless we have
a provision also doing away with the right of the employer to bring
into the defense what is known in court decisions as assumption of
risk, contributory negligence and the fellow-servant doctrine.
CHAIRMAN MERCER: Let me suggest that further down in this bill the
common law remedies for all industrial accidents covered by this bill
are intended to be repealed. If they are repealed, that would dispose
of your question.
MR. FLORA: Very well. I want to say then in reference to this first
section, that it appeals to me a great deal stronger than anything
else. I happen to be a building trades man myself, and I want to
say individually, as a member of the Illinois Commission, that I am
in favor of a compensation law that will cover everybody. I do not
favor taking out any class of industry and making that one class
amenable to a certain law, and allowing another class to go without
any protection whatever. I hold that the widow of a man who is
killed in a non-hazardous occupation suffers just as much as the
widow of a man who is killed in a hazardous occupation. I do not
know how the constitution would affect this matter in this State.
That, I presume, is something that the Illinois Commission would
have to look up, but nevertheless I think it is a great deal better
than the New York proposition. I never have been very much taken up
with the idea of having two different bills in New York. I feel that
they might have gone further and have made one bill that would cover
every occupation. I hold with the rest of the representatives of the
working people that the working people will never agree to surrender
their right to go into court under the common law.
MR. DAWSON (New York): I have not made up my mind at all as to
this question, whether the right of the workingman who is injured,
or of his family in the event of his death, to proceed under the
existing law, should be taken away; whether he should be compelled
to exercise an option and abide by it, or whether he should be
permitted to proceed under the law through the courts, and in case
he fails to establish that he has been injured by the employer's
wrongful or negligent act, still be entitled to compensation under
the compensation act.
There are, however, some considerations that arise in my mind. In
the first place, the tendency of the proposed legislation in this
country has been to do away with certain of the defenses, even
though a compensation act be adopted. An argument in favor of that
has been that by doing away with these defenses the employers will
be made very glad indeed to accept a compensation act. I think the
impression is that the bill which was passed by the Ohio Legislature,
and since vetoed by the Governor, was intended chiefly to influence
public opinion there in favor of abandoning entirely the old method
of dealing with industrial accidents. Certainly in New York there
is no question but that the weakening of the defenses was directly
for the purpose of getting the manufacturers to take advantage of
the permissive act. As I understand it, a similar proposition is
now being brought forward in Wisconsin. If, in spite of this, by
any chance the fixed policy in this country should ultimately be
the same as in Great Britain; namely, to preserve to workmen their
rights under the common law and under statute law relating to
employers' liability, either in an optional form or in a form which
would still give the benefit under the workmen's compensation act,
though defeated in the courts, it occurs to me that this weakening
of defenses would be a peculiarly dangerous thing for us to do.
The present situation in the United States is that the employers'
liability theory, the negligence theory has, notwithstanding these
defenses, in the main, been pushed just as far as the courts and the
juries could push it, to cover many accidents. Notwithstanding that
we chafe at these defenses, the courts and juries have gone just as
far as they could go, on the theory that an employer was to be held
liable _only_ for his own fault. This is due to a strong sense of
natural justice and a desire to compensate as many as possible.
It is safe to say that nine out of ten verdicts rendered in this
country, and sustained by the higher courts when brought before them,
are not cases where the actual negligence of the employer is clear
at all, but instead it is reasoned out by precedents established by
these same courts, under which employers have been held responsible;
precedents which, of course, have been carried still further in the
case of public liability; that is, to others than employes. If we
pass a compensation law so that every injury is surely compensated,
what resulted in Great Britain is what I should expect to find in
this country if we do not weaken these defenses; that is, that after
a compensation act is passed, the disposition of courts and juries
will shift to the other side; namely, that instead of aiming to
stretch the theory of employers' liability and negligence to the
utmost limit in order to give verdict, they will tighten them by
establishing new precedents until it will be nearly impossible to
get a verdict for the negligence of the employer. This is true now
in Great Britain unless an exceedingly clear case of actual personal
negligence has been established, or such negligence on the part of
those who have been appointed to perform the employers' duties in his
business, that his agents' negligence is fairly attributable to him.
It is by reason of that fact that the courts have gradually veered
to the position, that the reservation of that right in Great Britain
has done no harm. I say no harm advisedly, because I am told that the
British insurance companies regard it as a quantity negligible in the
computation of their rates.
Under those circumstances should we not be particularly careful how
we proceed about weakening defenses? And should not the manner in
which we proceed be definitely based upon what we suppose will be the
ultimate form of these laws; that is, whether the right to proceed
under the employers' liability act will be wiped out entirely,
whether it will be reserved as an option to be exercised only by
abandoning the other right entirely, or whether, as in Great Britain,
there would still remain the right when defeated, to claim under the
compensation act.
There are reasons which appeal to me very strongly why the British
principle should be accepted, but I am not clear that I shall be of
that opinion in the end. One of these reasons is: This compensation,
if it is given under a compensation act, will be for the purpose
of trying to see that all persons who are injured in the course of
carrying on an industry are taken care of. It has a public purpose;
namely, to prevent the piling up of the burden upon public and
private charity, the very things we saw set forth in the chart
that Mr. Kingsley exhibited a few minutes ago. Is there any reason
why, when we have tried to make that provision for the inevitable
result of industry, we should refuse to punish those rare cases of
misconduct which mean that men have grossly trifled with the safety
of their employes? I am not quite clear that there is any good
reason. I am confident that an examination of the British decisions,
since they put the first compensation act upon the statute books in
1907, would show that there have been very few cases, indeed, in
which the employers have been held liable, where they ought not to
have been actually punished for misconduct.
There is one consideration, however, that does not appeal to me which
has been brought forward in the argument here, and I wish to speak
about it. It is that by reason of such punishment employers will
be more careful. I am sorry to say that such does not appear to be
true. All the evidence to the present time is that employers are most
careless where there is nothing for which they are held responsible
but negligence. They are enormously more careful when they are held
for every accident that happens. Experience all over the world has
shown this to be true, and I want to add one thing that is almost
more important still; they are still more careful in countries where
they are not even held individually responsible, but are only held
responsible for the payment of insurance premiums. The greatest
amount of prevention and the largest amount of care exercised by
employers anywhere in the world is in those countries which have
compulsory or obligatory insurance laws. The reason is very simple:
nearly every employer does not think that a catastrophe, due to
his negligence, will ever happen. But when you hold him under a
compensation act for every accident, big or little, negligent or
not, and accidents are happening every day, and there is a good deal
of money being paid more or less continually, he will be much more
careful. Again, when you introduce a compulsory insurance system, if
his institution is not up to standard, he finds he is paying three
times as big a rate of premium, perhaps, as another employer in the
same business, and he does not wait for accidents to happen, but
takes measures at once to prevent them, and so get a present and
permanent benefit in a reduction of his rate. There has nothing been
found yet which will cause so effective prevention of accidents as
compulsory insurance; for it is, after all, the certainty that the
want of it costs money that causes an employer to be more careful,
and not the possibility that it may cost him a great deal more money
or perhaps even ruin him.
MR. HARPER: Further, as to the right of the Legislature to take away
from the employe his right of action at common law, in most of the
bills which have been suggested, it is provided that some method of
arbitration shall be substituted for the ordinary action at law, and,
in my judgment, where the nature of the injury and the amount of the
compensation only, and not the question of the liability, is left to
the arbitrators and taken away from the courts, the courts ought to
sustain it. It might be wise, however, in all cases to provide for an
appeal to a court of record.
I want to ask the Chairman and the other attorneys here, especially
to discuss a suggestion I desire to make in regard to limiting the
right of the employe to bring such common law action and substituting
in part the compensation system. The suggestion is this: Under the
doctrine of respondeat superior, which has been in vogue for two or
three hundred years, the employe was originally given the right of
action against the employer, not only for the negligent acts of the
employer himself, but also for the negligent acts of his servants
and employes while exercising the duties of their employment. That
was a judge-made privilege extended to the employe. It is not a
constitutional right, and might we not take that power from him and
substitute therefore a compensation system? That is, might we not
provide in a compulsory compensation act that the employe, where the
negligence is attributable not to the master himself, primarily, but
to his servant or his employe, that his compensation in that case
should be compulsory and the employe would not have a right to his
action at common law.
HENRY W. BULLOCK (Indiana): We do not have a Commission in Indiana.
At the last meeting of the General Assembly I prepared on behalf
of the State Federation of Labor a bill for the creation of a
Commission, which, unfortunately, was smothered. We are fortunate,
however, in Indiana, in having a Governor who personally is in favor
of compensation, so we have that much of a start on the future.
The question of employers' liability and workmen's compensation, I
believe, has been more deeply studied by organized labor than any
other class of people, and I frequently have been associated with
them in the preparation of their legislative measures in Indiana, and
I believe that I can express their sentiments as being in favor of
compensation.
I also believe that at this time they would be opposed to any system
that would take from them their common law right to sue for damages,
and they would probably favor a double law, such as they have in
England. However, they might be induced to grant some concessions
if the employers were to be reasonable, which I hope they will be.
Thus far, however, there has been much opposition on the part of the
employers, not only to measures for compensation, but to all safety
measures.
I think the question of safety is the larger proposition. One thing
the trade unions have done, they have trained up competent workmen,
and if the employers would be careful in the selection of their
employes, that would do much to protect life and limb.
In regard to this "workers' code," I know I speak the unanimous
sentiment of the legislative forces of Indiana when I say that they
do not intend the operation of an employers' liability law to include
agricultural and domestic services, but that the question is whether
the law can be constitutional without that. All classifications must
be based upon some reason. It might be that this could be evaded,
and the law could be drawn generally with a proviso excluding
certain persons from its operation. Then no one could raise the
constitutional question perhaps. The person within the operation of
the law could not raise it because he would be affected, and the
person excluded could not raise it because he would not be affected
by it.
It occurs to me that perhaps the rates of compensation named here
are not quite adequate. Injured workmen, for instance, receive 60
per cent. during only five years. Thus the workingman not only gives
40 per cent. of his wages, but he gives it all after five years. I
believe that the industry should bear the expense. As it stands,
it makes the workingmen, who are usually young or middle-aged men,
from 20 to 45 years of age on an average, and who have a long
expectancy, contribute the largest share. As to whether or not we
could constitutionally deny the workingman his right of action
against a negligent employer I seriously doubt if that could be done,
for why should the rule be different if the injury is caused by the
employer and it falls upon the workingman, than when it falls upon
a stranger? All persons should be liable for their carelessness and
their negligence, and it occurs to me that there is not a reasonable
basis for that classification. Negligence is a personal proposition
with the employer, and for that reason, I think, there should be a
right of action against the employer. Compensation is a matter of
industry and occupation, and has no reference at all to carelessness
or negligence, and for that reason the industry should bear the
ordinary hazard, but the employer should bear that which is caused by
his own negligence.
This bill, as I have read it hurriedly, makes no provisions for the
important feature of the certainty of securing compensation. It
provides that these payments shall be strung out for a period of five
years. How are we to know that the employers will remain solvent for
five years? There should be some security for those payments if they
are not made in a lump sum.
It occurs to me also that this notice is a little bit strict.
Ordinarily an employer knows when an injury occurs. The law in most
of our States compels the employers to report, and yet if the injured
person fails to report within a very limited time, his right of
recovery is barred. That notice should be sent, provided the employer
himself does not know of it, but if he himself has actual notice,
then the employe's right to recovery should not be barred. In some
one of the measures, I do not know which one now, it provides that
there must be specific detail. That gives the employer the advantage
of having the names of the witnesses and of all the details made by
the employe, and it does not give the reciprocal advantage to the
employe of getting a statement from the employer, when we all know
that very often employers conceal witnesses and keep the correct
statement of facts from the injured workman.
Concerning Section 6, regarding boards of arbitration and awards,
some constitutional question might arise. I am not sure that
such boards might be called administrative, but, at any rate, we
have a constitutional provision in our State that says boards of
conciliation may be created, but not with power to act unless the
parties submit themselves voluntarily. I seriously doubt, therefore,
if you can have compulsory arbitration under our constitution.
I would favor abolishing all of the common law defenses as to
contributory negligence, assumed risk and so forth, with the hope
of bringing the employers into a frame of mind to adopt this law,
and to that end if you cannot get a constitutional law without it,
the Legislature would have the right to prescribe a standard form of
policy for liability insurance, and in that they might prescribe a
form to insure the workmen.
I believe if we do not have compensation, that the liability
insurance company should be made a party to actions for damages;
that the amounts should go to the injured parties rather than to the
employers, as is the case over in England. They have a provision
there that the employers may adopt some system of their own with the
approval of the public authorities.
The main argument of the employers at Minneapolis last year was that
any increased liability would add a burden to the employers, and
would cause the employes to become careless, and on investigation
I find that perhaps there has been an increase in the number of
accidents reported, which is due to the fact that the workmen report
better when they are compensated, and that a larger number of
industries have come in under the law. From the American Federation
of Labor officers I find that their estimate is that the dangerous
machinery that now runs at high speed is also the cause of the
increased reports of non-serious accidents, and from an insurance
company of Germany I find that accidents of a trivial nature have
increased, while those of a fatal nature have decreased, and that the
employers are penalized for their negligence. It seems to me that
where there is a liability to penalize the employer for negligence it
causes him to be more careful in protecting the lives of his workmen.
And, it seems to me, in conclusion, that the right of the workingmen
to receive damages should be maintained, but personally I think it
should be used as little as possible.
WALLACE INGALLS (Wisconsin): The Chairman and I have discussed
the various fundamental features or principles which underlie the
question of compulsory compensation under our law, and you will
pardon me for any criticism, if I make any, of the right to enact an
out-and-out compulsory system in any of the States of the Union, but
this bill involves exactly that principle. While it is not so worded
plainly in the first section, yet it means the same thing, because
in the first section you characterize occupations without limit as
dangerous occupations. When you do that, you put those occupations
within what is called the police power of the country, and when you
do that, then, of course, you can enact laws bearing directly on
the subject. I think we ought not to forget in the discussion of
this question that the underlying principles of our Government are
different from those of any of the other countries which have these
systems that we have been talking about. When our Government was
founded it was founded on individual rights. At that time individual
rights were unknown in the other countries, and technically speaking
in the other countries they have not now got individual rights, while
we have them here. In fact, our Government is based on them.
One gentleman suggested that the employes did not wish to surrender
their individual rights to go into the courts, which is the only
place they have to go. I believe that is fundamental, and I think
they would accord the same rights to the employer. But we must not
lose sight of the fact that individual rights exist in this country,
and that in the older countries, such as Germany and England, they do
not have individual rights that you can insist upon and go into court
upon.
We are discussing a very important question, we are discussing a
question whereby we can arbitrarily decide what course shall be
granted to an individual without his day in court, whether it is an
employer or an employe; that they shall take a certain amount of
money fixed by arbitration for an injury, or for death, or whatever
it may be. That is a serious question. Now, you can, of course, take
away these defenses of the employer; there is no question about
that. I am in sympathy with it, but under our laws and our system
of government, I do not believe that any of us want to embark upon
any dangerous system of jurisprudence, and I do not believe we want
to invade individual rights anywhere. In Wisconsin, after a careful
discussion of what we could and what we could not do, we presented a
plan whereby these defenses are practically destroyed and the other
features of the bill are optional.
One phase of this subject has been the source of much discussion pro
and con, and that is in regard to the matter of contribution. In
Germany their system covers sickness, accidents, invalidity and old
age, three different classes. There is no contribution for accidents
proper. There is for old age and for sickness, and sickness includes
the first thirteen weeks of the result of an accident. In England
there is no contribution. Whoever will examine those two systems,
and compare them, I think, will draw the conclusion that when you
consider the subject of sickness and of invalidity, the question of
mutuality must necessarily and naturally enter into it. But with
purely accidental misfortunes, that is a different question, and to
my mind the contribution has no place in it for this reason, if it
is true that that should fall upon the industry, then it necessarily
follows that the employe should not contribute.
The success of the German system, as I view it, is based upon the
mutuality of sickness, invalidity and old age, all three being
interdependent and interwoven under one scheme, and the mutuality
being in that system. That is what makes it so perfect. It is really
a self-operating principle, and it is based upon the only true and
correct principle that ever will be arrived at in considering a
scheme of that kind. We cannot do that at present. When our system
broadens, and we get to the point where we handle sickness and
invalidity, then the mutual feature of it will come in and will be
very wholesome, but as far as we have gone now, it is not possible to
handle it.
On the subject of litigation in continental countries under the
liability laws, the statistics in England show that litigation has
practically disappeared. They prefer to take the compensation. It is
immediate and they get it at once, and they prefer that rather than
going into long-drawn-out and expensive litigation. Of course, there
is some litigation, but it is growing less and less continuously,
and, as a matter of fact, most of the litigation there has been in
connection with the construction of the law.
AMOS T. SAUNDERS (Massachusetts): It seems to me as though the
reading of this first section might defeat its true purpose. I
understand it is based upon the theory that constitutionally we can
impose certain remedies upon certain industries, because they are
immediately dangerous. It is very obvious from the reading of this
first section, following out that theory of law, that the man who
drafted it had endeavored to say that every industry is a partly
dangerous industry. Under this bill the servant girl in my kitchen
who cuts her finger when she is cutting bread for breakfast, is
entitled to recovery. It strikes me when you say everything is partly
dangerous that you have landed about where you would have landed
if you had not said that anything was particularly dangerous. That
is, if I should attempt to say that every man in this room was a
"Tom fool," as a comparison between the men in this room, I have
not said anything, but when you say every industry in which there
is an accident (and there is an accident in every industry) is a
partly dangerous industry, and by saying that attempt to legislate
concerning it because it is dangerous, we have simply piled up a
number of words which, when the courts get to the construction of the
bill they must disregard entirely.
On the proposition that in England a man may sue, and, failing to
recover, may get his compensation under the compensation act, it has
been suggested that that will work no harm, and I judge it was sought
to convey the idea that the result would be the same in this country.
I believe, however, that when you say that you lose sight of one
thing, and that is that in England it is practically impossible for
an employe to get what a lawyer in this country who is trying cases
for the plaintiff would call a decent verdict. The verdicts from the
English juries are very materially smaller than the verdicts from
American juries. Therefore, when the English employe comes to compare
what he can get under the compensation act with what he can get under
a verdict from a jury, he is satisfied with a very much smaller
amount than the American would be. One of the chief reasons for
the compensation act is to prevent the waste of money in expensive
litigation. The employe only receives perhaps 17 to 25 per cent. of
the money which the employer pays out, and the rest of it, so far
as the employer and employe is concerned, is wasted. Therefore, if
we should provide a system which would allow the employes all the
remedies they now have, and then, if they should fail in their suits,
allow them to secure their compensation under the compensation act,
will we not be increasing litigation and, therefore, be providing a
means to hinder the effect of this very act? In other words, would
you not be doing away with the prevention of this tremendous waste in
litigation?
There has been considerable discussion as to a choice of remedies.
I know in the Massachusetts Legislature, before the Judiciary
Committee, the first question that was raised at the hearing this
year and the year before was whether the employe should not be
obliged to choose before his injury, so that he could make a wholly
disinterested choice between the laws, and not be affected by his
particular injury; that his choice should be between the system of
compensation or the system of liability. No one has suggested a
really workable method, but in Massachusetts, and, I think, in New
England in its entirety, most of the actions which are brought by
employes against employers are to-day brought to a very large extent
under statutory remedies and not under the common law. I will assume
that we will all agree that anything which the State has given
to an employe by statute can be taken away by statute under the
constitution, and it has seemed to me as though we could at least do
this: That in providing a compensation act we could provide it as a
substitute for our statutory act, and that would leave the employe
his common law remedy and his compensation remedy. The fact that the
common law remedy is not used now, from a lawyer's standpoint, at
least, would force the employer and the employe, if he was going to
bring an action, into a more or less unfamiliar proceeding under the
old common law, and as between an unfamiliar common law procedure and
a perfectly plain compensation act, it would seem that the natural
course for both the employe and the employer would be to take the
certain compensation act.
I think the question which troubles Massachusetts more than anything
else has been touched upon very little here to-day, and that is
the effect upon interstate competitive industries. We can pass a
law in each State which will apply to specially hazardous risks
which are not competitive between the States, and while it might
be inconvenient, and it may cause a great deal of trouble to start
in with, the effect eventually is not an injury to any particular
industry or any particular set of people, because if it is not a
competitive industry the employer very quickly contributes the
extra burden upon the public. But when you strike the competitive
industries between States, when Massachusetts or any other State does
pass a compensation act, we do not know what it will do until it is
tried, and it may be a serious burden upon the manufacturers. We are
in danger of placing that particular industry in such a position
that it cannot compete with industries in surrounding States. It
seems to me, therefore, that the vital question for this National
Conference to discuss, and the one which would be the most effective
and beneficial to all the different States, is what shall we do with
our competitive industries. If we can all secure, approximately at
the same time, at the end of a few years, and place upon the statute
books of the various States practically the same scheme, then, even
though it is not a perfect scheme, even though it should prove to be
a burden upon the industry, that industry is not going to suffer,
but the people who sell the various manufactured products will
distribute that burden among themselves. That, it seems to me, is the
practical question which should be discussed. I should like to have
this National Conference discuss what we can do with those industries
which are spread out over the country and which are competitive. I
believe we must find some general solution of that problem before
there can be successful compensation acts in any of the States.
EDWIN R. WRIGHT (Illinois): There is one question I should like
to have some light on from the members of the various Commissions
here. There has been a good deal of discussion upon the elective or
compulsory systems of arbitration, and also upon the question of the
double or single liability, and I do not know of any better place to
ask the question than right here.
The American Federation of Labor sent out a letter bearing on the
subject, and I was rather astonished to find the number of different
lines of industry which the president of the American Federation of
Labor and the officers wished to include in a compulsory law. I asked
President Gompers the reason, and the matter over, and after hearing
the discussion here to-day, he told me that he favored a compulsory
measure. In thinking the injured person fails to report within a
very limited time, his it presented a question to my mind as to why
President Gompers was influenced in asking for a compulsory measure.
After Mr. Buchanan and Mr. Mitchell and others spoke on the question,
it seemed to me that this would be a point which we could discuss
here with a great deal of advantage to ourselves. In England they
have a double system. A man can go back after failing in the courts
and receive his compensation, and the question that arose in my mind
immediately was, what would he receive, and the answer to that is
something like this: He would receive $3000, of which the attorney
would immediately take $1000. Then if there was $1000 left after the
court costs were paid, he would get that $1000, but the court costs
might be $2000 or $3000. Then where would the double compensation be?
In referring to the matter this morning, I suggested that it might
be a matter of compromise as to whether there would be a single
compensation or a double compensation, and I would like to ask some
of the attorneys here what it costs to go through the Supreme Court,
and if it is not the custom if a damage suit results in $4000 or
$5000 damages to usually go through the Supreme Court and possibly
come back to some of the lower courts and then go back to the Supreme
Court again, and what that costs, and if it costs anything like
$2000, what is going to be left of the double liability? What does
the workman get?
I went over the English tables and I found that a man really received
more if he took his compensation than if he went through the courts,
and that when he got greater compensation after going through the
courts, he had to pay the court costs and his attorney. There was not
very much left for him.
MR. MITCHELL: The court in England fixes the attorney's compensation
at a very low amount.
MR. WRIGHT: But it does not here, and the court costs here amount to
a great deal more than they do in England, so that you must make a
comparison between the court costs in England and the court costs in
America, aside from the delay in the courts, before you will fully
understand the question. If a double liability is of any advantage to
the employe, I want that double liability. If it is not going to be
of any material advantage to the employe, and will merely pile up the
expense account would not it be better to pile up the expense account
in the first place, and have that go to the employe as an automatic
proposition? I am not arguing on one side or the other, but I would
like to know what the workingman is going to get when the thing is
settled.
I might go a little bit farther. We were shown some charts here this
afternoon as to what the workmen receive in an ordinary accident.
Those charts bore out exactly the statement I made this morning. The
charts this afternoon show that the workman receives on an average
something like $400, when he received anything. Now, is that right?
Is the life of a workman only worth $400 on an average? Is that all
the compensation he gets? It costs about $150 to bury a man and that
leaves $250, and besides that you have the other expenses coming in.
I am beginning to doubt whether the life of an able-bodied workman is
worth anything at all.
G. A. RANNEY (Illinois): I do not think the workman gets anything
under the double compensation, but he takes the risk of a suit, and,
I think, if he elects to take that risk, he should bear the loss if
he loses.
MR. INGALLS: I quite agree with Mr. Wright upon the practicability
of the double liability. My observation is that the double liability
is quite unimportant as a practical matter, because when you get
into court it is the delay that is the most troublesome thing. The
real expense in court is not so exorbitant. The charges of a lawyer
to handle the case exceed the actual court charges many times.
Even taking away the double liability will practically affect the
workingman very little. Of course, there may be isolated cases where
he ought to have that right, and where it ought to be preserved to
him, but in drafting a general scheme, it has seemed to us necessary
to preserve the double liability unless the employe agreed to waive
it, if he could waive it.
MR. BUCHANAN: In my opinion there would be very few cases of
expensive litigation in the courts if we had a proper compensation
law in this country. It has worked out that way in Great Britain,
and from information I have I know that the trade unions there are
discouraging action in the courts unless it is a clear case of wilful
negligence on the part of the employer.
I want to call the attention of the Conference to an abuse which
we have here in Illinois, and which our Illinois Commission have
probably looked up and understand. If they have not, they should.
The Appellate Court here has the power to pass on findings of facts.
There have been a great many personal injury cases reversed under
this system of passing on findings of facts. This court was created
in 1878, and given this power. Very few courts in the United States
have it. I believe the United States Court does not claim to have
that power. We desire that that power be taken away from them and
that they have the right to pass on the law alone.
Another thing that should be given thorough consideration is the
financial liability of the employer. I believe that where an employer
insures through a liability insurance company, that that insurance,
whatever it is, should be attached when damages are secured by an
injured employe. We have cases here where employers have no financial
standing, and the result is that they have defaulted in the payment
of damages, although they have been protected themselves by means of
liability insurance. The injured workman cannot secure that insurance
through the courts. That is something that should be remedied.
(An informal discussion was then had as to a more specific program
for the Saturday morning session. Chairman Mercer announced the
following committee, of which the Chair, in accordance with Dr.
Allport's motion, was _ex-officio_ member.)
_Program Committee_--Dr. W. H. Allport, Chicago; Prof. John H. Gray,
Minneapolis, Minn.; A. T. Saunders, Clinton, Mass.
(Upon motion of Professor Gray an adjournment was then taken until
9.30 A. M., Saturday, June 11, 1910.)
THIRD SESSION, SATURDAY, JUNE 11, 1910, 9.30 A. M.
Chairman Mercer called the Conference to order at 9.30 o'clock, and
announced that the Program Committee had submitted eight specific
questions for discussion, the consideration of each question to be
limited to twenty minutes, and the length of time of each speaker to
five minutes.
The further discussion of the Workers' Compensation Code was then
taken up as follows:
CHAIRMAN MERCER: The first question will be whether we want to cover
all employments in this act, or simply the hazardous employments.
MR. DAWSON (New York): In opening this discussion I am going to pass
the legal question, because if it is necessary to limit the bill to
hazardous employments, there are not two sides to the question.
It would appear that it ought not to be necessary for us to repeat
all of the baby experiments that have been made in other countries.
In other words, having delayed nearly thirty years longer than
Europe, why should we not begin where the European countries left
off, instead of where they began. It may, however, be necessary for
us to confine ourselves to certain classes of employment, but I
do not think, personally, that those classes ought to be selected
with strict reference to the question of their being hazardous. For
instance, if it should transpire that the employers of domestic
servants and the farmers are bitterly opposed to any system which
will apply to them, it may be necessary to leave them out, but we
ought, if possible, to cover all manufacturing establishments, all
mercantile establishments and all transportation industries, and
generally to proceed on broad lines.
There is a practical objection to confining this sort of thing
to the really more hazardous employments. It is this: The rates
for employers' liability insurance are already very high in those
industries, and they will probably be doubled or possibly tripled
or even quadrupled. It would be difficult to imagine anything which
would render workmen's compensation more densely unpopular than to
apply the principle exclusively to the more dangerous manufacturing
industries of a particular State. On the other hand, an increase in
the rate payable by a dry goods merchant, for instance, might not
amount to an advance on the payroll of more than one-half of 1 per
cent. or 1 per cent., and, therefore, might not seriously place the
employer at a disadvantage in competition with employers of other
States. That is not true where the hazards of the occupation are very
serious. You then have the situation that every manufacturer affected
may be able to establish that he cannot carry on his business at all
in competition with these other manufacturers if he is thus burdened.
JAMES A. LOWELL (Massachusetts): This matter of how many trades shall
be covered is a pretty serious one for Massachusetts, because I do
not think a scheme in Massachusetts would work unless we covered
practically all the trades. We have an employers' liability law in
Massachusetts now which excepts agricultural employment, which is a
small matter in Massachusetts, and domestic servants, and I should
assume that those two exceptions would be made in any law which was
passed, and incidentally that has been held to be a proper law. So
I do not apprehend any difficulty on the constitutional part of it
through leaving out those two classes of workers.
But in Massachusetts by far the greater part of the industry there
is in manufacturing, the lighter trades, and, I think, in order to
get a law which would be of much service in Massachusetts, we would
have to cover practically all industries, so we are up against the
proposition there that we cannot do much along the line that has been
followed in New York.
The experience in England under the employers' liability law has
been that the premium on insurance in mines is twice what it cost
under their former laws. In hazardous risks, as Mr. Dawson has said,
the rates are from three to four times higher, and in those lighter
trades it is very much greater than that; it is six or eight times
more than it was under the old laws, and the chances are that if we
adopted a law in Massachusetts with anything like the scale there
is in England, it would be six or seven or eight times as much for
insurance as it is at the present time. So that is a very practical
difficulty which we have to face in Massachusetts.
As I said before, in order to have a law there that is to be of any
value, you must practically cover all of the trades, and the only
way you can do that, as far as I can see, is that you would have
to have your scale of compensation under the law very low. I do not
think that that would work out badly in Massachusetts, because most
of the injuries which will be found in the factories will be minor
injuries. There are not a great many very serious injuries in the
cotton factories as compared with the mining and bridge-building
industries, but there are a great many small injuries. If you put
on some kind of a scale which would be relatively quite small, the
result, it seems to me, would be that the workmen, as a whole, would
be very much better off than they are now. As it is now, one man out
of every twenty, we will say, or possibly one out of fifteen, will
get a fairly good-sized amount, and all the other fourteen will not
get anything. Putting it on a moderate scale in the cotton factories
would give everybody something; probably not as much as we would like
to give them, or as we perhaps should give them, but, I believe, the
result would be much better than the present situation. For that
reason on the point we are now discussing, I believe the thing for
Massachusetts to do is to try and get some kind of a law which will
cover practically all industries.
CHARLES A. SUMNER (Missouri): I naturally would like to see the bill
cover all industries, but the legal question arises, and unless
we can get around it, as this tentative bill seems to succeed in
doing, I do not know what we would do down in Missouri. Missouri is
largely an agricultural State, and the Legislature is in the control
very largely of the farmers and the representatives of the smaller
cities in the agricultural districts. We have the initiative and
referendum, however, and it occurred to me, in listening to the
discussion here, that if it were the opinion of this Conference that
it would be better to attempt to get a bill adopted which would
include all trades, that it would be worth trying in Missouri, where
the initiative and referendum are in existence. I believe that if a
proper bill were put to the people direct, it would very likely get
the support of the people in Missouri, particularly if it was a bill
that the best judgment of this Conference had evolved. I believe,
however, that we would prefer to have the bill include all trades.
CHAIRMAN MERCER: Mr. Sumner, the farmers may have a considerable
influence in the Legislature, but so have the other interests, and
legislation is very largely a matter of trade anyway, when you get
into the majorities. Don't you think that would work itself out all
right and take care of the farmers?
MR. SUMNER: As I understand politics in Missouri, the farmers there
are strong partisans, and unless you can get your bill adopted by
one party or the other, as a party measure, which I think would be
very improbable down there, because our parties are very largely
in the control of the corporate interests of the large cities,
they would have something to say about the bills and the farmers'
representatives would simply go with the party. Still, with the
initiative and referendum the people and the labor unions down there
are not relying very much on the Legislature any more.
CHAIRMAN MERCER: If either party, or if both labor and capital wanted
this proposition, then they would vote for it?
MR. SUMNER: Yes.
CHAIRMAN MERCER: So if the employers and employes should agree on
what was a proper bill in your State, you would not have any special
difficulty, after all, would you?
MR. SUMNER: No, probably not. I should add that we have discussed
this matter at the City Club in Kansas City, and the employers are
just as much opposed to the present system as the employes. I was
told by a State Senator last week that he has a bill now drawn up to
be introduced at the next session of the Legislature, but I apprehend
that the bill will not be acceptable to us.
PROF. SEAGER (New York): It seems to me in this matter that we are
between the devil and the deep sea. If we begin this legislation
by taking in all trades, we have got to scale down our schedule of
compensation. We have got to recognize the validity of the argument,
that you cannot put too heavy
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