Part 14

"I agree with the Wisconsin, Minnesota and New York Commissions that if we are to get anything done this year, we should go ahead and do it without waiting, for these tables of cost are by no means absolutely necessary.... But the things which can be brought out by that information are not quite the same things you are apparently thinking about.... A thoroughly competent expert, who will know what he is after, can put that information in the hands of the Bureau of Labor for publication by September or October next, and there is no reason why the Minnesota legislature or the Wisconsin legislature should hold up its report for an indefinite length of time. I have known New York pretty well, and if the Commission in New York renders a report during the present session and it meets with the approval of most of the Commission in New York, there is no doubt in my mind but what something will be done in New York before the present legislature is over."

DR. CHARLES MCCARTHY, of Wisconsin, said:

"I am thoroughly in favor of getting the statistics from Europe and I fully realize what a job that is. I believe, however, there is a way of going ahead as Mr. Mitchell and Mr. Culbertson have suggested without getting the statistics. Perhaps we are trying to get too much at once upon the statute books. I would suggest that these industries might be classified as to the dangers which they incur, not necessarily the industries that are particularly dangerous, but a group of industries could be taken and the law applied to them, and a bill could be introduced in the three legislatures applying to those particular industries. The rates could be fixed in that law so reasonable that the manufacturers could not oppose the law, with a provision in the law that after investigation, or within a certain time, those rates would be increased in the future. Now, as an experimental thing, as a thing which all States could agree upon, that would not be hard to get and would not be hard to put upon our statute books. It would be an opening wedge, it could be tried before the courts and the principle determined by the courts and then applied within a few years to other industries of a dangerous nature. I do not think the process of statute law making is a process of getting all the statistics and facts from foreign countries; I think that it is the other way in America. Our statutes work out differently in the psychology of the working man, and I believe the way to do it in America is to get some particular group of industries that we know are dangerous and get three of the States to act together. I think the workmen will meet that half way, with the idea of increasing in the future. It is an entering wedge that all can agree upon." (Applause).

MR. J. P. COTTON, counsel for the New York Commission:

"If we ever come to workmen's compensation, there has to be back of it sometime an efficient insurance system and the data of the English experience on that is of the very highest importance.... I do not see any reason why, in non-competitive trades, any American state is not now ready to go ahead and establish a system of compensation at such a rate as will at least grant relief to the workmen. But that does not make any less important the collection of foreign figures in particular accident experience."

DR. MCCARTHY:

"How will it do to make a classification based upon actual statistics of deaths and accident rates and put it up to the courts? Suppose the courts do knock it down, then they will tell what we can do in the future. We don't want to be afraid of the veto of the courts, for in the end they will tell us what we can do. We have to go through that experience some time and we might as well begin with our best foot forward,--with the best case we can make."

MR. GEORGE M. GILLETTE, of the Minnesota Commission:

"... It seems to me that the question of cost on the one side and compensation on the other are so closely interrelated that it is absolutely impossible to consider the one without the other. If the other members of this Conference do not desire this information, I have no desire to press it; it has already been expressed by resolution in the minutes of the preceding Conference. Personally, however, I am going to investigate the costs and the working of these compensation acts abroad.

I offer the following resolution:

'Resolved: That a committee of three be appointed by the Chair to confer with the Honorable Secretary of State to secure the coöperation of the Government, and its aid through our Consular and Diplomatic Service in obtaining information as to the workings of the foreign compensation acts and the criticisms which are made at the home of the various acts.'"

The resolution was adopted, and John Mitchell, A. W. Sanborn and Geo. M. Gillette were appointed.

MR. BERTRAM PIKE, of New Hampshire:

"I would suggest in connection with getting the insurance rates from abroad, that we ascertain what has been the actual cost of the workmen's collective policies in the different industries and States in this country, because it will show almost absolutely what it costs to protect those men."

MR. OWEN MILLER, of Missouri:

"I think that suggestion is a good one."

MR. WALLACE INGALLS, of Wisconsin:

"The accident insurance companies know what injuries occur in the principal manufacturing industries. They have definite information."

SENATOR HOWARD R. BAYNE, of the New York Commission:

"Our Commission has adopted the plan of discussing tentative propositions in order to confine our attention to specific questions. I move that this Conference now direct its discussion to the consideration of whether the scheme of workmen's compensation in all cases of industrial accidents is industrially feasible at the present time."

[The motion was carried.]

MR. WILLIAM BROSMITH, counsel for the Travelers' Insurance Co., of Hartford:

"I do not know that I am in a position to give you any advice as to the industrial feasibility of workmen's compensation. Personally, I am a strong believer in workmen's compensation."

THE CHAIRMAN:

"Do you believe that the insurance companies would be willing to place at the disposal of this conference, or any one, the actual experience they have had under collective insurance; in other words, would they be willing to allow statements to be taken from their figures showing precisely the number of accidents in any given occupation or the total number of people insured, the number of injured, the kind of injury, the time the injuries lasted, of course leaving out the question of how much was paid by the company?"

MR. BROSMITH:

"I can speak positively for one company. I know that we will be very glad indeed to furnish to the State Commissions the experience of our company on industrial accidents. I have offered already to do that for the New York State Commission. I have no right, of course, to speak for other companies, but I am confident, that all of them which write industrial accident insurance or which cover it in one form or another, will be glad indeed to furnish their experience. I do not believe that the value of statistics you gather abroad as to the practical working of workmen's compensation and insurance in foreign countries will be of much value, but I do believe that in our own country, where we have a vast mass of experience it will be of practical benefit.

The company which I represent has been transacting accident insurance in this country for fifty years. We have written, I presume, millions of policies of accident insurance upon persons engaged in industrial occupation. We have that experience all tabulated and arranged and classified so as to show the injuries sustained in the different occupations, the injuries sustained at occupation, the injuries sustained foreign to occupation, the premiums charged and received in all of these years, the loss ratio and the accident ratio. I believe, the insurance companies in the United States could in a very short time know the exact amount paid by any employer of labor as a premium rate, or cost of insurance which would be necessary to protect the employer against the compensation which he in turn would be obliged to furnish to his employees. I believe that experience will be very valuable to the State Commissions and I know, that so far as the accident companies are concerned, when a scheme of compensation is perfected in any State, it is to that experience we will go in order to ascertain what we will charge the employer for the insurance protection. We will not go to the experience of any liability insurance. That may have a value, I presume it has, but it is not at all comparable to the value of experience in personal accident and health insurance, and particularly the experience of the companies which write industrial insurance.

At the present time, the insurance company has the privilege of selecting its risk, and the benefit of that selection affects the premium charged. Today we may insure a thousand employees of the Pressed Steel Car Company, but we will select that one thousand; the ones who are of bad habits, careless, or of bad morals we decline to take. Under the workmen's compensation, however, we would have to insure all of the employees of a given industry, good, bad and indifferent. The fact that we would have to insure all of the risks in a given industry without selection, would have the effect of increasing the premium somewhat. However, under workmen's compensation I would assume that the injuries to be covered by the insurance would be only the injuries sustained in occupations, so that a very considerable percentage of the injuries now covered by general accident insurance, would be taken out of the insurance under workmen's compensation."

PROF. SEAGER:

"If we asked your company to name the thirty most hazardous industries carried on in New York State, it would not be a matter of difficulty?"

MR. BROSMITH:

"It certainly would not be difficult to give you the thirty most hazardous all over the country."

MR. WILLIAM F. WELCH, of West Virginia:

"Would the insurance companies, under a compensation act, require the rigid medical examination that is now required?"

MR. BROSMITH:

"No. There is no medical examination in accident insurance now."

MR. MERCER:

"I have prepared a bill that I thought would stimulate discussion, and I have had it printed in order that you might look it over."

Mr. Mercer then explained briefly the provisions of his tentative bill, which, with modifications, was presented again at the Chicago meeting, and is printed on page 40.

At one o'clock the meeting adjourned until 2.30 P. M.

AFTERNOON SESSION.

The Committee on Permanent Organization through its chairman, Prof. Seager, submitted a report, which was adopted,--providing:

1. That the members of the permanent Conference shall be the members of all State Commissions on the subject, one permanent representative to be appointed by the Governor of each State, and ten members at large to be elected at any regular meeting of the Conference;

2. That a permanent executive committee of fifteen members be appointed by the Committee on Permanent Organization;

3. That the Secretary of the American Association for Labor Legislation be named as the Assistant Secretary of this Conference;

4. That the Conference meet in Chicago on June 10th, 1910.

The sentiment of the Committee favored public meetings, but with privilege of voting limited to the members of the Conference.

The Executive Committee was directed to draw up a suitable set of by-laws for submission at the Chicago meeting of the Conference.

On motion, a committee consisting of Messrs. Seager, Mercer and Dawson was appointed to draw up a bill and submit it to the insurance companies for cost figures, and to furnish copies of the bill for distribution, at least twenty days in advance of the next meeting in Chicago.

MR. M. L. SHIPMAN, of North Carolina, made a plea for more specific announcements concerning arrangements and place for meetings, in order that there might be less confusion on that account in the future.

The Conference, after a temporary adjournment for the purpose of having a photograph taken, took up, section by section, the discussion of Mr. Mercer's tentative bill.

Upon the question of the proper classification of hazardous employments it was practically agreed that any attempt to include agricultural laborers and domestic servants in a compensation measure, would probably result in failure. "You cannot pass a bill of that sort," declared Dr. McCarthy. "Anybody who has been around a legislature knows that the farmers, on questions of this sort, are way behind the laboring man or the manufacturer; they are full of prejudice and will fight a bill of that kind every time."

The constitutional difficulties in New York were discussed by Senator Bayne who laid special stress upon: (1) the death limit clause; (2) the right of trial by jury; and the due process clause. "Some of us," said Senator Bayne, "have about concluded that the only way we can justify any compensation act for industrial accidents will be through the exercise of the police power of the State. And we think this principle lies at the bottom of the police power: that it is competent for the legislature to declare that a proposed remedy is based upon the police power, but it must in fact be dangerous to the health or public safety or welfare of the community. The mere fact that the legislature so declares it, does not make it so. It is subject to investigation by the courts, and if they find that it is reasonable then they will leave it to the legislature to declare the extent of authority under that police power with those limitations."

In answer to these objections Mr. Mercer cited numerous court decisions (printed in pamphlet form by Mr. Mercer) which led him to feel more sanguine of what may be accomplished under our constitutions. In answer to Prof. Seager's question: "Is it probable that the court will take the view that a general workmen's compensation act is a reasonable exercise of the police power?" Mr. Mercer replied:

"My understanding of that is that under the general theory where twenty-three of the most important foreign countries have passed legislation on the theory that there was a reasonable foundation for it, where six or seven of the forty-six states have passed laws requiring commissions to investigate this proposition, where men would meet at Atlantic City and discuss this subject as we did for two days, where the National Civic Federation devoted a day to it in New York, and where we devote a day to it here, where there is literature all over the country and every magazine has some article on the subject at the present time, and probably all of the corporations coming around to the view that we need certain legislation, I do not believe any court would say that there is any opposition to a reasonable discussion of the question, and that the legislature has not the right to declare it was a dangerous employment if we limit it to the industries that have hazards."

Prof. Seager outlined the plan of "extra-hazardous" occupation classifications favored by the New York Commission and Dr. McCarthy pointed out the danger of too much definition. "My experience with bill-drafting is that in getting the most simple statement of a case, the less you say, the better."

MR. JOHN LUNDRIGAN, of New York, gave it as his opinion that "any scheme of compensation that follows the job or the employment, instead of the individual, is wrong and will fail." He said he did not believe men engaged in hazardous occupations would be willing to waive their right to undertake to recover in the courts whenever it could be shown that the employer was negligent.

[The stenographer who reported the remainder of this brief session lost his notes, and there is no further record].

INDEX

SPEAKERS AND SUBJECTS

_Alexander, M. W._, 127.

_Allport, W. H._, 57, 89, 102, 108, 114.

_Barry, James V._, 32.

_Bayne, Howard R._, 131, 134.

_Blaine, John J._, 10, 47, 48, 49, 94, 100.

_Brosmith, William_, 131, 133.

_Buchanan, Frank_, 58, 59, 61, 80.

_Bullock, Henry W._, 71.

_Business transacted_, 38, 39, 95, 96, 113, 114, 129, 130, 133, 134.

_Classification of Hazardous Employments_, 44-50, 52, 54, 55, 56, 58, 67, 71, 74, 76, 82-95, 116, 119, 129, 133, 134.

_Constitutionality_, 43, 49-53, 55, 57, 58, 70, 74, 77, 111, 114, 121-123, 130, 134, 135.

_Contract vs. Absolute Liability_, 51, 52, 74.

_Contributions by employees_, 72, 75, 104, 105.

_Costs_, 88-89, 101, 103, 104, 106, 107, 111, 117, 126, 131.

_Cotton, J. P._, 130.

_Court Administration vs. Boards of Arbitration_, 70, 73, 109-113.

_Culbertson, C. B._, 61, 128.

_Dawson, Miles M._, 31, 39, 43, 44, 49, 67, 82, 89, 105, 106, 108, 109, 114, 129.

_Deibler, F. S._, 102.

_Double Liability_, 55, 59, 61-63, 67, 71, 76-78, 80, 96-104, 120.

_Duncan, M. M._, 32.

_Eastman, Crystal_, 13.

_English System_, 57, 58, 59, 60, 62, 67, 68, 69, 75, 76, 83, 87, 88, 90, 98, 101, 102, 103, 108.

_Farnam, Henry W._, 32, 126.

_Flora, John_, 66, 96, 97, 100, 101.

_Freund, Ernst_, 26, 56.

_German System_, 57, 58, 73, 75, 86, 87, 90, 103.

_Gillette, George M._, 103, 130.

_Gray, John H._, 59.

_Harper, Samuel R._, 52, 70, 92, 111.

_Hoffman, Frederick L._, 31.

_Illinois Commission_, 22-27.

_Ingalls, Wallace_, 74, 80, 89, 93, 101, 131.

_Insurance Companies_, 68, 73, 81, 82, 83, 88, 98, 100, 103, 109, 132.

_Interstate Competition_, 17, 59, 77, 86, 89, 125-128, 130.

_Kingsley, Sherman_, 64.

_Limited Compensation vs. Pension Plan_, 72, 104-109.

_Litigation_, 75, 79, 80, 103, 110, 112.

_Lowell, James A._, 27, 44, 45, 47, 83, 107.

_Lundrigan, John_, 135.

_Massachusetts Commission_, 27-31.

_McCarthy, Charles_, 86, 97, 98, 102, 106, 109, 129, 130, 134.

_McKitrick, Reuben_, 95.

_Mercer, H. V._, 10, 26, 32, 33, 39, 43-50, 54, 58, 66, 82, 84, 85, 86, 89, 91, 92, 96, 97, 102, 104, 109, 114, 115, 124, 125, 133, 135.

_Miller, Owen_, 131.

_Minnesota Commission_, 33-38.

_Mitchell, John_, 21, 30, 31, 61, 79, 91, 92, 95, 97, 98, 101, 102, 127.

_Moulton, William H._, 104.

_Neill, Charles P._, 126.

_New Jersey Commission_, 31-32.

_New York Commission_, 13-22.

_Ohio Commission_, 32.

_Parks, Joseph A._, 29, 31, 46, 55, 98, 100.

_Pike, Bertram_, 131.

_Ranney, G. A._, 80, 94, 101.

_Repeal of Common Law and Statutory Remedies_, [See "Double Liability"].

_Sanborn, A. W._, 47, 51, 111, 115, 126.

_Saunders, Amos T._, 75.

_Seager, Henry R._, 19, 21, 38, 39, 46, 53, 54, 85, 86, 109, 111, 113, 132, 133, 135.

_Shipman, M. L._, 134.

_Smith, George W._, 20.

_Starring, Mason B._, 22, 44.

_Steele, H. Wirt_, 32.

_Sumner, Charles A._, 84, 85.

_Uniform Legislation_, 17, 59, 78, 94, 126.

_Wainwright. J. Mayhew_, 125.

_Welch, William F._, 133.

_Wisconsin Commission_, 10-13.

_Wright, Edwin R._, 23, 78, 79, 92, 93.

* * * * *

Transcriber's Notes:

Obvious typographical errors were repaired.

P. 49: Words of Chairman Mercer--"although the judgment of the as laid down in Lockner"--apparent missing word is as in the original.

P. 78: Words of Edwin Wright--"injured person fails to report within a very limited time, his it presented a question"--"his" is as in the original.

P. 111: "the number of reasons these bills took the form which they have taken"--original read "sons" in place of "reasons."