Brief Report
Second National Conference WORKMEN'S COMPENSATION FOR INDUSTRIAL ACCIDENTS Washington, January 20, 1910 The second meeting of the National Conference on Workmen's Compensation for Industrial Accidents was held in Washington, at the New Hotel Willard, on January 20, 1910. FORENOON SESSION. Secretary H. V. Mercer, Chairman of the Minnesota Commission, called the meeting to order at 10 A.M. He announced that in response to the following invitation which had been sent to governors, ninety-four delegates had been appointed from nineteen states: "Dear Sir: As you are no doubt aware, several of the States have created commissions and legislative committees to investigate the present Employers' Liability Laws and report plans for betterment along the line of Workmen's Compensation Acts. A conference of these commissions and committees was held at Atlantic City, on July 29th, to 31st last, a report of which is this day sent you under another cover. At that time it was resolved to hold a second conference, to be attended, if possible, by some person or persons designated by the Governor of each State. (See pages 277-9; 302-3, Atlantic City Report, supra.) It has been determined to hold this second conference at Washington on January 20th, immediately after the conference on Uniform Legislation, which has been called by the National Civic Federation, and to which we are informed the Governors of the various States have been requested to send representatives. You are respectfully urged to designate one or more persons specially qualified to take part in our second conference. In case you designate persons to represent the State at the Uniform Legislation conference we would suggest that you might designate one or more of the same persons to attend the conference on Workmen's Compensation. Enclosed is a brief account of the Atlantic City Meeting, which explains more at length the general purpose and scope of these conferences. We shall appreciate it if you will advise the Secretary at your earliest convenience as to the persons designated to attend this conference so that he may put himself in communication with them and arrange the details."
On motion, Mr. Mercer, in the absence of Dr. Chas. P. Neill, was elected temporary chairman, and Professor Henry R. Seager was made secretary of the meeting. Mr. Mercer: "Our executive committee did not formulate any regular program. We thought that the speeches ought to be limited to ten minutes and unless there is objection we will act upon that principle. We have drafted a short bill which we present here, not with an idea that it is correct, or that it is absolutely the bill that should be passed, but with a view of bringing up the different points for discussion. This matter has been discussed from the standpoint of theory sufficiently long and some of us think that we should get down to practical things."
Senator J. Mayhew Wainwright, Chairman of the New York Commission, described the preliminary work of that body (as outlined again by Miss Crystal Eastman, at the third meeting in Chicago [Page 13]). Senator Wainwright said, in part: "The great difficulty is to determine how one State can adopt any system of compensation before the other States, and to secure the information upon which may be based a precise conclusion as to what the increased cost to the employers would be. It seems to me that it is going to be very difficult to get at exactly what the effect upon the industries of the States any particular bill will have, until some measure is tried. We are warned not to be the pioneers in the field. That raises, it seems to me, a very great ethical question, for this is a serious matter, and involves basic justice. It seems to me that we should question whether so much importance should be given to the cost, unless we are sure the cost is going to be pretty nearly prohibitive. In other words, if the thing is right, and fundamentally just, hasn't somebody got to start it and make a beginning and take some little chance as to what its effect may be. Another difficult matter, of course, is to determine the effect upon the smaller employers of labor, and there, we can only judge from the foreign experience.... The only thing we can be absolutely certain of, is that the present system is unsatisfactory and that there should be a change. So far as our commission is concerned, we will not cease from our labor but will unremittingly direct all our efforts to this subject until we, in the State of New York, can arrive at a solution which our commission will feel is the right one."...
Commissioner Charles P. Neill, of the United States Bureau of Labor, arrived at this time and assumed the chair. He said: "Gentlemen, I wish to apologize for my inability to get down here at the opening of the session. It has not been a want of interest in this subject that has delayed me, for there is probably no subject in which I have more interest than the one of employers' liability and workmen's compensation. For the last eight days we have been engaged in bringing about the adjustment of a controversy which required as a solution some form of workmen's compensation. We have been dealing with the representatives of switchmen in the railroad yards, and if there is any occupation in which more men are maimed and butchered, I do not know what it is. Discussion brought forth at almost every point the necessity of doing something in this country to put us on what we might call a half civilized basis for taking care of the derelicts of industry." (Applause).
Senator A. W. Sanborn, Chairman of the Wisconsin Commission, was then introduced and he outlined the preliminary work of that Commission (in a statement similar to the report made at Chicago by Senator Blaine [Page 10]). Senator Sanborn also said: "As we look at it in Wisconsin, we are surrounded on three sides by very lively competitors in the manufacturing line; there is only a certain amount that we can load on our manufacturers and let them compete until we reach a bill that is uniform in the group of States in the Northwest. As one of our large manufacturers expressed it at one of our hearings, we are willing to pay twenty per cent. or twenty-five per cent. more than we are to-day, however, if you put it on a definite basis so that we know how much.... ... Now, I hope we can derive some benefit here by getting down to specific things. I think it is generally conceded by everybody that has paid any attention to the subject, that the time has arrived when something must be done; the present situation is absolutely intolerable, giving rise to great unrest, and people feel there is great injustice under the present system."
Professor Henry W. Farnam, of New Haven, stated upon call, that the Connecticut Commission accomplished practically nothing. He then made an appeal for united action between the states for the purpose of securing greater care and greater uniformity in investigation and legislation. He offered the services of the American Association for Labor Legislation (of which he is president), in any endeavor that would bring about a better understanding between the different groups now interested in this question. Mr. Magnus W. Alexander, of Lynn, stated upon call, that there was at present no Commission in Massachusetts. Mr. John Mitchell, of the New York Commission, in discussing a proposal to study costs of industrial insurance in Germany, said: "I think it is important, that we should understand that neither in purpose nor in action is it contemplated that a movement of this kind shall delay the efforts of the commission to reach conclusions. I quite agree with you that an investigation as to the costs and operation of the laws in Europe would be of advantage to us, but I quite well recognize that that is a slow process, and I think we cannot afford to wait for several years before we do something definite in this country. Now, I should like to say that I recognize very well how important it is to our industries that they be kept on a fairly competitive basis. I am not at all satisfied, however, that the establishment of a system of compensation, even in one of our states, would be a serious handicap to the employers of that state. I think that we ought to take into consideration the experience abroad. Now I do not know whether it is because of the compensation laws in Germany, or in spite of them but I do know that co-incident with the establishment of their insurance system, which is the most comprehensive of any in Europe, prosperity took a rise. The German Empire has forged ahead at an unprecedented rate since the establishment of their comprehensive system of insurance and compensation.... ... The relation of the various countries of Europe to each other is not unlike the relation of our own state governments. Competition between some of the continental countries is as keen as is competition between some of our states. I am not willing to agree either that increasing the cost of a product will necessarily put that product out of the running with the same product produced in another state. There are a good many other considerations entering into the matter: If better laws or better wages attract better workmen, then there is a compensation to an employer even though his wage-scale be higher or his cost greater than prevails in a competitive industry in another State. The best workmen are attracted to those industries and to those localities where conditions of employment are most satisfactory, and I dare say that every employer will agree that the best workman is to him the cheapest workman even though his wages be higher.... I feel, that our state would not suffer in the race for trade if we should establish a compensation system, and I believe that Minnesota would not suffer and I believe that Wisconsin would not suffer. We cannot afford in the United States to wait until all States, even though they be only competitive ones, are ready to adopt one system of compensation, any more than we ought to wait before we advance wages in one state until all the other states are ready to advance them, and we certainly do not do that. As a matter of fact there is scarcely an industry conducted in the State of Wisconsin, Minnesota, or New York, whose wage schedules are made at the same time, notwithstanding the fact that they have competitive industries. There are very few industries in this country whose wage rates and conditions of employment are regulated nationally; there are very few industries where organized workmen are employed that attempt to make wage scales on a national basis; true, there are some, such as coal mines and the railways, but in the machinery trade, in building construction, and in all the miscellaneous industries, the wage schedules are made local and without any special relation to the wage schedules of other states.... I, of course, am anxious that we shall have the very best information obtainable, and of course it is desirable that all the states should act together, but I think it is equally desirable that some of the states act quickly because it is an evil, and a growing evil, and it is more readily recognized now because we have been talking about it. The workingmen of the country are aware now of the conditions that prevail in other countries and we are very much dissatisfied with the conditions we now have. Employers themselves are going outside of the law to try and compensate workmen for injuries. Practically all of the large employers in the United States recognize and concede the inequity of the present law, by trying on their own account to draft some system to pay workmen more money wherever there exists a necessity for speedy relief. Now, I wanted to make those observations because I do not want to agree to a proposition here for an investigation of the conditions in Europe, if that investigation means, either in purpose or in effect, that we are going to wait the returns of that investigation before we get something that is substantial in America." (Applause).
Mr. C. B. Culbertson, of the Wisconsin Commission, said in brief: "The conditions in the United States are far different from what they are in Europe, and the testimony taken before our Commission shows that two industries standing side by side, being practically the same, having practically the same number of machines, with practically the same number of men employed, would have rates of which one would be half as great as the other, and would be fair in each case, because the accidents in the one concern were twice what they were in the other. Now this is going to be a very hard matter to get at if you wait to get these figures and then attempt to follow them. And a third point; I believe the employers in Wisconsin, as well as the laboring men, are ready for this proposition at this time, and I believe we are going to have it in Wisconsin at the next legislature. I do not think we are going to wait for any instructions from Europe or for any figures from there."
At this point two resolutions which had been adopted at the Atlantic City meeting, in July 1909, were re-adopted,—requesting the U.S. Bureau of Labor to publish the foreign compensation laws in English, and to investigate the comparative cost to employers, of liability insurance under the American system, and workmen's compensation under the British and German systems. Mr. Miles M. Dawson, of New York City, said: "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].
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