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.