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.