Proceedings, Third National Conference Workmen's Compensation for Industrial Accidents

by National Conference on Workmen's Compensation for Industrial Accidents

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.