SECOND SESSION, FRIDAY, JUNE 10, 1910, 2.00 P. M.

Chairman Mercer called the second session of the Conference to order at 2 P. M., and announced that the Reports of Committees was the first order of business.

As chairman of the Executive Committee, Professor Seager submitted a draft of by-laws, which was, with slight amendment, adopted by the Conference. The final draft is printed in the Introductory Note to this volume.

The report of the Committee on Nominations was then presented by Miles M. Dawson, and upon motion adopted by the secretary casting the unanimous ballot of the Conference for the election of the general officers as printed on the second page of the cover of this volume.

This completed the order of business to come before the Conference, and the discussion of the "Workers' Compensation Code" was taken up as follows:

Workers' Compensation Code.

Chairman Mercer: There is one further committee, I think, that was appointed to draft a bill for discussion, and we were so far apart that we never got together. One was sent out, however, in printed form, and I think all of you have had copies of it. A thousand copies were distributed.

I will say before we begin the discussion of that bill that it was meant to be drawn as an outline, and to be sufficiently broad in the different sections to raise all the points for discussion and not intended to be either technically correct, or what might be called an artistic measure. It was intended to be broad enough to provoke discussion as to all of the necessary elements of a bill. The formal program, as outlined, involves this one that was distributed, and if that brings out all the points which you want to discuss it might be best to take that up section by section and hear your views on that, or other schemes if you desire. It would seem hardly right, however, since there are a number of other bills here, and they might not all agree, to limit you to this specific bill, but you ought to be permitted to discuss, I suppose, the principle involved in each section as you take it up.

[The bill which was designed and used as an outline for the discussion which follows is here reprinted.]

WORKERS' COMPENSATION CODE.

(Outline for Discussion).

Be it enacted by the Legislature of the State of Minnesota:

Section 1. Dangerous employment defined. That every employer in the State of Minnesota conducting an employment in which there hereafter occurs bodily injuries to any of the employes arising out of, and in the course of, such employment, is for the purposes of this act hereby defined to be conducting a dangerous employment [at the time of such occurrence], and consequently subject to the provisions of this act and entitled to the benefits thereof.

Sec. 2. Liability of employers. That every such employer shall be liable to pay to every such employe so injured, or in case of his death, to the legal representatives, as hereinafter defined and apportioned for all bodily injuries received by such employe arising out of, and in the course of, such employment in this State disabling such employe from regular services in such employment for more than ten days and according to the schedule of rates contained in Section 3 of this act, on the condition precedent only, that, in case of dispute as to the amount to be paid for such injuries, or the failure or refusal to agree upon or to pay the same, such employe or the legal representatives thereof shall comply with the provisions of this act.

Sec. 3. Compensation allowed. The compensation herein and hereby allowed, if established as herein provided, having arisen out of and in the course of such dangerous employment within this State, shall be on the following basis:

(a) For immediate death or for death accruing within five years as a result of such injuries, or for injuries causing total incapacity for that service for five years or more, 60 per cent. of the amount of wages the injured was receiving at the time of the accident for a period of five years, provided, such payment shall not continue longer than to aggregate $3000.

(b) For total or partial disability for less than five years, 60 per cent. of the wages the injured was receiving at the time of the injury so long as there is complete disability for that service and that proportion of the said percentage which the depleted earning capacity for that service bears to the total disability when the injury is only partial or after it becomes only partial.

(c) In addition to the foregoing payments, if the injured loses both feet or both hands, or one foot and one hand, or both eyes, or one eye and one foot or one hand, he shall receive, during the full period of five years, 40 per cent. of the wages which he was receiving at the time of such accident; or if he loses one foot, one hand, or one eye, the additional compensation therefor shall be 15 per cent. of his said wages; or if he be otherwise maimed or disfigured, then, for such maiming or disfigurement, during the time it shall continue, he shall receive therefor such proportion of 40 per cent. as such maiming or disfigurement bears in depleted ability in the employment to the relative loss of the members specified herein; Provided, That in no case shall all of the payments received herein exceed in any month the whole wages earned when the injury occurs, nor shall the said 40 per cent. when all received, or any portion thereof, and the said 60 per cent. when all received, or any portion thereof, continue longer than to make all sums aggregate $5000.

Sec. 4. Repeal of other liabilities. The right to compensation and the remedy therefor, as herein specified, shall be in lieu of all other causes of action for such injuries and awards upon which they are based as to all persons covered by this act, whether formerly authorized or allowed by, or as the result of, either state, statute or common law, and no other compensation, right of action, damages or liability, either for such injuries or for any result thereof, either in favor of those covered by this act or against such employer based on state law, shall hereafter be allowed for such injuries to any persons or for any of the injuries covered by this act so long as this law shall remain in force, unless, and then only to the extent, that this law shall be specifically amended.

Sec. 5. Conditions precedent to right of recovery. That as a condition precedent to such right to compensation, such employe or the legal representatives thereof, as the case may be, shall within ten days after knowledge of such injury, unless there be valid excuse for delay and then immediately after such excuse is removed, cause a written notice thereof in substantially the form designated in paragraph —— (form to be provided) of this act, to be served upon the said employer by leaving a copy thereof addressed to the employer with the person in charge of such employe while he was so working, if that person is still in said employ, or with some superior agent, officer or person in charge of said business at any office thereof within this State in the same way that a summons can now be served; and in case of a dispute between the employe and the said employer, or in case of the failure of such employer and employe to agree upon such claim or in case of failure or refusal of such employer to pay, such employe shall submit his claim for compensation hereunder, both as to the nature of the injuries and the amount to compensate therefor under this act, to a board of three arbitrators, as hereinafter specified, in substantial compliance with the form contained in section —— hereof.

Sec. 6. Board of arbitration and awards. There is hereby created a Board of Arbitration and Awards, known as "Board of Awards" with jurisdiction throughout the State of Minnesota to arbitrate the questions arising hereunder and make awards consistent herewith, which is now and shall remain subdivided into districts with the same numbers and co-ordinate with the judicial districts of this State as they now are and may hereafter be changed, which board shall consist of three members from each judicial district, which members shall be non-partisan in politics, appointed by ....................., and hold their offices during a period of ............. years; except for fraud, or want of jurisdiction the findings and awards made herein shall be final and conclusive as to the nature of the injuries and the amount of compensation.

Sec. 7. (The law shall provide for compensation, expenses and secretary, and probably that the Clerk of Courts act as Clerk and make annual report to Commissioner of Labor.)

Sec. 8. Remedy.

(a) Every person claiming the benefits of compensation under this act, may issue to the employer from whom he claims the same a notice of claim in substantially the following form:

First: You are hereby notified that ...................... has this day filed the original of this notice of claim against you with the Clerk of the Board of Awards in District No. ........ and that you are required to answer the same with a copy served upon the undersigned within ten days.

Second: Said ............................... was in your employ as a ......................... at .................. on or about the ....... day of ........ 19.... and received an injury of the supposed general nature following: .......................................................... by reason of the following incident (describe it) and that such injury arose in and out of the course of said employment and has lasted more than ten days and it is claimed that you are liable to pay compensation for .......... per cent. of the wages which were $....... per ........ at the time of such injury, and for ....... per cent. for maiming and crippling.

(b) Answer. The answer shall

1. Admit or deny the employment.

2. Admit or deny that an injury was received at the time and place.

3. Admit or deny that the injury, if any, was in the course of employment and that it arose out of the course of employment.

4. Set up the injury claimed if different from the injured's claim.

5. Admit or deny or correct the amount of wages.

6. Give notice of any special claim to be urged to defeat compensation.

(c) Reply. The reply shall so far as possible admit or deny the specific statements of the answer which contradict or bar the complaint.

(d) Hearing. As soon as the reply is filed with proof of service the clerk shall set such claim for hearing in its order at the earliest date possible and notify both parties by mail, thereof.

Sec. 9. Award. The Board of Awards shall make its award upon a full hearing, to both parties held after notice and shall consider the whole record and may visit the premises if within its district and make such award as it shall decide to be consistent with the spirit and powers of this act, and in the following form:

1. Title.

2. We find in the above case that the injured received injuries arising in and growing out of the course of such employment when he was receiving as wages the sum of $......... per ............ payable .................

3. That the injuries appear now to be and are as follows: ..........................................................................................................

4. That for ................. disability the compensation to be paid is hereby found and awarded against the employer ................... of ................. at ............ per cent. of such wages payable to the following persons in the respective proportions for .................... and as said wages were paid and (of injuries uncertain) .................. this proceeding is hereby adjourned to the ........ day of ............... for further consideration.

Sec. 10. How risk may be insured. That any such employer, or any association of employers, may keep the risks created by this law fully covered by insurance, in associations, or insurance companies approved by the insurance department of this State, for policies covering the full liability under this law, and thereby relieve themselves from any further responsibility with respect to paying such compensation, and if any such employer or employers shall so insure such risks they shall be entitled to take and keep from the wages of their laborers, on a pro rata basis, of the wages, .......... per cent. of the amount necessary to pay the regular premiums for carrying such insurance.

Sec. 11. All insurance and all benefits of compensation due or to become due to any employe under this act shall be and remain exempt from garnishment and all other forms of attachment.

Sec. 12. Provision defining the words and phrases, and covering all tenses, pronouns and both sexes.

Sec. 13. Of course the jurisdictional features and all matters of practice, rehearings, etc., must be worked out after we see what substantive provisions are to be made.

Chairman Mercer: The reason for heading that, "Workers' Compensation Code," was to cover the constitutional provisions in some of the States, which prohibit a bill from covering more than one subject, which shall be expressed in its title, and the fact that the term "code" means a system of law. By the adoption of that scheme it was our intention to raise the point, so that if you agreed to that general idea you could adopt a law with a heading sufficiently broad to codify the law of your State on that question, to allow you to repeal such portions of the common law as you wanted to repeal as a part of that chapter, and not be subject to the limitations of the constitutions of a number of States which would prohibit your covering more than one law. Do you care to waste any time on the heading?

Mr. Dawson: I would like to ask one question about the heading and that is why the word "workers" was used instead of "workmen?"

Chairman Mercer: Like everything else, that was used to provoke discussion. Workmen's Compensation, or Workingmen's Compensation, seems to have a technical meaning in this field of legislation. It seems to be understood generally as covering this whole subject, and yet when you come to define your bill and outline it and cover it section by section, you must either leave something to the construction of the courts, or else you must make provision to the effect that workmen shall cover workwomen and children and boys and girls and everybody connected with it. It seems to me it would cover that point (although it seems to be revolutionary in form) if we used the term "workers," because that would include everybody.

Mr. Dawson: Your idea then was, Mr. Chairman, that the word "worker" is believed to have more comprehensive significance than the word "workmen," and that it would be certain to be so held by the courts?

Chairman Mercer: That was my own idea. I think I am sound on it, but I have tried enough lawsuits to know that a fellow is never sound until he is done. Shall we pass to the first section and leave it without any expression as to the heading?

Mason B. Starring (Illinois): I would like to inquire in regard to Section 1, as to what extent that applies to farm workers. Supposing a man was driving a dredging machine in the field and his horses became frightened and ran away and killed him. Is the farmer liable under this act?

Chairman Mercer: He was intended to be, if you adopt that act.

James A. Lowell (Massachusetts): I should like to inquire why you say "every employer conducting an employment in which there hereafter occurs bodily injuries to any of the employes" shall be deemed to be conducting a dangerous employment? Is that from some idea that if you call an employment dangerous you thereby are allowed to change the terms of it by your constitution, and if you do not call it dangerous, you are not?

Chairman Mercer: The idea was that if you worded the first section the way we have, it would provoke discussion on all those elements. That was the first plan. The fundamental reason was that if the employer was conducting an employment which was capable of being dangerous, and he guarded his employes through the safety devices he employed and the grade of men he employed, so that the whole scheme of his business was conducted in such a way that he did not have any accidents at all, that until he had some accidents he would not be classified as being in a dangerous employment. In other words, two men might run exactly the same institution with the same machinery manufacturing the same article; one set of men will run it so there will not be any accidents maybe in ten years; the other set may have ten accidents in the first year by reason of the way they rush, and their carelessness, and the grade of men they hire and their failure to protect their machinery and all that sort of thing. It was the intention to make that as broad as you possibly could make it, so as to provoke discussion as to whether you wanted to say every industry that had an accident should be liable, or whether you wanted to limit it to some of the industries as they have done in New York and in some of the foreign countries.

Mr. Lowell: Then it was not the idea that by calling a cotton factory dangerous you thereby are allowed to put on certain provisions of the law which, if you do not call it dangerous, might not be constitutional?

Chairman Mercer: Not exactly, except this: The idea was involved that it is within the province of the Legislature to declare an employment dangerous if there is a reasonable basis for argument as to whether it is a dangerous employment. That is our view of it. Now, if a court gets hold of that and should say that there was no basis for declaring that a dangerous employment, it would say that the Legislature acted arbitrarily.

Mr. Lowell: I should judge your idea was that you could not impose the law on a cotton factory simply as a cotton factory, but you could impose it on a dangerous factory.

Chairman Mercer: My idea was that it was a safer way to impose it on one that had accidents than to single out any certain line of industry that might not be as dangerous as some others.

Mr. Lowell: I do not know that you quite get my point. My point is that it may be impossible for the Massachusetts Legislature, we will say, to put a certain kind of liability onto a cotton factory, which it might put onto a powder factory. Would they, if that were the case, make the situation any different by calling the cotton factory a dangerous factory?

Chairman Mercer: Not unless there was some basis for it.

Mr. Lowell: They certainly do have dangers; we will assume that people are injured there.

Chairman Mercer: It is my view of the decisions of the court that that would be so. The reason that I put that that way is this: If you have an industry that has one accident, as expressed by Mr. Roosevelt in one of his messages, that is a dangerous industry to that man and his family. If it kills one man, in his way of putting it, it is not much consolation to his family or to him before he dies, to say that you are crippled, or you are hurt, but not in a dangerous employment. It was dangerous in his case. By defining it so that every employment that has an accident is dangerous, and then making the liability as one of the subsequent sections, exactly in proportion to the accidents they have instead of defining certain lines as dangerous, and others as non-dangerous, I think you have a better classification.

Prof. Seager: To put a strong case, do you think that the courts would back you up in saying that the mere fact, we will say, that an employe in a cotton factory slipped on a banana peel in going to his machine in the morning and was injured, constituted that a dangerous trade in a sense that would justify making an employer liable for the injury as the latter sections of the act hold? Under the latter sections of the act that would seem to be in the course of his employment; going to his machine would be a necessary part of his employment.

Chairman Mercer: If it grows out of the industry itself. In England in determining what is within the course of the employment, they have held that while two men might be working side by side in an employment, and one of them might be hurt while he was there, yet if he was hurt by reason of some horse play that he did on the side with some other fellow, that that was not really a risk of that industry, and that it does not grow out of the course of the employment. I should think your banana peeling case would be very close to the line, and it would depend upon whether it grew out of the employment.

Joseph A. Parks (Massachusetts): Suppose that we use a bobbin instead of a banana peel.

Prof. Seager: There was a case where a man's eye was put out by the cork of a pop bottle when he was eating his lunch, and they held that was in the course of his employment. Would our courts, in your opinion, back us up in describing liability for accidents in that sweeping way? I do not question at all the desirability of doing it; it is only a question of the constitutionality of doing it.

Mr. Lowell: Do you think it is necessary in Minnesota to distinguish between hazardous and non-hazardous employments? Apparently our friends in New York think that it is constitutionally necessary; that with certain risks, such as tunneling and railroad building and bridge building, which every one knows are hazardous, that a law applied to them would be constitutional, whereas if it applied to things that were not so hazardous it would not be constitutional. Is that your opinion of the law of Minnesota?

Chairman Mercer: In a measure, yes; that is, so far as classification is concerned; you must have a reasonable basis for the classification. If you do not cover all the accidents then you cannot cover part. It would be my judgment, unless you have a reasonable basis for the classification, that that would be true.

Mr. Lowell: The basis of classification would not be the fact then, that accidents happen, but that a good many happen. That is, it is not a hazardous business, but is a light business, as the insurance people call it.

Chairman Mercer: I think that the courts in some of the cases would maintain the idea that if you picked out the industries that had a large number of accidents and were sure they would have accidents, they would maintain that classification. But if you picked out an industry that had a great many accidents and classified it as dangerous, and let one alongside of it go that had fully as many accidents, I think possibly the courts might hold that you had acted arbitrarily, and therefore knock out your legislation, to use a street phrase.

Senator A. W. Sanborn (Wisconsin): If I understand that first section, it would include every employer, whether he is a farmer or a man who keeps a house servant.

Chairman Mercer: It was meant to be broad enough, Mr. Sanborn, to raise that question.

Mr. Sanborn: That is what I understand this section, as now worded, would embrace.

Chairman Mercer: Yes.

Senator John J. Blaine (Wisconsin): The point that worries me as much as anything, is the question as to whether it is a dangerous occupation. This first section provides that every employer conducting an employment in which there hereafter occurs bodily injuries is defined to be conducting a dangerous employment. Is there any substantial difference between saying it in those words and saying that every occupation is dangerous, because I do not believe that we can conceive of any occupation that is not dangerous or in which no accidents occur. Even a school boy stubs his toe on the street. It is not in and of itself a dangerous occupation, but he accidentally gets hurt. Now, where an employment in and of itself would not be dangerous, but where through some unforeseen circumstance an accident should occur, would that fact of itself make an industry a hazardous industry?

Chairman Mercer: When they covered that matter in England, I understand the definition was that the accident might occur in the course of the industry and not occur outside of it; it might occur outside of it and not occur within it. For instance, you might start to go to work, if you are a laborer, and after you got on the ground you might be traveling along the same as any other member of the public. You would be going to your employment but you would not be within the course of it. That is the way they defined it over there, and in that case the accident would be treated simply in the same way as an accident to any other member of the public. They might suffer an accident and yet there would not be a liability to the employer.

Senator Blaine: The point I can't distinguish is this: That the mere fact that an injury happens to an employment, that in and of itself makes that employment dangerous, any more than every industry is dangerous.

Chairman Mercer: It has got to occur within the employment; that is, it has got to be a result of the employment to make it dangerous.

Senator Blaine: In the first place, is it possible to conceive of any employment where there is not a hazard growing out of the employment? If that is true, why not say that every employer shall compensate under the terms of the act, regardless of whether he is engaged in a hazardous occupation or not. In other words, can you define a hazardous occupation by a legislative act? Will not that in the end be the point around which the whole question will revolve; i. e., is it not as a matter of fact from the evidence produced, a dangerous occupation, no matter whether accidents have or have not resulted?

For that reason is it not quite impossible to define a hazardous occupation?

Chairman Mercer: That question in fact is first determined by the Legislature, as I understand it, as to whether it is a dangerous employment.

Senator Blaine: Can the Legislature intrude upon the judicial functions of our government? Can they say that is a fact or must not the courts do that themselves?

Chairman Mercer: No, the courts, as I understand it, take judicial knowledge of the history and conditions out of which the legislative act may grow, and I believe would follow the rule the power of the State it is valid, although the judgment of the as laid down in Lockner vs. New York, 198 U. S., where the Court said: "This is not a question of substituting the judgment of the Court for that of the Legislature. If the act be within Court might be opposed to the enactment of such law."

The reason why we did not cover every employment was that it did not seem to us every employment was dangerous, and if it was not dangerous and we were relegated to the police power of the State to define it, the law would be held invalid. But it seemed to me individually, and I do not want anybody to think that this is the judgment of the committee, because they could not all get together, that if we based it on the fact that injuries did occur, nobody could ever stand up in a courtroom or sit in comfortable court chambers and write an opinion on the theory that this employment, when an accident has occurred in the case, is not a dangerous employment if the Legislature find it so. The idea was to cover all the States so as to leave it as safe as we could get it.

Senator Blaine: Certainly the section will do what you contemplated, bring about discussion.

Mr. Dawson: On the point that has just been raised I would like to say that this matter of the power of the Legislature to define a thing was before the United States Supreme Court in an oleomargarine case, originating, I think, in Pennsylvania. There had previously been an act passed, I think, by the New York Legislature, which, though not declaring oleomargarine deleterious to health, imposed certain regulations amounting almost to prohibition.

That was tested through the various courts to the Supreme Court of the United States, I think, and it was definitely held by that court that the case had not been made out that it was deleterious. In other words, it was virtually held that it was not, and so that the law was not a proper exercise of the police power. Following this the Legislature of Pennsylvania adopted a similar bill, containing a declaratory provision that it is deleterious to health. That was carried to the same court and the Court held that the Legislature was entirely within its rights and had power to so declare. I think that might have some bearing upon this question.

I would like to ask the Chairman if the effect of this is not virtually to declare all occupations hazardous occupations in view of the following facts: That the law would in any event be a nullity if no accidents happened in any given employment, and the moment an accident does happen in that employment, it is declared to be a dangerous employment; and would not the law cover that very accident.

Chairman Mercer: The proposed law as I have since changed it has this provision: "That every employer in the State of —— conducting an employment in which there hereafter occurs bodily injury to any of the employes, arising out of, and in the course of, such employment, is for the purposes of this act hereby defined to be conducting a dangerous employment at the time of such occurrence." That was not in the original draft and I do not know whether it is in the one you have or not. I put it in recently. When I came to read that section critically I concluded that the criticism you make is a good one.

I do not want to take your time, but there are two or three short sentences here by the United States Supreme Court on that question which I think are authoritative, and I would like to read them. In the case of Holden vs. Hardy, 169 U. S., page 365, the Court says: "The protection of the health and morals as well as the lives of citizens is within the police power of the State Legislature."

Then again, on page 789, the Court said: "Of course it is impossible to forecast the character or extent of these changes, but in view of the fact that from the day the Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose they will not continue and the law be forced to adapt itself to new conditions of society, and particularly to the new relations between employers and employes as they arise."

That was a case of regulating the hours of work in mining. After reviewing a number of the decisions upon the police power and establishing that it was within the power of the Legislature to judge of those matters, the Court said: "These employments when too long pursued, the Legislature has judged to be detrimental to the health of the employes, and so long as there are reasonable grounds for thinking that that is so, this decision upon this subject cannot be reviewed by the Federal Courts."

I take that as pretty conclusive, and they have followed that rule since.

Senator Sanborn: In discussing a bill like this, section by section, it strikes me that we are going to reach practical results. There are three fundamental principles that underlie this whole subject that we ought to determine, or else we should proceed to draw either two or three bills based upon the different views upon those underlying principles:

First: Shall we prepare a bill that is compulsory upon the part of the employer and optional as to the employe?

Second: Shall we prepare a bill that is compulsory upon the part of the employer and compulsory upon the part of the employe?

Third: Shall we prepare a bill that is optional both with the employer and with the employe?

To my mind those are fundamentals, and if we are going to get at what is known as a uniform bill that will meet with the approbation of the different States and meet the constitutional difficulties that we find in the way, we must prepare a bill along lines that will meet the different situations in the different States, at least in those States that compete from a manufacturing point of view.

I am here for information and I feel that we want light along those lines. While I am willing to concede for the sake of argument that under the police regulation you can make this law compulsory on the part of the employer, as New York has done, I am not yet willing to concede that you can make that law compulsory on the part of the employe. I think there is something yet there that must be overcome before you can reach that result.

To illustrate what I mean for a moment, if you can imagine for a minute that I own this building, I should contend that the Legislature of the State of Illinois could not authorize you by your negligence to destroy this building and give me in compensation ten dollars; to make that the law. Of course my right arm may not be as important to me as the building, but I do not yet believe that the Legislature of Illinois can even authorize you by your negligence to destroy that and thus destroy my means of livelihood and say that I shall receive no compensation, or say that it shall be ten dollars or say that it shall be one hundred dollars, or that it shall be one thousand dollars which I shall receive for that arm; to destroy my usefulness to myself and my family and fix the compensation at one hundred dollars or a thousand dollars, without my consent. I have cited that as a mere matter of illustration, that there are difficulties to overcome if you are going to say that that is a compulsory law upon the part of the employe without any election.

If we are drafting a bill that is compulsory upon the part of the employer the first question we have to consider is in Section 1 of this bill; we have got to define the dangerous employment. You can see then it is very material in that form of bill to define a dangerous employment. If, on the other hand, we are drawing an optional bill we have no interest in any such definition at all.

I just offer these as suggestions, if we are going at this subject from a practical standpoint, and if we can I am perfectly willing to go to the extent of saying that we will work along all three lines and then determine which is the more likely to stand up and effect the purpose that we are trying to accomplish.

Samuel R. Harper (Illinois): On the question presented by the first section of the tentative bill presented this afternoon, the rule, as I understand it, is that the declaration by the Legislature that a certain trade is hazardous is merely an indication of the legislative judgment on that proposition and nothing more; and that that judgment is revocable by the courts and is not conclusive unless the declaration is based in some way on some reasonable classification of hazardous trades and industries. If the classification is based on some reasonable ground arising from the hazards of the business then the courts will say that is a reasonable classification, that the legislative classification is conclusive.

On the points suggested by Senator Sanborn, I agree with him that the fundamental to adopt at the outset is whether or not we shall adopt a compulsory system or whether it shall be elective. If it is compulsory it must rest entirely within the police power of the State. If it is an elective system then it is a matter of contract and option with both parties. We ought to determine first what we are going to do about that because if we have an elective system we need not worry at all about the constitutional problem or the question of police power.

I agree with the Senator on the proposition that a State under its police power may establish a compulsory system of compensation so far as the employer is concerned. It seems to me, however, when we attempt to shift the basis of our present system from that of tort to compensation we are simply reading into the oral contract of employment between the employer and employe a guarantee on the part of the employer that up to a certain limit he will protect and insure the employe against the hazards of that trade. We all of us, of course, are familiar with the doctrine of respondeat superior, and that doctrine arose in exactly the same way over two hundred years ago and it has never been questioned as yet. That arose not out of any theory of natural justice, but upon the theory exclusively that it was a proposition of safety, and that if the employer wished to delegate his business or that part of it conducted by servants, to those servants, he certainly should be responsible for their acts as long as they were in the discharge of their duties.

Now, why isn't it, Mr. Chairman, just as reasonable to assume and why is it in conflict with any theory of natural justice to say that if an employer seeks to employ a man in a hazardous trade or in any trade, he shall compensate him to a reasonable extent; he shall guarantee to him a limited compensation and that he shall guarantee him against the consequences of an injury while he is engaged in that employment? Will not the courts read into that bill practically that contract of guaranty?

We are talking about judge-made law on this proposition. The Legislature has never attacked this proposition at all. The courts have established this doctrine of respondeat superior and as to the safety appliances, etc., is the form of a Workmen's Compensation Law.

Prof. Seager: The suggestion contained in this first clause seems to me a very valuable and helpful one; that is, that judicial opinion in this country may be ripe for taking this view other doctrines of that kind, and we do not know what the courts would do if the proposition were presented to them. I believe we lack courage a little bit on that subject. I should think that the courts would welcome the co-operation of the Legislature in changing this system. I believe they are in hearty sympathy with the movement, as indicated by recent decisions of the courts throughout the country. I believe that they are themselves out of sympathy entirely with the worn out doctrines which they are obliged to follow because of the precedents before them; and if the Legislature would step in and give them a chance I believe that they would be with them.

Chairman Mercer: In making this draft of a bill we fully appreciated that the outlines which Senator Sanborn has given substantially represents the different theories; but this bill was drafted on the theory of bringing up for discussion the whole subject as to whether or not you wanted to define your dangerous employments and make them compulsory against the employer; to say that the employe should not have any common law liability; that he should comply with this law before he had any remedy; that he should be compelled to go before a committee of awards and that the award when given should be conclusive as to questions of fact, leaving the legal liability and the jurisdictional questions open to the courts on appeal. That was the scheme on which this was drawn.

Prof. Seager: The suggestion contained in this first clause seems to me a very valuable and helpful one; that is, that judicial opinion in this country may be ripe for taking this view that a few years ago would have seemed rather revolutionary; the view that any industry in which an accident occurs is to that extent a hazardous industry, and therefore subject to special regulation under the police powers of the States, and that the form of regulation that should be adopted along with the regulations as to the safety appliances, etc., is the form of a Workmen's Compensation Law.

The New York Commission, while some of us perhaps were inclined to agree with the optimistic views that Mr. Harper has just expressed, was not able, as a body, to believe that the courts would go quite so far as this first clause contemplates. It was for that reason mainly that we contented ourselves with enumerating extra-hazardous occupations which came clearly under the police power of the State, and limited the compensation in those employments to risks of those employments as distinguished from accidents that merely happen in connection with the employment or that might have happened in any employment. I hope very much myself that the other States which are working on this problem will be more courageous than we were, and that they will place the matter before the courts in this extreme form and determine what the courts will do with it. I think perhaps there is more reason to expect a favorable decision from some of the courts in the Western States than from the New York Court of Appeals. Looking at the matter as a national problem, I think it would perhaps be better to have the question come up first in some of the middle Western States before the courts there rather than to come up in some of our Eastern States.

At the same time I agree with the suggestion that Senator Sanborn raised as to the necessity of protecting the rights of the employes. I do not see how, on the basis of the whole scheme of property rights, we can take away from the employe his right to sue for damages when the injury is due directly and clearly to the negligence of the employer, without a constitutional amendment. But that difficulty can be met by a saving clause that in practice need not interfere very much with the efficiency of the system. That is the plan we adopted in our New York bill, merely putting in a clause to the effect that except where the accident was due to the personal negligence of the employer the compensation bill should apply, leaving it to the courts to decide just how far that would go. A safety clause of that kind in practice, in my opinion, would be largely disregarded. After this system came into operation, the advantage of getting a certain compensation would appeal to a great majority of injured workmen as preferable to the gamble of a law suit. So that from the point of view of the expense to the employer such a provision need not impose a serious additional burden along with the burden of the compensation law.

Mr. Parks (Massachusetts): In our State there is a bill before the Committee on Labor in the Legislature, of which I am a member, prohibiting the employment of minors under eighteen in trades which are dangerous to health. The committee decided to refer the bill to the State Board of Health, and an investigation by the State Board showed that continuous employment in such industries as the manufacture of cuff buttons and collar buttons, and so forth, was deleterious to the health on account of the small pieces of bone and other substances which had an injurious effect upon the health of the operatives. One factory in particular was alluded to at a hearing which we had on the matter, and after we passed the bill, and it became a law, I understand that that factory changed over their whole system, so that that particular industry instead of being as before this act was passed a dangerous industry to health, it became a safe industry to the health of minors. That was one effect of the naming of a particular industry as a dangerous trade, so far as health is concerned.

Prof. Ernst Freund (Illinois): It seems to me there are two things to be sought for in this matter, and that is, first, to find some principle of classification and then to see what portion of that principle we can reasonably hope to cover by legislation. When I look at this section it does not seem to me that the principle is what I could call a sound one, and I mean by that, one that appeals to our sense of justice. It is true that the English act is very comprehensive, but it has never appeared to me that the rule of the English law by which the head of a household is liable to a domestic servant for that domestic servant's carelessness is really a reasonable and just principle of law. Therefore we ought to have some particular reason for putting the liability upon the employer, and that reason might well be some particular element of danger. By calling an employment dangerous, I think, we do not make it dangerous even if now and then accidents occur in it. I think there are certain elements of danger which we could all point out, and that there are some elements of danger which we could all agree upon as making an occupation extremely hazardous.

We should also consider whether it would not be wise for the present to confine the liability to concerns of some magnitude. I know that it is very much questioned whether you can confine this extraordinary liability to large concerns, because it is open to the criticism that you simply make those pay who can afford to guard themselves through liability insurance. However, I think there is a real difference of principle based upon difference of size, because the relation of the small concern to the employe is totally different from that of the large concern, and it is only in the large concerns that these conditions prevail which, under modern conditions, seem to demand a shifting of the responsibility from the employe to the employer.

If you wish to be conservative, and not cover all the industries that have some element of hazard, you have to decide the very difficult question where to draw the line. When I read over the list of employments singled out in the compulsory bill recommended by the New York Commission, I was very much puzzled by the obvious fact that certain obviously hazardous employments were excluded, until I was informed that the principle was that of the non-competitive industry. Now, if you say that these industries are selected because they cannot get away from the law by moving across the state line, the discrimination looks objectionable; if, however, you say they are selected because they are not exposed to competition from industries operating under laws more favorable to the employer, the discrimination looks much more plausible. Even so, it is doubtful whether the principle of selection would approve itself to the Supreme Court of this State.

Dr. W. H. Allport (Illinois): It is evident we have in contemplation here two methods of arriving at a tentative solution of this question. (1) One method suggested by Professor Freund, which looked to me like a modification of the German method; that is, the method by which certain occupations have been gradually selected as being more and more hazardous, and gradually including the less hazardous occupations, until, I believe, in Germany the law covers all occupations and almost all employments. That is, it now covers farm employes, agricultural employes and the employes of our small establishments. (2) The other method suggested by Senator Sanborn, as a tentative law, follows more or less the English method, where the law was made right away to cover practically all employments; that is, the farming industry, domestic industry and other industries.

In considering this first clause of the tentative code, it would seem to me as though it would be possible to arrive at some definite definition. The English law has a section devoted entirely to the matter of definition, and defines employer, employe, dependent, and so forth, and some interesting questions have come up recently as to what are dependents under the English law. But the English law omits altogether to express what are hazardous employments. I will read the first section of Chapter LVIII of the Workmen's Compensation Act of 1906, which is now the law of England:

"If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this act."

That covers all forms of employment, but it does not define any employment as being hazardous or non-hazardous.

I suppose the basis of our effort in this tentative "workers' code" is to arrive at something which will go behind our present courts and bring us in line with the state and federal constitutions, which will give the power to a State to enact a law which under ordinary circumstances it would not have, and so, therefore, the effort is made here to define dangerous employments. It is interesting to note the ingenuity with which that point is reached; i. e., that any employment becomes dangerous after an accident happens. In the Wisconsin law the effort is made directly; there is no definition, so far as I can see, in the Wisconsin law nor in the New York law. There are certain employments which are defined as extra-hazardous and, therefore, subject to state regulation.

There is another point in Section 1 and that is this: "An employment in which there hereafter occurs bodily injuries to any of the employes arising out of." To again recur to the English law, and also the German law, the English law covers other points besides bodily injuries; it covers in certain schedules dangerous diseases and trades accompanied by dangerous diseases. The question, therefore, which would arise in my mind is whether or not we should not in this tentative law embody a consideration of certain dangerous diseases. I happen to be a member of the Illinois Commission on Occupational Diseases, and, therefore, perhaps would be expected to see that in the bill, but aside from that fact it does seem to me that that is a matter for careful consideration. That the bill should cover diseases arising from mining work, diseases from deposits in the lungs where men are engaged in the woolen industry and the lead industry and in the match industry, and certain other dangerous occupations which are dangerous not on account of the personal injuries sustained by the employes, but on account of the danger to the health.

Chairman Mercer: Section 12 says. "Provision defining the words and phrases, and covering all tenses, pronouns and both sexes," should be put into the bill when it is finally drawn.

Frank Buchanan (Illinois): I am a structural iron worker by trade and have worked at it for many years, and I guess there would not be much trouble in defining it as an extra-hazardous trade. We have a large number of men injured and killed at that trade, and because of that fact I have given this question of employers' liability much thought and study. For that reason I am here as an interested party to-day.

I am not in harmony with that part of the law as drawn up here which takes away the rights of a workman to bring an action in the courts. I take that view, first, because I believe it is the constitutional right of every worker to have action in the courts if he sees fit to do so. Secondly, I believe that when we do have that right of action, due to the negligence of an employer, that it is going to cause the employer to be more careful of how he conducts that particular kind of work, and the most important thing about this whole matter is to secure something that will act as a preventive of accidents.

Prof. John H. Gray (Minnesota): Would you be in favor, Mr. Buchanan, of a bill which gave the choice to the workmen?

Mr. Buchanan: No; I favor the English law that gives him the right to bring suit if he sees fit and then take the compensation if he fails in his suit.

I had hoped, in view of the fact that they have brought this law about in European countries, that some of our States might take it up in the same manner. We have a problem here to confront and overcome that they do not have in European countries, in that we are largely governed by the laws of the various States, which, of course, differ widely. In the manufacturing industry, that gives ground for an argument against one State creating a law that does not apply to another State, the claim being made that the competition is not equal, and, of course, there is some ground for that argument. I believe, however, it is going to take a long time and be a very difficult thing to bring about the necessary uniform legislation throughout the States. For that reason I had hoped that we might be able to find some way to create a law affecting only those industries that may not be in competition with the industries of other States, such industries as have been referred to, as the building industry and construction work, and so forth. There are more men killed and injured in that industry than any other two, but due to the fact that there is no competition in that industry it is possible to make a law affecting that and let it be tried out. It might be a starting place to find a way to cover the other industries without affecting those industries in each State which are competitive or obstructing them in any way.

I find, however, in reading the history of the British labor legislation that the secretary of the Building Employers' Association in one of the large cities there has stated that that law has not obstructed the business, decreased the wages or decreased the profits, and that the building employers are not justified in any way in finding any fault with that law. It seems to me, therefore, there ought to be some way in which to pass a measure that would apply to that industry. Of course, it may be said that I am a structural iron worker, and interested in that craft which is a building trade, and am, therefore, more selfish about this matter. I feel, however, a great interest in securing better protection for workers in all industries. I know the dissatisfaction that is caused under present conditions; I know the women that are condemned to the washtub and the orphans to poverty, and, therefore, I am always willing to exercise my best efforts to secure better protection for those workers. In my opinion the present condition is the biggest blot that we have on our civilization.

Take my own trade, for instance, I have some figures here which I secured from our local secretary which may be of use to you. In 1906, out of a membership of about 1200, we had 29 deaths from accidents and 114 injuries. In 1907, when the work was very much reduced and our membership was greatly reduced, due to the panic brought on at that time, we had 132 injured and 12 deaths. In 1908, while still suffering from the effects of the panic, and not so many men working, probably seven hundred or eight hundred, we had 113 accidents and 7 deaths. In 1909, after we had recovered from the panic in our industry, we had 175 injured and 8 deaths out of a membership of about 1200.

In 1906, from the best information I could get, we paid out $12,060 in benefits to those who were injured or killed, and the average length of time of disability of those who were disabled was six weeks.

In conclusion, I believe I am expressing the sentiments of the trade-union people in the city of Chicago when I say that we are opposed to any law that will waive the right of action now in the hands of a workman. We think it should be as it is in Great Britain at the present time. Personally, I am in favor of going even further than that. I believe when a workman suffers an injury due to the carelessness of an employer or a superintendent, that that employer or superintendent should be sentenced to prison for that negligence. I mean by that those who are in charge of that work and who are responsible for that work. I claim that there should be a penal offense attached to that negligent act, and I believe that the majority of employers would have no objection to it; that is, those who are willing to use the necessary care for preventing these accidents. I hope that in the very near future the people in this country will become awakened to the need of these measures, and I believe the present facts obtainable will show that there can be fair protective measures created without any hardship whatever on the employer, although it may be necessary for them to add a small price on the product or on the contract price when he is bidding on construction work.

C. B. Culbertson (Wisconsin): I will assume a case in order that I may ask the last speaker a question. Say that in Wisconsin last year there was a loss, including the expense of court proceedings and obtaining judgments and everything that you could put under that head, of $460,000; that during that time the laboring men to whom this money should have gone got only from 18 to 25 per cent. of it; would he not prefer a law, if he could not get a better one, that would give 90 per cent. of that $460,000 to the sufferers, even if occasional large judgments should have to be waived?

Mr. Buchanan: I always prefer getting the best we possibly can. We must consider the conditions under which we are laboring. I do not believe that the laboring people are willing to waive their right of action in the courts for something that they do not consider especially good. Of course, I am not here representing any laboring body, but from my association with them I am led to believe that I can speak as to their sentiments in the city of Chicago. I am a delegate to the Chicago Federation of Labor, one of the largest bodies of its kind in the country, if not the largest, and have heard those matters discussed there, and I would say that we are willing to accept nothing less than the best we can get, and we are willing always to accept that.

John Mitchell (New York): I do not know whether there will be any advantage in the discussion of the character of a bill that we should want to adopt or as to the measure that any group would desire. I hold no commission that gives me a right to represent the workingmen of the United States, notwithstanding that I am an officer of the American Federation of Labor. As a matter of fact, the American Federation of Labor, which is representative of practically all the organized workmen in the United States, has not itself decided formally upon the character of a compensation bill that they would favor. But I do have some knowledge of the general sentiment that prevails in the country, and I think that in part I can say for the workingmen of the United States, and they, after all, the ones most affected by this legislation, they are the ones that are demanding it, and it is for their relief that it is going to be enacted. I believe I can say for them, as Mr. Buchanan has said, that the workingmen will not be willing to waive their right to enter the courts and sue for damages. To that extent, I think, he is correct, and that the workmen would not be willing to waive their right to sue.

On the other hand, I believe that if they understood the circumstances prevailing in Great Britain that they would not insist upon their right to sue, and then failing to win their suit to have their compensation. I do not have with me a table I have of statistics giving the amount secured in suits for damages and the average amount paid under the Workmen's Compensation Act of Great Britain, but my recollection is that the workmen of Great Britain, in cases where they have instituted suit under the employers' liability law or the common law, have received approximately $852, and that the average compensation paid under the Workmen's Compensation Act has been $848. My recollection is that the workingmen of Great Britain have received on the average more under the compensation act than they have under the liability act, and I think can we take it for granted that where men have sued under the liability laws of Great Britain it has been in cases where there has been a likelihood of responsibility on the part of the employer. Unless the workingman was convinced that he had a reasonably good case, he would not proceed under the liability laws, but would, on the other hand, proceed under the compensation act.

Now, if the workingmen of Great Britain recover a larger amount under the Workingmen's Compensation Act than they do under the liability laws, is it not likely that they would do the same thing in the United States? In other words, has not the right of the workingman of Great Britain to proceed under the liability laws simply been a temptation to him to sue in the hope, and the false hope, as it turns out, that he might recover a larger amount than he would under the compensation act; and if the figures I have given you are approximately correct, has the result not been that the workingman, lured by the false hope that he would secure a large verdict, has given a large part of the money he would have received under the compensation act to attorneys, because he has had to pay the costs of the courts, he has had to pay his lawyers their fees, although possibly not in as large an amount as would be the case here, because in England the court fixes the amount of the attorney's fees; and has he not taken from the employer money that ought to have been used to compensate the men for accidents. Whenever a burden is put upon the employer that means nothing to the workman, it simply deprives the employer of the opportunity of paying a larger amount under the compensation act.

Now, it is not because of any particular sympathy I have for the employer in the matter, although I want to be absolutely just to him, but it is because I want to protect the workingman and see that he receives the largest possible amount as a reward or as a compensation for his injury, that I am not in favor of giving the workman the right to sue under the liability laws, and, failing to win his suit, to then proceed under the compensation act. I think it is holding out to the workman a false hope, and I know the practice in England has been simply a lure, and has caused him to waste his own money and waste the money of the employer without any benefit to himself.

On the other hand, when I say that I believe the workman should have the right to sue, I believe that because I believe there should be something done to cause the employer to prevent accidents, and I think the fact that a workman once in a while may secure a verdict of $5000, $10,000 or $15,000 is an incentive to the employer to prevent accidents. And when all is said and done, gentlemen, one of the principal purposes of this Conference should be to prevent accidents. Your compensation, quite apart from preventing accidents, is necessary, yet it is of a hundred times more importance that a life be saved than it is that some man or his dependents should receive $3000 or $4000 for his life. It is all very well to receive $1000 for the loss of an eye or the loss of an arm, but it is much better, not only for that man, but also for society, that the eye or the arm be not lost.

Gentlemen, this gathering, if I may just make this general observation, is perhaps one of the most important gatherings that has met in the United States, because it is going to give impetus to a great movement to change our entire system of employers' liability. I doubt not but that within a very few years our courts will so broaden their vision, and so broaden their decisions, that they will find means, even under our present constitution, to recognize the growing demand on the part of the people for relief from our iniquitous system of employers' liability law. I do not know how fast we can go; no doubt those of us whose lives have been spent among workingmen, and who have daily been brought in contact with those who are suffering either from accidents directly or the dependents of those who have been killed, may grow impatient in our desire to secure a remedy, but we cannot go faster than the courts will let us go, and we cannot go faster than the Constitution of the United States will let us go, but we ought to go at least as fast as they will permit us to go. If some State will take the lead and adopt a comprehensive system of compensation, and put it up to the courts and have decisions rendered, we would then know just what we could do. In any event, gentlemen, I believe that the workingmen will not be at all satisfied either with the suggestion sometimes made of a contribution on their part or with any law that removes from the employer the incentive to prevent accidents.

Sherman Kingsley (Chicago): Gentlemen, in my duties as superintendent of the United Charities of Chicago, I come in touch with a great many families where the breadwinner has been removed, and where the burden of supporting the family devolves upon the wife and the children. In this State, within the year, as you know, we have met with a very great disaster down at Cherry, where a large number of men were killed in a very spectacular manner. The press of this city and country was alive with the stories of that disaster for weeks. It was debated in our Legislature, it was talked about in university halls and preached about from the pulpits. I doubt if ever in the history of industrial accidents 267 men ever had as much written, said and thought and felt about themselves and their families as was the case down at Cherry.

I was asked to read a paper at the National Conference of Charities and Corrections at St. Louis, my subject being: "Compensation from the Point of View of What a Relief Society Would Consider Adequate." I tried to get a number of accidents equal to that of the victims of Cherry; that is, accidents that happened one at a time in the commonplace fashion, where, instead of having the press interested in it for weeks, the man will get three lines in a paper in an obscure corner, saying that So-and-so had his head cut off or had suffered an accident which cost his life. I got from ten societies similar to the United Charities of Chicago, in ten of the largest cities of the country, something over one hundred accident cases, and I have a couple of charts which show the kind of compensation that was obtained by those one-at-a-time, obscure accidents, and then what happened in the case of the men down at Cherry, where they met their death so dramatically. One chart shows the compensation they received, either through court action or from the employer, and it shows what 50 families received where the man was killed in a one-at-a-time accident in ten of the large cities of this country. The second is a chart of 50 families in Cherry, and shows that they received $1800 apiece; while the 50 one-at-a-time families only received $8749, in amounts all the way from $3000 down to $7.

I suppose that a damage suit of $10,000 or $15,000 does have some compelling effect upon an employer with reference to protective machinery, but I think that the greatest thing in the world that will happen in the way of preventing accidents is to make it dead sure that every accident will receive some just measure of compensation. Instead of having 50 accidents get $8749, if they come to $3000 apiece, making a total of $150,000, that fact will have a great deal more effect in preventing accidents than has the present plan.

Now, I have another chart which shows the whole relief story of Cherry, and indicates the effect of public opinion upon the compensation received by the sufferers. The Red Cross Society, the Legislature and the whole community became interested in Cherry. The money contributed by the public, by the Legislature and by the community generally amounted to $87,240 odd dollars. In our one-at-a-time accidents something was done for the victims, of course; they were cared for in day nurseries, in orphan asylums, in hospitals and the county agents gave help and the charities gave some help, but not in any such amount as the Cherry sufferers received. Twenty-four of these one-at-a-time cases were cases where the children were taken out of school and put to work or to begging, or the family took in boarders, and in some instances the criminal courts had played their part. Whatever it was, it was a certain fixed amount. (Down in Cherry the amount contributed is to go to the families in monthly payments, spreading over some five years, and in amounts suited to the number of the children and the ages of the children in the family.) The deterioration in the income of the families, resulting from the one-at-a-time accidents, was 64 per cent. Notwithstanding the wife and the children did everything they could, the income in these families has deteriorated almost two-thirds. In one case, where there was permanent disability, a man was awarded in one court $22,500. The case was appealed from court to court during a number of years, and finally the man received absolutely nothing.

Those are some of the general consequences, and I believe that in this matter of prevention nothing is going to have so wholesome and so certain an effect in the prevention of accidents as to have accidents cost money, and cost about what they ought to cost, and cost it with a certainty. You can see what happened in the case of these 50 families, where the accidents happened one at a time; those families only cost something like $8000, and some of that even, in fact, quite a large part of it, was a gift from the employer and not compensation.

(A motion was adopted thanking Mr. Kingsley for his graphic presentation of the facts.)

John Flora (Illinois): I see in this tentative "code" no provision for doing away with the defenses of the employers before the courts. The Chicago Federation of Labor, which I directly represent on the Illinois Commission, holds that any compensation bill in the State of Illinois is not worth the paper it is written on, unless we have a provision also doing away with the right of the employer to bring into the defense what is known in court decisions as assumption of risk, contributory negligence and the fellow-servant doctrine.

Chairman Mercer: Let me suggest that further down in this bill the common law remedies for all industrial accidents covered by this bill are intended to be repealed. If they are repealed, that would dispose of your question.

Mr. Flora: Very well. I want to say then in reference to this first section, that it appeals to me a great deal stronger than anything else. I happen to be a building trades man myself, and I want to say individually, as a member of the Illinois Commission, that I am in favor of a compensation law that will cover everybody. I do not favor taking out any class of industry and making that one class amenable to a certain law, and allowing another class to go without any protection whatever. I hold that the widow of a man who is killed in a non-hazardous occupation suffers just as much as the widow of a man who is killed in a hazardous occupation. I do not know how the constitution would affect this matter in this State. That, I presume, is something that the Illinois Commission would have to look up, but nevertheless I think it is a great deal better than the New York proposition. I never have been very much taken up with the idea of having two different bills in New York. I feel that they might have gone further and have made one bill that would cover every occupation. I hold with the rest of the representatives of the working people that the working people will never agree to surrender their right to go into court under the common law.

Mr. Dawson (New York): I have not made up my mind at all as to this question, whether the right of the workingman who is injured, or of his family in the event of his death, to proceed under the existing law, should be taken away; whether he should be compelled to exercise an option and abide by it, or whether he should be permitted to proceed under the law through the courts, and in case he fails to establish that he has been injured by the employer's wrongful or negligent act, still be entitled to compensation under the compensation act.

There are, however, some considerations that arise in my mind. In the first place, the tendency of the proposed legislation in this country has been to do away with certain of the defenses, even though a compensation act be adopted. An argument in favor of that has been that by doing away with these defenses the employers will be made very glad indeed to accept a compensation act. I think the impression is that the bill which was passed by the Ohio Legislature, and since vetoed by the Governor, was intended chiefly to influence public opinion there in favor of abandoning entirely the old method of dealing with industrial accidents. Certainly in New York there is no question but that the weakening of the defenses was directly for the purpose of getting the manufacturers to take advantage of the permissive act. As I understand it, a similar proposition is now being brought forward in Wisconsin. If, in spite of this, by any chance the fixed policy in this country should ultimately be the same as in Great Britain; namely, to preserve to workmen their rights under the common law and under statute law relating to employers' liability, either in an optional form or in a form which would still give the benefit under the workmen's compensation act, though defeated in the courts, it occurs to me that this weakening of defenses would be a peculiarly dangerous thing for us to do. The present situation in the United States is that the employers' liability theory, the negligence theory has, notwithstanding these defenses, in the main, been pushed just as far as the courts and the juries could push it, to cover many accidents. Notwithstanding that we chafe at these defenses, the courts and juries have gone just as far as they could go, on the theory that an employer was to be held liable only for his own fault. This is due to a strong sense of natural justice and a desire to compensate as many as possible.

It is safe to say that nine out of ten verdicts rendered in this country, and sustained by the higher courts when brought before them, are not cases where the actual negligence of the employer is clear at all, but instead it is reasoned out by precedents established by these same courts, under which employers have been held responsible; precedents which, of course, have been carried still further in the case of public liability; that is, to others than employes. If we pass a compensation law so that every injury is surely compensated, what resulted in Great Britain is what I should expect to find in this country if we do not weaken these defenses; that is, that after a compensation act is passed, the disposition of courts and juries will shift to the other side; namely, that instead of aiming to stretch the theory of employers' liability and negligence to the utmost limit in order to give verdict, they will tighten them by establishing new precedents until it will be nearly impossible to get a verdict for the negligence of the employer. This is true now in Great Britain unless an exceedingly clear case of actual personal negligence has been established, or such negligence on the part of those who have been appointed to perform the employers' duties in his business, that his agents' negligence is fairly attributable to him. It is by reason of that fact that the courts have gradually veered to the position, that the reservation of that right in Great Britain has done no harm. I say no harm advisedly, because I am told that the British insurance companies regard it as a quantity negligible in the computation of their rates.

Under those circumstances should we not be particularly careful how we proceed about weakening defenses? And should not the manner in which we proceed be definitely based upon what we suppose will be the ultimate form of these laws; that is, whether the right to proceed under the employers' liability act will be wiped out entirely, whether it will be reserved as an option to be exercised only by abandoning the other right entirely, or whether, as in Great Britain, there would still remain the right when defeated, to claim under the compensation act.

There are reasons which appeal to me very strongly why the British principle should be accepted, but I am not clear that I shall be of that opinion in the end. One of these reasons is: This compensation, if it is given under a compensation act, will be for the purpose of trying to see that all persons who are injured in the course of carrying on an industry are taken care of. It has a public purpose; namely, to prevent the piling up of the burden upon public and private charity, the very things we saw set forth in the chart that Mr. Kingsley exhibited a few minutes ago. Is there any reason why, when we have tried to make that provision for the inevitable result of industry, we should refuse to punish those rare cases of misconduct which mean that men have grossly trifled with the safety of their employes? I am not quite clear that there is any good reason. I am confident that an examination of the British decisions, since they put the first compensation act upon the statute books in 1907, would show that there have been very few cases, indeed, in which the employers have been held liable, where they ought not to have been actually punished for misconduct.

There is one consideration, however, that does not appeal to me which has been brought forward in the argument here, and I wish to speak about it. It is that by reason of such punishment employers will be more careful. I am sorry to say that such does not appear to be true. All the evidence to the present time is that employers are most careless where there is nothing for which they are held responsible but negligence. They are enormously more careful when they are held for every accident that happens. Experience all over the world has shown this to be true, and I want to add one thing that is almost more important still; they are still more careful in countries where they are not even held individually responsible, but are only held responsible for the payment of insurance premiums. The greatest amount of prevention and the largest amount of care exercised by employers anywhere in the world is in those countries which have compulsory or obligatory insurance laws. The reason is very simple: nearly every employer does not think that a catastrophe, due to his negligence, will ever happen. But when you hold him under a compensation act for every accident, big or little, negligent or not, and accidents are happening every day, and there is a good deal of money being paid more or less continually, he will be much more careful. Again, when you introduce a compulsory insurance system, if his institution is not up to standard, he finds he is paying three times as big a rate of premium, perhaps, as another employer in the same business, and he does not wait for accidents to happen, but takes measures at once to prevent them, and so get a present and permanent benefit in a reduction of his rate. There has nothing been found yet which will cause so effective prevention of accidents as compulsory insurance; for it is, after all, the certainty that the want of it costs money that causes an employer to be more careful, and not the possibility that it may cost him a great deal more money or perhaps even ruin him.

Mr. Harper: Further, as to the right of the Legislature to take away from the employe his right of action at common law, in most of the bills which have been suggested, it is provided that some method of arbitration shall be substituted for the ordinary action at law, and, in my judgment, where the nature of the injury and the amount of the compensation only, and not the question of the liability, is left to the arbitrators and taken away from the courts, the courts ought to sustain it. It might be wise, however, in all cases to provide for an appeal to a court of record.

I want to ask the Chairman and the other attorneys here, especially to discuss a suggestion I desire to make in regard to limiting the right of the employe to bring such common law action and substituting in part the compensation system. The suggestion is this: Under the doctrine of respondeat superior, which has been in vogue for two or three hundred years, the employe was originally given the right of action against the employer, not only for the negligent acts of the employer himself, but also for the negligent acts of his servants and employes while exercising the duties of their employment. That was a judge-made privilege extended to the employe. It is not a constitutional right, and might we not take that power from him and substitute therefore a compensation system? That is, might we not provide in a compulsory compensation act that the employe, where the negligence is attributable not to the master himself, primarily, but to his servant or his employe, that his compensation in that case should be compulsory and the employe would not have a right to his action at common law.

Henry W. Bullock (Indiana): We do not have a Commission in Indiana. At the last meeting of the General Assembly I prepared on behalf of the State Federation of Labor a bill for the creation of a Commission, which, unfortunately, was smothered. We are fortunate, however, in Indiana, in having a Governor who personally is in favor of compensation, so we have that much of a start on the future.

The question of employers' liability and workmen's compensation, I believe, has been more deeply studied by organized labor than any other class of people, and I frequently have been associated with them in the preparation of their legislative measures in Indiana, and I believe that I can express their sentiments as being in favor of compensation.

I also believe that at this time they would be opposed to any system that would take from them their common law right to sue for damages, and they would probably favor a double law, such as they have in England. However, they might be induced to grant some concessions if the employers were to be reasonable, which I hope they will be. Thus far, however, there has been much opposition on the part of the employers, not only to measures for compensation, but to all safety measures.

I think the question of safety is the larger proposition. One thing the trade unions have done, they have trained up competent workmen, and if the employers would be careful in the selection of their employes, that would do much to protect life and limb.

In regard to this "workers' code," I know I speak the unanimous sentiment of the legislative forces of Indiana when I say that they do not intend the operation of an employers' liability law to include agricultural and domestic services, but that the question is whether the law can be constitutional without that. All classifications must be based upon some reason. It might be that this could be evaded, and the law could be drawn generally with a proviso excluding certain persons from its operation. Then no one could raise the constitutional question perhaps. The person within the operation of the law could not raise it because he would be affected, and the person excluded could not raise it because he would not be affected by it.

It occurs to me that perhaps the rates of compensation named here are not quite adequate. Injured workmen, for instance, receive 60 per cent. during only five years. Thus the workingman not only gives 40 per cent. of his wages, but he gives it all after five years. I believe that the industry should bear the expense. As it stands, it makes the workingmen, who are usually young or middle-aged men, from 20 to 45 years of age on an average, and who have a long expectancy, contribute the largest share. As to whether or not we could constitutionally deny the workingman his right of action against a negligent employer I seriously doubt if that could be done, for why should the rule be different if the injury is caused by the employer and it falls upon the workingman, than when it falls upon a stranger? All persons should be liable for their carelessness and their negligence, and it occurs to me that there is not a reasonable basis for that classification. Negligence is a personal proposition with the employer, and for that reason, I think, there should be a right of action against the employer. Compensation is a matter of industry and occupation, and has no reference at all to carelessness or negligence, and for that reason the industry should bear the ordinary hazard, but the employer should bear that which is caused by his own negligence.

This bill, as I have read it hurriedly, makes no provisions for the important feature of the certainty of securing compensation. It provides that these payments shall be strung out for a period of five years. How are we to know that the employers will remain solvent for five years? There should be some security for those payments if they are not made in a lump sum.

It occurs to me also that this notice is a little bit strict. Ordinarily an employer knows when an injury occurs. The law in most of our States compels the employers to report, and yet if the injured person fails to report within a very limited time, his right of recovery is barred. That notice should be sent, provided the employer himself does not know of it, but if he himself has actual notice, then the employe's right to recovery should not be barred. In some one of the measures, I do not know which one now, it provides that there must be specific detail. That gives the employer the advantage of having the names of the witnesses and of all the details made by the employe, and it does not give the reciprocal advantage to the employe of getting a statement from the employer, when we all know that very often employers conceal witnesses and keep the correct statement of facts from the injured workman.

Concerning Section 6, regarding boards of arbitration and awards, some constitutional question might arise. I am not sure that such boards might be called administrative, but, at any rate, we have a constitutional provision in our State that says boards of conciliation may be created, but not with power to act unless the parties submit themselves voluntarily. I seriously doubt, therefore, if you can have compulsory arbitration under our constitution.

I would favor abolishing all of the common law defenses as to contributory negligence, assumed risk and so forth, with the hope of bringing the employers into a frame of mind to adopt this law, and to that end if you cannot get a constitutional law without it, the Legislature would have the right to prescribe a standard form of policy for liability insurance, and in that they might prescribe a form to insure the workmen.

I believe if we do not have compensation, that the liability insurance company should be made a party to actions for damages; that the amounts should go to the injured parties rather than to the employers, as is the case over in England. They have a provision there that the employers may adopt some system of their own with the approval of the public authorities.

The main argument of the employers at Minneapolis last year was that any increased liability would add a burden to the employers, and would cause the employes to become careless, and on investigation I find that perhaps there has been an increase in the number of accidents reported, which is due to the fact that the workmen report better when they are compensated, and that a larger number of industries have come in under the law. From the American Federation of Labor officers I find that their estimate is that the dangerous machinery that now runs at high speed is also the cause of the increased reports of non-serious accidents, and from an insurance company of Germany I find that accidents of a trivial nature have increased, while those of a fatal nature have decreased, and that the employers are penalized for their negligence. It seems to me that where there is a liability to penalize the employer for negligence it causes him to be more careful in protecting the lives of his workmen. And, it seems to me, in conclusion, that the right of the workingmen to receive damages should be maintained, but personally I think it should be used as little as possible.

Wallace Ingalls (Wisconsin): The Chairman and I have discussed the various fundamental features or principles which underlie the question of compulsory compensation under our law, and you will pardon me for any criticism, if I make any, of the right to enact an out-and-out compulsory system in any of the States of the Union, but this bill involves exactly that principle. While it is not so worded plainly in the first section, yet it means the same thing, because in the first section you characterize occupations without limit as dangerous occupations. When you do that, you put those occupations within what is called the police power of the country, and when you do that, then, of course, you can enact laws bearing directly on the subject. I think we ought not to forget in the discussion of this question that the underlying principles of our Government are different from those of any of the other countries which have these systems that we have been talking about. When our Government was founded it was founded on individual rights. At that time individual rights were unknown in the other countries, and technically speaking in the other countries they have not now got individual rights, while we have them here. In fact, our Government is based on them.

One gentleman suggested that the employes did not wish to surrender their individual rights to go into the courts, which is the only place they have to go. I believe that is fundamental, and I think they would accord the same rights to the employer. But we must not lose sight of the fact that individual rights exist in this country, and that in the older countries, such as Germany and England, they do not have individual rights that you can insist upon and go into court upon.

We are discussing a very important question, we are discussing a question whereby we can arbitrarily decide what course shall be granted to an individual without his day in court, whether it is an employer or an employe; that they shall take a certain amount of money fixed by arbitration for an injury, or for death, or whatever it may be. That is a serious question. Now, you can, of course, take away these defenses of the employer; there is no question about that. I am in sympathy with it, but under our laws and our system of government, I do not believe that any of us want to embark upon any dangerous system of jurisprudence, and I do not believe we want to invade individual rights anywhere. In Wisconsin, after a careful discussion of what we could and what we could not do, we presented a plan whereby these defenses are practically destroyed and the other features of the bill are optional.