It is the intention of this act to make the employer liable to pay
compensation, and it would be the purpose probably to make the
employe liable to stand a small amount of the carrying charges
as specified in this act when worked out. Some argument has been
produced in this convention to the effect that it would be difficult
to hold the employer in case he had no fault, but fault is not
necessarily the basis of liability in such cases. See Chicago, R. I.
and Pac. Ry. Co. _vs._ Zernieke, 183 U. S., 582.
The man who put into operation the dangerous machinery of dangerous
employment would be liable by reason of public necessity to be
controlled under the elements of the police power for the protection
of the general welfare. It has been intimated here that this rule
would not apply except in the case of _quasi_ public corporations,
but this is not the law. Relations otherwise private may become
public under public necessity if the State decides that the public
needs protection. See State _vs._ Wagener, 77 Minn., 483; Harbison
_vs._ Knoxvill Iron Co., 183 U. S., 13.
It has been urged that no man can have the right taken away from him
to sue in the courts for injuries under such circumstances. Generally
speaking, it is the rule that a party has no vested interests to a
right of action at common law for a future injury. A tort action
grows out of a breach of the duty which the State provides that one
of its individuals owes to another, either by reason of the peculiar
situation as between the parties, or by reason of a public burden
which has a peculiar favor in it for the one who is injured. This
direct liability the State has imposed by the implied adoption of the
common law or by statute, both of which it has the power to repeal.
It has repealed or has modified the common law or statutes every time
it has imposed a new obligation or taken away an old obligation with
respect to tort actions. See Martin _vs._ Pittsburg and L. E. R.
Co., 103 U. S., 284; Holden _vs._ Hardy, 169 U. S., 366; Snead _vs._
Central of Georgia Ry. Co., 151 Fed., 608.
With respect to the remedy, we think that the remedy provided here
is the appropriate and proper one. It would be so if it were fire
insurance. See Wild Rice Lbr. Co. _vs._ Royal Ins. Co., 99 Minn.,
190. Such a law, leaving the general question of liability to be
determined and simply providing a reasonable method of estimating and
ascertaining the amount of the loss, is unquestionably valid in both
this country and Europe. See Hamilton _vs._ The Liverpool and London
Ins. Co., 136 U. S., 242, and cases therein cited.
The fact that the liability is conditioned upon the application of
a remedy as substantially provided in the act does not in any way
affect the constitutionality if it is carried out as we suggest. The
theory is that until the appraisal is made by the award provided
there is no liability. See President, etc., V. and H. Canal Co. _vs._
Penn. Coal Co., 50 N. Y., 250; Wolff _vs._ Liverpool, L. and G. Ins.
Co., 50 N. J. Law, 453; Hall _vs._ Norwalk Fire Ins. Co., 57 Conn.,
105; Reed _vs._ Washington Ins. Co., 138 Mass., 572.
It has been intimated that the employer might be forced by such law,
when the employe could not be so forced. We fail to see the force of
this argument. The reason why the employers cannot be forced, if it
is done equally, is that it deprives them of their liberty secured
by the Fourteenth Amendment to the Federal Constitution to contract
with respect to their labor as they see fit upon the theory that the
liberty of contract is a property right; but neither the right of
property of the employe nor the employer stands above the general
public good. The general welfare was one of the principal purposes
given in the Preamble of the Federal Constitution as the reason
for the making of that constitution. It has been consistently and
persistently upheld by the courts whenever needed for the protection
of public good; as long as government exists it always will be so
upheld. It is an absolute and final necessity. With this right the
Federal Constitution was never intended to interfere except in
the few instances limited by the Fourteenth Amendment; except as
specifically limited the State has as much power as a foreign nation
upon this question, and that amendment does not prohibit the exercise
of such power to the extent that it is necessary in dangerous
employments. See Mayor, Alderman, etc., of N. Y. _vs._ Miln, 11
Peters, 102; Lochner _vs._ N. Y., 198 U. S., 45. Other cases cited
_supra_.
In this respect, too, we must not overlook the fact that the employer
and the employe do not stand upon an equality in their negotiations
with respect to dangerous employments. Stripped of political
perplexities and personal prejudices and ambitions, the fact is, and
must be recognized, that the fundamental reason for the interference
by the State with respect to these matters rests upon the bare fact
of the inequality of abilities of the respective parties to take care
of their interests by reason of the peculiar situations. In the case
of Harbison _vs._ Knoxville Iron Co., 53 S. W., 955, the Court said:
"The Legislature, as it thought, found the employe at a disadvantage
in this respect, and by this enactment undertook to place him and
the employer more nearly upon an equality. This alone commends the
act, and entitled it to a place on the statute book as a valid police
regulation."
The Supreme Court of the United States approved this opinion in
Knoxville _vs._ Harbison, 183 U. S., 13.
In respect to the length of hours, dangerous labor may be required,
it was said by the Supreme Court in Holden _vs._ Hardy, 169 U. S.,
366:
"The Legislature has also recognized the fact, which the experience
of Legislatures in many States has corroborated, that the proprietors
of these establishments and their operatives do not stand upon
an equality, but that their interests are, to a certain extent,
conflicting."
Then in the case of Narramore _vs._ Cleveland, etc., Ry. Co., 96
Fed., 298, a case involving the rights of railway employes to have
switches blocked, while Judge Taft was sitting on the Circuit Court
of Appeals, he used this language:
"The only ground for passing such a statute is found in the
inequality of terms upon which the railway company and its servants
deal in regard to the dangers of their employment. The manifest
legislative purpose was to protect the servant by positive law,
because he had not previously shown himself capable of protecting
himself by contract; and it would entirely defeat this purpose thus
to permit the servant 'to contract the master out' of the statute."
An employe cannot successfully say to a railway president, "Run your
business carefully or I will quit." This is a new right and not
necessarily triable by jury in State courts. Am. _vs._ Morrison, 22
Minn., 178. See Minor _vs._ Happersett, 21 Wall., 162.
We might argue this legislation at length, but it seems useless at
the present time. There is an agitation throughout this country,
unequaled upon any other single subject, in favor of a fairer system
of compensation to meet the necessities somewhat along the lines that
foreign countries have done. No subject in this country has ever
been studied more deliberately; no attempt has ever been made upon
the part of all parties to approach a legislative subject in this
country with less partisan feeling or more careful study. Employes
have awakened to the conditions in a substantial way. Employers
are willing that they should have something of a fairer and more
substantial nature. The State needs it for its own protection as
well as the protection of its members. Public sentiment is aroused,
but it is being judiciously controlled. We might have pending in
this country a civil war larger than the Civil War of the sixties
was and not do as much injury at the present time as the industrial
accidents. Fair people, therefore, are going to be willing to have
laws that will tend first to prevent accidents, and, second, to
fairly compensate for them, and to do it in such way as to be an
inducement to both the employer and employe to prevent the accident.
We want society protected also. No better time will ever come for
a fairer legislative act upon this question than at the beginning.
If the movement is uniform, and held in check long enough to be
understood, there will be no difficulty about passing the laws. Every
bad law injures the cause, every unfair law will prejudice it. The
basis is the police power and the liberty of occupation, and contract
can only be controlled where necessary; that is, in dangerous
employments, but can be in all such employments.
(This concluded the business to come before the Conference, and
on motion of Joseph A. Parks, of Massachusetts, the meeting stood
adjourned _sine die_.)
APPENDIX
BRIEF REPORT
SECOND NATIONAL CONFERENCE
WORKMEN'S COMPENSATION FOR INDUSTRIAL ACCIDENTS
WASHINGTON, JANUARY 20, 1910
The second meeting of the National Conference on Workmen's
Compensation for Industrial Accidents was held in Washington, at the
New Hotel Willard, on January 20, 1910.
FORENOON SESSION.
SECRETARY H. V. MERCER, Chairman of the Minnesota Commission, called
the meeting to order at 10 A. M. He announced that in response to the
following invitation which had been sent to governors, ninety-four
delegates had been appointed from nineteen states:
"Dear Sir:
As you are no doubt aware, several of the States have created
commissions and legislative committees to investigate the
present Employers' Liability Laws and report plans for
betterment along the line of Workmen's Compensation Acts.
A conference of these commissions and committees was held at
Atlantic City, on July 29th, to 31st last, a report of which
is this day sent you under another cover. At that time it
was resolved to hold a second conference, to be attended, if
possible, by some person or persons designated by the Governor
of each State. (See pages 277-9; 302-3, Atlantic City Report,
supra.)
It has been determined to hold this second conference at
Washington on January 20th, immediately after the conference
on Uniform Legislation, which has been called by the National
Civic Federation, and to which we are informed the Governors of
the various States have been requested to send representatives.
You are respectfully urged to designate one or more persons
specially qualified to take part in our second conference.
In case you designate persons to represent the State at the
Uniform Legislation conference we would suggest that you
might designate one or more of the same persons to attend the
conference on Workmen's Compensation.
Enclosed is a brief account of the Atlantic City Meeting, which
explains more at length the general purpose and scope of these
conferences.
We shall appreciate it if you will advise the Secretary at your
earliest convenience as to the persons designated to attend
this conference so that he may put himself in communication
with them and arrange the details."
On motion, Mr. Mercer, in the absence of Dr. Chas. P. Neill, was
elected temporary chairman, and Professor Henry R. Seager was made
secretary of the meeting.
MR. MERCER:
"Our executive committee did not formulate any regular program.
We thought that the speeches ought to be limited to ten minutes
and unless there is objection we will act upon that principle.
We have drafted a short bill which we present here, not with an
idea that it is correct, or that it is absolutely the bill that
should be passed, but with a view of bringing up the different
points for discussion. This matter has been discussed from the
standpoint of theory sufficiently long and some of us think
that we should get down to practical things."
SENATOR J. MAYHEW WAINWRIGHT, Chairman of the New York Commission,
described the preliminary work of that body (as outlined again by
Miss Crystal Eastman, at the third meeting in Chicago [Page 13]).
Senator Wainwright said, in part:
"The great difficulty is to determine how one State can adopt
any system of compensation before the other States, and to
secure the information upon which may be based a precise
conclusion as to what the increased cost to the employers would
be. It seems to me that it is going to be very difficult to get
at exactly what the effect upon the industries of the States
any particular bill will have, until some measure is tried. We
are warned not to be the pioneers in the field. That raises,
it seems to me, a very great ethical question, for this is a
serious matter, and involves basic justice. It seems to me that
we should question whether so much importance should be given
to the cost, unless we are sure the cost is going to be pretty
nearly prohibitive. In other words, if the thing is right, and
fundamentally just, hasn't somebody got to start it and make
a beginning and take some little chance as to what its effect
may be. Another difficult matter, of course, is to determine
the effect upon the smaller employers of labor, and there, we
can only judge from the foreign experience.... The only thing
we can be absolutely certain of, is that the present system is
unsatisfactory and that there should be a change. So far as our
commission is concerned, we will not cease from our labor but
will unremittingly direct all our efforts to this subject until
we, in the State of New York, can arrive at a solution which
our commission will feel is the right one."...
COMMISSIONER CHARLES P. NEILL, of the United States Bureau of Labor,
arrived at this time and assumed the chair. He said:
"Gentlemen, I wish to apologize for my inability to get down
here at the opening of the session. It has not been a want of
interest in this subject that has delayed me, for there is
probably no subject in which I have more interest than the
one of employers' liability and workmen's compensation. For
the last eight days we have been engaged in bringing about
the adjustment of a controversy which required as a solution
some form of workmen's compensation. We have been dealing with
the representatives of switchmen in the railroad yards, and
if there is any occupation in which more men are maimed and
butchered, I do not know what it is. Discussion brought forth
at almost every point the necessity of doing something in this
country to put us on what we might call a half civilized basis
for taking care of the derelicts of industry." (Applause).
SENATOR A. W. SANBORN, Chairman of the Wisconsin Commission, was then
introduced and he outlined the preliminary work of that Commission
(in a statement similar to the report made at Chicago by Senator
Blaine [Page 10]). Senator Sanborn also said:
"As we look at it in Wisconsin, we are surrounded on three
sides by very lively competitors in the manufacturing line;
there is only a certain amount that we can load on our
manufacturers and let them compete until we reach a bill that
is uniform in the group of States in the Northwest. As one of
our large manufacturers expressed it at one of our hearings, we
are willing to pay twenty per cent. or twenty-five per cent.
more than we are to-day, however, if you put it on a definite
basis so that we know how much....
... Now, I hope we can derive some benefit here by getting
down to specific things. I think it is generally conceded by
everybody that has paid any attention to the subject, that
the time has arrived when something must be done; the present
situation is absolutely intolerable, giving rise to great
unrest, and people feel there is great injustice under the
present system."
PROFESSOR HENRY W. FARNAM, of New Haven, stated upon call, that the
Connecticut Commission accomplished practically nothing. He then
made an appeal for united action between the states for the purpose
of securing greater care and greater uniformity in investigation and
legislation. He offered the services of the American Association for
Labor Legislation (of which he is president), in any endeavor that
would bring about a better understanding between the different groups
now interested in this question.
MR. MAGNUS W. ALEXANDER, of Lynn, stated upon call, that there was at
present no Commission in Massachusetts.
MR. JOHN MITCHELL, of the New York Commission, in discussing a
proposal to study costs of industrial insurance in Germany, said:
"I think it is important, that we should understand that
neither in purpose nor in action is it contemplated that
a movement of this kind shall delay the efforts of the
commission to reach conclusions. I quite agree with you that
an investigation as to the costs and operation of the laws in
Europe would be of advantage to us, but I quite well recognize
that that is a slow process, and I think we cannot afford to
wait for several years before we do something definite in this
country. Now, I should like to say that I recognize very well
how important it is to our industries that they be kept on a
fairly competitive basis. I am not at all satisfied, however,
that the establishment of a system of compensation, even in one
of our states, would be a serious handicap to the employers of
that state. I think that we ought to take into consideration
the experience abroad. Now I do not know whether it is because
of the compensation laws in Germany, or in spite of them but
I do know that co-incident with the establishment of their
insurance system, which is the most comprehensive of any in
Europe, prosperity took a rise. The German Empire has forged
ahead at an unprecedented rate since the establishment of their
comprehensive system of insurance and compensation....
... The relation of the various countries of Europe to each
other is not unlike the relation of our own state governments.
Competition between some of the continental countries is as
keen as is competition between some of our states. I am not
willing to agree either that increasing the cost of a product
will necessarily put that product out of the running with
the same product produced in another state. There are a good
many other considerations entering into the matter: If better
laws or better wages attract better workmen, then there is
a compensation to an employer even though his wage-scale be
higher or his cost greater than prevails in a competitive
industry in another State. The best workmen are attracted to
those industries and to those localities where conditions
of employment are most satisfactory, and I dare say that
every employer will agree that the best workman is to him
the cheapest workman even though his wages be higher.... I
feel, that our state would not suffer in the race for trade
if we should establish a compensation system, and I believe
that Minnesota would not suffer and I believe that Wisconsin
would not suffer. We cannot afford in the United States to
wait until all States, even though they be only competitive
ones, are ready to adopt one system of compensation, any more
than we ought to wait before we advance wages in one state
until all the other states are ready to advance them, and we
certainly do not do that. As a matter of fact there is scarcely
an industry conducted in the State of Wisconsin, Minnesota,
or New York, whose wage schedules are made at the same time,
notwithstanding the fact that they have competitive industries.
There are very few industries in this country whose wage rates
and conditions of employment are regulated nationally; there
are very few industries where organized workmen are employed
that attempt to make wage scales on a national basis; true,
there are some, such as coal mines and the railways, but in
the machinery trade, in building construction, and in all the
miscellaneous industries, the wage schedules are made local and
without any special relation to the wage schedules of other
states....
I, of course, am anxious that we shall have the very best
information obtainable, and of course it is desirable that
all the states should act together, but I think it is equally
desirable that some of the states act quickly because it is an
evil, and a growing evil, and it is more readily recognized now
because we have been talking about it. The workingmen of the
country are aware now of the conditions that prevail in other
countries and we are very much dissatisfied with the conditions
we now have. Employers themselves are going outside of the
law to try and compensate workmen for injuries. Practically
all of the large employers in the United States recognize and
concede the inequity of the present law, by trying on their own
account to draft some system to pay workmen more money wherever
there exists a necessity for speedy relief. Now, I wanted to
make those observations because I do not want to agree to
a proposition here for an investigation of the conditions
in Europe, if that investigation means, either in purpose
or in effect, that we are going to wait the returns of that
investigation before we get something that is substantial in
America." (Applause).
MR. C. B. CULBERTSON, of the Wisconsin Commission, said in brief:
"The conditions in the United States are far different from
what they are in Europe, and the testimony taken before our
Commission shows that two industries standing side by side,
being practically the same, having practically the same number
of machines, with practically the same number of men employed,
would have rates of which one would be half as great as the
other, and would be fair in each case, because the accidents
in the one concern were twice what they were in the other. Now
this is going to be a very hard matter to get at if you wait
to get these figures and then attempt to follow them. And a
third point; I believe the employers in Wisconsin, as well as
the laboring men, are ready for this proposition at this time,
and I believe we are going to have it in Wisconsin at the
next legislature. I do not think we are going to wait for any
instructions from Europe or for any figures from there."
At this point two resolutions which had been adopted at the Atlantic
City meeting, in July 1909, were re-adopted,--requesting the U. S.
Bureau of Labor to publish the foreign compensation laws in English,
and to investigate the comparative cost to employers, of liability
insurance under the American system, and workmen's compensation under
the British and German systems.
MR. MILES M. DAWSON, of New York City, said:
"I agree with the Wisconsin, Minnesota and New York Commissions
that if we are to get anything done this year, we should go
ahead and do it without waiting, for these tables of cost are
by no means absolutely necessary.... But the things which can
be brought out by that information are not quite the same
things you are apparently thinking about.... A thoroughly
competent expert, who will know what he is after, can put that
information in the hands of the Bureau of Labor for publication
by September or October next, and there is no reason why the
Minnesota legislature or the Wisconsin legislature should
hold up its report for an indefinite length of time. I have
known New York pretty well, and if the Commission in New York
renders a report during the present session and it meets with
the approval of most of the Commission in New York, there is no
doubt in my mind but what something will be done in New York
before the present legislature is over."
DR. CHARLES MCCARTHY, of Wisconsin, said:
"I am thoroughly in favor of getting the statistics from
Europe and I fully realize what a job that is. I believe,
however, there is a way of going ahead as Mr. Mitchell and
Mr. Culbertson have suggested without getting the statistics.
Perhaps we are trying to get too much at once upon the
statute books. I would suggest that these industries might be
classified as to the dangers which they incur, not necessarily
the industries that are particularly dangerous, but a group of
industries could be taken and the law applied to them, and a
bill could be introduced in the three legislatures applying to
those particular industries. The rates could be fixed in that
law so reasonable that the manufacturers could not oppose the
law, with a provision in the law that after investigation, or
within a certain time, those rates would be increased in the
future. Now, as an experimental thing, as a thing which all
States could agree upon, that would not be hard to get and
would not be hard to put upon our statute books. It would be
an opening wedge, it could be tried before the courts and the
principle determined by the courts and then applied within
a few years to other industries of a dangerous nature. I do
not think the process of statute law making is a process of
getting all the statistics and facts from foreign countries; I
think that it is the other way in America. Our statutes work
out differently in the psychology of the working man, and I
believe the way to do it in America is to get some particular
group of industries that we know are dangerous and get three of
the States to act together. I think the workmen will meet that
half way, with the idea of increasing in the future. It is an
entering wedge that all can agree upon." (Applause).
MR. J. P. COTTON, counsel for the New York Commission:
"If we ever come to workmen's compensation, there has to be
back of it sometime an efficient insurance system and the
data of the English experience on that is of the very highest
importance.... I do not see any reason why, in non-competitive
trades, any American state is not now ready to go ahead and
establish a system of compensation at such a rate as will at
least grant relief to the workmen. But that does not make any
less important the collection of foreign figures in particular
accident experience."
DR. MCCARTHY:
"How will it do to make a classification based upon actual
statistics of deaths and accident rates and put it up to the
courts? Suppose the courts do knock it down, then they will
tell what we can do in the future. We don't want to be afraid
of the veto of the courts, for in the end they will tell us
what we can do. We have to go through that experience some time
and we might as well begin with our best foot forward,--with
the best case we can make."
MR. GEORGE M. GILLETTE, of the Minnesota Commission:
"... It seems to me that the question of cost on the one side
and compensation on the other are so closely interrelated that
it is absolutely impossible to consider the one without the
other. If the other members of this Conference do not desire
this information, I have no desire to press it; it has already
been expressed by resolution in the minutes of the preceding
Conference. Personally, however, I am going to investigate the
costs and the working of these compensation acts abroad.
I offer the following resolution:
'Resolved: That a committee of three be appointed by the Chair
to confer with the Honorable Secretary of State to secure the
coöperation of the Government, and its aid through our Consular
and Diplomatic Service in obtaining information as to the
workings of the foreign compensation acts and the criticisms
which are made at the home of the various acts.'"
The resolution was adopted, and John Mitchell, A. W. Sanborn and Geo.
M. Gillette were appointed.
MR. BERTRAM PIKE, of New Hampshire:
"I would suggest in connection with getting the insurance rates
from abroad, that we ascertain what has been the actual cost of
the workmen's collective policies in the different industries
and States in this country, because it will show almost
absolutely what it costs to protect those men."
MR. OWEN MILLER, of Missouri:
"I think that suggestion is a good one."
MR. WALLACE INGALLS, of Wisconsin:
"The accident insurance companies know what injuries occur in
the principal manufacturing industries. They have definite
information."
SENATOR HOWARD R. BAYNE, of the New York Commission:
"Our Commission has adopted the plan of discussing tentative
propositions in order to confine our attention to specific
questions. I move that this Conference now direct its
discussion to the consideration of whether the scheme of
workmen's compensation in all cases of industrial accidents is
industrially feasible at the present time."
[The motion was carried.]
MR. WILLIAM BROSMITH, counsel for the Travelers' Insurance Co., of
Hartford:
"I do not know that I am in a position to give you any advice
as to the industrial feasibility of workmen's compensation.
Personally, I am a strong believer in workmen's compensation."
THE CHAIRMAN:
"Do you believe that the insurance companies would be willing
to place at the disposal of this conference, or any one, the
actual experience they have had under collective insurance;
in other words, would they be willing to allow statements to
be taken from their figures showing precisely the number of
accidents in any given occupation or the total number of people
insured, the number of injured, the kind of injury, the time
the injuries lasted, of course leaving out the question of how
much was paid by the company?"
MR. BROSMITH:
"I can speak positively for one company. I know that we will
be very glad indeed to furnish to the State Commissions the
experience of our company on industrial accidents. I have
offered already to do that for the New York State Commission.
I have no right, of course, to speak for other companies, but I
am confident, that all of them which write industrial accident
insurance or which cover it in one form or another, will be
glad indeed to furnish their experience. I do not believe that
the value of statistics you gather abroad as to the practical
working of workmen's compensation and insurance in foreign
countries will be of much value, but I do believe that in our
own country, where we have a vast mass of experience it will be
of practical benefit.
The company which I represent has been transacting accident
insurance in this country for fifty years. We have written,
I presume, millions of policies of accident insurance upon
persons engaged in industrial occupation. We have that
experience all tabulated and arranged and classified so as
to show the injuries sustained in the different occupations,
the injuries sustained at occupation, the injuries sustained
foreign to occupation, the premiums charged and received in
all of these years, the loss ratio and the accident ratio. I
believe, the insurance companies in the United States could in
a very short time know the exact amount paid by any employer
of labor as a premium rate, or cost of insurance which would
be necessary to protect the employer against the compensation
which he in turn would be obliged to furnish to his employees.
I believe that experience will be very valuable to the State
Commissions and I know, that so far as the accident companies
are concerned, when a scheme of compensation is perfected in
any State, it is to that experience we will go in order to
ascertain what we will charge the employer for the insurance
protection. We will not go to the experience of any liability
insurance. That may have a value, I presume it has, but it is
not at all comparable to the value of experience in personal
accident and health insurance, and particularly the experience
of the companies which write industrial insurance.
At the present time, the insurance company has the privilege of
selecting its risk, and the benefit of that selection affects
the premium charged. Today we may insure a thousand employees
of the Pressed Steel Car Company, but we will select that one
thousand; the ones who are of bad habits, careless, or of bad
morals we decline to take. Under the workmen's compensation,
however, we would have to insure all of the employees of a
given industry, good, bad and indifferent. The fact that we
would have to insure all of the risks in a given industry
without selection, would have the effect of increasing the
premium somewhat. However, under workmen's compensation I would
assume that the injuries to be covered by the insurance would
be only the injuries sustained in occupations, so that a very
considerable percentage of the injuries now covered by general
accident insurance, would be taken out of the insurance under
workmen's compensation."
PROF. SEAGER:
"If we asked your company to name the thirty most hazardous
industries carried on in New York State, it would not be a
matter of difficulty?"
MR. BROSMITH:
"It certainly would not be difficult to give you the thirty
most hazardous all over the country."
MR. WILLIAM F. WELCH, of West Virginia:
"Would the insurance companies, under a compensation act,
require the rigid medical examination that is now required?"
MR. BROSMITH:
"No. There is no medical examination in accident insurance now."
MR. MERCER:
"I have prepared a bill that I thought would stimulate
discussion, and I have had it printed in order that you might
look it over."
Mr. Mercer then explained briefly the provisions of his tentative
bill, which, with modifications, was presented again at the Chicago
meeting, and is printed on page 40.
At one o'clock the meeting adjourned until 2.30 P. M.
AFTERNOON SESSION.
The Committee on Permanent Organization through its chairman, Prof.
Seager, submitted a report, which was adopted,--providing:
1. That the members of the permanent Conference shall be the members
of all State Commissions on the subject, one permanent representative
to be appointed by the Governor of each State, and ten members at
large to be elected at any regular meeting of the Conference;
2. That a permanent executive committee of fifteen members be
appointed by the Committee on Permanent Organization;
3. That the Secretary of the American Association for Labor
Legislation be named as the Assistant Secretary of this Conference;
4. That the Conference meet in Chicago on June 10th, 1910.
The sentiment of the Committee favored public meetings, but with
privilege of voting limited to the members of the Conference.
The Executive Committee was directed to draw up a suitable set of
by-laws for submission at the Chicago meeting of the Conference.
On motion, a committee consisting of Messrs. Seager, Mercer and
Dawson was appointed to draw up a bill and submit it to the insurance
companies for cost figures, and to furnish copies of the bill for
distribution, at least twenty days in advance of the next meeting in
Chicago.
MR. M. L. SHIPMAN, of North Carolina, made a plea for more specific
announcements concerning arrangements and place for meetings, in
order that there might be less confusion on that account in the
future.
The Conference, after a temporary adjournment for the purpose
of having a photograph taken, took up, section by section, the
discussion of Mr. Mercer's tentative bill.
Upon the question of the proper classification of hazardous
employments it was practically agreed that any attempt to include
agricultural laborers and domestic servants in a compensation
measure, would probably result in failure. "You cannot pass a bill
of that sort," declared Dr. McCarthy. "Anybody who has been around a
legislature knows that the farmers, on questions of this sort, are
way behind the laboring man or the manufacturer; they are full of
prejudice and will fight a bill of that kind every time."
The constitutional difficulties in New York were discussed by Senator
Bayne who laid special stress upon: (1) the death limit clause; (2)
the right of trial by jury; and the due process clause. "Some of
us," said Senator Bayne, "have about concluded that the only way we
can justify any compensation act for industrial accidents will be
through the exercise of the police power of the State. And we think
this principle lies at the bottom of the police power: that it is
competent for the legislature to declare that a proposed remedy is
based upon the police power, but it must in fact be dangerous to
the health or public safety or welfare of the community. The mere
fact that the legislature so declares it, does not make it so. It is
subject to investigation by the courts, and if they find that it is
reasonable then they will leave it to the legislature to declare the
extent of authority under that police power with those limitations."
In answer to these objections Mr. Mercer cited numerous court
decisions (printed in pamphlet form by Mr. Mercer) which led him
to feel more sanguine of what may be accomplished under our
constitutions. In answer to Prof. Seager's question: "Is it
probable that the court will take the view that a general workmen's
compensation act is a reasonable exercise of the police power?" Mr.
Mercer replied:
"My understanding of that is that under the general theory
where twenty-three of the most important foreign countries have
passed legislation on the theory that there was a reasonable
foundation for it, where six or seven of the forty-six states
have passed laws requiring commissions to investigate this
proposition, where men would meet at Atlantic City and discuss
this subject as we did for two days, where the National Civic
Federation devoted a day to it in New York, and where we devote
a day to it here, where there is literature all over the
country and every magazine has some article on the subject at
the present time, and probably all of the corporations coming
around to the view that we need certain legislation, I do not
believe any court would say that there is any opposition to a
reasonable discussion of the question, and that the legislature
has not the right to declare it was a dangerous employment if
we limit it to the industries that have hazards."
Prof. Seager outlined the plan of "extra-hazardous" occupation
classifications favored by the New York Commission and Dr. McCarthy
pointed out the danger of too much definition. "My experience with
bill-drafting is that in getting the most simple statement of a case,
the less you say, the better."
MR. JOHN LUNDRIGAN, of New York, gave it as his opinion that "any
scheme of compensation that follows the job or the employment,
instead of the individual, is wrong and will fail." He said he did
not believe men engaged in hazardous occupations would be willing to
waive their right to undertake to recover in the courts whenever it
could be shown that the employer was negligent.
[The stenographer who reported the remainder of this brief session
lost his notes, and there is no further record].
INDEX
SPEAKERS AND SUBJECTS
_Alexander, M. W._, 127.
_Allport, W. H._, 57, 89, 102, 108, 114.
_Barry, James V._, 32.
_Bayne, Howard R._, 131, 134.
_Blaine, John J._, 10, 47, 48, 49, 94, 100.
_Brosmith, William_, 131, 133.
_Buchanan, Frank_, 58, 59, 61, 80.
_Bullock, Henry W._, 71.
_Business transacted_, 38, 39, 95, 96, 113, 114, 129, 130, 133, 134.
_Classification of Hazardous Employments_, 44-50, 52, 54, 55, 56,
58, 67, 71, 74, 76, 82-95, 116, 119, 129, 133, 134.
_Constitutionality_, 43, 49-53, 55, 57, 58, 70, 74, 77, 111, 114,
121-123, 130, 134, 135.
_Contract vs. Absolute Liability_, 51, 52, 74.
_Contributions by employees_, 72, 75, 104, 105.
_Costs_, 88-89, 101, 103, 104, 106, 107, 111, 117, 126, 131.
_Cotton, J. P._, 130.
_Court Administration vs. Boards of Arbitration_, 70, 73, 109-113.
_Culbertson, C. B._, 61, 128.
_Dawson, Miles M._, 31, 39, 43, 44, 49, 67, 82, 89, 105, 106, 108,
109, 114, 129.
_Deibler, F. S._, 102.
_Double Liability_, 55, 59, 61-63, 67, 71, 76-78, 80, 96-104, 120.
_Duncan, M. M._, 32.
_Eastman, Crystal_, 13.
_English System_, 57, 58, 59, 60, 62, 67, 68, 69, 75, 76, 83, 87,
88, 90, 98, 101, 102, 103, 108.
_Farnam, Henry W._, 32, 126.
_Flora, John_, 66, 96, 97, 100, 101.
_Freund, Ernst_, 26, 56.
_German System_, 57, 58, 73, 75, 86, 87, 90, 103.
_Gillette, George M._, 103, 130.
_Gray, John H._, 59.
_Harper, Samuel R._, 52, 70, 92, 111.
_Hoffman, Frederick L._, 31.
_Illinois Commission_, 22-27.
_Ingalls, Wallace_, 74, 80, 89, 93, 101, 131.
_Insurance Companies_, 68, 73, 81, 82, 83, 88, 98, 100, 103, 109,
132.
_Interstate Competition_, 17, 59, 77, 86, 89, 125-128, 130.
_Kingsley, Sherman_, 64.
_Limited Compensation vs. Pension Plan_, 72, 104-109.
_Litigation_, 75, 79, 80, 103, 110, 112.
_Lowell, James A._, 27, 44, 45, 47, 83, 107.
_Lundrigan, John_, 135.
_Massachusetts Commission_, 27-31.
_McCarthy, Charles_, 86, 97, 98, 102, 106, 109, 129, 130, 134.
_McKitrick, Reuben_, 95.
_Mercer, H. V._, 10, 26, 32, 33, 39, 43-50, 54, 58, 66, 82, 84, 85,
86, 89, 91, 92, 96, 97, 102, 104, 109, 114, 115, 124, 125, 133,
135.
_Miller, Owen_, 131.
_Minnesota Commission_, 33-38.
_Mitchell, John_, 21, 30, 31, 61, 79, 91, 92, 95, 97, 98, 101, 102,
127.
_Moulton, William H._, 104.
_Neill, Charles P._, 126.
_New Jersey Commission_, 31-32.
_New York Commission_, 13-22.
_Ohio Commission_, 32.
_Parks, Joseph A._, 29, 31, 46, 55, 98, 100.
_Pike, Bertram_, 131.
_Ranney, G. A._, 80, 94, 101.
_Repeal of Common Law and Statutory Remedies_, [See "Double
Liability"].
_Sanborn, A. W._, 47, 51, 111, 115, 126.
_Saunders, Amos T._, 75.
_Seager, Henry R._, 19, 21, 38, 39, 46, 53, 54, 85, 86, 109, 111,
113, 132, 133, 135.
_Shipman, M. L._, 134.
_Smith, George W._, 20.
_Starring, Mason B._, 22, 44.
_Steele, H. Wirt_, 32.
_Sumner, Charles A._, 84, 85.
_Uniform Legislation_, 17, 59, 78, 94, 126.
_Wainwright. J. Mayhew_, 125.
_Welch, William F._, 133.
_Wisconsin Commission_, 10-13.
_Wright, Edwin R._, 23, 78, 79, 92, 93.
* * * * *
Transcriber's Notes:
Obvious typographical errors were repaired.
P. 49: Words of Chairman Mercer--"although the judgment of the as
laid down in Lockner"--apparent missing word is as in the original.
P. 78: Words of Edwin Wright--"injured person fails to report within
a very limited time, his it presented a question"--"his" is as in the
original.
P. 111: "the number of reasons these bills took the form which they
have taken"--original read "sons" in place of "reasons."