Part 13

We have not used the term "accident" in the law because of the uncertain meaning of that term throughout the state and federal courts of this country. We find that this term in some instances has been construed in the popular sense; in some instances it has been construed to mean that which has happened without the fault or intent of any one. We fear great litigation as to what it would mean if the term "accident" should be used. The terms arising out of, and in the course of, such employment have been sufficiently defined by the English courts under their act that they will need no further definition here than the words themselves would indicate.

Section 2:

It is the intention of this act to make the employer liable to pay compensation, and it would be the purpose probably to make the employe liable to stand a small amount of the carrying charges as specified in this act when worked out. Some argument has been produced in this convention to the effect that it would be difficult to hold the employer in case he had no fault, but fault is not necessarily the basis of liability in such cases. See Chicago, R. I. and Pac. Ry. Co. _vs._ Zernieke, 183 U. S., 582.

The man who put into operation the dangerous machinery of dangerous employment would be liable by reason of public necessity to be controlled under the elements of the police power for the protection of the general welfare. It has been intimated here that this rule would not apply except in the case of _quasi_ public corporations, but this is not the law. Relations otherwise private may become public under public necessity if the State decides that the public needs protection. See State _vs._ Wagener, 77 Minn., 483; Harbison _vs._ Knoxvill Iron Co., 183 U. S., 13.

It has been urged that no man can have the right taken away from him to sue in the courts for injuries under such circumstances. Generally speaking, it is the rule that a party has no vested interests to a right of action at common law for a future injury. A tort action grows out of a breach of the duty which the State provides that one of its individuals owes to another, either by reason of the peculiar situation as between the parties, or by reason of a public burden which has a peculiar favor in it for the one who is injured. This direct liability the State has imposed by the implied adoption of the common law or by statute, both of which it has the power to repeal. It has repealed or has modified the common law or statutes every time it has imposed a new obligation or taken away an old obligation with respect to tort actions. See Martin _vs._ Pittsburg and L. E. R. Co., 103 U. S., 284; Holden _vs._ Hardy, 169 U. S., 366; Snead _vs._ Central of Georgia Ry. Co., 151 Fed., 608.

With respect to the remedy, we think that the remedy provided here is the appropriate and proper one. It would be so if it were fire insurance. See Wild Rice Lbr. Co. _vs._ Royal Ins. Co., 99 Minn., 190. Such a law, leaving the general question of liability to be determined and simply providing a reasonable method of estimating and ascertaining the amount of the loss, is unquestionably valid in both this country and Europe. See Hamilton _vs._ The Liverpool and London Ins. Co., 136 U. S., 242, and cases therein cited.

The fact that the liability is conditioned upon the application of a remedy as substantially provided in the act does not in any way affect the constitutionality if it is carried out as we suggest. The theory is that until the appraisal is made by the award provided there is no liability. See President, etc., V. and H. Canal Co. _vs._ Penn. Coal Co., 50 N. Y., 250; Wolff _vs._ Liverpool, L. and G. Ins. Co., 50 N. J. Law, 453; Hall _vs._ Norwalk Fire Ins. Co., 57 Conn., 105; Reed _vs._ Washington Ins. Co., 138 Mass., 572.

It has been intimated that the employer might be forced by such law, when the employe could not be so forced. We fail to see the force of this argument. The reason why the employers cannot be forced, if it is done equally, is that it deprives them of their liberty secured by the Fourteenth Amendment to the Federal Constitution to contract with respect to their labor as they see fit upon the theory that the liberty of contract is a property right; but neither the right of property of the employe nor the employer stands above the general public good. The general welfare was one of the principal purposes given in the Preamble of the Federal Constitution as the reason for the making of that constitution. It has been consistently and persistently upheld by the courts whenever needed for the protection of public good; as long as government exists it always will be so upheld. It is an absolute and final necessity. With this right the Federal Constitution was never intended to interfere except in the few instances limited by the Fourteenth Amendment; except as specifically limited the State has as much power as a foreign nation upon this question, and that amendment does not prohibit the exercise of such power to the extent that it is necessary in dangerous employments. See Mayor, Alderman, etc., of N. Y. _vs._ Miln, 11 Peters, 102; Lochner _vs._ N. Y., 198 U. S., 45. Other cases cited _supra_.

In this respect, too, we must not overlook the fact that the employer and the employe do not stand upon an equality in their negotiations with respect to dangerous employments. Stripped of political perplexities and personal prejudices and ambitions, the fact is, and must be recognized, that the fundamental reason for the interference by the State with respect to these matters rests upon the bare fact of the inequality of abilities of the respective parties to take care of their interests by reason of the peculiar situations. In the case of Harbison _vs._ Knoxville Iron Co., 53 S. W., 955, the Court said:

"The Legislature, as it thought, found the employe at a disadvantage in this respect, and by this enactment undertook to place him and the employer more nearly upon an equality. This alone commends the act, and entitled it to a place on the statute book as a valid police regulation."

The Supreme Court of the United States approved this opinion in Knoxville _vs._ Harbison, 183 U. S., 13.

In respect to the length of hours, dangerous labor may be required, it was said by the Supreme Court in Holden _vs._ Hardy, 169 U. S., 366:

"The Legislature has also recognized the fact, which the experience of Legislatures in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, but that their interests are, to a certain extent, conflicting."

Then in the case of Narramore _vs._ Cleveland, etc., Ry. Co., 96 Fed., 298, a case involving the rights of railway employes to have switches blocked, while Judge Taft was sitting on the Circuit Court of Appeals, he used this language:

"The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract; and it would entirely defeat this purpose thus to permit the servant 'to contract the master out' of the statute."

An employe cannot successfully say to a railway president, "Run your business carefully or I will quit." This is a new right and not necessarily triable by jury in State courts. Am. _vs._ Morrison, 22 Minn., 178. See Minor _vs._ Happersett, 21 Wall., 162.

We might argue this legislation at length, but it seems useless at the present time. There is an agitation throughout this country, unequaled upon any other single subject, in favor of a fairer system of compensation to meet the necessities somewhat along the lines that foreign countries have done. No subject in this country has ever been studied more deliberately; no attempt has ever been made upon the part of all parties to approach a legislative subject in this country with less partisan feeling or more careful study. Employes have awakened to the conditions in a substantial way. Employers are willing that they should have something of a fairer and more substantial nature. The State needs it for its own protection as well as the protection of its members. Public sentiment is aroused, but it is being judiciously controlled. We might have pending in this country a civil war larger than the Civil War of the sixties was and not do as much injury at the present time as the industrial accidents. Fair people, therefore, are going to be willing to have laws that will tend first to prevent accidents, and, second, to fairly compensate for them, and to do it in such way as to be an inducement to both the employer and employe to prevent the accident. We want society protected also. No better time will ever come for a fairer legislative act upon this question than at the beginning. If the movement is uniform, and held in check long enough to be understood, there will be no difficulty about passing the laws. Every bad law injures the cause, every unfair law will prejudice it. The basis is the police power and the liberty of occupation, and contract can only be controlled where necessary; that is, in dangerous employments, but can be in all such employments.

(This concluded the business to come before the Conference, and on motion of Joseph A. Parks, of Massachusetts, the meeting stood adjourned _sine die_.)

APPENDIX

BRIEF REPORT

SECOND NATIONAL CONFERENCE

WORKMEN'S COMPENSATION FOR INDUSTRIAL ACCIDENTS

WASHINGTON, JANUARY 20, 1910

The second meeting of the National Conference on Workmen's Compensation for Industrial Accidents was held in Washington, at the New Hotel Willard, on January 20, 1910.

FORENOON SESSION.

SECRETARY H. V. MERCER, Chairman of the Minnesota Commission, called the meeting to order at 10 A. M. He announced that in response to the following invitation which had been sent to governors, ninety-four delegates had been appointed from nineteen states:

"Dear Sir:

As you are no doubt aware, several of the States have created commissions and legislative committees to investigate the present Employers' Liability Laws and report plans for betterment along the line of Workmen's Compensation Acts.

A conference of these commissions and committees was held at Atlantic City, on July 29th, to 31st last, a report of which is this day sent you under another cover. At that time it was resolved to hold a second conference, to be attended, if possible, by some person or persons designated by the Governor of each State. (See pages 277-9; 302-3, Atlantic City Report, supra.)

It has been determined to hold this second conference at Washington on January 20th, immediately after the conference on Uniform Legislation, which has been called by the National Civic Federation, and to which we are informed the Governors of the various States have been requested to send representatives.

You are respectfully urged to designate one or more persons specially qualified to take part in our second conference. In case you designate persons to represent the State at the Uniform Legislation conference we would suggest that you might designate one or more of the same persons to attend the conference on Workmen's Compensation.

Enclosed is a brief account of the Atlantic City Meeting, which explains more at length the general purpose and scope of these conferences.

We shall appreciate it if you will advise the Secretary at your earliest convenience as to the persons designated to attend this conference so that he may put himself in communication with them and arrange the details."

On motion, Mr. Mercer, in the absence of Dr. Chas. P. Neill, was elected temporary chairman, and Professor Henry R. Seager was made secretary of the meeting.

MR. MERCER:

"Our executive committee did not formulate any regular program. We thought that the speeches ought to be limited to ten minutes and unless there is objection we will act upon that principle. We have drafted a short bill which we present here, not with an idea that it is correct, or that it is absolutely the bill that should be passed, but with a view of bringing up the different points for discussion. This matter has been discussed from the standpoint of theory sufficiently long and some of us think that we should get down to practical things."

SENATOR J. MAYHEW WAINWRIGHT, Chairman of the New York Commission, described the preliminary work of that body (as outlined again by Miss Crystal Eastman, at the third meeting in Chicago [Page 13]). Senator Wainwright said, in part:

"The great difficulty is to determine how one State can adopt any system of compensation before the other States, and to secure the information upon which may be based a precise conclusion as to what the increased cost to the employers would be. It seems to me that it is going to be very difficult to get at exactly what the effect upon the industries of the States any particular bill will have, until some measure is tried. We are warned not to be the pioneers in the field. That raises, it seems to me, a very great ethical question, for this is a serious matter, and involves basic justice. It seems to me that we should question whether so much importance should be given to the cost, unless we are sure the cost is going to be pretty nearly prohibitive. In other words, if the thing is right, and fundamentally just, hasn't somebody got to start it and make a beginning and take some little chance as to what its effect may be. Another difficult matter, of course, is to determine the effect upon the smaller employers of labor, and there, we can only judge from the foreign experience.... The only thing we can be absolutely certain of, is that the present system is unsatisfactory and that there should be a change. So far as our commission is concerned, we will not cease from our labor but will unremittingly direct all our efforts to this subject until we, in the State of New York, can arrive at a solution which our commission will feel is the right one."...

COMMISSIONER CHARLES P. NEILL, of the United States Bureau of Labor, arrived at this time and assumed the chair. He said:

"Gentlemen, I wish to apologize for my inability to get down here at the opening of the session. It has not been a want of interest in this subject that has delayed me, for there is probably no subject in which I have more interest than the one of employers' liability and workmen's compensation. For the last eight days we have been engaged in bringing about the adjustment of a controversy which required as a solution some form of workmen's compensation. We have been dealing with the representatives of switchmen in the railroad yards, and if there is any occupation in which more men are maimed and butchered, I do not know what it is. Discussion brought forth at almost every point the necessity of doing something in this country to put us on what we might call a half civilized basis for taking care of the derelicts of industry." (Applause).

SENATOR A. W. SANBORN, Chairman of the Wisconsin Commission, was then introduced and he outlined the preliminary work of that Commission (in a statement similar to the report made at Chicago by Senator Blaine [Page 10]). Senator Sanborn also said:

"As we look at it in Wisconsin, we are surrounded on three sides by very lively competitors in the manufacturing line; there is only a certain amount that we can load on our manufacturers and let them compete until we reach a bill that is uniform in the group of States in the Northwest. As one of our large manufacturers expressed it at one of our hearings, we are willing to pay twenty per cent. or twenty-five per cent. more than we are to-day, however, if you put it on a definite basis so that we know how much....

... Now, I hope we can derive some benefit here by getting down to specific things. I think it is generally conceded by everybody that has paid any attention to the subject, that the time has arrived when something must be done; the present situation is absolutely intolerable, giving rise to great unrest, and people feel there is great injustice under the present system."

PROFESSOR HENRY W. FARNAM, of New Haven, stated upon call, that the Connecticut Commission accomplished practically nothing. He then made an appeal for united action between the states for the purpose of securing greater care and greater uniformity in investigation and legislation. He offered the services of the American Association for Labor Legislation (of which he is president), in any endeavor that would bring about a better understanding between the different groups now interested in this question.

MR. MAGNUS W. ALEXANDER, of Lynn, stated upon call, that there was at present no Commission in Massachusetts.

MR. JOHN MITCHELL, of the New York Commission, in discussing a proposal to study costs of industrial insurance in Germany, said:

"I think it is important, that we should understand that neither in purpose nor in action is it contemplated that a movement of this kind shall delay the efforts of the commission to reach conclusions. I quite agree with you that an investigation as to the costs and operation of the laws in Europe would be of advantage to us, but I quite well recognize that that is a slow process, and I think we cannot afford to wait for several years before we do something definite in this country. Now, I should like to say that I recognize very well how important it is to our industries that they be kept on a fairly competitive basis. I am not at all satisfied, however, that the establishment of a system of compensation, even in one of our states, would be a serious handicap to the employers of that state. I think that we ought to take into consideration the experience abroad. Now I do not know whether it is because of the compensation laws in Germany, or in spite of them but I do know that co-incident with the establishment of their insurance system, which is the most comprehensive of any in Europe, prosperity took a rise. The German Empire has forged ahead at an unprecedented rate since the establishment of their comprehensive system of insurance and compensation....

... The relation of the various countries of Europe to each other is not unlike the relation of our own state governments. Competition between some of the continental countries is as keen as is competition between some of our states. I am not willing to agree either that increasing the cost of a product will necessarily put that product out of the running with the same product produced in another state. There are a good many other considerations entering into the matter: If better laws or better wages attract better workmen, then there is a compensation to an employer even though his wage-scale be higher or his cost greater than prevails in a competitive industry in another State. The best workmen are attracted to those industries and to those localities where conditions of employment are most satisfactory, and I dare say that every employer will agree that the best workman is to him the cheapest workman even though his wages be higher.... I feel, that our state would not suffer in the race for trade if we should establish a compensation system, and I believe that Minnesota would not suffer and I believe that Wisconsin would not suffer. We cannot afford in the United States to wait until all States, even though they be only competitive ones, are ready to adopt one system of compensation, any more than we ought to wait before we advance wages in one state until all the other states are ready to advance them, and we certainly do not do that. As a matter of fact there is scarcely an industry conducted in the State of Wisconsin, Minnesota, or New York, whose wage schedules are made at the same time, notwithstanding the fact that they have competitive industries. There are very few industries in this country whose wage rates and conditions of employment are regulated nationally; there are very few industries where organized workmen are employed that attempt to make wage scales on a national basis; true, there are some, such as coal mines and the railways, but in the machinery trade, in building construction, and in all the miscellaneous industries, the wage schedules are made local and without any special relation to the wage schedules of other states....

I, of course, am anxious that we shall have the very best information obtainable, and of course it is desirable that all the states should act together, but I think it is equally desirable that some of the states act quickly because it is an evil, and a growing evil, and it is more readily recognized now because we have been talking about it. The workingmen of the country are aware now of the conditions that prevail in other countries and we are very much dissatisfied with the conditions we now have. Employers themselves are going outside of the law to try and compensate workmen for injuries. Practically all of the large employers in the United States recognize and concede the inequity of the present law, by trying on their own account to draft some system to pay workmen more money wherever there exists a necessity for speedy relief. Now, I wanted to make those observations because I do not want to agree to a proposition here for an investigation of the conditions in Europe, if that investigation means, either in purpose or in effect, that we are going to wait the returns of that investigation before we get something that is substantial in America." (Applause).

MR. C. B. CULBERTSON, of the Wisconsin Commission, said in brief:

"The conditions in the United States are far different from what they are in Europe, and the testimony taken before our Commission shows that two industries standing side by side, being practically the same, having practically the same number of machines, with practically the same number of men employed, would have rates of which one would be half as great as the other, and would be fair in each case, because the accidents in the one concern were twice what they were in the other. Now this is going to be a very hard matter to get at if you wait to get these figures and then attempt to follow them. And a third point; I believe the employers in Wisconsin, as well as the laboring men, are ready for this proposition at this time, and I believe we are going to have it in Wisconsin at the next legislature. I do not think we are going to wait for any instructions from Europe or for any figures from there."

At this point two resolutions which had been adopted at the Atlantic City meeting, in July 1909, were re-adopted,--requesting the U. S. Bureau of Labor to publish the foreign compensation laws in English, and to investigate the comparative cost to employers, of liability insurance under the American system, and workmen's compensation under the British and German systems.

MR. MILES M. DAWSON, of New York City, said: