corporation engaged in business in this State that has an employe in
his or its service shall be presumed to have accepted the provisions
of this act. Every employe, as a part of his contract of hiring,
shall be deemed to have accepted the provisions of this act unless
at the time of such hiring he contracts in writing to the contrary,
in which case the employer shall not be liable under the provisions
of this act. Every employe whose contract of hiring is in force at
the time his employer elects to provide compensation under this act,
shall be deemed to have accepted the provisions thereof unless he
files a notice in writing to the contrary with his employer within
thirty days thereafter."
I am not a lawyer myself, and I do not know what that means, but I
would like to know from somebody who is posted in constitutional
law as to whether that method of circumventing the usual provisions
of the law is strictly in accordance with the rulings under our
constitution. That is, whether a law can specify that we shall have
the right of election under the law, making the provisions of the law
specific, and then in the following section specify that unless they
shall elect to the contrary they shall be supposed to be acting under
the provisions of this law. That is the way in which Wisconsin has
gone behind the constitutional part of the law.
SENATOR SANBORN: The Legislature can always say what the fact is
presumed to be, and the presumption is that every manufacturer will
elect to accept this law. Whether they have or not is a presumption
of fact, and we do not have to prove that. In other words, as a
matter of course, we presume that every man has elected, but we do
not have to say that he has elected.
CHAIRMAN MERCER: It seems to me, gentlemen, in the course of
these proceedings, that the first thing to be done is to prevent
accidents. The second proposition is to compensate the injured for
those accidents which you do not prevent. You cannot prevent by
penal legislation; you cannot prevent by the assumption of damages
of an uncertain quantity, because those things have already been
tried and have failed. You can prevent accidents better, I think, by
placing a certain, simple and rapid liability upon the industry which
both sides shall partially bear, and which will compel both sides
to understand that there is a financial risk upon them that will
increase their cost absolutely if any accidents occur. I do not think
any large proportion of that should be placed upon the laboring man,
perhaps not over 15 or 20 per cent.
The laboring man, however, is in a better position to determine
whether or not a man is faking; he has his own channels of reaching
him. He is in a better position to see that the machinery is
protected, and to see that the rules are enforced in the factory,
and he is the man who is in a position to see that a fair settlement
is made if he has a financial interest in it, and not to say in
an off-hand way, "Oh, well, the man has been hurt, give him $50."
Besides that, when he has such a proposition as that and feels that
it is not a subject of charity, but a business proposition, and a
matter in which he has a right to help in the administration of it,
he wants to administer it quickly and rapidly. It appears that the
European countries which have adopted some such scheme as this have
found it to be the most satisfactory. No man will believe that he
will be injured in an accident. The moment a man starts in on the
proposition of whether he himself is going to be injured, he becomes
an unfit subject to ask for employment. He is not in a position to
go to the employer and say, "You must guard that wheel," or "protect
this machine." But if a situation is devised where one man can go
to the other and say: "You are the employer and you must stand
five-sixths of the cost of an accident, and we one-sixth, and you
must protect these men; here is a man over here that will not live
up to the rules, fire him. Here is a man that does not know his
business. Do not let him work in this place. We have an interest in
this matter. It is costing us money if he injures somebody, and we
want these men protected." You can see what a different situation
arises.
The employer must take the word of the laboring man for that, because
the laboring man is where he can see and know, and the employer is
not in a similar position. The result of that is to increase the
confidence in the laboring man, to increase the precautions taken
to prevent accidents, and to increase the mutual respect and good
feeling between the two men, if you place them both where they have a
mutual and certain liability.
As to what is a dangerous employment, as to whether or not you should
cover some or all, I have no doubt that there is not a man in this
country, a farmer, a mechanic, a laboring man, a doctor, a lawyer or
any other professional man, but what is perfectly willing to have
and desires to have a fair compensation law if he can know just what
it is going to cost him, and just what his insurance will cost him,
in order to avoid the present uncertainties and evils that flow
from existing conditions. The case of domestic servants has been
mentioned here. One of our judges in the federal court in our State
had a servant break her leg on his back porch last year. He took her
to the hospital and took care of her, but would not he rather have
been paying three dollars a year for insurance for all the risks that
might come to her in that industry? Would not you rather do that
yourself? And besides that, from the humane standpoint, would not
you rather that the poor girl should be placed in a position where
she certainly will receive compensation in case of an accident which
perhaps she or any one else could not have avoided, than to have her
go on and lose her wages or else you pay them to her?
Then you say you must not go to the farmer. I say to you that I
believe that the farmers in this country would welcome such a
proposition if they understood it. There is not a man, an employer or
a laboring man, who, when you place the proposition before him in any
such form as we are discussing it here, would sanction it off-hand.
But there is not a man in this country that I have ever seen who
has studied this question for any length of time, intelligently and
carefully, but what believes that the more nearly you can get every
industry into one certain, definite and simple liability the better
off you are.
Look at it as a business proposition--and it is a business
proposition--it is an insurance risk and it ought to be left in such
a way that the liability is direct. The first thing the business man
undertakes to consider on this proposition is what will it cost me;
can I afford it? Every time you put on a double liability, every time
you leave a thing uncertain, you increase the risks to him and the
cost to him in his business, and he so understands it, and that is
something which you should give consideration. I do not believe there
is a labor representative here, I do not believe there is a laborer
in this country, who entirely understands the matter, who is mature
in his judgment upon it and who has studied it and understands the
whole situation, but who would be willing that you should repeal all
of the statutory provisions now existing, repeal all of the common
law, if you give him something which he knows is not a gold brick.
If you simply say you must have this liability, it is not a question
of contract, because that still leaves an uncertainty; but if you
say, "You will be paid in accordance with a certain percentage of
your wages if you have an accident in your business," everybody will
then know just exactly where they stand on the proposition, because
it is only a question of actuarial calculation to determine what the
compensation is, and I think everybody would be willing to accept a
law drafted in that form. It will cost the business men more, but
the laborer is going to get more out of it, and it is good business
for the business men. You cannot tell me, gentlemen, that all of the
large financial institutions and corporations of this country that
have voluntarily adopted this scheme in the last three years would
have done so, if they had not come deliberately to the conclusion
that, taking into consideration the humanitarian features of the
case, and the mutual relations that exist between the employer and
employe, that this is a step which naturally and logically will be
profitably adopted in this country, and one of the most hopeful signs
in the present economic situation is that labor and capital are
dealing together on matters of that sort, and doing away with the
strife and friction that has heretofore prevailed between them.
With respect to the theory that should be followed in this
legislation, we must understand that both employer and employe must
be willing to stand some restrictions. Neither has more interest in
its remote consequences than has the State. We cannot keep up the
old system and add a new without leaving all the uncertainties and
adding the burdens of certainty. We would leave the burdens of cost,
the weight of a large part of the injustice, a considerable amount of
the delay and most of the prejudicial feelings that now prevail with
respect to the worst accidents and their final determination. There
is no doubt but that it would be the worst cases where the remedy
through the courts would be used in the present system.
Penalties as such, criminal or civil in nature, ought not to be
considered in this legislation where it does not rest upon the basis
of fault; penalties never tend to good mutual feelings as between
the parties. It is no time to stir up strife when both parties are
willing to negotiate fairly upon this question. It is no time to heap
unusual obligations when the employer and the State are willing to
make a fair compulsory system. Neither is it any time to deprive the
laborer of fair compensation; but it is the time to place a liability
on a fair basis, comparable to the risk and the situation in other
countries, and allow a simple, safe, quick remedy that is absolutely
certain.
To be certain, we must remove any idea of recovery as a penalty; we
must prohibit the bar of recovery by any fault of the employe. Cases
in which the employe would directly and voluntarily be at fault are
so few that they would cost the employer and the public much less
than the defense of the trials if we should undertake to introduce an
element of fault as a defense. The theory of workers' compensation
is to get away from fault, and it ought to be barred upon that side
as well as the other.
The bill under consideration in this program was meant to be a bill
that would accomplish the purposes when more elaborately worked out
that we all feel should be had. The title is made broader than an
ordinary legislative act, so as to allow a system of law that would
repeal all other laws on the question, and substitute this remedy for
those which exist and add it where there is none. We, therefore use
the term "code" in order to cover a system of law. See Johnson _vs._
Harrison, 47 Minn., 575; Central of Georgia Railway Company _vs._
State, 104 Ga., 31, Section 1.
We have defined dangerous employment in this act with a view of
covering every occupation which has accidents. This will give every
person the opportunity to guard against the obligations that arise
from injuries occurring in and growing out of the conduct of a
business.
It is for the Legislature first to determine whether or not this is a
proper classification, and if there be reasonable basis for declaring
the employment to be dangerous, the courts will follow the judgment
of the Legislature, even though their own judgment might not accord
with that of the Legislature. See Lochner _vs._ N. Y., 198 U. S., 45;
Holden _vs._ Hardy, 169 U. S., 365.
This definition of dangerous employment is studiously meant to be a
broad one. It is not dependent upon classification of industries on
the basis of manufacture, mining, railroading or other segregated
employment. Its purpose is to so define dangerous employment that
every employment which is, in fact, dangerous will be so defined
exactly in proportion to the dangers that actually occur. Being
a dangerous employment for each accident which it has, and not
dangerous unless it has those accidents, the definition is especially
equitable in two aspects. It induces those operating the same sort
of employment to keep their accidents down; it makes those who have
accidents liable exactly in proportion to the accidents which they
have in fact.
We have not used the term "accident" in the law because of the
uncertain meaning of that term throughout the state and federal
courts of this country. We find that this term in some instances
has been construed in the popular sense; in some instances it has
been construed to mean that which has happened without the fault or
intent of any one. We fear great litigation as to what it would mean
if the term "accident" should be used. The terms arising out of, and
in the course of, such employment have been sufficiently defined by
the English courts under their act that they will need no further
definition here than the words themselves would indicate.