Chapter VI: Section 1: , as to what extent that applies to farm workers. Supposing (2)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One phase of this subject has been the source of much discussion pro and con, and that is in regard to the matter of contribution. In Germany their system covers sickness, accidents, invalidity and old age, three different classes. There is no contribution for accidents proper. There is for old age and for sickness, and sickness includes the first thirteen weeks of the result of an accident. In England there is no contribution. Whoever will examine those two systems, and compare them, I think, will draw the conclusion that when you consider the subject of sickness and of invalidity, the question of mutuality must necessarily and naturally enter into it. But with purely accidental misfortunes, that is a different question, and to my mind the contribution has no place in it for this reason, if it is true that that should fall upon the industry, then it necessarily follows that the employe should not contribute.

The success of the German system, as I view it, is based upon the mutuality of sickness, invalidity and old age, all three being interdependent and interwoven under one scheme, and the mutuality being in that system. That is what makes it so perfect. It is really a self-operating principle, and it is based upon the only true and correct principle that ever will be arrived at in considering a scheme of that kind. We cannot do that at present. When our system broadens, and we get to the point where we handle sickness and invalidity, then the mutual feature of it will come in and will be very wholesome, but as far as we have gone now, it is not possible to handle it.

On the subject of litigation in continental countries under the liability laws, the statistics in England show that litigation has practically disappeared. They prefer to take the compensation. It is immediate and they get it at once, and they prefer that rather than going into long-drawn-out and expensive litigation. Of course, there is some litigation, but it is growing less and less continuously, and, as a matter of fact, most of the litigation there has been in connection with the construction of the law.

AMOS T. SAUNDERS (Massachusetts): It seems to me as though the reading of this first section might defeat its true purpose. I understand it is based upon the theory that constitutionally we can impose certain remedies upon certain industries, because they are immediately dangerous. It is very obvious from the reading of this first section, following out that theory of law, that the man who drafted it had endeavored to say that every industry is a partly dangerous industry. Under this bill the servant girl in my kitchen who cuts her finger when she is cutting bread for breakfast, is entitled to recovery. It strikes me when you say everything is partly dangerous that you have landed about where you would have landed if you had not said that anything was particularly dangerous. That is, if I should attempt to say that every man in this room was a "Tom fool," as a comparison between the men in this room, I have not said anything, but when you say every industry in which there is an accident (and there is an accident in every industry) is a partly dangerous industry, and by saying that attempt to legislate concerning it because it is dangerous, we have simply piled up a number of words which, when the courts get to the construction of the bill they must disregard entirely.

On the proposition that in England a man may sue, and, failing to recover, may get his compensation under the compensation act, it has been suggested that that will work no harm, and I judge it was sought to convey the idea that the result would be the same in this country. I believe, however, that when you say that you lose sight of one thing, and that is that in England it is practically impossible for an employe to get what a lawyer in this country who is trying cases for the plaintiff would call a decent verdict. The verdicts from the English juries are very materially smaller than the verdicts from American juries. Therefore, when the English employe comes to compare what he can get under the compensation act with what he can get under a verdict from a jury, he is satisfied with a very much smaller amount than the American would be. One of the chief reasons for the compensation act is to prevent the waste of money in expensive litigation. The employe only receives perhaps 17 to 25 per cent. of the money which the employer pays out, and the rest of it, so far as the employer and employe is concerned, is wasted. Therefore, if we should provide a system which would allow the employes all the remedies they now have, and then, if they should fail in their suits, allow them to secure their compensation under the compensation act, will we not be increasing litigation and, therefore, be providing a means to hinder the effect of this very act? In other words, would you not be doing away with the prevention of this tremendous waste in litigation?

There has been considerable discussion as to a choice of remedies. I know in the Massachusetts Legislature, before the Judiciary Committee, the first question that was raised at the hearing this year and the year before was whether the employe should not be obliged to choose before his injury, so that he could make a wholly disinterested choice between the laws, and not be affected by his particular injury; that his choice should be between the system of compensation or the system of liability. No one has suggested a really workable method, but in Massachusetts, and, I think, in New England in its entirety, most of the actions which are brought by employes against employers are to-day brought to a very large extent under statutory remedies and not under the common law. I will assume that we will all agree that anything which the State has given to an employe by statute can be taken away by statute under the constitution, and it has seemed to me as though we could at least do this: That in providing a compensation act we could provide it as a substitute for our statutory act, and that would leave the employe his common law remedy and his compensation remedy. The fact that the common law remedy is not used now, from a lawyer's standpoint, at least, would force the employer and the employe, if he was going to bring an action, into a more or less unfamiliar proceeding under the old common law, and as between an unfamiliar common law procedure and a perfectly plain compensation act, it would seem that the natural course for both the employe and the employer would be to take the certain compensation act.

I think the question which troubles Massachusetts more than anything else has been touched upon very little here to-day, and that is the effect upon interstate competitive industries. We can pass a law in each State which will apply to specially hazardous risks which are not competitive between the States, and while it might be inconvenient, and it may cause a great deal of trouble to start in with, the effect eventually is not an injury to any particular industry or any particular set of people, because if it is not a competitive industry the employer very quickly contributes the extra burden upon the public. But when you strike the competitive industries between States, when Massachusetts or any other State does pass a compensation act, we do not know what it will do until it is tried, and it may be a serious burden upon the manufacturers. We are in danger of placing that particular industry in such a position that it cannot compete with industries in surrounding States. It seems to me, therefore, that the vital question for this National Conference to discuss, and the one which would be the most effective and beneficial to all the different States, is what shall we do with our competitive industries. If we can all secure, approximately at the same time, at the end of a few years, and place upon the statute books of the various States practically the same scheme, then, even though it is not a perfect scheme, even though it should prove to be a burden upon the industry, that industry is not going to suffer, but the people who sell the various manufactured products will distribute that burden among themselves. That, it seems to me, is the practical question which should be discussed. I should like to have this National Conference discuss what we can do with those industries which are spread out over the country and which are competitive. I believe we must find some general solution of that problem before there can be successful compensation acts in any of the States.

EDWIN R. WRIGHT (Illinois): There is one question I should like to have some light on from the members of the various Commissions here. There has been a good deal of discussion upon the elective or compulsory systems of arbitration, and also upon the question of the double or single liability, and I do not know of any better place to ask the question than right here.

The American Federation of Labor sent out a letter bearing on the subject, and I was rather astonished to find the number of different lines of industry which the president of the American Federation of Labor and the officers wished to include in a compulsory law. I asked President Gompers the reason, and the matter over, and after hearing the discussion here to-day, he told me that he favored a compulsory measure. In thinking the injured person fails to report within a very limited time, his it presented a question to my mind as to why President Gompers was influenced in asking for a compulsory measure. After Mr. Buchanan and Mr. Mitchell and others spoke on the question, it seemed to me that this would be a point which we could discuss here with a great deal of advantage to ourselves. In England they have a double system. A man can go back after failing in the courts and receive his compensation, and the question that arose in my mind immediately was, what would he receive, and the answer to that is something like this: He would receive $3000, of which the attorney would immediately take $1000. Then if there was $1000 left after the court costs were paid, he would get that $1000, but the court costs might be $2000 or $3000. Then where would the double compensation be?

In referring to the matter this morning, I suggested that it might be a matter of compromise as to whether there would be a single compensation or a double compensation, and I would like to ask some of the attorneys here what it costs to go through the Supreme Court, and if it is not the custom if a damage suit results in $4000 or $5000 damages to usually go through the Supreme Court and possibly come back to some of the lower courts and then go back to the Supreme Court again, and what that costs, and if it costs anything like $2000, what is going to be left of the double liability? What does the workman get?

I went over the English tables and I found that a man really received more if he took his compensation than if he went through the courts, and that when he got greater compensation after going through the courts, he had to pay the court costs and his attorney. There was not very much left for him.

MR. MITCHELL: The court in England fixes the attorney's compensation at a very low amount.

MR. WRIGHT: But it does not here, and the court costs here amount to a great deal more than they do in England, so that you must make a comparison between the court costs in England and the court costs in America, aside from the delay in the courts, before you will fully understand the question. If a double liability is of any advantage to the employe, I want that double liability. If it is not going to be of any material advantage to the employe, and will merely pile up the expense account would not it be better to pile up the expense account in the first place, and have that go to the employe as an automatic proposition? I am not arguing on one side or the other, but I would like to know what the workingman is going to get when the thing is settled.

I might go a little bit farther. We were shown some charts here this afternoon as to what the workmen receive in an ordinary accident. Those charts bore out exactly the statement I made this morning. The charts this afternoon show that the workman receives on an average something like $400, when he received anything. Now, is that right? Is the life of a workman only worth $400 on an average? Is that all the compensation he gets? It costs about $150 to bury a man and that leaves $250, and besides that you have the other expenses coming in. I am beginning to doubt whether the life of an able-bodied workman is worth anything at all.

G. A. RANNEY (Illinois): I do not think the workman gets anything under the double compensation, but he takes the risk of a suit, and, I think, if he elects to take that risk, he should bear the loss if he loses.

MR. INGALLS: I quite agree with Mr. Wright upon the practicability of the double liability. My observation is that the double liability is quite unimportant as a practical matter, because when you get into court it is the delay that is the most troublesome thing. The real expense in court is not so exorbitant. The charges of a lawyer to handle the case exceed the actual court charges many times. Even taking away the double liability will practically affect the workingman very little. Of course, there may be isolated cases where he ought to have that right, and where it ought to be preserved to him, but in drafting a general scheme, it has seemed to us necessary to preserve the double liability unless the employe agreed to waive it, if he could waive it.

MR. BUCHANAN: In my opinion there would be very few cases of expensive litigation in the courts if we had a proper compensation law in this country. It has worked out that way in Great Britain, and from information I have I know that the trade unions there are discouraging action in the courts unless it is a clear case of wilful negligence on the part of the employer.

I want to call the attention of the Conference to an abuse which we have here in Illinois, and which our Illinois Commission have probably looked up and understand. If they have not, they should. The Appellate Court here has the power to pass on findings of facts. There have been a great many personal injury cases reversed under this system of passing on findings of facts. This court was created in 1878, and given this power. Very few courts in the United States have it. I believe the United States Court does not claim to have that power. We desire that that power be taken away from them and that they have the right to pass on the law alone.

Another thing that should be given thorough consideration is the financial liability of the employer. I believe that where an employer insures through a liability insurance company, that that insurance, whatever it is, should be attached when damages are secured by an injured employe. We have cases here where employers have no financial standing, and the result is that they have defaulted in the payment of damages, although they have been protected themselves by means of liability insurance. The injured workman cannot secure that insurance through the courts. That is something that should be remedied.

(An informal discussion was then had as to a more specific program for the Saturday morning session. Chairman Mercer announced the following committee, of which the Chair, in accordance with Dr. Allport's motion, was _ex-officio_ member.)

_Program Committee_--Dr. W. H. Allport, Chicago; Prof. John H. Gray, Minneapolis, Minn.; A. T. Saunders, Clinton, Mass.

(Upon motion of Professor Gray an adjournment was then taken until 9.30 A. M., Saturday, June 11, 1910.)

THIRD SESSION, SATURDAY, JUNE 11, 1910, 9.30 A. M.

Chairman Mercer called the Conference to order at 9.30 o'clock, and announced that the Program Committee had submitted eight specific questions for discussion, the consideration of each question to be limited to twenty minutes, and the length of time of each speaker to five minutes.

The further discussion of the Workers' Compensation Code was then taken up as follows:

CHAIRMAN MERCER: The first question will be whether we want to cover all employments in this act, or simply the hazardous employments.

MR. DAWSON (New York): In opening this discussion I am going to pass the legal question, because if it is necessary to limit the bill to hazardous employments, there are not two sides to the question.

It would appear that it ought not to be necessary for us to repeat all of the baby experiments that have been made in other countries. In other words, having delayed nearly thirty years longer than Europe, why should we not begin where the European countries left off, instead of where they began. It may, however, be necessary for us to confine ourselves to certain classes of employment, but I do not think, personally, that those classes ought to be selected with strict reference to the question of their being hazardous. For instance, if it should transpire that the employers of domestic servants and the farmers are bitterly opposed to any system which will apply to them, it may be necessary to leave them out, but we ought, if possible, to cover all manufacturing establishments, all mercantile establishments and all transportation industries, and generally to proceed on broad lines.

There is a practical objection to confining this sort of thing to the really more hazardous employments. It is this: The rates for employers' liability insurance are already very high in those industries, and they will probably be doubled or possibly tripled or even quadrupled. It would be difficult to imagine anything which would render workmen's compensation more densely unpopular than to apply the principle exclusively to the more dangerous manufacturing industries of a particular State. On the other hand, an increase in the rate payable by a dry goods merchant, for instance, might not amount to an advance on the payroll of more than one-half of 1 per cent. or 1 per cent., and, therefore, might not seriously place the employer at a disadvantage in competition with employers of other States. That is not true where the hazards of the occupation are very serious. You then have the situation that every manufacturer affected may be able to establish that he cannot carry on his business at all in competition with these other manufacturers if he is thus burdened.

JAMES A. LOWELL (Massachusetts): This matter of how many trades shall be covered is a pretty serious one for Massachusetts, because I do not think a scheme in Massachusetts would work unless we covered practically all the trades. We have an employers' liability law in Massachusetts now which excepts agricultural employment, which is a small matter in Massachusetts, and domestic servants, and I should assume that those two exceptions would be made in any law which was passed, and incidentally that has been held to be a proper law. So I do not apprehend any difficulty on the constitutional part of it through leaving out those two classes of workers.

But in Massachusetts by far the greater part of the industry there is in manufacturing, the lighter trades, and, I think, in order to get a law which would be of much service in Massachusetts, we would have to cover practically all industries, so we are up against the proposition there that we cannot do much along the line that has been followed in New York.

The experience in England under the employers' liability law has been that the premium on insurance in mines is twice what it cost under their former laws. In hazardous risks, as Mr. Dawson has said, the rates are from three to four times higher, and in those lighter trades it is very much greater than that; it is six or eight times more than it was under the old laws, and the chances are that if we adopted a law in Massachusetts with anything like the scale there is in England, it would be six or seven or eight times as much for insurance as it is at the present time. So that is a very practical difficulty which we have to face in Massachusetts.

As I said before, in order to have a law there that is to be of any value, you must practically cover all of the trades, and the only way you can do that, as far as I can see, is that you would have to have your scale of compensation under the law very low. I do not think that that would work out badly in Massachusetts, because most of the injuries which will be found in the factories will be minor injuries. There are not a great many very serious injuries in the cotton factories as compared with the mining and bridge-building industries, but there are a great many small injuries. If you put on some kind of a scale which would be relatively quite small, the result, it seems to me, would be that the workmen, as a whole, would be very much better off than they are now. As it is now, one man out of every twenty, we will say, or possibly one out of fifteen, will get a fairly good-sized amount, and all the other fourteen will not get anything. Putting it on a moderate scale in the cotton factories would give everybody something; probably not as much as we would like to give them, or as we perhaps should give them, but, I believe, the result would be much better than the present situation. For that reason on the point we are now discussing, I believe the thing for Massachusetts to do is to try and get some kind of a law which will cover practically all industries.

CHARLES A. SUMNER (Missouri): I naturally would like to see the bill cover all industries, but the legal question arises, and unless we can get around it, as this tentative bill seems to succeed in doing, I do not know what we would do down in Missouri. Missouri is largely an agricultural State, and the Legislature is in the control very largely of the farmers and the representatives of the smaller cities in the agricultural districts. We have the initiative and referendum, however, and it occurred to me, in listening to the discussion here, that if it were the opinion of this Conference that it would be better to attempt to get a bill adopted which would include all trades, that it would be worth trying in Missouri, where the initiative and referendum are in existence. I believe that if a proper bill were put to the people direct, it would very likely get the support of the people in Missouri, particularly if it was a bill that the best judgment of this Conference had evolved. I believe, however, that we would prefer to have the bill include all trades.

CHAIRMAN MERCER: Mr. Sumner, the farmers may have a considerable influence in the Legislature, but so have the other interests, and legislation is very largely a matter of trade anyway, when you get into the majorities. Don't you think that would work itself out all right and take care of the farmers?

MR. SUMNER: As I understand politics in Missouri, the farmers there are strong partisans, and unless you can get your bill adopted by one party or the other, as a party measure, which I think would be very improbable down there, because our parties are very largely in the control of the corporate interests of the large cities, they would have something to say about the bills and the farmers' representatives would simply go with the party. Still, with the initiative and referendum the people and the labor unions down there are not relying very much on the Legislature any more.

CHAIRMAN MERCER: If either party, or if both labor and capital wanted this proposition, then they would vote for it?

MR. SUMNER: Yes.

CHAIRMAN MERCER: So if the employers and employes should agree on what was a proper bill in your State, you would not have any special difficulty, after all, would you?

MR. SUMNER: No, probably not. I should add that we have discussed this matter at the City Club in Kansas City, and the employers are just as much opposed to the present system as the employes. I was told by a State Senator last week that he has a bill now drawn up to be introduced at the next session of the Legislature, but I apprehend that the bill will not be acceptable to us.

PROF. SEAGER (New York): It seems to me in this matter that we are between the devil and the deep sea. If we begin this legislation by taking in all trades, we have got to scale down our schedule of compensation. We have got to recognize the validity of the argument, that you cannot put too heavy a burden upon competitive industries in one State when they have not the same burden in other States. That means a low scale of compensation. That means it would be very hard to get wage-earners behind our proposal, and for those reasons I anticipate that the political obstacle to getting a bill passed that contains an adequate scale of compensation and applies to all industries is going to be serious in most of the States.