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

way we asked both the labor unions and the employers what they thought of the present law on employers' liability, how they thought it met the situation; and we asked them how they would like a law on workmen's compensation, describing it very briefly. We received replies from only a small proportion of the inquiries we sent out, but a large enough number to give us some general idea of the feeling of both the employers and the laboring people in the State on this subject. I can say positively, however, that we found no satisfaction; practically nobody liked the law. The employers disliked it for one reason and the workmen disliked it for another, and so nobody was satisfied with it.

      Another printed inquiry we sent to the insurance companies. This was more in the line of investigation, however, as we got from them not opinions so much as figures showing how much they had received in premiums from employers for liability insurance, and what proportion of this had been spent in paying actual claims, thus showing us what proportion was, so to speak, wasted in the business of defending claims.

      We then wrote letters, not printed inquiries, but letters containing a list of questions to a great many lawyers, and to all the judges in the State, asking their opinion about the constitutional questions involved. That, I think, ended the inquiry section of our work.

      Then we held public hearings, five or six up the State and as many in New York City, and tried to make the invitations as general as we could. Many of us felt that those hearings were not going to be important and perhaps were a waste of money, but after we had them I believe we all felt that they were worth while. They perhaps did not furnish us with any definite statistical information, but they did put us in touch with the feelings of the people of the State on this subject, and gave us a more concrete view of the subject than we could have gotten by correspondence or by any statistical inquiry, and brought us in touch with the people on both sides of the question, who were interested in the problem. But quite apart from the value to us, of these written inquiries and of the public hearings, in informing us on the situation, they were valuable in arousing interest all over the State, and in educating the public in regard to the problem.

      We were particularly gratified to see the way in which labor unions seized the opportunity to become interested and to educate themselves in regard to employers' liability and workmen's compensation. When we started out last fall most of the labor unions that answered our inquiries did not know what we were talking about, and now I hardly think there is a union of any size in the State that is not in a position to know what it wants in the matter of employers' liability and workmen's' compensation.

      The next section of our work was statistical inquiry—a regular statistical investigation. The bulk of this was done for us under Mr. Hatch's direction at the New York State Labor Department. A study was made of some fourteen hundred actual industrial accident cases, both injury and death, to show what was the loss of income to the man injured, how much he received from the employer, how much he paid to a lawyer and what was the effect of the accident upon his family; in other words, a study of the economic cost of work accidents.

      In addition to that Mr. Hatch conducted an inquiry into the cost of industrial accidents to some three hundred employers, showing how much they paid in a year on account of industrial accidents and into what different channels that money went; how much of it went to employers' liability and insurance premiums; how much went to the workmen and how much to the hospitals and so forth. All of this was exceedingly valuable in giving us information as to the conditions in our own State.

      In addition to this the Commission conducted a similar investigation of three hundred fatal industrial accident cases to determine their economic effect upon the family and the income loss, of compensation received and all that. These fatal accident cases we secured in a perfectly impartial way by taking a year's fatal industrial accidents reported to the coroners of Manhattan Borough and Erie County, where Buffalo is situated. As a result of these two inquiries we have a mass of statistics on this subject. We were able to put into our report a statement, from the statistics, of just about what proportion of workmen who were injured received anything to compensate them for the income loss, and with regard to the workmen killed, what proportion of the dependents received anything. Those four divisions, I think, cover our preliminary work.

      Then came the business of preparing and writing the report. The rough draft was prepared by two or three members of the Commission, and the counsel, in different sections. When it was in printed proof for the first time, Senator Wainwright, the chairman, called the whole Commission together and informed us that he intended to make us read the whole report aloud, all sitting together, so that every member of the Commission might feel that he had written the report and that it was his report. That idea astounded me, I will admit, when I first heard it, because I thought it was going to take us the rest of the year to do it; but it turned out to be a very excellent plan, and we actually did that. We sat down for three days without stopping, except for meals, and read the report aloud, and there is no member of the Commission who did not make suggestions, and valuable suggestions, and I think I may say that we all feel that it is our report.

      When it came to the bills which we introduced we followed somewhat the same plan. We went over every line and word of the bills, of course in much greater detail than we did the report, and the bills are the result of a giving in here and a giving in there, as you can readily imagine. They did not represent just exactly what every one of us wanted to do, but they represent what we could agree to do, and the Legislature has done us the honor to take our advice.

      And now just a word in regard to these bills. The first one is called the Optional Bill. It does two things: It remedies the glaring injustice of the present law on the basis of negligence by modifying the fellow-servant rule, by making all fellow-servants in positions of authority vice-principals instead of fellow-servants; by doing away with the extreme application of the assumption of risk rule which allows an employe to assume the risk of an employe's negligence by remaining in employment, and changes the burden of proof of contributory negligence over to the defendant. Those three things we felt it to be necessary to change in the employer's liability law on the basis of negligence, even if we never changed it in any other particular. In addition to this feature of the bill, there is afforded to the employes and employers, if they wish to escape this situation, by an amendment to the employer's liability law, the opportunity of making a contract. That is the option feature of the bill; there is nothing particularly interesting or original about that. Some members of the Commission were for it because it would force the employers into compensation, and some members were for it because they thought it remedied an injustice in the present law which they could not stand for, but, at any rate, all but two of us were able to agree on that.

      Then the second bill, which we call the Compulsory Compensation Act for dangerous trades, is our solution of two difficulties which we met and which, no doubt, all of the other commissions are having to meet. These two difficulties are the constitutional difficulty, the fact that we have written constitutions limiting our powers along all these lines; and, secondly, the interstate competitive difficulty, the fact that in this country our laws are made by States and we have state legislative lines, but no state competitive lines—the old cry of the manufacturer, that if you put a burden upon him in New York State he cannot compete with a manufacturer in Pennsylvania and New Jersey, and will, therefore, either have to go out of business or out of the State. That difficulty of interstate competition we felt to be a real one. Whether it would actually drive the manufacturer out of business or not, it would inevitably hinder the passing of our bill, because the manufacturers of the State in a body would oppose it.

      The constitutional difficulty, to be a little more definite, in our case seemed to be pretty serious; we had only two lawyers in the State who wrote us that they thought a general compulsory compensation act similar to the English law would be constitutional, but we had a great deal of advice to the effect that if we could draw our bill so it would apply to the risk of the trade, and make the compensation depend upon the inherent risk of the trade, that that would be constitutional.

      With these two difficulties in mind we drew the bill applying to dangerous trades. As you know, it provides compensation for all workmen injured in eight specially dangerous trades, if they were injured either through the fault of the employer or any of his agents, which is plainly perfectly constitutional; or if they were injured in any sense through