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

by National Conference on Workmen's Compensation for Industrial Accidents

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.