26 



HARDWOOD RECORD 



surance companies can do business under it. We are all very much 

 concerned about the matter now, but the horse has gone. No interest 

 of the state can benefit by the law, but all may suffer. The trouble 

 with the business man is that te will not interest himself sufficiently 

 in the politics of state or nation. He leaves the all important sub- 

 ject of law-making to those who in the very nature of things, are 

 bound to blunder. 



The line of thought here suggested brings us logically to the sub- 

 ject assigned for discussion, to-wit, workmen's compensation. In 

 sending men to the legislature has any care been taken to select 

 those who by education and experience were fitted to deal with this 

 all important question? 



Let us try to develop this subject, and from a frank discussion 

 seek to draw some helpful conclusions — conclusions that may aid in 

 moulding the S[)lendid concept of workmen 's compensation to a most 

 useful instrviment for the well being of the laborer, and also assist 

 in giving a correct solution of this phase of our industrial activity. 



In studying a law, or a proposed law, the first thing to be con- 

 sidered is the evil sought to be corrected. 



The influence back of this movement for workmen's compensation 

 laws grows out of certain inherent inequalities in the laws govern- 

 ing employer's liability. Prominent among these inequalities are the 

 following: Assumption of risk; fellow servant doctrine; contribu- 

 tory negligence. 



Of these in their order, assumption of risk: This doctrine, broadly 

 speaking, grew uj) in the law on the theory that the laborer, jn'e- 

 sumed to be a rational being and voluntarily entering into a given 

 employment, naturally assumed the risks that were incident to the 

 work. It can be readily seen that this doctrine in the very nature 

 of things works a great hardship on the laborer, and this especially 

 in the light of the varied and complicated machinery that enters into 

 modern industrial activity. For several years it has been urged 

 that the worker should be relieved of this burden,' and this urgency 

 has been based on the very evident theory that the industry itself 

 should carry, as an element of the cost of |iroductiou the essential 

 risks incident to its activity. 



This principle became engrafted on the law as far back as 1S37, 

 and was first definitely announced in the case of Priestly v. Fowler, 

 decided in Englanjd. This doctrine is grounded on the tlwory that the 

 servant is in a far better position to observe the movements of his 

 fellow-servant than is the master, and that as a result of this su- 

 perior opportunity for observation the servant is in a better position 

 to protect himself from the negligence of his co-worker. Therefore, 

 if a servant is injured through the fault of a fellow servant the law 

 will excuse the master, that is, if the master has used due care in 

 employing the servant in the first instance. 



This doctrine may have been justifieil in tlie primitive activities 

 of industry. Before the introduction of modern machinery the 

 employer was a worker with the men in shop and factory. And 

 but few men were employed. In the nature of things the employer 

 was in just as good a position as employe to protect himself from 

 the blunder of his companion, and hence the doctrine. 



The conditions surrounding the worker have changed mightily. 

 In place of two or three men working side by side there now may 

 be hundreds under the same roof. Steam and electricity have 

 complicated the problem. To hold an enijiloyer responsible for the 

 carelessness of some man whom he possibly does not know, and 

 whom he has no chance of observing, is not only unfair, but not 

 in harmony with the broader and better view of society today. 



This doctrine is founded on the theory that if the employe's 

 own carelessness is responsible for or contributed to his injury the 

 master is not liable. The same general reasoning is applied to 

 assumption of risk and the fellow servant doctrine can be used 

 with equal force to the doctrine of contributory negligence. The 

 })rinciple took root when modern machinery had no place in industrial 

 activity. 



Now, one of the cardinal points in workmen's compensation is 

 the elimination of assumption of risk, the fellow servant doctrine 

 and contributory negligence as defenses. Tn other words, the prin- 

 ciple of workmen's compensation is correctly stated when I say 



that the law in effect acts as an accident insurance policy in favor 

 of the employe, with the employer as the insurer. 



No matter under what circumstances the employe is injured (save 

 and except through drunkenness and intentionally inflicted injury) 

 he is entitled to compensation. 



The whole doctrine is founded on the theory that the industry 

 and not society should bear the burden of those made ineflScient 

 through injury, the thought being that there is no legal or moral 

 blame on the employer, but that the industry should carry the load. 

 The cost of the accident should be added to the article with all 

 other items of cost, such as taxes, deterioration, etc. 



A most important factor that has aided in the crystallization of 

 public opinion touching this whole subject has been the utterly 

 inadequate results to the employe, the tremendous drain on the 

 employer, and the heavy cost to the public of our judicial system. 



As has been very aptly stated by a careful student of the question, 

 "Employers' liability laws appeal to cupidity, encourage specula- 

 tion, breed perjury, excite the meaner passions, cause corruption 

 of the morals of the industrial community, and are inimical to 

 industrial peace. ' ' 



The waste that is attendant on this class of litigation is enormous. 

 No one profits but the lawyer. The worker gets but a per cent of 

 the recovery; the employer frequently is compelled to pay far in 

 excess of a just sum; society at large must carrj' the burden of 

 the legal machine. 



It is agreed on every hand that the old conditions are intolerable 

 and must pass. The employer has been victimized by present con- 

 ditions as well as employe, and is anxious for more definite and 

 equitable conditions to prevail. The employer asks that compen- 

 sation laws be made just to employe and employer. 



We must also always keep before us that, after all, society at 

 large must carry the ultimate burden of this cost, and therefore 

 indi'-stry should not be overloaded with the cost involved by work- 

 men's compensation laws. 



The limit given to discuss this subject will not permit me to go 

 into an analysis of the various laws that have been formulated, 

 nor will I be able to take up all of the important elements that 

 of necessity should enter into the law. I can not touch on consti- 

 tutional questions. My purpose is to call attention to the certain 

 general features and more especially discuss the insurance phase 

 of the question. 



From the standpoint of the workman there are three general 

 points that should be kept to the front : 



1. The ritrht tn compensation and the umount of it for particular in- 

 juries, nr dentil. Ill' so clcflnitc as to leave as little as possible for con- 

 troversy or dllTerciiee of opinion as to the Injured workman's right to 

 and the anioiuit of compensation. 



:.'. The workman or his famil.v must be so protected In making set- 

 tlements that no advantage can be taken, and that settlements be 

 prompt. 



M. That the workman and his dependents be secured against insol- 

 vency of the employer so that the payment of liis compensation be cer- 

 tain. 



From my connection with the subject I am quite certain that a 

 great majority of the employers have no objection to these sugges- 

 tions. Naturally, the employer insists that the amount allowed be 

 arrived at from a careful and adequate knowledge of conditions, 

 and with due regard to the vital economic questions involved. Many 

 of the laws thus far passed clearly indicate hasty conclusions on 

 the question of cost to the industry. In tliis connection it is well 

 to bear in mind that imder our form of state go\ernnients great 

 harm may flow to an industry in one state where a greater burden 

 is placed upon it than is carried by a similar industry in a neigh- 

 boring state. This fact should be urged constantly, to the end that 

 as far as it is practicable the burdens be just and uniform. In 

 this connection permit the suggestion that there is a great need 

 of some central committee, composed of employers, who can co- 

 operate along lines here outlined. In this I do not jiurpose indi- 

 cating that these laws should be framed to the employer's advan- 

 tage, but rather to the end that industry be not crippled and 

 thereby protect labor as well as capital. 



Workmen's compensation laws should be evolutionary and helpful 

 to all concerned, not revoluiionary and destructive. 



Again, the employer is concerned in the suggestion that tl)e 



