D UC-NRLF REPORT OF THE Employers' Liability Commission OF THE STATE OF JLLINOIS - INITIAL MEETING, MARCH 24, 1910 FINAL MEETING, SEPTEMBER 15, 1910 GIFT OF Prof. Ira 3. Cress DOCUMENTS REPORT of - : - Employers' Liability Commission of the STATE OF ILLINOIS INITIAL MEETING, MARCH 24, 1910 FINAL MEETING, SEPTEMBER 15, 1910 PRESS or STROMBERG. ALLEN CHICAGO TOPICAL INDEX OF REPORT Page Financial Statement of Expenses Incurred by Commission 4 Act Creating- the Commission 5 Introduction , 7 Report to Governor Deneen 15 Attorney Harper's Preliminary Report 39 Attorney's Final lleport 51 The Legal Record 74 Opinions of Members of the Bar 81 Coal Mining- 117 Railroads (Steam) 148 Elevated and Electric Roads 162 Manufacturers 167 Metal Trades 179 Carpenters and Builders 180 Coroner's Record 183 Compensation through Lawsuit 194 What Becomes of the Injured Workman? 201 The County Agent of Cook County 201 The Cook County Hospital 203 Eye and Ear Infirmary, Chicago 207 State Factory Inspection 209 Reports from American Consuls 214 Trade Unions 217 Bureau of Labor Statistics 237 Comparative Analysis of Insurance and Compensation Plans 247 Responsibility for Accidents 249 699381 CHARLES PIEZ. CHA.RMAN EDWIN R. WRIGHT. SECRETARY EMPLOYERS' LIABILITY COMMISSION OF THE STATE OF ILLINOIS 317 FISHER BUILDING TELEPHONE HARRISON 6253 CHICAGO W. J. JACKSON. CHICAGO PATRICK CARR. LADD E T BENT. CHICAGO GEORGE GOLDEN. CHICAGO M. J. BOYLE. CHICAGO CHARLES Piez CHICAGO - i DANIEL J. GORMAN. PEORIA ROBERT E. CONWAY. EAST ST. Louis JOHN FLORA. CHICAGO MABON B STARRING CHICAGO EDWIN R.WRIGHT. CHICAGO September 15, 1910. MR. CHARLES PIEZ, Chairman, Employers' Liability Commission, Chicago. Dear Sir: In closing up the routine work of the Commission, I wish to present you herewith an analysis of bills authorized by the Com- mission. Each item has been properly audited and certified to and forwarded to the Department and Institution Auditor of the State. The records contain the following appropriations: Printing, $1,282.40 Legal services, 1,000.00 Office expenses, - 768.61 Reporting meetings and stenographic services, 1,707.23 Clerical expenses, 620.10 Per diem, 1,815.50 Hotel and traveling expenses, - 2,728.93 Total, - $9,922.77 Respectfully, Secretary. ACT CREATING THE COMMISSION nnnn EMPLOYERS' LIABILITY COMMISSION. 1. 2. 3. Creates commission of twelve members. Appointment and classification of members chairman va- cancies quorum. Duties report to Governor publication. 4. Meetings records employes per diem expenses. 5. Appropriates $10,000.00 print- ing. 6. Emergency. House Bill No. 42. Approved March 4, 1910. An Act to create an Employers' Liability Commission and making an ap- propriation therefor. Section 1. Be it enacted by the people of the State of Illinois represented in the General Assembly: That a commission of twelve (12) members is hereby created to be known as the Employers' Liability Commission, to be constituted and appointed as hereinafter provided. Sec. 2. The Governor shall appoint within twenty days after this Act takes effect, as members of said Commission, who shall be citizens of Illinois, six employers of labor and six persons who are either employes or are known to represent the interests of workmen. The Commission shall elect the chairman of said Commission and shall have the power to fill any vacancy that may occur in its membership: Provided, however, the vacancy shall be filled by a person of the same qualifications as the person whose vacancy he fills. The majority of the members of the said Commission shall constitute a quorum. Sec. 3. Said Commission shall investigate the problems of industrial accidents, and especially the present condition of the law of liability for injuries or death suffered in the course of industrial employment, as well in this State as in other States or countries, and shall inquire into the most equitable and effectual method of providing for compensation for losses suf- fered as aforesaid. It shall, as far as practical, co-operate with other Com- missions appointed in other States for like purposes. It shall on or before the 15th day of September, 1910, report its conclusions, together with the draft of such bill or bills as may be deemed appropriate, to the Governor, who shall at once publish such reports and drafts of bill or bills, and shall also transmit such report to the Forty-seventh General Assembly for action EMPLOYERS' LIABILITY COMMISSION thereon: Provided, That such Commission shall report to the Governor only such recommendations as shall have been agreed upon by a majority of that part of the Commission representing the employers of labor and a majority of that part of the Commission representing the interests of the workingmen. Sec. 4. The Commission shall meet at the call of the chairman and elect a secretary from among its members. It shall cause a record to be made and kept of its proceedings. It shall have power to employ such clerks and assist- ants MS may be necessary, and shall fix their compensation, and may incur such other expenses as are properly incidental to the work of the Commission. The members of the Commission shall be reimbursed at the rate of five dollars ($5.00) per diem while actually engaged on the work of such Commission, and reimbursed for their actual expenses incurred in the work of said Com- mission. Sec. 5. The sum of ten thousand dollars ($10,000.00), or as much thereof as may be necessary, is hereby appropriated for the expenses of the Commis- sion, and the Auditor of Public Accounts is hereby authorized to draw his warrant for the foregoing amount, or any part thereof, in payment of any expenses, charges or disbursements authorized by this Act on order of the Commission, signed by its chairman, attested by its secretary and approved by the Governor. The State Board of Contracts is hereby authorized and directed to pro- vide all necessary printing for said Commission. Sec. 6. Whereas, An emergency exists, therefore, this Act shall be in force and effect immediately after its passage and approval by the Governor. Approved March 4, 1910. INTRODUCTION DDDD It has been said that "there is at least one field in which the elasticity of the common law has proved no match for the strain put upon it by the development of modern industry, a field in which all Europe, including Eng- land, has struck at the roots of a fundamental doctrine, both of the civil and of the common law, but in which the United States remains practically at a standstill. This is the field which is commonly called Employers' Lia- bility for Damages."* In Europe a system of compensation for industrial accidents has been generally adopted, which has taken the place of the old common law methods of compensation for injuries. The last century has witnessed the supplanting of hand-driven tools by power-driven machinery, and as a direct consequence, of small independent workers by large systems of centralized labor, accompan- ied by changes in the social fabric that our ancestors would have deemed incredible. There is probably no other instance in the history of the law or in the history of economics where a system of law has been required in a compara- tively short time to meet so radical a change in the conditions which it was designed to serve. The discovery of steam and electricity, as active agents in the carrying on of the business of transportation, and the vast manufacturing industries which the last century has . developed, has necessarily brought large numbers of persons together under one management, and the combining of their efforts toward some common end. In the earlier days, these people had worked singly or in small groups at their benches or in their shops, or with hand-driven or other simple machinery. Their occupations were not usually hazardous, and what dangers existed were obvious to the most unthinking. Each man, if he depended upon his co-worker in any way for safety or assistance, depended upon him to perform a simple duty or to do a plain job. The carpenter employed a man or two, the blacksmith had a helper, and the shoemaker an apprentice. As we know it today, there was practically no division of labor. The vital inter-dependence of workmen, which we now find everywhere in mod- ern factories, or railway systems, was unthought of. Accidents were neces- sarily infrequent, and when they did occur, the facts surrounding the accident were well known to the few employes and their employer, and there was a general feeling of sympathy and brotherhood which the general extent and complexity of our present industrial system makes entirely impossible. Men worked usually with their own simple tools, and beside their own familiar friends, whose general qualities for efficiency and care were well-known. But, as we have said, since those early days, conditions have radically and rapidly changed. Where girls spun their flax and wove their linen at * 18 Green Bag, 185. 8 EMPLOYERS' LIABILITY COMMISSION their own homes, they are now gathered in the factories and woolen mills by the hundred and taught to manage power-driven machinery, the most careful use of which is bound to result at more or less regular intervals, in personal injury to the operatives. The simple carpenter has developed into a large contractor, engaged in erecting steel and stone buildings of large proportions, employing many men, with whom he has no personal acquaintance. In like manner, the simple blacksmith shop has grown to be a large foundry or mechanical establishment in which the simple forge has been replaced by blast-furnaces and other dangerous manufacturing devices. The simple shoemaker has left his last and lost his identity in joining the ranks of the large army of workmen engaged in the manufacture of boots and shoes by machinery. The mere recital of these evidences of radical change in our industrial conditions, with which we are all more or less familiar, but of which, in the hurry of business, we have failed to take careful note, is sufficient in itself to call to mind the urgent need for some change in the law in regard to the relation of master and servant. We do not feel that the employer is properly chargeable with any fault or lack of interest in the matter, but the changes have been so rapid in the growth and development of the resources of a new country like this, that until recently it has been more or less natural that no one should stop to consider carefully the changes which have been going on in industrial affairs, and the resultant strain which such changes have produced upon the rules of law governing the relation of employer and em- ploye. It frequently happens that the courts of this country, in following the common law rules established by the English Courts, have persistently adhered to them for a long time after they have been abandoned or abrogated in the land of their origin. This has been true with reference to the English common law rules governing the relation of master and servant. For example, the English fellow-servant doctrine was first established in England in. 1837, in the case of Priestly vs. Fowler; 3 M & W, 1; and the doctrine was accepted almost immediately thereafter in this country by the courts of South Carolina and Massachusetts, in the cases of Murray vs. South Carolina Railway Com- pany ; McMullen's Law, 385, decided by the Supreme Court of South Carolina in 1841, and in Farwell vs. Boston, etc. Railroad Company ; 4 Mete. 49, decided in 1842. The fellow-servant doctrine was abolished in England in 1897, by the Chamberlain Act, and has not been applied by the English Courts to cases falling under the compensation law since that time. The English Parliament, apparently recognizing the maxim of the common law that, the reason for the rule having ceased, the rule itself should be abolished, wiped out the doctrine of fellow-servant and adopted a system of Workmen's Compensation. The fellow-servant doctrine never existed in the law of any other country in Eu- rope. Pollock on Torts ; 8th Ed., p. 100. Our courts, however, still cling to the common law rule, announced in Priestly vs. Fowler. The doctrine has therefore been in force in this country for sixty-three years, and was in force in England for sixty years only, and was abolished entirely thirteen years ago; so that we occupy an unfortunate eminence in America, of being the only industrial country in the world which clings to this common law rule EMPLOYERS' LIABILITY COMMISSION regulating the relation of master and servant, and which has neglected so far to adopt a system of compensation for industrial injuries, regardless of fault. That there is abundant reason for a change in the system of compensating the sufferers from industrial accidents, in addition to those already enumer- ated, is readily seen from a most casual examination of the statistics now available with regard to accidental injuries. Statistics which have been compiled within the last few years show that probably fifty per cent, of the accidents which occur in industry are traceable neither to the fault of the employer nor to the negligence of the employe, but that such percentage of injuries is due entirely to the inevitable and in- herent hazard of the trade, or, what the French economists call the "risque professionel." This fact being established, it is at once seen that a large element of public interest is introduced into the general question of industrial accidents which in our judgment would make the courts exceedingly loath to say that the legisla- ture might not with propriety recognize such conditions, and adopt some reasonable and effective plan of regulation for the industries in which so large a proportion of the accidents occur, without the fault of any of the immediate persons engaged in carrying it on, and which inevitably result in great hardship and oft-times reduce the dependents of those who are injured to a state of pauperism, which eventually calls for the assistance of the agencies of charity furnished by the State or the municipality in which they live. It appears, in short, that the Moloch of industrial activity demands a sacrifice of human life and limb, constant, as the actuaries' tables show, and inevitable so long as human contrivances and human understanding are fallible. It is obvious that for losses such as these some one must pay. In the first instance, it is the workman himself. In the long run, however, there is an economic loss that is charged upon the community and this is the accompan- iment of an individual hardship of a peculiarly distressing nature. "While fire, deterioration of plant and financial loss are insured against, and the insurance, whatever form it may take, is charged to the cost of produc- tion, no account has thus far been taken in America of the deterioration of the human machine."* Observing this, our State government has wisely chosen to follow the European example and make some effort to devise a plan by which the inevit- able losses arising from the inherent risks of trade shall fall, in large part, upon the consumer of the commodity, the manufacture of which has demanded the sacrifice, such losses for the purposes of convenient administration to be divided in the first instance between the employer and employe, by paying to the latter approximately one-half wages for the time lost as a result of indus- trial injury. This was the problem which the Illinois Employers' Liability Commission attempted to meet and solve, so far as possible. While the Commission was unable to agree upon a bill covering the two aspects of the subject that ot employers' liability and industrial compensation its investigations showed with overwhelming clearness the evils of the present situation and the necessity for a radical improvement. * 18 Green Bag, 189. 10 EMPLOYERS' LIABILITY COMMISSION THE INVESTIGATIONS OF THE COMMISSION. The Employers' Liability Commission approached its conclusions slowly and as the result of several lines of preliminary inquiry. It made a study of the present legal situation in Illinois, and the fruits of that study, as embodied in the opinion of Mr. Samuel A. Harper, the attorney for the Commission, are to be found elsewhere in this report. But it made simul- taneously with this a careful study of the industrial situation as well, a study of the actual working out, in as many cases as could be investigated in the time at the Commission's disposal, of the present litigious and haphazard method of industrial compensation. There was much material available for this in the collected statistics of the various departments of the State government and of other public bodies. The Bureau of Labor furnished a comparative table for two and one-half years, the Coal Report furnished vital statistics for twenty-six years, the Railroad and Warehouse Commission furnished data for four years, and the Factory Inspection Department furnished cases extending over six months. In addition the Commission had recourse to the tables compiled by the Insurance Department of the State, to the records of the Coroner of Cook County, and those of the County Agent. Furthermore, we have re- ceived a measure of co-operation from industrial organizations such as we believe has never heretofore been available anywhere in the country. Sug- gestions from trade unions, railway brotherhoods, and the occasional personal counsel and assistance of business or professional men have helped to smooth out many rough places and greatly facilitate the work of the Commission. There was naturally considerable duplication in the cases at first, but by listing them all by name and key number, the duplicate cases were de- tected and thrown out. Then the cases were investigated, some 5,000 in all. Employes of the Commission sought out each one and endeavored to get a complete record of such facts as the nature of the employment and the character of the accident; the nationality and marital condition of the victim ; the number of those dependent upon him ; the insurance carried ; the amount of compensation and its character, whether by settlement out of court or in an award of damages. This total of 5,000 cases included several thousand temporary accidents, the main interest in which was the amount of compensation paid for the various sorts of injury. About 500 cases were those of permanent disability and these required much more data. The cases resulting in death were, in round numbers, about 1,000, and upon these the investigators of the Com- mission were immediately assigned. It soon became evident that a record of 1,000 fatal accidents could not be secured. Hundreds of cases could not be found at all the families had disintegrated or moved away. One persevering investigator, not content with the answer, "moved away," which he received in one of his cases, followed up the available clews and found that a widow, left helpless by the killing of her husband, had been driven into a life of immorality and was keeping her four little girls on the wages received for the sale of her person. The industry which took her husband's life took, it is evident, a great deal more. How many other cases of this sort an exhaustive search would reveal there EMPLOYERS' LIABILITY COMMISSION 11 is no means of estimating, but it was evident that hundreds of families became broken up and migratory. Out of the thousand odd cases with which the Commission started, it was able to get full and satisfactory records of 614, covering the principal industries in the State. These 614 cases were checked up with so much care that the Commission believes that the facts and figures secured in this inquiry are not only trust- worthy in themselves, but are thoroughly representative of the situation prevailing in industrial Illinois. The investigation not only demonstrated the injustice and the economic waste of the present situation, but was of material assistance in suggesting the lines which a reform of the evils disclosed should take. A table of these cases has been worked out with considerable care, showing how the present system of compensation if it may be called a system works out in this State. The accompanying table (pages 12 and 13) is worth a careful study. These figures, the Commission believes, speak for themselves on the single point, at least, whether or not the present system furnishes adequate support for the families deprived by industry of their bread winners. It is clear from these tables that the present system does not furnish adequate support. EMPLOYERS' LIABILITY INSURANCE Much valuable data might have been obtained from the various Em- ployers' Liability Insurance Companies had the Commission the time to go into so complicated a matter. Willing responses were made to inquiries, but variations in the method of tabulating the figures made it practically impossible to compile them and avoid misleading conclusions. Classified data from a number of companies, covering a period of six years (1900 to 1905 inclusive) indicate that of premiums paid, about 42% was expended for medical attendance and indemnity ; about 10% for legal ex- penses and attorney's fees; and about 10% for investigations and claim expenses, leaving about 38% for expenses of administration, cost of securing business and profit. Since, in case an attorney for the plaintiff is employed, he usually receives one-third and frequently one-half of the amount recovered, it is probable' that out of every dollar at present paid by the employer for liability insurance, only about 25 cents ever reaches the person injured or his dependents. W.hether or not th6 business of the liability companies is unduly costly or unduly profitable, it is apparent that the larger part of the waste revealed by these figures is inherent under the existing system, whether liability insurance is obtained by the employer or not. So long as indemnity for injury depends upon the question of fault, and the amount to be recovered is left uncertain, litigation, expensive to both plaintiff and defendant, cannot be avoided, and this waste must continue, whether or not the liability laws are changed or remain as they are. Nor does the person injured get this 25% of what the employer pays promptly, when he most needs it. Returns of all liability companies doing EMPLOYERS' LIABILITY COMMISSION SUMMARY OF 614 CASES INDUSTRY. Total. SETTLEMENT OUT OF COURT. No. Aggregate. Average. Railroads, Trades 202 77 33 8 38 16 120 33 28 19 16 18 9 135 50 14 2 14 $196,718.55 46,806.65 10,250.00 600.00 13,050.00 $1,457.18 936.13 732.14 300.00 932.14 Railroad Laborers Electric Railways, Trades. . .... Electric Railway Laborers Building Trades * Building Trades, Laborers Miners 26 23 6 7,648.55 28,847.25 8,200.00 294 . 18 1,254.23 1,366.67 Steel Workers Miscellaneous Trades. Teamsters Packing House Employes Laborers 2 4 5 i 3,750.00 2,775.00 2,805.00 1^875.00 693.75 561.00 Unclassified . . *614 281 $321,451.00 *Three railroad men received compensation, both "in" and "out" of court. EMPLOYERS' LIABILITY COMMISSION 13 OF FATAL ACCIDENTS. SETTLEMENT IN COURT. No. Aggregate. Average. Number of Suits Pending. No Recovery. In and Out of Court Average. 10 3 $20,783.00 737.00 $2,078.30 245.67 34 13 8 25 12 11 $1,076.74 617.45 310 60 3 3 75 00 1 200.00 200.00 7 8 16 8 348.68 10 11,021.50 1,102.15 9 6 75 4 155 . 59 874 . 16 7 15 292.86 7 12 2 12 234.37 4 10 154 . 17 3 1 311.66 24 $32 74 9 >0 111 204 14 EMPLOYERS' LIABILITY COMMISSION business in Illinois, covering a period of ten years, tabulated by the State Department of Insurance, show that of the total indemnity -paid on behalt of accidents occurring during the first year of the series, 16% was paid during that year, 37% the second year, 20% the third year, 14% the fourth year, and the remaining 13% during the six succeeding years. Can any- thing good be said in support of a system as impotent as this? Insurance is desirable both for the employer and the injured employe, lest a serious accident bankrupt the former and deprive the latter of indem- nity. And if general compensation for industrial accidents is provided by statute, insurance will become even more necessary. Indeed, were the sub- ject not so complex and the time allotted so short, the Commission would probably be disposed to make compulsory insurance an integral part of any scheme for general compensation. However, that feature could better be added later as occasion arose. A general compensation act would tend, of course, greatly to reduce litigation. That, in turn, would tend to reduce the cost of insurance. And the cost would be still further reduced by the increased demand for insur- ance which would lessen the jcost of securing new business and of adminis- tration. Indeed, commissions to agents have been already sharply reduced since the passage of the New York law during the present year. With greater certainty as to indemnity the cost can be more accurately measured and the element of guess reduced, so that a large apparent margin of profit would tend to disappear. Doubtless the enactment of a general compensation measure in Illinois would result in the organizing of Mutual Liability Companies in various industries, in order to secure average results to its policy holders at cost, which would preserve all the money paid for premiums to the people of the State. Moreover, liability for all accidents would make the insurance companies (old-line and mutual alike) increas- ingly active in accident prevention, while careful and law abiding employers. members of mutual companies, would exert themselves to see that they were not taxed for the carelessness and neglect of their fellow employers. REPORT OF THE COMMISSION DDDD THE EMPLOYERS' LIABILITY COMMISSION OF THE STATE OF ILLINOIS CHICAGO, ILL., September 15, 1910. To Hon. Charles 8. Denccn, Governor of Illinois. Dear Sir : The Employers' Liability Commission, appointed by you pur- suant to an act of the Legislature, approved March 4, 1910, to "investigate the problems of industrial accidents, and especially the present condition of the law of liability for injuries or death suffered in the course of industrial employment, as well in this State as in other States or countries," and to "inquire into the most equitable and effectual method of providing for com- pensation for losses suffered as aforesaid," submits the following report : The following were appointed members of the Commission : Employers: I. G. Rawn, President, Monon Railroad, Chicago. Mason B. Starring, President, Northwestern Elevated Railroad, Chicago. Robert E. Conway, General Manager, Armour Packing Company. National Stock Yards, 111. E. T. Bent, Secretary, Illinois Coal Operators' Association, Chicago. P. A. Peterson, President, Union Furniture Company, Rockford, 111. Charles Piez, President, Link-Belt Company, Chicago. W. J. Jackson, Vice-Presideut and General Manager, Chicago and Eastern Illinois Railroad, Chicago. ^ (Elected to succeed Mr. Rawn.) Employees: Edwin R. Wright, President, Illinois State Federation of Labor, Chicago. Geo. Golden, President, Packing House Teamsters, Chicago. Patrick Carr, United Mine Workers of America, Ladd, 111. M. J. Boyle, Switchmen's Union of North America, Chicago. Daniel J. Gorman, President, Amalgamated Association of Street Railway Employees. Peoria. 111. John Flora, Chicago Federation of Labor, Chicago. The Commission held its first meeting at Springfield, 111., March 24th, 1010, and was addressed by Governor Chas. S. Deneen. After the Governor's 16 EMPLOYERS' LIABILITY COMMISSION address, the Commission organized by electing Mr. I. G. Rawn as chairman, and Mr. Edwin R. Wright as secretary. The Commission appointed Mr. Samuel A. Harper, of Chicago, its attorney. The Commission has held thirty executive sessions, and thirteen public hear- ings; five in Chicago and two each at East St. Louis, Springfield, Rock Island and Peoria. A joint meeting was held in Chicago with the Wisconsin State Commission, and the Secretary and Attorney attended a joint conference of the New York Commission and the National Civic Federation at New York City. Several representatives of the Commission attended one of the public hearings given by the Wisconsin Commission at Milwaukee. The Commission also took an active part in the national convention held at the Auditorium Hotel, Chicago. June 10th and llth, under the auspices of the American Association for the Promotion of Labor Legislation, at which convention the Commissions of Minnesota, New York, Wisconsin and Massachusetts were also represented. Delegates from New Jersey, Indiana, Connecticut and other states were in attendance. The Commission agreed with the Governor in his statement made at its first meeting that a thorough investigation should first be made into actual working conditions in the industries of the State before any attempt was made to draft a new law covering the general subject of employers' liability, or to suggest amendments to the present laws. A thorough investigation was therefore immediately planned, and was carried on under the following heads : SPECIAL REPORTS. 1. A comparative study of the English and German systems of compensa- tion, of the systems proposed by various states of the United States, and of the relief associations operating in the State of Illinois. 2. A study of the systems of compulsory insurance and workmen's com- pensation in Europe. 3. A preliminary analysis of the state of the law of employers' liability in New York, with a discussion as to the legal adaptability in the State of Illinois of foreign plans of compensation, and a consideration of the most feasible plan to be adopted. STATISTICAL STUDIES. 1. An investigation was made of 200 industrial fatalities reported to the coroner of Cook County during the year 1908, and of 483 industrial fatalities reported to the authorities as occurring in other portions in the State, for the purpose of discovering the legal and economic result of such accidents, viz. : the earning capacity of the workmen killed, the number of dependents, the compensation received from employers by suit or settlement, the amount paid lawyers or agents, and the effect of such accident upon the life of the family. 2. An investigation was made of 771 industrial accident cases, including death and injury, reported to the Railroad and Warehouse Commission, the Bureau of Labor, the Department of Factory Inspection, and to various organi- zations, boards and associations. EMPLOYERS' LIABILITY COMMISSION 17 3. An investigation was made of 718 industrial accident cases, including death and injury in mines and quarries. 4. An inquiry was made into the cost of industrial accidents to 500 employers in the State of Illinois, to discover the total cost under the present system of employers' liability and the proportion of. amount spent in hospital and medical expenses, insurance premiums, attorney's fees, settlement and damages. 5. A study was made of employer's' liability insurance experience for the purpose of ascertaining the number of cases handled, the amount of settlements made, with and without suit, and the proportion of payments to premiums received, et cetera. GENERAL INQUIRIES. 1. A series of questions were submitted in the form of a letter to 1,200 employers, members of the Illinois Manufacturers' Association and others, and to 1,700 labor organizations of the State, for the purpose of securing their opinion as to the justice and adequacy of the present law relating to employers' liability and as to the advisability of changing the law relating thereto. 2. A letter was sent to about two hundred judges and prominent attorneys throughout the State, asking their opinion concerning the constitutionality of a proposed workmen's compensation law which should disregard all questions of negligence and be compulsory upon both employer and employee. Practically all of the judges declined to express in writing their views upon the constitutionality of such a law on the ground that they might be called upon to pass upon the question in their official capacity after the passage of the law, and they did not think it wise to pre-judge the case. Several of the judges, however, verbally expressed themselves to the attorney for the Commission as favoring a change in the present common law rules governing the relation of master and servant. Several attorneys gave the Commission the benefit of their opinion upon the constitutional questions submitted. Along with these general studies of the legal and legislative aspects of the questions submitted to it, the Commission made extensive investigations in more than 5,000 cases of industrial accidents fatal and non-fatal in this State, with a view to ascertaining what compensation, if any, is secured under the existing conditions. Full and complete reports covering 614 fatal cases were secured by investigators of the Commission. The facts disclosed were extraordinary. The Commission found that of the entire 614 cases, only twenty-four had resulted in a successful settlement in court and 204 were without any settle- ment, either in or out of court. The popular notion that the workingman, or his family in the event of his death, has a chance to secure comfortable damages, was utterly refuted by an examination of the facts. IS EMPLOYERS' LIABILITY COMMISSION The following table gives a brief summary of the situation as the Com- mission found it (see also tables pages 12 and 13) : FATAL ACCIDENTS. OCCUPATION. ii 'K Cases Now in Court. fa Settled out of Court. No Recovery. Railroad trades Railroad laborers 202 77 10 3 34 13 135 50 25 12 Electric railway trades 33 8 14 11 Electric railway laborers 8 3 2 3 Building trades 38 1 7 14 16 Building trades laborers 16 8 8 Miners 120 10 9 26 75 Steel workers 33 6 23 4 Miscellaneous trades . . .... 28 7 6 15 Teamsters 19 7 12 Packing house employes 16 2 2 12 General laborers 18 4 4 10 Unclassified 9 3 5 1 614 24 111 281 204 Three cases show a dual recovery, both in and out of court. THE COMMISSION FURTHER FOUND : That the average compensation paid out of court for the death of a skilled railway employe was $1,457. Cases settled in court had an average award of $2,078. More than twelve per cent of the cases recovered nothing whatever. That the average settlement out of court for the death of a railway laborer amounted to $936. The few cases that were settled in court were probably not representative. At all events their average was extremely low $245. That the average death settlement, out of court, in the skilled building trades was $932. The only successful court settlement which the Commission found netted $200. Almost fifty per cent of the entire number of building trade cases investigated by the Commission recovered nothing whatever. That the average settlement out of court for the death of a miner was $294 and ten successful court cases which we found averaged $1,021. But more than sixty per cent of the cases had no settlement, either in or out of court. That in the nineteen teamsters' cases which came under the investigation of the Commission, not a single one showed a settlement of any sort, and in only seven of the nineteen were there suits pending. That the families of steel workers recovered through out of court settlements an average compensation of $1,254. The Commission found no successful court cases. But this outline, convenient for certain purposes, scarcely hints at the situation which the Commission found. It gives no idea of the suffering and hardship which our investigations disclosed; it tells nothing of the long and tedious fights, of the inequitable verdicts, the delays and uncertainties of the EMPLOYERS' LIABILITY COMMISSION 19 law; it scarcely suggests the unequal character of the struggle between the claim agents and the families of the deceased bread winner. But almost every individual case reflected some aspect or other of this sort, driving home to the members of the Commission the conviction that the present system was unjust, haphazard, inadequate and wasteful, the cause of enor- mous suffering, of much disrespect for law and of a badly distributed burden upon society. THE FIRST PUBLIC STATEMENT. Having completed its preliminary investigation, the Commission arranged a tour of the State and outlined the following plan as a guide. Ten thousand copies were printed and distributed. The public meetings were well attended, and the suggestions of the Commission created wide discussion. The full text of the public letter and proposed plan for a compensation law follows: EMPLOYERS' LIABILITY COMMISSION OF ,THE STATE OF ILLINOIS. Chicago, July 18, 1910. To the Public: The Employers' Liability Commission of Illinois was authorized by the Forty-Sixth Session of the Legislature, subsequently appointed by the Gov- ernor, and duly organized March 24th, 1910, to "investigate the problem of industrial accidents," and to report a "draft of such bill or bills as may be deemed appropriate" for accomplishing "the most equitable and effectual method of providing for- compensation for losses suffered as aforesaid." In this work the Commission has for its aim the conservation of human life, and the happiness and opportunity provided by a greater sense of industrial security. The Commission has been and still is actively engaged in securing and considering the industrial statistics of this and other states. The plan of the Commission (page 20) is tentative and susceptible of change both in scope and in form, and suggestions are invited. For the purpose of submitting the ideas of the Commission directly to the industrial groups most concerned, to the legal fraternity, and to the people of the State with the least possible inconvenience to all, public meetings will be held (afternoon and evening sessions) as follows: East St. Louis, August llth; Springfield, August 12th; Rock Island, August 17th; Peoria, August 18th; Chicago, August 24th and 25th. Stenographic records of these meetings will be kept. After consideration of the comments and suggestions offered, draft of a bill or bills will be sub- mitted to the Governor of the State. Respectfully, EDWIN R. WRIGHT, Secretary, Employers' Liability Commission of the State of Illinois. By Order of the Commission. 20 EMPLOYERS' LIABILITY COMMISSION The condensed scheme first proposed by the Commission took the form of the following outline of a compensation measure, and was designed merely as a topical index for discussion, as follows: THE PLAN OF A WORKMAN'S COMPENSATION BILL UNDER CONSIDERATION BY THE COMMISSION, THE MAIN PURPOSES OF WHICH SHALL BE: (1) To provide compensation for losses by reason of industrial acci- dents, resulting in death or incapacity to employes, regardless of any question of negligence or fault, except in cases of serious or willful misconduct of the employe. (2) To make the law compulsory in form, but elective in fact, provid- ing in the first instance that the employer shall pay the compensation, according to the scale set forth in the act, but reserving to both employer and employe their common law remedies, including trial by jury, providing, however, as to the employer that if he refuses to pay the compensation according to the scale provided, and forces the employe to his action at the common law, he shall not escape liability by reason of either (1) the fellow servant rule, (2) the assumption of the risk, or (3) the contributory negli- gence of the employe, unless his negligence be greater than that of the employer, in which event the damages shall be apportioned according to the relative degree of negligence, and the burden of proof shall be upon the employer ; and providing as to the employe that he shall be presumed to have accepted the compensation law, and any acceptance by him of com- pensation under the proposed law, except necessary medical and surgical attention, shall bar the right of action at common law, and the beginning of any action at law shall bar his right to compensation under the proposed law, except in the case of willful negligence of the employer or his failure to comply with statutory or municipal safety regulations; these two limita- tions upon the rights of the respective parties being imposed for the purpose of inducing them both to accept the compensation law, and to refrain from using the present unsatisfactory methods of settling claims for personal injury. (3) To provide a scale of compensation as follows : (a) Death : Where there are dependents, three years' wages, but not less than $1,500 nor more than $3,000. Where there are no dependents, a sum not to exceed $200. (Z>) Permanent disability: A pension on the basis of 50% of the earnings of the employe, to be paid as long as the disability lasts, or until the com- pensation or pension paid, equals the amount of four years' wages, such pension to commence after two weeks' disability. Where the disability is permanent, but only partial, the percentage of compensation or pension to be reduced in proportion to the reduction in earning capacity. (c) Temporary disability : When such disability is determined to have existed in a bona fide form for two weeks or more, then compensation to be awarded from the day the employe left work, on the basis of 50% of the earnings, to be paid as long as the disability lasts; all cases of disability to be determined by physician of employer, or, by consujta- EMPLOYERS' LIABILITY COMMISSION 21 tion, if employe desires, of the employer's physician with one to be engaged by the employe, and if these two cannot agree upon the nature and probable duration of the injury, then a third to be called in; the decision of the physicians to be used as a basis for computing the com- pensation due, such examinations to be made at subsequent times, for the purpose of reconsidering the question, if circumstances seem to require it. (d) Minors in case of permanent disability, to be paid compensation as above, on basis of 50% of the earnings of adults, in the same line of employ- ment; in case of temporary disability, when they have dependents, to be paid compensation as long as it lasts as above, on basis of 50% of the earnings of adults in the same line of employment, provided that the compensation paid shall not exceed the full weekly pay ; when they have no dependents, on basis of 50% of their own earnings. (4) Disputes arising under the compensation law to be settled by agree- ment of the parties, or arbitration, and confirmed by a court of proper jurisdiction. (5) Claims of employes, under the law shall be preferred, same as wage claims are now preferred under the law, and shall take precedence of other wage claims of other employes not injured. (6) Reasonable notice of claims shall be given to employer, but failure to comply strictly with statute, in regard to details, not to be fatal to the right to compensation unless the employer can show that he has been unduly prejudiced by such failure. (7) Report to be' made by employer, of all cases of injury for which compensation has been or is being paid, to the State Bureau of Labor Statistics. (8) The compensation to be paid in installments, conforming to the manner of payment of wages while the employe was at work, except the employe or person entitled to benefits may petition County or Probate Court for leave to have it paid in a lump sum, and if proper showing is made, court may order amount of compensation due, paid in lump sum. (9) The proposed law to apply to all employers of labor, who have more than five persons employed at one time. PUBLIC MEETINGS. The public meetings were largely attended and the outline of the Com- mission generally well received. Many expressions were heard as to the acceptability of a measure based on the general theory of workmen's com- pensation. A spirit of criticism and hostility developed in a pronounced form during the public meetings held in Chicago, August 24th and 25th. Four meetings were held and a general invitation issued to take part in the debate. Additional meetings were arranged for the convenience of special organiza- tions of employers and employes. With the resumption of executive sessions, the committee took up the first draft of a compensation measure. The bill outlined the work of other commissions and embraced views expressed by prominent sociologists, busi- ness men, labor officials, and the public. Changes were offered from time to time and with a redraft of the bill the Commission remained in session almost continuously in an effort to adjust 22 EMPLOYERS' LIABILITY COMMISSK >X the terms of the measure to the wishes of the interests represented on the Commission. The final revision of the bill is given herewith in full, together with the vote of the twelve commissioners. As it appeared impossible to secure for the bill a majority vote on each side, no further effort was made to develop and finish the details of the measure. The draft is -merely sub- mitted as an evidence of how far the Commission was able to get before final disagreement, and is included in this report with the hope that it will be of service to those who may be called upon to solve this problem in the future. A BILL For an Act to promote the general welfare of the people of this State, by providing compensation for accidental injuries or death caused in the course of employment. Section 1. Be it enacted by the people of the State of Illinois, repre- sented in the General Assembly : That any employer in this State may elect to provide and pay compensation for injuries sustained by any employe aris- ing out of and in the course of the employment according to the provisions of this Act, and thereby relieve himself from liability for the recovery of dam- ages except as herein provided. If, however, any such employer shall elect not to provide and pay the compensation according to the provisions of this Act he shall not escape liability for injuries sustained by his employes arising out of and in the course of their employment by alleging or proving in any action brought against such employer : 1. That the employe either expressly or implicitly assumed the risk of the hazard complained of, or, 2. That the injury or death was caused in whole or in part by the neg- ligence of a fellow servant. Every such employer is presumed to have elected to provide and pay the compensation according to the provisions of this Act unless and until notice in writing of an election to the contrary is filed with the State Bureau of Labor Statistics. Such employer, however, shall not be entitled to any of the privileges or advantages specified herein until a notice in writing of an elec- tion to provide such compensation has been filed with the State Bureau of Labor Statistics on blanks furnished by it for such purpose. Sec. 2. The filing of notice of an election to provide such compensation as aforesaid shall constitute an acceptance of all the provisions of this Act, and such employer shall be bound thereby as to all his employes for a term of one year and for terms of each year thereafter unless a notice to the con- trary shall have been given to the Bureau of Labor Statistics and to all em- ployes in said employment by posting in the plant, shop, office or place of work at least sixty days prior to the expiration of any such annual term: Pro- vided, That when an injury to an employe is due to the serious and wilful misconduct of that employe, any compensation claimed in respect of that injury shall be disallowed. Sec. 3. In the event that any employer elects to provide and pay the compensation provided in this Act and files notice of such election with the Bureau of Labor Statistics, and thereby becomes bound to provide and pay such EMPLOYERS' LIABILITY COMMISSION 23 compensation according to the provisions of this Act, then every employe of such employer, as a part of his contract of hiring, shall be deemed to have accepted all the provisions of this Act and shall be bound thereby unless after thirty days and prior to forty-five days after such hiring he shall notify his employer in writing to the contrary : Provided, however, that before any such employee shall be so bound by the provisions of this Act his employer shall either furnish to such employe, personally, at the time of his hiring or post in a conspicuous place in the room or place where such employee is to be employed, a statement in a language which such employee is able to under- stand of the compensation provisions of this Act, if such employer has ac- cepted the provisions of this Act as herein provided, which notice shall also include a notice to the employee that the employer has accepted the provisions hereof. Every employee whose contract of hiring is in force at the time his employer elects to pay the compensation, and who continues to work for such employer, shall be deemed thereby to have accepted the provisions of this Act, and shall be bound thereby unless he files a notice in writing to the contrary with his employer after thirty days and prior to forty-five days thereafter : Providing such employer furnishes or posts the statement of the compensation provisions of this Act and his notice of acceptance thereof as herein provided. Sec. 4. No common law or statutory right to recover damages for injuries or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be avail- able to any employee who has accepted, according to Section 3, the provisions of this Act, or to any one wholly or partially dependent upon him or legally responsible for his estate ; Provided, that when the injury to the employee was caused by the willful failure of the employer to comply with statutory safety regulations, nothing in this Act shall affect the present civil liability of the employer. Sec. 5. The amount of compensation which the employer shall pay if he elects the provisions of this Act, as provided in Sections one (1) and two (2) for injury to the employee which results in death, shall be: a. If the employee leaves any widow, child or children, or parents, or other lineal heirs to whose support he had contributed within five years pre- vious to the time of his death, a sum equal to three times the average annual earnings of the employee, but not less in any event, than One Thousand Five Hundred Dollars, and not more in any event than Three Thousand Dollars. Any weekly payments other than necessary, medical or surgical fees shall be deducted in ascertaining such amount payable on death. b. If the employee leaves collateral heirs dependent upon his earnings, such a percentage of the sum provided in Section A as the contributions which deceased made to the support of these dependents bore to his earnings at the time of his death. c. If the employee leaves no widow, child or children, parents or lineal or collateral heirs dependent upon his earnings, a sum not to exceed One Hun- dred Fifty Dollars ($150.00) to be paid to his personal representative. All compensation provided for in this Section to be paid in case the injury results in death shall be paid for the first six months in installments at the same intervals and in the same amounts that the wages or earnings of em- 24 EMPLOYERS' LIABILITY COMMISSION ployee were paid while he was living, and after the expiration of such period of six months the balance of the compensation then due shall be paid either in installments as aforesaid or in a lump sum, at the option of the person en- titled to such compensation : Provided, That if such compensation is paid in installments as herein provided and it shall not be feasible to pay the same at the same intervals as wages or earnings were paid, then the installments shall be paid weekly. Sec. 6. The amount of compensation which the employer shall provide and pay for injury to the employee resulting in disability shall be : a. Necessary medical and surgical treatment in all cases at the time of the accident and as long thereafter as necessary, but not to exceed ninety (90) days, including medicine and other means of treatment and all reasonable facilities, such as the first set of apparatus, artificial limbs, crutches and trusses to aid in the success of the treatment and to diminish the effects of the injury. b. If the period of disability lasts for more than one week, and such fact is determined by the physician or physicians, as provided in Section 8, com- pensation beginning on the day the injured employee leaves work as a result of the accident, and as long as the disability lasts, or until the amount of compensation paid equals the amount payable as a death benefit. c. If the period of disability does not last more than one week from the day the injured employee leaves work as the result of the injury, no com- pensation shall be paid. d. In case after the injury has been received it shall appear upon medical examination as provided for by Section 8, that the employee has been par- tially, though permanently incapacitated from pursuing his usual and cus- tomary line of employment, he shall receive compensation equal to one-half the difference between the average weekly wages which he earned before the accident, and the average weekly amount which he is earning, or is able to earn in some suitable employment or business after the accident, if such employment is secured; Provided, that where the injury shall be of a character set forth in the following scale, the employee shall receive the compensation named : (1) If the injury causes the immediate severing of, or necessitates the amputation of a hand or foot, at or above the wrist or ankle : one and one-half years' average wages, but in no event less than $750.00 nor more than $1,500.00. (2) If the injury results in the total and irrecoverable loss of the sight of one eye: three-fourths of one year's wages, but not less than $375.00, nor more than $750.00. e. In the case of complete disability which renders the employee wholly and permanently incapable of work, compensation for the first eight years after the day the injury was received, equal to 50% of his average weekly earnings, but not less than $5.00 nor more than $10.00 per week. If complete, disability continues after the expiration of the eight years, then a compensa- tion during life, equal to 8% of the death benefit which would have been payable had the accident resulted in death. Such compensation shall not be less than $10.00 per month and shall be payable monthly. In case death occurs before the total of the weekly payments equals the amount payable EMPLOYERS' LIABILITY COMMISSION 25 as a death benefit, as provided iii Section 5, Article A, then in case the employee leaves any widow, child or children, or parents, or other lineal heirs, they shall be paid the difference between the compensation for death and the sum of the weekly payments, but in no case shall this sum be less than $ Provided, That after compensation has been paid at the specified rates for a term of at least six months the employee shall have the option to demand a lump sum payment for the difference between the sum of the weekly pay- ments received and the four years' compensation to which he was entitled when such permanent disability has been definitely determined. For the pur- pose of this Section, the total and irrecoverable loss of the sight of both eyes, the loss of both feet at or above the ankle, the loss of both hands at or above the wrist, the loss of one hand and one foot, an injury to the spine resulting in permanent paralysis of the legs or arms, and the fracture of the skull resulting in incurable imbecility or insanity, shall be considered com- plete disability. These specific cases of complete disability shall not, however, be construed as excluding other cases. In fixing the amount of the disability payments, regard shall be had to any payment, allowance or benefit which the workman may have received from the employer during the period of his incapacity, except the expense of necessary medical or surgical treatment. In no event, except in case of com- plete disability as defined above, shall any weekly payment payable under the compensation plan herein provided exceed Ten Dollars per week, or extend over a period of more than six years from the date of the accident. In case an injured employee shall be mentally incompetent at the time when any right or privilege accrues to him under such plan, a conservator, or guardian of the incompetent, appointed pursuant to law r , may, on behalf of such incom- petent, claim and exercise any such right or privilege with the same force and effect as if the employee himself had been competent and had claimed or exercised any such right or privilege; and no limitations of time herein pro- vided for shall run so long as said incompetent employee has no conservator or guardian. Sec. 7. The basis for computing the compensation provided for in Sec- tions 5 and 6 shall be as follows : (1) The compensation shall be computed on the basis of the annual earn- ings which the injured persons received as salary, wages or earnings in that employment during the year next preceding the injury. (2) The annual earnings, if not otherwise determined, shall be regarded as three hundred times the average daily earnings in such computation ; as to workmen in employments in which it is the custom to operate for a part of the whole number of working days, such number shall be used instead of 300 as a basis for computing the annual earnings. (3) If the injured person has not been engaged in the employment for a full year immediately preceding the accident, the compensation shall be com- puted according to the annual earnings which persons of the same class in the same or in neighboring employments of the same kind have earned during such period. And if this basis of computation is impossible, or should appear to be unreasonable, three hundred times the amount which the injured person earns on an average on those days when he w r as working during the year next preceding the accident shall be used as a basis for the computation. 26 EMPLOYERS' LIABILITY COMMISSION (4) In the case of injured persons who earn either no wage or less than three hundred times the usual daily wage or earnings of the adult day laborers of that locality, the yearly wage shall be reckoned as three hundred times this average daily local wage. (5) In computing the compensation to be paid to employees who, before the accident were already disabled, and drawing compensation under the terms of this Act, the additional compensation shall be apportioned according to the proportion of incapacity and the disability which existed before such accident or injury, and in apportioning such compensation the earnings prior to the first injury shall be considered in relation to the earnings prior and at the time of the injury for which compensation is being computed. Sec. 8. Any employee entitled to receive weekly payments shall be re- quired, if requested by the employer, to submit himself for examination by a duly qualified medical practitioner or surgeon provided and paid for by the employer, at a time and p.lace reasonably convenient for the employee, as soon as practicable after the injury and also one week after the injury and thereafter at intervals not oftener than once in six weeks, which examina- tion shall be for the purpose of determining the nature, extent and duration of the injury received by the employee, and for the purpose of adjusting the compensation which may be due the employee from time to time for disability according to the provisions of Sections 5 and 6 of this Act ; Provided, however, that such examination shall be made in the presence of a duly qualified medical practitioner or surgeon provided and paid for by the employee, if such employee so desires, and in the event of disagreement between said medical practitioners or surgeons as to the nature, extent or duration of said injury or disability, the Judge of the Probate Court in Cook County and the County Court in counties outside of Cook County, in the county where the employee resided or was employed at the time of the injury, shall within six days after petition filed with such Court for that purpose, select a third medical practitioner or surgeon and the majority report of such three physi- cians as to the nature, extent and probable duration of such injury or disability shall be used for the purpose of estimating the amount of com- pensation payable to such beneficiary under this Act. If the employee re- fuses so to submit himself to examination or unnecessarily obstructs the same, his right to compensation payments shall be temporarily suspended until such examination shall have taken place, and no compensation shall be pay- able under this Act during such period. Sec. 9. Any question of law or fact arising in regard to the application of this law in determining the compensation payable hereunder shall be deter- mined either by agreement of the parties or by arbitration as herein provided. Ii^ case any such question arises which cannot be settled by agreement, the employee and employer shall each select a disinterested party and the Judge of the Probate Court in Cook County and of the County Court in counties outside of Cook County shall appoint a third disinterested party, such per- sons to constitute a board of arbitrators for the purpose of hearing and de- termining all such disputed questions of law or fact arising in regard to the application of this law in determining the compensation payable hereunder, and it shall be the duty of both employer and employee to submit to such board of arbitrators not later than ten days after the selection and appointment of EMPLOYERS' LIABILITY COMMISSION 27 such arbitrators all facts or evidence which may be in their possession or under their control relating to the questions to be determined by said arbi- trators; and said board of arbitrators shall hear all the evidence submitted by both parties and they shall have access to any books, papers or records of either the employer or the employee showing any facts which may be ma- terial to the questions before them, and they shall be empowered to visit the place or plant where the accident occurred, to direct the injured employee to be examined by a regular practicing physician or surgeon, and to do all other acts reasonably necessary for a proper investigation of all matters in dispute. A copy of the report of the arbitrators in each case shall be pre- pared and filed by them with the State Bureau of Labor Statistics, and shall be binding upon both the employer and employee except for fraud and mistake. Sec. 10. The term "employer," as used in this Act, shall be held to in- clude any person, firm or private corporation transacting business in this State that has an employee in his or its service and that has elected accord- ing to sections 1 and 2 of this Act to pay the compensation provided for by this Act; and any principal contract or shall be held to be an employer and shall be liable to pay compensation for injuries to the employees of any sub-contractor, whether first, second, or other sub-contractor or engaged in, on or about the premises on which said principal contractor has engaged to perform any work in the same manner and to the same extent as those said employees had been immediately been employed by him. Any principal con- tractor liable to pay compensation under this section, may be indemnified by any sub-contractor who would have been liable to pay compensation to such employees independent of the provisions of this section. Sec. 11. The term "employee," as used in this Act, shall be held to include any person who has engaged to work or render any service for an employer under a contract of service or apprenticeship, whether by way of manual labor, clerical work or otherwise, and whether the contract is ex- pressed or implied, oral or in writing, except that minors not legally per- mitted to work under the laws of this State, shall not be considered within the provisions of this Act and minors not so excepted are, for the purposes of this Act, to be considered the same and to have the like power of contracting as though they were of full age. Sec. 12. Persons whose employment is of a casual nature and who are employed otherwise than for the purpose of the employer's trade or business are not included in the foregoing definition. Sec. 13. Any persons entitled to payments under the compensation provi- sions of this Act against any employer shall have the same preferential claim therefor against the property of the employer as is now allowed by law for a claim by such person against such employer for unpaid wages or personal services, such preference to prevail against wage claims of all other employees not entitled to compensation for injuries, and the payments due under such compensation provisions shall not be subject to attachment, or to levy, or execution and satisfaction of debts except to the same extent and in the same manner as wages or earnings for personal services are now subject to levy and execution under the. -laws of this State, and shall not be assignable. Any right to receive compensation hereunder shall be extinguished by the death of the person entitled thereto, subject to the provisions of this Act relative to 28 EMPLOYERS' LIABILITY COMMISSION No claim of ays aw compensation for death received in the course of employment, any attorney at law for any contingent interest in any recovery for services in securing any recovery under this Act shall be an enforceable lien thereon unless the amount of the same be approved in writing by a judge of a court of record, or in case the same is tried in any court, before the judge presiding at such trial. Sec. 14. Any contract or agreement made by any employee or any other beneficiary of any claim under the provisions of this Act, within seven days after the injury, with any employer or his agent or with any attorney at lai with reference to the prosecution or settlement of such claim shall be pi sumed to be fraudulent. Sec. 15. No such employee or beneficiary shall have power to waive any of the provisions of this Act in regard to the amount of compensation which may be payable to such employee or beneficiary hereunder. Sec. 16. No proceedings for compensation under this Act shall be main- tained unless notice of the accident has been given to the employer as soon as practicable after the happening thereof, and during such disability, and unless claim for compensation has been made within six months from the occur- rence of the accident ; or in case of the death of the employee or in the event of his physical or mental incapacity within six months after such death or removal of such physical or mental incapacity, or in the event that pay- ments have been made under the provisions of this Act within six months after such payments have ceased. No want or defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such want, defect or inaccuracy. Notice of the accident shall, in substance, apprise the employer of the claim for compensation made by the employee and shall state the name and address of the employee injured, the approximate date and place of the accident, and in simple language the cause thereof, if known; which notice may be served personally or by registered letter addressed to the employer at his last known residence or place of business; provided, that the failure on the part of any person entitled to such com- pensation to give such notice shall not relieve the employer from his liability for such compensation when the facts and circumstances of such accident are known to such employer or his agent. Sec. 17. The compensation herein provided shall be the measure of the responsibility which the employer has assumed for injuries or death that may occur to employees in his employment, and it shall not be in any way re- duced by contributions from employees. Sec. 18. The provisions of this Act shall not be construed so as to dis- turb the organization of any existing mutual aid or benefit association or society to which the employer contributes an amount sufficient to insure to the employee or other beneficiary the compensation herein provided, or to prevent the organization of any mutual benefit association or insurance com- pany for the purpose of insuring the compensation herein provided and of paying additional accident or sick benefits for which the employee may con- tribute, providing such mutual aid or benefit associations or insurance com- panies comply with the laws of this State. EMPLOYERS' LIABILITY COMMISSION 29 Sec. 19. Any person who shall become entitled to compensation under the provisions of this Act shall, in the event of his inability to recover such com- pensation from the employer on account of his insolvency or other cause, be subrogated to all the rights of such employer against any insurance com- pany or association which may have insured such employer against loss growing out of the compensation required by the provisions of this Act to be paid by such employer, and in such case only a payment of the compensa- tion that has accrued to the person entitled thereto in accordance with the provisions of this Act shall relieve such insurance company from such lia- bility. Sec. 20. It shall be the duty of every employer within the provisions of this Act to send to the Secretary of the State Bureau of Labor Statistics in writing an immediate report of all accidents or injuries arising out of or in the course of the employment and resulting in death; it shall also be the duty of every such employer to report between the 15th and 25th of each month to the Secretary of the State Bureau of Labor Statistics all accidents or injuries for which compensation has been paid in accordance with the scale of compensation provided for. in this Act, which accidents or injuries entail a loss to the employee of more than one week's time, and in case the injury results in permanent disability, such report shall be made as soon as it is determined that such permanent disability has resulted or will result from such injury ; all such reports shall state the date of the injury, including the time of day or night, the nature of the employer's business, the age, sex and conjugal condition of the injured person, the specific occupation of the injured person, the direct cause of injury, and the nature of the accident, the nature of the injury, the length of disability and, in case of death, the length of disability before death, the wages of the 'injured person, whether compensation has been paid to the injured person or to his legal repre- sentative or his heirs or next of kin, the amount of compensation paid, the amount paid for physician's, surgeon's and hospital bill and by whom paid, and the amount paid for funeral or burial expense, if known. Sec. 21. The invalidity of any portion of this Act shall in no way affect the validity of any other portion thereof which can be given effect without such invalid part. Sec. 22. This Act shall take effect and be in force from and after the - day of - , 1911. THE COMMISSION FAILS TO AGREE. On final vote, the bill failed to receive the vote of a majority on each side. The labor members submitted written statements of their objections to the bill, which are attached hereto. The employers objected to the last provision of Section IV on the ground that it w r ould open up the way to endless litigation in the case of coal mines which operate under a special statute whose provisions are so general as to be open always to several constructions. Objection on the part of the em- ployers was also registered against the amount of compensation and the pension plan in cases of permanent and total disability. Statement was also submitted that the surface and elevated railroads operating under a flat rate of 5c are situated differently from other industries, in that, in no way, can the burden of the compensation be put upon the consumer, but can be 30 EMPLOYERS' LIABILITY COMMISSION drawn from the 5c rate, only by the application of an economy in some other direction, a thing that is becoming annually more and more difficult. The employers presented a letter addressed to the Governor of the State in answer to the letter of the Chicago Federation of Labor, presented by Messrs. Boyle and Flora. Both of these letters are appended. STATEMENTS OF MEMBERS BOYLE AND FLORA. We decline to sign any Compensation Act, because, in our opinion, any Act of that kind should be preceded by a modification of the employers' de- fenses. Our position in this matter is fully set forth in the letter of the Chicago Federation of Labor, hereto attached. M. J. BOYLE, JNO. C. FLORA. WRIGHT, GORMAN, CARR AND GOLDEN. September 14, 1910. Employers' Liability Commission : Gentlemen : The undersigned members of the Commission, representing organized labor, wish to file our exceptions to the pending compensation measure, as follows : We honestly and conscientiously believe in the theory of an adequate compensation bill, whereby the industry will bear the burden of accidents incident thereto. We believe that such an enactment should be made compulsory on both employer and employe, that the defenses of the employer consisting of the fellow servant rule and assumption of risk should be abrogated, and that the elective feature contained in the present draft would prove unsatisfactory to the workers of the State. The terms of the present draft are not adequate to provide proper com- pensation. We believe the amounts specified (three years' wages for death and four years' wages for complete disability) should be increased to an amount commensurate with the necessities of the injured workman and his family. The provision specifying compensation as based on "annual earnings" should read daily earnings, and the bill should remove the question as to what constitutes a day's work. We advocate the removal of any phrase wherein any differences of con- struction may be had and make the terms \s automatic as consistent with the intent of such a law. Respectfully submitted, EDWIN R. WRIGHT, DANIEL J. GORMAN, PATRICK CARR, GEORGE GOLDEN. EMPLOYERS' LIABILITY COMMISSION 31 LETTER OF CHICAGO FEDERATION OF LABOR, SUBMITTED BY MESSRS. BOYLE AND FLORA. To the Employers' Liability Commission : Gentlemen At the meeting of the Chicago Federation of Labor held on Sunday, Sept. 4, 1910, the ques- tion of endorsing or rejecting the plan of compensation, as outlined by the Commission which was created by an Act of the special session of the Illinois Legislature, was referred to the Executive Board and the Legislative Com- mittee of this Federation for final consideration, investigation and action. In view of the above action, the Executive Board and the Legislative Committee of the Chicago Federation of Labor met on Sunday, Sept. 12, and after due and careful consideration submit the following : For years and years organized labor had repeatedly urged the Illinois Legislature to enact a law which would establish the responsibility of the employer to his employes, and each and every effort along this line failed. The employers of this State have three remedies at law, known as the Fellow Servant Rule, Assumption of Risk, and Contributory Negligence, and as every crook and hold-up man assumes an alias, these unspeakable measures are now known as "the Defense," and with these measures the employers are practically immune under the law, when accident or death occurs among their employes. But it goes without saying that the money the employers have been able to prevent their employes from recovering in case of accident or death by the use of the so-called defenses is blood money, pure and simple. Organized labor has constantly and persistently sought legislation which would break down these so-called defenses and place the maimed or crippled workman or his widow and children upon an equal footing with the em- ployer before the law. Organized labor realizes that under the most favorable conditions and circumstances even, with the so-called defenses removed, the workman would be at a serious disadvantage when seeking to recover damages from our railroads, the Illinois Steel Company, or the Beef Trust, with their unlim- ited resources and abundance of purchased legal brains. But notwithstand- ing that organized labor is willing to take its chances before the law; but equality before the law is absolutely impossible while the so-called defenses remain. For years the newspapers, clubs, the university, and its professors, em- ployers' associations, and the hordes of corporation lawyers have decried the efforts of organized labor to secure an adequate Employers' Liability Bill, and everyone who had the temerity to advocate such legislation was denounced as "ignorant, a knave, and a detriment to the labor movement." Unlimited space and effort was given to what was called "industrial insurance," and the interests nanie'd herein loudly proclaimed that industrial insurance was surely the millennium for the workers. Organized labor, however, holds true to its course, and in the last ses- sion of legislature introduced what was known as House Bill No. 15, which tended to establish the responsibility of the employer to his employes. This bill passed the House, but died the usual death such legislation dies in its struggle with our lawniaking body. 32 EMPLOYERS' LIABILITY COMMISSION Organized labor did not feel discouraged, much less defeated, so it set to work to prepare for the next battle, and that was to be when the special session of the Legislature* was called to enact the Direct Primary Law. Or- ganized labor, through various means, tried to induce Governor Deneen to include in his call for the special session the consideration of an Employers' Liability Bill, but we were given to understand that the call would be lim- ited absolutely to Direct Primary legislation. Organized labor was about to rest its case until the next regular session would come about. Then the unlocked for happened. Some two hundred and fifty lives were snuffed out without a moment's notice at Cherry, 111. The widows and orphans were crying for justice. Public opinion was aroused and was intensified a thousand times when it was learned that whatever the widows and orphans would receive as a result of their great loss in this terrible calamity would be out of the goodness of heart of the owners of the Cherry Mine (the Chicago, Milwaukee & St. Paul railroad), and not because the Great State of Illinois had provided legislation for their protection. The Administration, the Legislature and the interests were exposed. Their jack-pot method of juggling legislation showed that they failed to heed the demands of the toilers of the State. They had denied the maimed and crippled, the widows and the orphans the protection which would come to them through the enactment of an Employers' Liability Law. And to further prevent such humane and just regulation would be denounced as criminal, so they set to work to cover up their tracks. The Governor's call for the special session was opened up and it provided for the appointment of an Employers' Liability Commission and other legislation to protect and safe- guard life and limb and right here is where they put another one over upon us. Instead of calling the Legislature to consider an Employers' Liability Bill in the special session, it was twisted to read, "to enact a law to appoint an Employers' Liability Commission," and by that twist of words we were denied employers' liability legislation at the special session. Now then, when the special session met and had under consideration the the bill to appoint the Commission, we find the bill was so worded as to limit the work of the Commission to the consideration of compensation in case of accident or death, and this is the first place where we met up with the proposition of compensation. Prior to this industrial insurance was con- stantly being shoved under our nose, but the old howl about industrial in- surance must have died, or we were face to face with another victory of public opinion, which now proclaims that each industry must provide for its human waste, and that compensation for accidents and deaths must be provided for by the employer. However, the legislation provided for the appointment of a Commission, and unfortunately the Commission could not see its way clear to consider an Employers' Liability Bill, but devoted itself rigidly to the proposition of compensation, which, to use an old phrase, is "putting the cart before the horse." In January, 1910, a meeting was held in the office of the Chicago Fed- eration, of Labor, where the Illinois State Federation of Labor, the United Mine Workers of Illinois and the Chicago Federation of Labor were repre- sented. After a lengthy discussion as to what Labor might hope for from the special session of the Legislature which was then about to convene, it EMPLOYERS' LIABILITY COMMISSION 33 was decided that we would not oppose the appointment of an Employers' Lia- bility Commission, but that we would endeavor to amend the bill in two par- ticulars. One amendment was that we would try to have the Commission confined to three employers and three employes. The other amendment was that we would try to have the Commission report to the Governor by Sept. 1, 1910. We also decided that if the Commission did not report a bill favorable to Labor, that the three organizations represented would be free to interview and pledge candidates for the next Legislature, and the three organizations would act unitedly for an Employers' Liability Bill in the next regular session. The following is a copy of the agreement entered into between the Illinois State Federation of Labor, the United Mine Workers of Illinois, and the Chi- cago Federation, of Labor at the January meeting, 1910: Since there has been included in the call for the special session a request for the creation of a Commission to consider the question of an Employers' Liability Act, thereby preventing the enactment of Employers' Liability legis- lation at the special session; Therefore, we agree to an amendment to the Hull Bill, providing that the Commission be composed of three employers and three employes, to meet immediately after their appointment and to report their findings not later than Sept. 1, 1910 to the Governor. In the event of their failure to make definite and final report by Sept. 1, 1910, the Illinois State Federation of Labor, the United Mine Workers of Illinois, and the Chicago Federation of Labor will act united in the session of the Illinois Legislature of 1911 for an Employers' Liability Act." The above proves conclusively that the attitude of the three organizations is absolutely in favor of an Employers' Liability Law. If we thought for one moment that the Commission would limit itself to the consideration of compensation, we would not, under any circumstances, put a time limit upon their operations. The question of compensation is a big one, and to say that the Commission would do justice to the proposition in a few months would be asking them to do the impossible. On the other hand, we felt sure then, and do now, that an Employers' Liability Act, doing equal and even-handed justice to alf concerned can be fully and thoroughly considered in a few months' time, because it does not need the investigation, research and information necessary as when consid- ering compensation. In this connection it may be well to quote from a letter on this subject, written by Samuel Gompers, president of the American Fed- eration of Labor, to the Chicago Federation of Labor. Mr. Gompers says : Washington, D. C., Dec. 24, 1910. Your favor of the 21st inst. with enclosure came duly to hand, and I perused both with a very great deal of interest. In connection with the bill introduced in the Legislature by Mr. Charles Naylor, let me say that I partly agree with the action taken, that is, in so far as employers' liability is con- cerned. There should be no question or division of opinion upon that sub- ject. Indeed, there is none among intelligent, far-seeing and fair-minded men. The Illinois Legislature should enact a liberal Employers' Liability Act at the special session and then undertake an investigation with a view of the introduction of an automatic compensation law, for THAT view observers now 34 EMPLOYERS' LIABILITY COMMISSION regard as the most feasible and just solution of the vocational ills, accidents and deaths. You ask me to have a bill drafted upon the question of Employers' Lia- bility for introduction in the Illinois Legislature at its present special session. The subject of drafting a comprehensive bill has been under consideration for several years, ad reports thereon made, particularly to the last conven- tion of the A. F. of L. in Toronto. The convention directed that these bills be printed, circulated and forwarded to the officers of the State Federations and central bodies with a view of their general introduction and the agita- tion for their enactment. I have not yet had a chance to have the bills printed, but will send you a typewritten copy in the course of a few days. Fraternally yours, (Signed) SAMUEL GOMPERS, President, American Federation of Labor. The Chicago Federation of Labor has declared itself opposed to any kind of compensation until such time as we have an Employers' Liability Law enacted, and the wisdom of this stand is shown in the attitude of the em- ployers themselves. They have come to realize that on account of public opinion it is possible that the Legislature will be compelled to enact a law which will deprive them of so-called defenses, and before the so-called de- fenses are taken away from them by law they want us to barter away our rights to compensation by agreeing to a much less compensation than we are entitled to, they agreeing to forego the use of the so-called defenses. At the public meeting of the Commission held in this city August 24th and 25th the statement was made on the part of the employers that they, the employers, had some very valuable remedies at law, the so-called defenses, and they would not let go of them unless they had a satisfactory plan of compensation. Talk about the big noise and the big stick; the above state- ment, coming from the employers, is the The Big Noise and The Big Stick combined. To say, as has been said, that Labor is standing in its own light by oppos- ing compensation, is "bunk," unadulterated. Those who use that statement know better than anyone else that Labor does not oppose a compensation plan. Labor demands an adequate automatic compensation plan, which will be brought about in a logical way in the development of legislation which must come as the result of the horrible maiming and slaughtering of our fel- low workers in the various industries. It has been said that an Employers' Liability Law and a compensation plan are two progressive steps and should be taken together. This is the most dangerous argument we have had to contend with, because there is something in it which appeals to the casual observer and those who do not look behind the scenes. But no greater menace to the interests of the work- ers exists than to link these two questions together and consider them at one and the same time. A closer scrutiny of the principles involved will readily convince any open-minded, honest man that the fundamental principle of each proposition is absolutely contrary to the other. After going over this whole matter in detail we can come to no other conclusion than that Labor has almost within its grasp the legislation we have sought these many years. All these other propositions injected at this EMPLOYERS' LIABILITY COMMISSION 35 time is only procrastination and to becloud the issue, and to get the workers wrangling among themselves as to the best course to pursue. Patience will bring results. To grasp what the Commission would hand us, is but to grasp at a straw. Let us be true to ourselves and the employers will have a great awakening in the near future. For the Executive Board : For the Legislative Committee : JOHN FITZPATRICK, President, JOHN O'NEILL, Chairman, ED. N. NOCKELS, Secy., CHAS. CURTIS, Secy., MRS. RAYMOND ROBBINS, JOHN FLORA. M. C. BUCKLEY, F. DONOGHUE, JERRY KAIN, CHAS. GRASSL. The above letter was submitted to the Commission by Messrs. Boyle and Flora, as indicative of their reasons for objecting to any kind of a Compen- sation Bill. The employers thereupon submitted the following statement, expressing their views on the points raised by the Chicago Federation of Labor. PRESENTED BY EMPLOYERS. September 14th, 1910. Hon. Chas. S. Deneen, Governor State of Illinois, Springfield, 111. Dear Sir : The Commission, of which the undersigned were members, or- ganized immediately after it was created on March 4, 1910, and devoted itself diligently to a careful study of the subject of Employers' Liability, in- volving the collection of reliable data on which to base conclusions, an inves- tigation of the state of the law in Illinois in regard to the subject, and a study of what has been done by the leading industrial countries in Europe, and what was under consideration by similar Commissions appointed in the States of New York, Wisconsin and Minnesota. On or about August 1st a tentative plan outlining the main purposes of such a measure as the Com- mission had in mind was formulated, and was submitted for the purpose of provoking discussion and criticism in public meetings held in East St. Louis, Springfield, Rock Island, Peoria and Chicago. The plan submitted at these meetings comprised in its essence the salient features of a Workmen's Com- pensation Act. Immediately after the last public hearing a bill was prepared by the attorney of the Commission, incorporating in general the features of the plan, with such modifications as were suggested by the public discussions, and after numerous changes suggested by different members of the Commis- sion the final draft of a bill, as follows, was submitted to vote. The failure to recommend a bill under the conditions prescribed by the Act creating the Commissions was due in large measure, in the opinion of your subscribers, to the limited time at the disposal of the Commission. The necessity for submitting a final report on September 15th left the Commission no time for the publication of the draft of the completed bill, 36 EMPLOYERS' LIABILITY COMMISSION and for the creation of public sentiment in its favor ; neither did it afford to the members of the Commission the opportunity of finding a common ground on which a majority of each side could meet. In spite of the fact that every one of the industrial nations of Europe has discarded the system of paying damages on the ground of the liability of the employer, and has adopted in its stead the payment of compensation for industrial accidents; in spite of the fact that New York has adopted a Workmen's Compensation Act, and that both Wisconsin and Minnesota are considering compensation as the only feasible solution of this problem, the Chicago Federation of Labor and its representatives on the Commission have taken a decided stand that the abrogation of the employers' defenses must precede any bill providing compensation. It is evident from the letter which the Federation submits, and which is reprinted on page 31, that its officers are not only unfamiliar or unmind- ful of the economic waste involved in any Employers' Liability system, but that they have no knowledge of the total inadequacy of such a system, even when extended by such serious modification of the employers' defenses as the American Federation of Labor advocates. The Bulletin for the Bureau of Labor for January, 1908, gives on page 120 the statistics of 46,000 industrial accidents collected by the German Im- perial Insurance Office. The classification of the causes of the accidents is as follows : 1. Due to negligence or fault of employer 16.81% 2. Due to joint negligence of the employer and injured employe 4.66% 3. Due to negligence of co-employes (fellow servants) 5.28% 4. Due to acts of God 1.31% 5. Due to fault or negligence of employe 28.89% 6. Due to inevitable accidents connected with the employment 42.05% 100.00 If this classification is correct, and the statistics of German Government Bureaus are not often open to suspicion, then if under existing conditions 17 out of every 100 injured persons are entitled to recover, the abrogation of the fellow servant doctrine, and the modification of the defenses of assumed risk and contributory negligence, all as recommended by the American Fed- eration of Labor, will increase the number of those entitled to recover to 27 out of every 100 injured. But the remaining 73 will continue to add their quota to the long list of unrewarded sacrifices to modern industry. Not only is any Employers' Liability Law, no matter how stringent, wholly inadequate to cover the losses resulting from industrial accidents, but the administration of such a law is wasteful and unsatisfactory. The cost of compensating workmen for injuries is in the last analysis borne by the public, and the interests of the public demand that no system of compensation shall. carry with it preventable waste. To the injured work- man, or to his family, definite compensation, immediately and automatically paid, is of vital importance. But an Employers' Liability Law meets none of these prime necessities. EMPLOYERS' LIABILITY COMMISSION 37 Under it every case is a gamble. A shrewd attorney and a sympathetic jury mean a big verdict, and an equally good case, poorly handled, often results in none. But the employer is compelled to prepare each case as if a big verdict were imminent, and he is forced to put up a hard legal fight on that account. During 1908 $22,000,000 was contributed by the employers of the United States to Liability Insurance companies to carry their accident risk, and of this amount not more than $5,500,000 reached the injured workmen, or his dependents an economic waste of $16,500,000. Double the chances of recov- ery by an abrogation or modification of the employers' defenses and you but double the premium and increase the waste to $33,000,000. Surely a system involving such a waste in its administration cannot be regarded with equanimity by the public. Nor when once understood would it receive sanction by any body of workmen. The law's delay, at present so often the cause of bitter complaint, would in no wise be improved by the enactment of a stringent liability measure. In fact, the machinery of the courts would be subjected to severer strain than at present. And beyond that, the very ground on which damages are assessed under a Liability Act, viz., the fault or negligence of the employer, is often irrational and unjust. When an employer has surrounded his workmen with every proper safeguard, and when he has exercised proper care in the selection of his workmen and his agents, he resents a demand for damages because he has been at fault or has been guilty of negligence. In the opinion of the undersigned, the problem of industrial accidents cannot be solved satisfactorily to all concerned until the question is taken out of the realm of tort and placed on the basis of definite compensation auto- matically paid. But this opinion is, unfortunately, not shared at this time by some of our labor colleagues. They state that for the past generation the workers have discussed the question of Employers' Liability, that they are familiar with it in all its bearings, and that they can measure the advantage to themselves of any modification of existing Employers' Liability Laws. Such, however, is not true concerning a Workmen's Compensation Act. The subject is still new to them. It has not been generally discussed among them, and they find it diflicult on that account to predict or foresee the result. We believe that all of our labor colleagues on the Commission agree that the scale of compensation submitted in the plan is at least from four to five times that received under present conditions. But in spite of that, some of them are unwilling to subscribe to a measure which has not the full approval of the organizations which they represent, and insist that the Commission draft and submit an Employers' Liability Bill along the lines recommended by the American Federation of Labor. This demand was opposed by all of the employers, for the reasons hereinbefore stated, and the division of the Commission on this question was so marked as to preclude any opportunity of agreement on the details. In spite of the sHort time allowed the Commission, the draft of the bill submitted in this letter represents a very positive step in advance, and had further time been allowed for both employers and employes to familiarize themselves with its terms and its scope, we are certain that a definite bill could have been agreed upon. 38 EMPLOYERS' LIABILITY COMMISSION The scale of compensation outlined in the plan meant for the hazard- ous employments a very considerable increase in expense ; and in the opinion of the employers on the Commission this scale is all that can be allowed until the industries which compete with those of other States have been able to adjust themselves to so radical a change from existing conditions. Our labor colleagues have been too apt to base their conception of compensation on the amount which in their opinion the very large corporations like the TJ. S. Steel Co., the Harvester Co., and the packing companies were able to pay, and have at times been forgetful of the many thousand small employers in the State upon whom the bill, of necessity, must impose similar burdens. The condi- tions in certain industries in Chicago cannot, and should not, be made the sole basis for legislation for the rest of the State. The method of providing for arbitration in the draft submitted is, in the opinion of your subscribers, inferior to one in which all questions pertaining to the Compensation Act would be submitted to a regular and permanent Board of Arbitration and Award; but the attorney for the Commission hesitated about incorporating the authorization of such a body in the provisions of the bill. The undersigned have been prompted to submit to you this letter, in order to call to your attention, and to that of the Legislature, the chief difficulties that have stood in the way of an agreement, and in order to assist, if possible, the crystallization of public opinion on this important question. Yours very truly, CHARLES PIEZ, W. J. JACKSON, P. H. PETERSON, M. B. STARRING, E. T. BENT, R. E. CONWAY. This concluded the active work of the Commission, the final day being devoted to the closing up of details. Respectfully submitted, CHARLES PIEZ, Chairman. EDWIN R. WRIGHT, Secretary. ATTORNEY'S PRELIMINARY REPORT nnna The attorney for the Commission, soon after its organization, was re- quested to make a report on the present state of the law in Illinois with ref- erence to the general subject of employers' liability, so that the Commission might better judge what changes, if any, seemed to be necessary or desirable. The law of employers' liability for industrial accidents, and the legal rights of employes for the recovery of damages for personal injury not being defined by statute, except in a few exceptional cases, the Commission desired to have stated, in concrete form, the general rules on these questions, as settled by the decisions of the courts. The attorney therefore submitted the following brief on : THE STATE OF THE LAW IN ILLINOIS IN REGARD TO EMPLOYERS' LIABILITY. By Samuel A. Harper. 1. COMMON LAW. There is in Illinois, at the present time, no Labor Code such as may be found in the laws of New York and other states of the Union, neither is there in this state any statutory employers' liability law. The common law of Eng- land is in force in Illinois, as to both the branches of substantive and adjec- tive law, except so far as the former has been modified by some recent legisla- tion directed especially to the safeguarding of employes in certain industries, and the latter by certain rules of practice which have been provided for by statute. In other words, any employe who is injured in the course of his employ- ment, has no other remedy against his employer because of such injury than that afforded him by the rules of the Common Law, there being no statute giving him any such right of action for injury, with the exception found in the act relating to mines and mining and the act creating a liability for injury resulting in death. Indeed, our legislature provided by a statute enacted in 1874 that "the common law of England, so far as the same is applicable and of a general nature, and all statutes or Acts of the British parliament made in aid thereof, and to supply the defects of the common law, * * * and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered of full force until repealed by legislative authority." Hnrd's Rev. Stat, Chap. 28, p. 485. 40 EMPLOYERS' LIABILITY COMMISSION It therefore becomes important at the outset to ascertain the exact limitations to be found in the common law, as expressed in the decisions of the courts, (where, only, is such common law to be found) upon, first, the employes' right to compensation for injuries received, and, second, the liability of the employer arising from such injuries. At the Common Law, both in England and this country, since 1837, the legal relation of employer and employe, with regard to the former's liability for injuries suffered by the latter, has been governed by certain principles which may be briefly summarized as follows: That the employe or servant, on the one hand, upon entering into an employment, by implication agrees that he will assume the ordinary risks incident to the service in which he is to be engaged, among which is the negligence of other servants directly co-operating in the same service for the same master, and that for injuries arising out of risks not so impliedly assumed, such employe being without negligence on his part shall be en- titled to compensation from the employer or master; and, That the employer, or master, impliedly contracts that he will use due care in engaging the services of those who are reasonably fit and competent for the performance of their respective duties in the common service, and will also take due precaution to adopt, use and provide such machinery, apparatus, tools, appliances, means and places to work as are suitable and proper for the prosecution of the business in which his servants are engaged, with a reason- able degree of safety to life and security against injury, and fc .- any default on the part of the master in the performance of any of these duties, injury resulting therefrom, he shall be liable to the employe for compensation. Under the present system, therefore, compensation for injury or death can be had only in case of fault or negligence on the part of the employer. The general principles of the common law above referred to, as developed by the courts, have given rise to three more or less distinct defenses usually urged on the part of. the employer to the employe's claims for compensation for injury. These common law defenses are: (a) The Fellow Servant doctrine. (&) Assumption of RisTc. (c) Contributory Negligence. i (a) THE FELLOW SERVANT DOCTRINE. The Fellow Servant rule, as announced in the earlier decisions of our Supreme Court, precluded the recovery by one servant for any injury occa- sioned by the negligence of another engaged in the same general business, if there had been ordinary care and diligence observed by the master in the selection of servants. C. C. & I. C. R. Co. vs. Troesch, 68 111. 545. Some of these earlier opinions of the courts employ the phrase "same line of employment" and like expressions instead of "same general business," but the expressions are usually of a very comprehensive and general char- acter, without limitation with reference to the different departments of work, etc. The precise origin of the Fellow Servant Doctrine in the history of the law is in some doubt The general liability of the master for injuries arising out of the conduct of his business, including the acts of his servant, has been EMPLOYERS' LIABILITY COMMISSION 41 traced partly to the liability of the Roman paterfamilias, especially with regard to the acts of those within his power, and partly to that of innkeepers, mariners, and persons in a few other situations under the Roman law for in- juries caused by their servants. As was said by one Roman jurist, Ulpian, "it is politic that the master should have the selection of servants at his peril." Dig. 4, 7, 9. From this early principle of the Roman law has probably arisen the modern doctrine of respondeat superior, or the liability of the master for the negligent acts of his servant, to which the fellow servant rule is in a measure an exception. The first decision in common law countries, announcing the Fellow Ser- vant rule, as it is now called, was made in 1837 by the English Court of Excheq- uer, in the case of Priestly vs. Fowler, 3 M. & W. 1, and the doctrine as there announced was finally settled in England by the House of Lords in 1858 in Barstonhill Coal Co. vs. Reid, 3 Macq. House of Lords Cases, 266. The Priestly case, decided by Lord Abinger, was not a case of injury in a factory or on a railroad, but a simple case where a butcher's helper was injured by a wagon driver hired by the same employer. It apparently seemed a hardship to hold the butcher liable for the injury which had no real relation to any fault of his, which injury the helper could have guarded against as well as the butcher. This hardship seems to have appealed to Lord Abinger and he decided in favor of the butcher. Lord Abinger's opinion reads as follows : "It is admitted that there is no precedent for the present action by a servant against a master. We are, therefore, to decide the question upon general principles, and in doing so we are at liberty to look at the conse- quences of a decision the one way or the other. "If the master be liable to the servant in this action the principle of that liability will be found to carry us to an alarming extent. He who is respon- sible by his general duty, or by the terms of his contract for all the conse- quences of negligence in a matter in which he is the principal, is responsible for the negligence of all his inferior agents. If the owner of the carriage is therefore responsible for the sufficiency of his carriage to his servant, he is responsible for the negligence of his coachmaker, or his harnessmaker or his coachman. The footman, therefore, who rides behind the carriage, may have an action against his master for a defect in the carriage, owing to the negli- gence of the coachmaker, or for a defect in the harness, arising from negli- gence of the harnessmaker, or for drunkenness, negligence or want of skill in the coachman; nor, is there any reason why that principle should not, if applicable in this class of events, extend to many others. The master, for example, would be liable to the servant for the negligence of the chambermaid, for putting him into a damp bed ; for that of the upholsterer for sending him a crazy bedstead, whereby he was made to fall down while asleep and injure himself; for the negligence of the cook in not properly cleaning the copper vessels used in the kitchen ; of the butcher, in supplying the family with meat of a quality injurious to the health; of a builder for a defect in the foun- dation of the house, whereby it fell and injured both the master and the servant by the ruins. 42 EMPLOYERS' LIABILITY COMMISSION "The inconvenience, not to say the absurdity, of these consequences afford a sufficient argument against the application of this principle to the present case. But, in truth, the mere relation of the master and .the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is no doubt bound to provide for the safety of his servant, in the course of his employment, to the best of his judgment, information and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, if not all, he is just as likely to be acquainted with the probability and extent of it as the master." The first case in this country recognizing this doctrine was decided in 1841, being Murray vs. So. Carolina Ry. Co., McMullen's Law, 385, decided by the Supreme Court of South Carolina. It was adopted in Massachusetts in 1842, in the case of Farwell vs. Boston, etc. R. R. Co., 4 Metcalfe, 49, the opinion being written by Chief Justice Shaw, one of the ablest judges of his time. This opinion by Chief Justice Shaw has been very extensively cited since that time, and largely upon the authority of this decision the fellow servant doctrine has now been generally adopted in every state in the Union. The first case in Illinois which recognizes the fellow servant rule is Honner vs. 111. Central Railroad, 15 111. 550, decided in 1854. Mr. Justice Caton, speaking for the Court in the decision of this case, said: "Until very recently actions of this character have never been brought, or at least are not to be met with in the books. Since the introduction of railroads, however, several are to be met with, both in the reports of this country and of England, and with one exception, if, indeed', that be an excep- tion, they have been uniformly decided against the right to maintain the action. The question simply is, whether the principal is liable to one servant for the carelessness of another servant, when both are engaged in the business of the principal. * * * Taking it for granted that the injury arose solely from the carelessness of his fellow servants, we think the action cannot be maintained. After carefully examining all the reported cases on this ques- tion, I only think it necessary to refer to Farwell vs. Boston and Worcester Railroad Corporation, 4 Met. 49, where the whole argument upon the ques- tion is embodied in the opinion of Chief Justice Shaw. It is there clearly shown that the doctrine of respondeat superior does not extend to the case of an injury received by one servant through the carelessness of another servant, but that if he has any such claim it must rest upon contract, express or implied. There are certain perils incident to all employments, and which both parties have in view when the engagement for service is made, and in view of which the compensation is fixed ; and especially in a railroad service, the amount of hazard must depend very much upon the skill and care of the servants of the company, and injuries to other servants arising from the want of proper care and skill are deemed casualties which the employer does not undertake to insure against, but for which he pays a premium in enhanced wages to the servants in view of those very risks, which both know the servant must run * * *." It is interesting to note that this Honner case, in the 15th 111., decided in 1854, is the only case reported from 1818, (the date of the creation of our EMPLOYERS' LIABILITY COMMISSION 43 Supreme Court) to 1854, in which the relation of master and servant was in any way involved. It is also significant that in the first 55 years of the his- tory of our Supreme Court only 25 tort cases involving the relation of master and servant were decided in that court, whereas the last bound volume of our Supreme Court reports, being No. 243, contains 13 such cases. The attitude of the courts in the early days with reference to new and extreme hazards of industry is well illustrated by the opinion of Mr. Justice Breese in I. C. R. Co. vs. Mills, 42 111. 408, where, among other things, he says : ''The care and diligence required in each case should have some relation or affinity to the nature of the business and of the instrumentalities by which it is conducted. So a much higher degree of care should be required of an association owning and controlling such dangerous machines as railroad locomotives than is usually exercised by a prudent man about his own property." THE MODERN DOCTRINE. While the first twenty-five years of the application of the doctrine of Priestly vs. Fowler very largely extended the real scope of the rule as an- nounced by Lord Abinger, the last twenty-five years have established a great many limitations upon the rigid application of the rule to rapidly changing industrial conditions, which rule, under the circumstances, courts and juries have seemed loath to enforce. Our Supreme Court has kept pace with the other courts in limiting the application of the rule as declared in the Troesch case, supra, and the modern rule which it announces may be briefly stated as follows : If one servant has been injured by the negligence of another, while they are directly co-operating with each other in the same line of employment, and their duties are such as to bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper cau- tion, and the master is guilty of no negligence in employing the servant, whose negligence caused the injury, the master is not liable. t Bennett vs. Chicago City Ry. Co., 243 111. 420. It will be noted that in the Troesch case and cases of that period, it was only necessary that the servants be engaged in the same general business or the same line of employment, but in the later doctrine, as above stated, such servants must be: 1. Directly co-operating with each other. 2. They must be in such habitual association as to exercise a mutual influence upon each other promotive of proper caution. EXAMPLES. (1) For instance, under this modern rule, the Court generally holds that servants employed in different rooms are not fellow servants because they are not so associated as to exercise over each other an influence pro- motive of common caution. Wells vs. O'Hare, 209 111. 627. Schneider vs. Carlin, 120 111. App. 538. (2) A foreman of a gang of common laborers is generally held not to be a fellow servant with such laborers. 111. Steel Co. vs. Olste, 214 111. 181. 44 EMPLOYERS' LIABILITY COMMISSION (3) One who is ordered to do work outside of his usual employment and thereby brought into contact with different employes, is not the fellow servant of such employes, though temporarily engaged with them. Cleveland, etc., Ry. Co. vs. Surrelle, 115 111. App. 615. American Car and Foundry Co. vs. Hill, 226 111. 227. The courts endeavor to make it clear that the determining consideration always is whether the two servants were so associated in the performance of their duty as to exercise an influence over each other promotive of proper or common caution, and if this is true, they are quite generally held to be fellow servants, unless the servant whose negligence caused the injury should happen to be a foreman or vice-principal. A vice-principal has been recently defined by our Supreme Court to be a servant who represents the master in the discharge of those primary and personal duties which the master owes to the servants, and which he cannot so delegate to others as to relieve himself from liability for their proper performance and hence the relation of vice-principal does not depend upon the question of a servant's rank or authority. A common laborer engaged in preparing a place for other servants to work or appliances for other servants to use, is, as to such work, a vice-principal, irrespective of whether or not he has any authority over the other servants. Schillinger vs. Smith, 225 111. 74. In other words, any person charged with or actually engaged in the per- formance of any part of the master's non-delegable duties is a vice-principal, for whose negligence in the performance of such duties, the master is liable. Baeir vs. Selke, 211 111. 512. The rule simply means that the master may delegate the performance of the act in question, but that he cannot delegate the duty so as to shift the responsibility for it upon the shoulders of one of his servants. If he sees fit to delegate the performance of such an act, he is held accountable for the manner in which his subordinate, whom the law calls a vice-principal, shall discharge that duty for him. QUESTION OF LAW OB FACT. Our Supreme Court holds, where the facts with reference to the ques- tion of whether the two servants were fellow servants or not, are in dispute, or the relation proved is such that reasonable minds will differ on the ques- tion as to whether the relation of fellow servant exists, it is a question of fact and should be submitted to the jury with proper instructions from the court. 111. Steel Co. vs. Zienkowski, 220 111. 324. Where all the facts regarding the relations of servants are made known without dispute or controversy, and are so conclusive that only one reason- able conclusion can be drawn therefrom, the question is held to be one of law for the court to pass upon without the intervention of a jury. 111. Central Ry. Co. vs. Ring, 119 111. App. 294. While, therefore, in a majority of cases, perhaps, the judges permit the case to go to the jury on the question of fellow servants, it very often happens in actual practice that doubtful cases are taken from the jury in order to save the time of the courts who are laboring in an effort to clean up a congested docket. EMPLOYERS' LIABILITYJCOMMISSION 45 The English doctrine of fellow servants does not appear to have ever existed in the law of any other country in Europe, and has now been sup- planted in England by Automatic Compensation. Pollock on Torts, 8th Ed., p. 100. b. ASSUMPTION OP EISK. The so-called Assumption of Risk rule is closely related to the Feiiow Servant rule, the former rule really embracing the latter. This principle, which is now established in the law beyond the reach of controversy, is that every risk which an employment still involves after a master has done everything that he is bound to do for the purpose of securing the safety of his servants (including the employment of other servants) is assumed, as a matter of law, by each of those servants. The risks which are thus considered to have been assumed, are those which are commonly described as "ordinary." It is the settled doctrine of the law that the servant may reasonably be presumed to foresee that he will be exposed to the ordinary risks of the business in which he engages, but that he ought not to be charged with anticipating the consequences of risks of an extraordinary character. OEDINAEY RISK DEFINED. The ordinary risks and hazards of the employment, are such risks as are usual and ordinary therein after the employer has taken reasonable care to discover and prevent such risks. Wells vs. O'Hare, 209 111. 627. As illustrating the scope of this rule and its relation to the Fellow Serv- ant doctrine, we quote the following from our Supreme Court: "When the ordinary duties and occupations of the servants of a common master are such that one is necessarily exposed to hazard by the carelessness of another, they must be supposed to have voluntarily taken the risks of such possible carelessness when they entered the service and must be regarded as fellow servants within the meaning of this rule." C. & A. R. R. Co. vs. Murphy, 53 111. 336, 339. The Assumption of Risk rule presupposes a contractual equality between the master and his servant, it being assumed by the court that the servant can accept the employment and assume the hazard or refuse to do so at his pleasure. THE EFFECT OF SAFETY REGULATIONS UPON THE QUESTIONS OF FELLOW SERVANT AND ASSUMPTION OF RISK. The courts promptly seize upon statutory provisions requiring safety devices for railroads and machinery, etc., for further relief against the hard application of these defenses in the particular case, and it has many times been held by our Supreme Court that if the master neglects to comply with a statutory or safety regulation, he cannot avail himself of the defense of Fellow Servant or Assumption of Risk, if the accident resulted from such neglect on his part. For instance, it is held that the Assumption of Risk rule does not relieve the master, a railroad company from the performance of the duty imposed 46 EMPLOYERS' LIABILITY COMMISSION by statute as to the sounding of the engine bell and whistle at highway crossings. B. & O. Co. vs. Alsop, 176 111. 471. Again, in suits involving the failure of the master to comply with the statute relating to mines and mining, the Court holds that these defenses shall not be available, and because of the express right given the injured servant or his dependents to sue for an injury or death caused by such violation, the courts go further and hold that contributory negligence shall not be a defense. In Carterville Coal Co. vs. Abbot, 181 111. 503, the Court said: "If one is injured as a result of some act of negligence on the part of the mine owner other than failure to comply with specific duties required by the statute, then the person injured must have been in the exercise of ordinary care before he can maintain an action, and must allege and prove that he was in the exercise of such care. The rule is different, however, under this legislation, where there is a willful failure to comply with the provisions of the statute, and the right of recovery cannot depend in such case on the exercise of ordinary care, by the person injured, nor can he be precluded by mere contributory negligence." Neither is this defense available where the servant is under the age of 16 and employed contrary to the Child Labor Law. Helmbacker vs. Garrett, 119 111. App. 166. KNOWLEDGE. A servant is not presumed to understand and assume every character of peril or danger that may possibly arise in the performance of his duty ; he assumes only known or obvious dangers, knowledge of which is to be fairly presumed. Cobb Chocolate Co. vs. Knudson, 207 111. 452. If the employe knows or by the exercise of ordinary prudence might know the danger, he will be held, as a matter of law, to know it and to have . assumed the risk. C. & A. R. Co. vs. Howell, 208 111. 155. QUESTION OF LAW OB FACT. Whether a particular risk is usual or ordinary is generally a question of fact, left for the jury to determine. Wabash vs. Thomas, 117 111. App. 110. Whether a particular risk was known or ought to have been known to the servant is ordinarily a question of fact to be determined by the jury with due regard to the age, capacity, experience and intelligence of the employe, and the facts and circumstances of the particular case. Schillinger vs. Smith, 225 111. 74. ORDERS. The effect of the express orders of the master to the servant upon the question of the assumption of the risk ofttimes becomes important, and the rule adopted by the courts on this subject may be briefly stated as follows : In order to recover for alleged negligence in ordering the employe into a place of danger, he must prove by a preponderance of the evidence, first, EMPLOYERS' LIABILITY COMMISSION 47 it he was acting under orders which he was bound to obey; second, that his superior knew of the danger, and, third, the employe was exercising due care. Wiggins Ferry Co. vs. Hill, 112 111. App. 475. The general principle, therefore, which appears to be firmly established in Illinois is that "if a person knowing the hazards of his employment as the business is conducted, voluntarily continues therein without any promise of the master to do any act to render the same less hazardous, the master will not be liable for any injury he may sustain therein, unless, indeed, it may be caused by the willful act of the master." Stafford vs. C. B. & Q. Ry. Co., 114 111. 244. C. CONTBIBUTOBY NEGLIGENCE. It will be observed from the quotation last above made that the doctrine of contributory negligence is also closely related to the rule regarding Assump- tion of Risk. It will be easily seen that if the servant is shown to have begun or to have continued his work with a knowledge of the danger aris- ing from the master's breach of duty, he might be charged with having assumed the risk and also with contributory negligence, and if for any reason it appears that the master is precluded from availing himself of one of these defenses, the servant's action may still be resisted on the ground that the other defense is applicable. Generally speaking, contributory negligence is the negligence of a servant which is a contributing and proximate cause of his injury, and the burden is upon the employe in any action for compensation for injuries received to prove not only the negligence of the employer, but that he himself was exercising ordinary care and was free from negligence, directly contributing to the injury. COMPARATIVE NEGLIGENCE. The courts of our state formerly followed the so-called comparative negligence doctrine, beginning with the cases of C. & R. I. Co. vs. Still, 19 111. 499 (1858), and Galena & C. U. R. Co. vs. Jacobs, 20 111. 478 (1858). Mr. Justice Breese, in the latter case, states the comparative negligence rule as follows: "The question of liability does not .depend absolutely on the absence of all negligence on the part of the plaintiff, but upon the relative degree of care or want of care, as manifested by both parties, for all care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be. The true doctrine, therefore, we think is, that in proportion to the negligence of the defendant, should be measured the degree of care required of the plaintiff that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to enable him to recover." The doctrine of comparative negligence, after the decision of these two cases in 1858, was recognized and followed by our courts until 1885: The application of this rule to the particular case afforded an opportunity to the court to mitigate in part the harshness of the rules relating to contributory negligence, and made it generally necessary to submit the 48 EMPLOYERS' LIABILITY COMMISSION question to the jury to determine the relative degrees of negligence of the master and his servant. The rule was therefore a favorable one for the servant in its practical operation, although there is very little difference, as an abstract proposition of law, between the slight negligence permitted to the servant under the comparative negligence rule, and the ordinary care required of him under the present rule. In 1885, as above stated, our Supreme Court, in the case of Calumet Iron & Steel Co. vs. Martin, 115 111. 358, after an extended review of the authorities, beginning with the Jacobs case, supra, broke away from the comparative negligence doctrine by explaining that Mr. Justice Breese and the earlier judges in whose decisions the doctrine had arisen, had no intention of announcing any other rule than that the servant must exercise ordinary care. The Court, speaking by Mr. Justice Scholfield, on page 367 of its opinion, says: "Within the contemplation of that rule, where one has observed ordi- nary care with reference to the particular circumstances involved for his personal safety, he has, even if slightly negligent, observed all the care the law requires of him ; and where, having observed this care, he is injured by the negligence of another, that other has been guilty of the degree of negligence for which the law charges responsibility." It seems to be the general opinion that because of the very great prac- tical difficulty in apportioning the damages, according to the degrees of negli- gence, and in fixing with any real certainty the ratio of negligence between the parties, the comparative negligence rule is an unsatisfactory one' in its practical operation. KELEASE OF LIABILITY. The servant or employe cannot, by contract made in advance of the employment, release the master or employer from possible results of his negligence or from his duty to comply with statutory requirements. Chicago, etc., vs. Peterson, 39 111. App..ll4. Our courts have held, however, that a contract of membership between the employe and the employer's voluntary relief department, which permits the employe, in case of injury, either to sue for damages or accept the benefit of the relief fund, but which makes the acceptance of such fund, after the injury, a release and satisfaction of his damages, is not against public policy and is binding upon the employe. Eckerman vs. C. B. & Q. R. Co., 169 111. 312. It is held that such relief associations under our law are not insurance companies and are not therefore subject to the general laws relating to insurance. Eckerman vs. C. B. & Q. supra. 2. STATUTORY LAW. In addition to the comprehensive statute relating to mines and mining, and the child labor law, to which we have above referred, we have a statute giving a right of action for death of an injured person to his heirs at law and next of kin, such right to be governed by the same rules which would control the injured person if living, the amount of compensation being limited to $10,000. Kurd's Rev. Stat, chap. 70, p. 1184. EMPLOYERS' LIABILITY COMMISSION 49 We also have a statute requiring automatic couplers, grab irons and train brakes on all railroads (Kurd's Rev. Stat, p. 1707, sec, 223, 224, 226), and a statute requiring blowers on metal polishing machinery (Kurd's Rev. Stat., ch. 48, sec. 43) , and a further statute requiring guards on all dangerous machinery and fences around dangerous places in all factories and work- shops (Kurd's Rev. Stat, ch. 48, sec. 49, et seq.), and another requiring guards and safety devices to be used in the construction, alteration and decoration of high buildings, etc. (Kurd's Rev. Stat., ch. 48, sec. 79.) With regard to agricultural implements, we have a statute requiring guards on threshing machines and corn shellers, passed in 1869. (Kurd's Rev. Stat, ch. 70, sec. 3.) Our courts generally hold that failure to comply with any of the safety provisions of such statutes is prima facie evidence of negligence, which means, in practice, that if the servant or employe were injured under such circumstances, all that he would be required to prove in the first instance would be his injury and the failure of his master to comply with that provision of the statute, which was involved in the happening of the acci- dent, and that such failure was the proximate cause of the injury. SUMMARY. It would therefore seem that under the common law in force today in Illinois, as modified in some few instances by statute, the servant, or employe, or his dependents, in case of his death, may recover compensa- tion by an action at law for injuries sustained by the servant or employe during the course and while in the performance of his duty as such servant or employe, if it can be successfully proved that the master or employer failed in his duty: 1. To provide a reasonably safe place for the servant to work, or 2. To provide reasonably safe tools or appliances for the servant to work with, or 3. To exercise due care in the selection of reasonably safe employes with which the servant is to work, and also 4. That the servant has not been guilty of negligence proximately contributing to the injury complained of, and that such servant makes a prima facie case entitling him to recover when he can successfully prove that the master has violated some provision of the statute in regard to safety, which fault is the proximate cause of the injury sustained. That the defenses available for the master to such action by the servant are the common law defenses (generally unmodified by statute) of 1. Fellow servant 2. Assumption of risk, and 3. Contributory negligence. That the real test of fellow servants is not the working together In the same line of employment, so much as the habitual association of the servants in such a way as that they exercise over each other an influence promotive of common caution the earlier common law rule being limited to that extent; 60 EMPLOYERS' LIABILITY COMMISSION And that the common law defenses of assumption of risk and con- tributory negligence remain substantially unchanged except that in actions brought under the mining law, they are not available to the master or mine owner, and that the doctrine of comparative negligence has been abandoned, and the servant must now prove that he was exercising ordinary care and was not guilty of any negligence directly contributing to the injury; That the question presented by these defenses are ordinarily questions of fact for a jury to determine, if there is any controversy about the mat- ter, or reasonable minds could differ as to whether such defenses were proven by the evidence to exist, and That, by statute, the heirs of the deceased servant have the same right of action that the injured servant would have, if living, the amount recover- able being limited to $10,000; That the servant or employe cannot exempt the master or employer in advance from the consequences of his negligence, but that the servant or employe may bind himself either to sue at law or accept the benefits of a relief fund; such acceptance after the injury to be a bar to his right of action at law. Respectfully submitted, SAMUEL A. HARPER. ATTORNEY'S FINAL REPORT AND RECOMMENDATIONS DDDD The Commission having determined, tentatively, upon the workmen's com- pensation plan, as probably the most desirable method of covering, by legisla- tion, the entire field of liability for industrial accidents, requested a report from its attorney upon the applicability of the workmen's compensation plan (based upon the English and similar systems) to the general conditions exist- ing in the State of Illinois, and the constitutionality of such a law here. CONSTITUTIONALITY OF WORKMEN'S COMPENSATION LAWS. By Samuel A. Harper, of Chicago. The general question involved in a discussion of the constitutionality of a Workmen's Compensation law in this State is: Can the Legislature change the basis of recovery between employe and employer from the negli- gence or fault of the employer to an absolute liability, based on the ordi- nary and inherent risks of the industry? The right of the employe to recover damages from his employer for personal injury received by the employe in the course of his employment has existed for many years, at common law. About three hundred years ago the courts adopted the doctrine of respondeat superior, which extended the liability of the employer for such personal injury to the negligent acts of the employer's agents and servants. This general common law right of the employe existed at the time of the adoption of the Constitution of the United States and of the Constitution of the State of Illinois, and is merely one of a large class of so-called tort cases, in which one person injured by the negligence of another has a right of redress, for the wrong committed, in the form of compensation for the damages which he has sustained. No other method of legal compensation is known to American law today. The common law of England, including this rule in regard to tort liability, has been adopted in this country, and our various Constitutions and Bills of Right have been adopted with reference thereto. In addition to this, the Legislature of the State of Illinois provided by statute enacted in 1874, four years after the adoption of our present Constitution, that "the com- mon law of England, so far as the same is applicable, and of a general nature, and all statutes or acts of the British Parliament, made in aid thereof, and to supply the defects of the common law * * * and which are of a general nature, and not local to that Kingdom, shall be the rule of 52 SI EMPLOYERS' LIABILITY COMMISSION decision, and shall be considered of full force until repealed by legislative authority." Kurd's Rev. Stat, ch. 28, p. 485. While the common law rules regulating the relation of master and serv- ant have remained practically unchanged in Illinois, nearly every country in Europe has adopted a legislative plan of automatic compensation for accidental injuries which disregards entirely the question of the master's fault or negligence. England began its legislative changes in the law of employer's liability with the Gladstone Act of 1880; and after adding various amendments during the next seventeen years, finally adopted the Chamberlain Act of 1897, which is a compensation law, based on trade risk. This statute, with the amendments which have since been made enlarging the scope of the original act, is now the law of England. European countries, of course, have no written constitutions or bills of right, which may not at any time, in the legislative judgment, be amended by legislative enactment, and the adoption of workmen's compensation laws have not, therefore, been fraught with the legal difficulties necessarily involved in any such attempted legislation in this country. The English Par- liament has a perfect right to amend Magna Charta itself by legislative act, if it sees fit to do so, whereas the written Constitutions of the States are not subject to legislative change, and the organic law can only be amended by the cumbersome and difficult method prescribed in the Constitution itself. In the absence of a constitutional amendment, therefore, a compulsory workmen's compensation law in the State of Illinois, or in any other State in the Union, must find its justification in the general police power of the State, to the reasonable exercise of which all constitutional provisions are subject Reverting, then, to the question stated at the outset, the proposition to be determined is whether the Legislature of the State of Illinois can pass a law, in the exercise of the police power of the State, providing for a compulsory system of compensation for industrial accidents, regardless of all questions of fault or negligence. DUAL FORM OF GOVERNMENT. A comprehensive discussion of this question would seem to require some consideration at the beginning of the dual form of government under which we live. The Government of the United States is one of delegated and enumer- ated powers, the National Constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the National Government assumes to possess. In this respect it differs from the constitutions of the several States, which are not grants of power to the States, but which apportion and impose restrictions upon the powers which the States inherently possess. The National government has only those powers which are granted to it by the Constitution, while the State government possesses all those inherent powers of sovereignty which are not expressly limited or taken away by the State constitution, or exclusively granted to the National government by the Federal constitution. Cooley's Cons. Lim., 7th Ed., p. 11. ThA EMPLOYERS' LIABILITY COMMISSION 53 The police power of the State is neither exclusively granted to the National government by the Federal constitution nor denied by the State constitution to the State itself. The amendments to the Federal constitution, among other things, pro- vide: "Article IX. The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people." "Article X. The powers not delegated to the United States by the con- stitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It is well settled that the police power is one of the incidents of sovereignty, which neither National nor State constitution has granted away or limited, and that it inheres in the State as well as in the Federal government and cannot be bartered or contracted away. U. S. vs. DeWitt, 9 Wall. 41. Slaughter House Cases, 16 Wall. 36. Barbier vs. Connolly, 113 U. S. 27. Mugler vs. Kansas, 123 U. S. 623. It is even held that the commerce clause of the Federal constitution, which provides: "Congress shall have power * * * to regulate commerce with foreign nations and among the several States and with the Indian tribes * * * ." (Constitution of U. S., Art. 1, Sec. 8.) was not intended to take away the police power of the States, it being construed merely as a limitation upon the powers of the States, requiring them to restrict the exercise of their police power to matters of local concern, and to refrain from attempting to regulate conditions, with regard to which Congress had already acted in a proper way. THE POLICE POWER. The subject of compulsory compensation falling then directly within the police power, and the State having, as we have seen, a clear and undis- puted right to its exercise, it becomes important to inquire just what is meant by the term "police power" as used by the courts. Judge Cooley described the police power in general terms, as follows : "The police power of a State in a comprehensive sense embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizen with citizen, those rules of good manners and good neighborhood, which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others." Cooley's Const. Lira. (6th Ed.), 704. Professor Freund, in the introduction to his "Police Power," defines the term as 54 EMPLOYERS' LIABILITY COMMISSION "The power of promoting the public welfare by restraining and regu- lating the use of liberty and property." Freund, Police Power, p. iii. Professor .George F. Tucker of the Boston Law School has given it the following modern application: "Police power is the name given to that inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy in a broad sense demands, for the benefit of society at large, regulations to guard its morals, safety, health, order, or to insure in any respect such economic conditions as an advancing civilization of a highly complex character requires." 8 Cyc. 863. . In seeking to apply the principles of the law relating to the police power of the State, to the specific question of compulsory compensation based solely on trade risk, we are confronted with three questions of para- mount importance and difficulty: 1. How far may the rule of absolute liability be imposed upon the master for injuries to his servant? 2. How far may the right of trial by jury of both master and servant be limited? 3. How may the classification of affected trades be made so as to be considered reasonable and not arbitrary? I. THE RULE OF ABSOLUTE LIABILITY. The great power vested in a State and its subordinate agencies, called the police power, under which life, liberty and property may be taken, existed from the dawn of government, was recognized in the Colonies at the time of the Declaration of Independence, and was always exercised by the States, notwithstanding clauses in their own constitutions, declar- ing that no person should be deprived of life, liberty or property without due process of law, and the exercise of such power by the States was always held to be entirely consistent with such constitutional provisions. These powers cannot properly be called exceptions from the constitutional demand of due process of law, for they are in themselves due process. When the Fourteenth Amendment was adopted it came not to destroy rights existing in the States; it did not undertake even to define due process of law or to declare or indicate what already were or should there- after be the legitimate powers of the States; it used only the common law expression "due process of law," as a local phrase of common import, describing a pre-existing thing. The amendment neither originated, enlarged nor narrowed that expression in its meaning. Plainly, then, this amendment and the similar provision in our State constitution does not in any way impair the lawful police power of the State. Brannon on Fourteenth Amendment, p. 167, 168. The moment the State, however, by any of its agencies, attempts to interfere in any way with the personal relationship of master and servant or to regulate in any manner the express or implied contract of hiring, the cry becomes loud and persistent that personal freedom of action and the individual liberty of contract must be preserved, and any effort made by the Legislature to impose a rule of absolute liability upon the master EMPLOYERS' LIABILITY COMMISSION 55 for injuries to the servant, disturbing, as it must, the private arrangement which they have voluntarily made between themselves, will naturally be met with the same objection. Aside from those cases involving questions of contributory negligence, practically all cases in which the master is held not to be liable for the injury to the servant, are actions in which the servant is virtually held to have agreed, as a matter of law, upon entering into the contract of hiring, that he assumes the risk of the injury complained of. It is some- times spoken of as an implied term of the contract of hiring. But even the right to make simple contracts of hiring is not, in the proper sense, an absolute and unqualified natural right, free from all legis- lative interference, for the courts have in recent years, in a great variety of cases, sustained the reasonable exercise of legislative authority touch- Ing matters of private contract. Muller vs. Oregon, 208 U. S. 412. Ritchie vs. Wayman et al, 244 111. 509. Holden vs. Hardy, 169 U. S. 366. The idea that the right of contract is an absolute and unrestricted one and that men can fix their rights and duties by agreement has been termed "an unruly and anarchial idea. If there is to be any law at all, contract must be taught to know its place." 2 Poll. & Maitland's History of English Law, 2nd Ed., 232. 1 Andrews' American Law, 2nd Ed., sec. 1045. Any student of politics will observe that unlimited freedom of action and the absolute, untrammelled right of contract have, at times, led to extravagant political inequality, and also permitted individual servitude In no way distinguishable from slavery; and all must agree that by no form of contract or consent can one man confer upon another the power to exercise such physical restraint upon his liberty. Mill on Liberty, ch. 5. 1 Andrews' Amer. Law, 2nd Ed., sec. 462, p. 582. The relation of service may rest on voluntary contract and yet be contrary to public policy. It has been held that this may be so, for the reason that the conditions of the contract subject the servant or employe to the arbitrary discretion of the employer. Parsons vs. Trask, 7 Gray, 473. Matter of Mary Clark, 1 Blackf. 122. It is often overlooked that liberty has been brought about quite as much by the limitation of the right of contract as by limitations upon govermental power. See Justice Holmes' opinion in Lochner vs. New York, 198 U. S. 75. Mr. Bryce says that: "The hesitation shown by American States in interfering with the individual rights of citizens is not due so much to constitutional objec- tions as it is to the ingrown doctrines of individualism, which the history of the country and the circumstances of its origin hare done so much to encourage." 2 Bryce Amer. Commonwealth, 410. 56 EMPLOYERS' LIABILITY COMMISSION The constitutional provisions to which Mr. Bryce refers, and which are so often invoked in an attempt to nullify the police regulations of the State are, (Amendments to the Federal constitution:) "Article V. No person shall * * * be deprived of life, liberty or property without due process of law * * * * ." "Article XIV, Sec. 1. * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law." And: (Illinois constitution:) "Article II, Sec. 1. All men are by nature free and independent, and have certain inherent and inalienable rights among them are life, liberty and the pursuit of happiness * * * ." "Sec. 2. No person shall be deprived of life, liberty or property with- out due process of law * * * ." The quotation from the Illinois constitution, Art. II, Sec. 2, supra, is in substance the provision contained in the Declaration of Independence, and is the clause which has been incorporated in the constitution- of practically every State in the Union. This provision follows practically the language of Magna Charta, which is: "No freeman shall be imprisoned or disseized of his freehold, liberties or privileges or outlawed or exiled or in any manner deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." These constitutional provisions would seem to interpose an almost insur- mountable obstacle in the way of any legislation imposing a rule of absolute liability upon the master, whereby his property would be taken away from him and given to the servant in compensation for any injury for which, at common law, the master could in no way be held responsible. It is interesting to note, however, historically, that the Supreme Court of Illinois, in an early case, in passing upon the scope of the provisions from Magna Charta, quoted supra, held that it applied originally to criminal charges only, and said that: "If it was also intended to relate to civil proceedings, it must be taken In a very limited and restricted sense." Rheinhart vs. Schuyler, 7 111. 473, 520. And it has many times been held that a statute does not work such a deprivation of property "without due process of law," in the constitutional sense, simply because it imposes burdens or abridges freedom of action or regulates occupations, or subjects individuals or property to restraints which are reasonably necessary, in the legislative judgment, for the general welfare of the people. Legislation, under the police power, infringes the constitutional guaranty only when it is extended to subjects not within Its scope and purview, as that power was defined and understood when the constitution was adopted. People vs. Budd, 117 N. Y. 1. EMPLOYERS' LIABILITY COMMISSION 57 Even the practical confiscation resulting from the enforcement of pro- hibition and oleomargarine laws, is within the police power of the State, and is not considered the taking of property without compensation, within the constitutional inhibition. Mugler vs. Kansas, 123 U. S. 523. Powell vs. Pennsylvania, 127 U. S. 678. Many instances of the application of the rule of absolute liability and the practical confiscation of property thereby, are to be found in the books. For example, a statute of the State of Kansas makes railroad com- panies liable for damage done by fire escaping from the locomotive engines of the railroad company, regardless of any question of negligence, the statute only requiring that the injured person prove in the first instance that the damage has been done and that the injury is the proximate result of the accident. The Supreme Court of the United States, in passing upon this statute, held it to be a proper exercise of the police power, and not in conflict with the Fourteenth Amendment. The Court, among other things, said: "The dangerous element employed and the hazards to persons and prop- erty, arising from the running of trains and the operation of railroads, justifies such a law; and the fact that all persons and corporations brought under its influence are subjected to the same duties and liabilities under similar circumstances, disposes of the objections raised * * * ." "It is also a maxim of constitutional law that a Legislature is presumed to have acted within constitutional limits, upon full knowledge of the facts, and with the purpose of promoting the interests of the people as a whole, and courts will not lightly hold that an act duly passed by the Legislature was one in the enactment of which it transcended its powers." A. T., etc., Ry. Co. vs. Matthews, 174 U. S. 96, 99, 104. A similar decision was reached by the same court in passing upon a like statute of the State of Missouri. St. Louis & San Francisco Ry. Co. vs. Matthews, 165 U. S. 1. In a similar case in Illinois our Supreme Court held that when it appears that fire has escaped from a railroad locomotive it will 6e presumed that the company was not employing the best known contrivances to retain the fire, and it will, to rebut this presumption, devolve upon the company to show that such machinery was thus employed and in repair. Mr. Justice Breese, writing a separate opinion, In discussing the dangerous character of the railroad industry, says: "I cannot believe there is the slightest analogy between individual action and conduct, and that of an association running and controlling such dangerous machines as railroad locomotives. Nor can I think the care and diligence a prudent man would use about his own property is of the same grade as that required of railroad companies. For the safety of the people and their property, a degree much higher ought to be required. The care and diligence required in every case should have some relation or affinity to the nature of the business, and to the instrumentalities ~by which it is conducted" Another instance of the imposition of a new liability unknown to the common law, is the so-called dramshop legislation of New York, Illinois 58 EMPLOYERS' LIABILITY COMMISSION and other States. These statutes, as a general rule, make the owner of the premises leased by him for saloon purposes responsible in damages to any person suffering loss by reason of the injury or death of another person caused by the sale of intoxicating liquors. The New York Court of Appeals, in passing upon the New York statute and sustaining its con- stitutionality, among other things, said : "And the act of 1873 is not invalid because it creates a right of action and imposes a liability not known to the common law. There is no such limit to legislative power. The Legislature may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies and fasten responsibility for injuries upon persons against whom the common law gives no remedy. We do not mean that the Legislature may impose upon one man liability for an injury suffered by. another, with which he had no connection. But it may change the rule of the common law, which looks only to the proximate cause of the mischief, in attaching legal responsibility, and allow a recovery to be had against those whose acts contribute, although remotely, to produce it. This is what the Legislature has done in the act of 1873. That there is or may be a relation, in the nature of cause and effect, between the act of selling or giving away intoxicating liquors, and the injuries for which a remedy is given, is apparent, and upon this rela- tion the Legislature has proceeded in enacting the law in question. It is an extension, by the Legislature, of the principle expressed in the maxim, 'Sic uter tuo ut alienum non laedas,' to cases to which it had not before been applied, and the propriety of such an application is a legislative and not a judicial question." Bertholf vs. O'Reilly, 74 N. Y. 509. Our Supreme Court, in passing upon the Illinois law, held that it did not deprive the owner of his property without due process of law, and expressly approved of Bertholf vs. O'Reilly, supra, in the following language : "In Bertholf vs. O'Reilly, 74 N. Y. 509, it was held that the owner of a building who lets it to be occupied for the sale of intoxicating liquors, assumes the risk of having a lien imposed by a statute enforced by a decree of court in favor of any one who has secured a judgment against the seller for injury to his means of support. He may let or use his premises aF a place for the sale of liquors, subject to the liability which an act o' that kind imposes. The Supreme Court of Kansas has also held that 8 law subjecting premises leased or occupied for the sale of intoxicating liquoi to a lien for fines and costs assessed against the occupant does not con travene any provision of the constitution. (Hardten vs. State, 32. Kan. 637.) The Supreme Court of Ohio has held that the provision of a statute prac tically identical with out own (Streeter vs. People, 69 111. 595), authorizing subjecting the property of the owner to the payment of a judgment recov- ered against his lessee, does not violate the constitution or deprive the lessor of his property without due process of law; that a judgment not obtained by fraud or collusion is conclusive against the owner, both as to the sales and to the damages resulting therefrom, and that in a proceeding to subject the property to the judgment it is only necessary to allege the EMPLOYERS' LIABILITY COMMISSION 59 facts which, under the statute, make the premises liable. (Millen vs. Peck, 49 Ohio St. 447; Gordon vs. Hailes, 59 id. 342.)" Wall vs. Allen, 244 111. 456, 463. Another example of legislation changing the rules of common law, is to be found in the statutes providing for the registration of land titles, commonly known as the "Torrens System." Under our constitutional pro- vision that no man shall be deprived of his property without due process of law, it has been maintained that those statutes are unconstitutional, because registration makes the title absolute and not open to subsequent attack, however meritorious may be the claim; and also because there is no sufficient notice required to be given to and no sufficient process against persons having claims adverse to the applicant for title registration, etc. The constitutionality of these laws, however, has been sustained in Illinois, Minnesota, Massachusetts, Colorado, Oregon, etc. Brewster On Convey- ancing, sec. 436. Another striking illustration showing the extent to which State Legis- latures have gone in imposing a liability unknown to the common law, is to be found in the various Pauper acts adopted by many of the States of the Union, following the precedent set by England in the Statute of 43 Elizabeth. We have such a statute in Illinois, which has been sustained by our Supreme Court as a legitimate exercise of legislative power. The Court, in passing upon the law, discusses it in the following language: "The principal objections urged by appellee to the case made by the complaint, challenge the constitutionality of section 1 of the statute in rela- tion to paupers, which provides that every poor person who shall be unable to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy or other unavoidable cause, and provided the pauperism is not caused by intemperance or other bad conduct, shall be supported by the father, grandfather, mother, grandmother, children, grandchildren, brothers or sisters of such poor person, if they or either of them, be of sufficient ability. * * * "He questions the power of the Legislature to compel a man, in any event, to support his indigent brothers or sisters, and urges the uncon- stitutionality of the statute on these two grounds: First, that the Legisla- ture has no power to impose upon a citizen a liability of this character, and, second, that the method prescribed by the statute for its enforcement deprives him of that due process of law to which he is entitled." * * * "It is urged that our statute is a plain attempt on the part of our Legis- lature to impose upon one person a legal liability for the support of another where no such legal duty or liability existed at common law, and is taking one man's property for the use of another without the owner's consent. * * * "It can hardly be said that there is no moral duty whatever imposed upon a man who has sufficient financial ability, consistently with his duty to himself, and to others, to supply the necessaries of life to a brother or sister who is unable to earn a livelihood in consequence of bodily infirmity, idiocy, lunacy, or other unavoidable cause, in cases where such brother or sister did not become a pauper from intemperance or other bad conduct. This being so, our statute stands upon the same foot- Ing, so far as legal principle is involved, that the statute of Elizabeth stands upon. The support of the poor is a public duty, and in case of 60 EMPLOYERS' LIABILITY COMMISSION the default of him upon whom is imposed a prior duty to afford such support, the cost of providing the same will be upon the politic. The object of both the statute of Elizabeth and of our existing statute is to protect the public from loss occasioned by neglect of a moral or natural duty imposed on individuals, and to do this by transforming the imperfect moral duty into a statutory and legal liability. And the right of the legislative department of government to change an imperfect duty into a perfect duty, or even to create by statute a new legal liability, has been recognized from time immemorial." People vs. Hill, 163 111. 186, 189, 190. This statute would seem to be peculiarly applicable as a precedent for legislation providing for compulsory compensation for industrial injuries, at least 50 per cent of which inevitably occur, if the business is to be conducted under modern conditions. The injuries could not occur but for the conduct of the business from which the employer makes his profit and it might therefore with reason be argued that all that is sought to be done by a compulsory compensation law, is to "change what is a moral duty into a legal liability, thus lessening a public burden," which the court in the Hill case, supra, expressly decides the Legislature may do. Again, statutes imposing an absolute rule of liability upon railroad companies for injuries to passengers, and making them insurers of the safety of such passengers, have been sustained. For example, the statute of Nebraska (Compiled Laws of Nebraska, 1889, sec. 3, c. 72), provides that: "Every railroad company as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over its road except in cases where the injury done arises from the criminal negligence of the person injured, or when the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice." This statute was sustained by the Supreme Court of the United States as a legitimate exercise of the State's police power. The Court said: "Our jurisprudence affords examples of legal liability without fault, and of the deprivation of property, without fault being attributable to its owner. The law of deodands was such an example. The personification of the ship in admiralty law, is another. Other examples are afforded in the liability of the husband for the torts of the wife the liability of the master (to third persons) for the acts of his servants. "In Missouri Railway Company vs. Mackay, 127 U. S. 205, a statute of Kansas abrogating the common law rule exempting a master from liability to a servant for the negligence of a fellow servant, was sustained against the contention that such statute violated the Fourteenth Amendment of the Constitution of the United States." * * * "It seemed to the able judges who decided Coggs vs. Bernard, that on account of the conditions which then surrounded common carriers, public policy required responsibility on their part for all injuries to and losses of goods intrusted to them, except such injuries and losses which occurred from the acts of God or public enemies, and many years afterwards Chancellor Kent praised the decision of cases which declined to relax the rule to excuse carriers for losses EMPLOYERS' LIABILITY COMMISSION 61 by fire." * *. * "The common law doctrine was declared by Chief Justice Holt, in Coggs vs. Bernard, to be 'a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs obliges them to trust these sorts of persons, that they may be safe in their ways of dealing.' * * * That reason may not apply to passengers, but other reasons do which arise from the conditions which exist and surround modern railroad transportation, and which may be con- sidered as strongly justifying a rule of responsibility for injury to pas- sengers which makes sure, as the common law rule does, that responsibility be not avoided by excuses which do not exist, or the disproof of which might be impossible." C. R. I. & P. Railway Company vs. Zernecke, 185 U. S. 582, 586, 587. The law of deodands, from the Latin Deo dandum (a thing to be given to God), was a rule of the English law providing that any personal chattel which was the immediate occasion of the death of any creature, should be forfeited to the Crown to be applied to pious uses and distributed in alms by the High Almoner. 1 Hale, P. C. 419. Also, in St. Louis, etc., Railroad Company vs. Matthews, the Federal Supreme Court says: "We consider this to be a statute purely remedial and not penal. Rail- road companies acquire large profits by their business, but their business is of such a nature as necessarily to expose the property of others to danger. And yet on account of their great accommodation and advantage to the pub- lic, companies are authorized by law to maintain them, dangerous though they are, and so they cannot be regarded as a nuisance. The manifest intent and design of this statute, we think, as a legal effect, are to afford some indemnity against such risk to those who are exposed to it and to throw responsibility on those who are thus authorized to use a somewhat dangerous apparatus and who realize a profit from it." St. Louis, etc., Railroad Company vs. Matthews, 165 U. S. 1. See also Missouri Ry. Co. vs. Mackey, 127 U. S. 205. The Illinois Legislature many years ago (1874) provided that it should not be lawful for any common carrier to limit in any way his common law liability safely to deliver property received for carriage by any sort of stipulation or agreement, and the same provision was specifically made to cover railroads by the General Railroad Incorporation Act of 1891. Kurd's Rev. Stat. 1908, chap. 27, p. 485 ; chap. 114, p. 1679. It would not seem unreasonable to expect the State to exhibit the same anxiety for the safety of employes engaged in hazardous trades, and to extend to them the protection of the same rule of responsibility now imposed for the protection of the persons and property transported by railroad companies, especially when we remember that the common law rules of liability generally represented an attempt to establish principles which would secure justice under the conditions which existed at the time of their adoption, which conditions, we all agree, have radically changed. It may be argued that the analogy is not perfect, and that the employe occupies an entirely different position from that of the passenger or shipper, for the reason that he is not bound to accept the employment and incur 62 EMPLOYERS' LIABILITY^COMMISSION the incidental hazards thereof unless he sees fit to do so, but a more thoughtful consideration of the real relations existing between the employer and the employe in modern industry, suggests that the employer and the employe do not stand upon a plane of equality at the time of entering into the contract of hiring. The courts are beginning to recognize this actual inequality, and there would seem to be no good reason why it should not be recognized and considered. The Supreme Court of the United States, in Holden vs. Hardy, in sus- taining a statute of the State of Utah providing for an eight-hour day for workmen in underground mines, in referring to this inequality between employer and employe, says : "The Legislature has also recognized the fact, which the experience of Legislators in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employes, while the latter are often induced by the fear of discharge to conform to regula- tions which their judgment, fairly exercised, would pronounce to be detri- mental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the Legislature may properly interpose its authority." (p. 397.) Harbison vs. Knoxville Iron Co., 183 U. S. 13 ; S. C. 53 S. W. 955. Mr. Tiedeman discusses this matter of inequality as follows : "If the legal equality which is often declared to exist between employer and employe was a reality instead of a legal fiction, the laborer would not seek legislative interference in his contractural relations with the employer more actively than does the employer. For since the employer and the employe are equally guaranteed the liberty of making common law con- tracts under certain proper restrictions, each is free to make whatever contracts he sees fit, subject only to such reasonable restrictions as are imposed for the public good. If such legal equality were a reality, the laborer would felicitate himself upon his constitutional right to accept or reject the terms of employment which were proposed to him. But as a matter of fact, there can be no substantial equality between the man who has not wherewith to provide himself with food and shelter for the current day, and one, whether you call him capitalist or employer, who is able to put the former into a position to earn his food and shelter. The employer occupies a vantage ground which enables him in a majority of cases to practically dictate the terms of employment." 1 Tiedeman on State and Federal Control of Persons and Property, pp. 315-326. The Supreme Court of Kansas in a recent case characterizes this doctrine of equality in the following vigorous language: "The liberty of the wage earner to contract for extra pay for extra hazard and to seek some other employment if he does not like his master's methods, is a myth, or, as has been said, 'a heartless mockery.' " Caspar vs. Lewin, 109 So. Rep. 667. It will therefore be seen that the courts have construed this sort of legislation (viz. : limiting the hours of labor of employes, providing that EMPLOYERS' LIABILITYJX)MMISSION 63 the employe be paid in cash instead of the employers' store orders, etc.), as an effort on the part of the Legislature to realize a new ideal of social justice, consisting of the neutralization of the natural inequalities exist- ing today between employer and employe, by the governmental power of the State. See Holden vs. Hardy, 169 U. S. 366. Dayton Iron Co. vs. Barton, 183 U. S. 23. A. T. & S. F. R. R. Co. vs. Matthews, 174 U. S. 96. Muller vs. Oregon, 208 U. S. 412. St. Louis, etc., R. Co. vs. Paul, 173, U. S. 404. It is of course true that a large part of the legislation of this char- acter has been directed against transportation companies, and there are undoubtedly more legitimate reasons for extensive State regulation of a business which is generally acknowledged to be extra hazardous, than for regulating some of the less dangerous industries, but legislation of this sort has not stopped with railroad companies alone, but has been extended to corporations generally. The co-employe act of the State of Colorado abrogates the fellow servant rule, and practically makes the master liable in damages to his servant for every injury which he may sustain in the course of his employment, except where the servant is contributorily neg- ligent. The Supreme Court of Colorado, in sustaining this act, says: "For the purpose of providing for the safety and protection of employes in the service of a common employer, the law-making power has the undoubted authority to abrogate the exception to the general rule of respondent superior in favor of the employer, and make him liable to one of his employes for damages caused by the negligence of another employe while acting within the scope of his employment, regardless of the fact that such employes are fellow servants. Dryburg vs. Merker G. M. & M. Co., 55 Pac. (Utah) 367 ; Mo. Pac. Ry. Co. vs. Mackey, 127 U. S. 205." V. C. G. M. vs. Firstbrook, 36 Colo. 498, 512. The exercise of this inherent power of sovereignty is frequently illus- trated in the acts of the public authorities in preventing great disaster or in averting great public inconvenience or injury. No property is more sacred than one's home, and yet a person's private residence may be pulled down or blown up by the public authorities if necessary to avert or stay a general conflagration, and this, too, without any recourse against such authorities for the trespass. Bowditch vs. Boston, 101 U. S. 16. Sentell vs. New Orleans, etc., 166 U. S. 698. Other instances of the kind are found in the power to kill diseased cattle, to destroy infected goods or obscene books or pictures or gambling instru- ments (Gilman vs. Philadelphia, 3 Wall. 713, 730), and in Lawton vs. Steele, 152 U. S. 133, it was held to be within the police power of a State to order the summary destruction of fishing nets, the use of which was likely to result in the extinction of valuable fisheries within the waters of the State. The Federal Supreme Court has said that: "The settled rule of this court is that the mere fact of pecuniary injury does not warrant the overthrow of legislation of a police character." L'Hote vs. New Orleans, 177 U. S. 587. 64 . EMPLOYERS' LIABILITY .COMMISSION While the industries conducted in the State of Illinois in which men are frequently maimed and killed in the course of their employment, are not, of course, properly classed as nuisances, it is perhaps true that a great many of them would be so considered, except for the public neces- sity and general good," which are their justification. Were it not for these elements of public necessity and general welfare, many of the extra hazardous industries, as now conducted, might be summarily suppressed by the State in the interest of public safety. In the language of Judge Cooley : "Many things are nuisances because they threaten calamity to the per- sons or property of others, and thereby cause injury though the calamity feared may never befall." Cooley on Torts (1888) pp. 722, 724. The police power is as broad and plenary as the taxing power (Coe vs. Errol, 116 U. S. 517), and property within the State is subject to the operation of the former so long as it is within the regulating restric- oins of the latter (Kidd vs. Peirson, 28 U. S. 1). And public charity, such as aid to the unfortunate classes, and matters of public health, have been held to constitute a public purpose authorizing taxation. Booth vs. Woodbury, 32 Conn. 118. St Mary's vs. Brown, 45 Md. 310. Solomon vs. Tarver, 52 Ga. 405. Anderson vs. Kerns, 14 Ind. 199. It would seem that by analogy to this power of taxation the State might properly impose a burden upon a hazardous industry to be borne in the first instance by the owner thereof, and shifted by him to the con- sumer in the form of an increased price for the product, when the imme- diate persons engaged in carrying on such industry and their dependents are oftimes reduced to a state of pauperism, and thus made objects of public charity under the present system of compensation for industrial accidents. Finally, to quote from Professor Freund In his work on the Police Power : "The principle that inevitable loss should be borne, not by the person on whom it may happen to fall, but by the person who profits by the dangerous business to which the loss is incident, embodies a very intelligible idea of Justice. * * * The system being responsible for the loss, why should it not be constitutional to distribute the loss among the beneficiaries of the system? * * * In a large sense the community is certainly interested in averting sudden and unexpected losses as well as the destitution following from sickness and disease, and the distribution of these losses over a large number through insurance is a legitimate end of governmental policy. There is no warrant for denying the State the power to adopt compulsory measures for the purpose." Freund on Police Power, Sec. 435, 437. II. TRIAL BY JUBY. Undoubtedly the gravest constitutional difficulty in the way of adopting a compulsory compensation law are provisions of our constitution, Federal and State, preserving to all men the right of trial by jury. EMPLOYERS' LIABILITY COMMISSION The Seventh Amendment to the Constitution of the United States provides : "In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Article II, of the Illinois Constitution, provides: "Sec. 5. The right of trial by jury as heretofore enjoyed, shall remain inviolate." * * * "Sec. 13. Private property shall not be taken or damaged for the public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury as prescribed by law." It will be readily seen that were it not for the reservation of this right of a jury trial, all other objections relating to due process of law, etc., would vanish away, because the legislature, in providing a new statutory remedy for an existing condition, might also provide a statutory proceeding, sufficient in itself, for enforcing the liabilities and securing the benefits of such a statute. And while the constitutional provisions quoted supra, were not intended to and did not confer any new right of trial by jury, but merely preserved the right as it existed at the time of the adoption of the Consti- tution (Whitehurst vs. Coleen, 53 111. 247), yet all actions for damages for wrongs to person or property, were triable by jury at common law, and were and are within the application of the constitutional provisions above quoted. 24 Cyc. 108. It has been contended that a compensation law, being in the nature of a new statutory remedy, would not properly be subject to the objection that it deprived any person of the right of trial by jury, if such law included within its terms a sufficient and adequate statutory method of enforcing the provisions, either by arbitration or a trial by the court without the intervention of a jury. As stated by Judge Brannon: "It (the Fourteenth Amendment) does not prohibit a state from future new legislation, action or proceedings necessary in its judgment in the administration of its govern- ment, so long as it bears alike on all similarly circumstanced and be not unusual, oppressive or arbitrary action assailing the essential rights of the person." Brannon on Fourteenth Amendment, Page 143, 144. (See also, as bearing indirectly upon this proposition: Martin vs. Pittsburg, etc. Co., 203 U. S. 284.) I am of the opinion, however, that inasmuch as this right of action for personal wrongs was a common law right and triable by jury at the time of the adoption of the Constitution, it is within the application of the constitutional provision, and that a general compensation law would as effectually take away that constitutional right, as would a direct statute expressly abrogating the right of trial by jury in tort cases between master and servant. The general terms "due process of law," which the constitutions do not even attempt to define, are susceptible of a good deal of extension and enlarge- ment by construction, and can be interpreted in such a manner as to embrace all reasonable police regulations which changing conditions seem to warrant but the right of "trial by jury" can mean but one thing, and the constitutional 66 EMPLOYERS' LIABILITY COMMISSION provision preserving it is singularly inelastic, and it has practically the same scope today that it had when the constitution was adopted. (a) Some limitations on the right of trial ~by jury. At the outset it may be noted that the right of trial by jury was not guaranteed in express terms by Magna Charta, but the provision that no free- man should be hurt in either his person or property, unless by the lawful judgment of his peers, or by the law of the land, was so construed. Profatt Jury Tr. Sec. 24. Of course, after the controversy arises, the parties to the suit may waive their right to a jury and submit the questions in controversy to the decision of the court, in which case, the court obtains its power to try the issues of fact wholly from the agreement of the parties. Travers v. Wormer, 13 111. App. 39. Indeed, our statute provides that "In all cases in any court or record in this State, if both parties shall agree, both matters of law and fact may be tried by the court." Kurd's Rev. Stat. 1908, Page 1628, Sec. 60. It has been held that the provisions of the Federal Constitution apply only to the Federal Courts, and that the States may, if they chose, provide for the trial of civil cases in the State Courts without the intervention of a jury, provided, of course, that tney shall not transcend the express limitations which they have placed upon themselves in their respective State Constitutions. Cooley's Con. Lim. 6th Ed. Page 29, 30. Keith v. Henkleman, 173 111. 137. Spies v. Illinois, 123 U. S. 131. 24 Cyc. 103. The right of the jury trial in the State Court is not a privilege or immunity of national citizenship which the Fourteenth Amendment prohibits the State from abridging ; it only defends such privileges or immunities as arise from and are incident to national citizenship as such. Brannon on Fourteenth Amendment, Page 82. The control of questions relating to public health was ordinarily, before the adoption of the Constitution, vested in boards or officers who were author- ized to proceed in a summary manner without the intervention of a jury, and such cases, therefore, not coming within the application of the constitutional provision, do not now call for or require a jury trial. 24 Cyc. 130. Metropolitan Bd. of Health vs. Heister, 37 N. Y. 661. We have also seen that the State and its agencies may take or injure the property of a person in times of great necessity or danger in a summary manner without any due process of law or trial of any kind, and without compensation to the person injured, when the general safety or welfare of the people requires it. The Constitution of the State of California authorizes prosecutions for fel- onies by information without indictment by a grand jury in the discretion of the legislature. The penal code of the State following this constitutional authority makes provision for the prosecution of felonies by information and dispenses with the indictment by a grand jury. In sustaining this legislation EMPLOYERS' LIABILITY COMMISSION 67 under the California Constitution, the Supreme Court of the United States said: "Any legal procedure, enforced by public authority, whether sanctioned by age and custom or newly devised in the discretion of the legislature in furtherance of the general public good, must be held to be due process of law." Hurtado vs. California, 110 TJ. S. 537. See also In re Debs, 158 U. S. 564. We have also seen that pauper acts, imposing a liability for the support of indigent relatives, when there was no common-law duty of support, are held to be legal, and not an infringement of any constitutional right. In addition to the quotation made supra from People vs. Hill, 163 111. 186, the Court said, with reference to the right of trial by jury : "The legal liability imposed is statutory, and the statute fixes the proced- ure by means of which the liability is to be enforced. * * * This procedure may not be in strict conformity with that provided by the English statute or that provided in some other states, but it is not necessarily invalid on that account. It is a statutory liability, and there is no reason why the procedure for its enforcement cannot be provided for in the statute fixing the liability. We are unable to see that the method of procedure adopted violates any consti- tutional right of appellee. It is suggested that it deprives him of the right of trial by jury. It is only the right of trial by jury 'as heretofore enjoyed' that Section 5 of Article 2 of the Constitution provides 'shall remain invio- late.' This section was not intended to confer the right of jury trial in any class of cases where it had not previously existed, nor was it intended to introduce it into special summary jurisdictions unknown to the common-law and which do not provide for that mode of trial. Ward vs. Farwell, 97 111. 593; Cooley's Const. Lira. (6th Ed.) 504, and authorities cited in note 2." People vs. Hill, 163 111. 186, 192, 193. In my judgment, this legislation presents the farthest extreme to which the State of Illinois has gone in limiting the right of trial by jury, and it finds its only justification in the statement by the Court that the legislature may, in the exercise of the police power, change what is a moral duty into a legal liability, thus lessening a public burden. There are a great many other cases in which the right of trial by jury has either been limited or entirely denied, such as confessing of a judgment, entering into a recognizance, giving a mortgage, which, when recorded, may be enforced by scire facias, the imposition of taxes or assessments, the fixing of the amount of liability under a cost bond, cases in chancery, etc. It is also the usual practice, in most of the states, to assess damages for the taking of a right of way, without the intervention of a jury, and the Supreme Court of Pennsylvania has held a law constitutional which provided for assessing damages in the case of property destroyed by mobs, by an inquest of six men on inspection out of court. The decision is based on the ground that the consti- tutional guaranty of the right of trial by jury applies to the trial of issues in court, and not to an assessment of damages out of court. Ross vs. Irving, 14 111. 170, 181. In the matter of the Pennsylvania Hall, 5 Barr. 204. In my judgment, there would be nothing inconsistent with any theory of natural justice in taking away the right of trial by jury, so far as the servant 68 EMPLOYERS' LIABILITY COMMISSION is concerned, in cases where the injury occurs through the negligence of an agent or employe of the master, believed reasonably and in good faith by the master to have been competent at the time of hiring. In other words, the doctrine of respondeat superior in cases of tort by an agent or servant of the master, might be abrogated and the doctrine of compulsory compensation substituted by legislative enactment in such cases. In all cases where the injury results from the direct negligence or inten- tional act of the master, the servant would seem to have a clear right to his common law remedies against him, including the trial by jury. The extension of the liability of the master, however, to cover the negligent acts of a servant or agent, is a comparatively recent, judge-made privilege given to the employe, and what has thus been given him, might in reason be taken away, in the exercise of the reasonable police power of the state. Even this opinion, however, is clouded by the consciousness that the doctrine of respondeat superior, and the employe's rights thereunder existed at the time of the adoption of the constitutional provision, and might there- fore be held to be within its application. (b) Arbitration. It is obvious that one of the main purposes of an automatic compensation law is to avoid, so far as possible, the delay and expense incident to the ordi- nary court proceedings for the recovery of damages for personal injuries. It would therefore seem wise to include in any compensation scheme a provision for the arbitration of any differences which might arise between employer and employe, if a feasible plan therefor could be devised. In considering the applicability of the principles of arbitration to a com- pulsory compensation plan it should be observed that the arbitration method of settling disputed points may be provided : 1. By agreement of the parties ; and 2. By legislative enactment. It would undoubtedly be quite proper for the legislature to provide that the parties interested in any claim for compensation might voluntarily agree to arbitrate any differences which might arise between them. As a general rule, agreements to refer disputes to arbitration present an example of what the common law regarded as attempts to oust the jurisdic- tion of the courts and therefore against public policy. The reason for the rule adopted by the courts is by some traced to the jealousy of the courts and to a desire to repress all attempts to encroach on the exclusiveness of their juris- diction; and by others to an aversion of the courts, from reasons of public- policy, to sanction contracts by which the protection which the law affords the individual citizen is removed. But whatever may be the reason, it is a well-established rule of the common law that a clause in an agreement or a separate agreement that any or all disputes which may arise thereunder shall be referred to an arbitrator or arbitrators is unenforcible, as an attempt to oust the courts of jurisdiction, and either party may have recourse to the courts without carrying out his agreement to refer. There is n strong tendency in modern times to relax the common law rule, and i?< some States the settlement of disputes by arbitration is permitted 1 y st.i!uu> Such a statute is in force in the State of IlliuQis. (Kurd's Rev. ;-;:;:. i: : , chap. 10.) EMPLOYERS' LIABILITY COMMISSION 69 There is also a qualification made in the modern decisions, following an English case, which is this: that it is not illegal for parties to agree to arbitration as a condition precedent to suit, with respect to the mode of settling the amount of damages or the time of paying it or any matters of that kind, that do not go to the root of the action, and that if an agreement does not deprive a person absolutely of his right to sue, but only renders it a condition precedent that the amount to be recovered shall first be ascertained by a committee of arbitrators, such an agreement is held not to be an attempt to oust the courts of their jurisdiction. 9 Cyc. 511-513. Niagara Fire Ins. Co. vs. Bishop, 154 111. 1. Where the Legislature, however, expressly authorizes the submission of disputes to arbitration by the agreement of the parties, a reference thereof would probably not be held to be an attempt to oust the courts of their jurisdiction. An agreement, pursuant to legislative authority, would be viewed differently by the courts than the voluntary individual action of the parties. The right of the Legislature to compel a reference to arbitrators, of questions in dispute between master and servant is a question of more serious difficulty. The constitution extends the right of trial by jury "to all cases at law." There can be no pretense that a claim for damages for accidental injury is not a case at law in the constitutional sense, and it is therefore beyond the power of the Legislature, in my judgment, to compel either the employer or the employe to forego his right to a jur.y trial in such cases. Bullock vs. Geomble, 45 111. 218, 22. State vs. Devine, 98 N. C. 778. St. L. I. M. & S. Ry. vs. Williams, 49 Ark. 492. Indeed, the clear weight of authority seems to be that a compulsory reference, unless authorized prior to the adoption of the constitution, of a purely legal cause of action, against the consent of the parties, is an infringement of the right of trial by jury. 24 Cyc. 178, 179. A compulsory reference, however, in the first instance, with the right reserved to either party to demand a jury in case he is dissatisfied with the report or award, is not an infringement of the constitutional right. 24 Cyc. 179. Copp vs. Henniker, 55 N. H. 179. Any compulsory compensation law, therefore, in order to be safe, should, in my judgment, preserve the right of both master and servant to a trial by jury, whether or not there is any likelihood of either availing himself of his constitutional privilege in that respect, because, so long as the right exists, either party might be tempted to avail himself of the opportunity of having the statute nullified by the courts, in order to avoid the operation of the compensation law. III. CLASSIFICATION OF INDUSTRIES. Every one has a right to demand that he be governed by general rules. and a special statute which, without his consent, singles his case out as one to be regulated by a different law from that which is applied to all TO EMPLOYERS' LIABILITY COMMISSION other similar cases, would not be legitimate legislation, but would be an arbitrary mandate, not within the province of a free government. Those who make the laws "are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough." Locke on Civil Government, sec. 142. Bernier vs. Russell, 89 111. 60. Strauder vs. West Va., 100 U. S. 303. This is a maxim of constitutional law, and by it we may test the authority and binding force of legislative enactments. Doubts frequently arise as to whether a regulation, made for any one class of citizens, appar- ently somewhat arbitrary in its character, and restricting their rights and privileges in a manner unknown to the law, can be sustained notwithstanding their generality. Distinctions in these respects must rest upon some reason upon which they can be defended. Cooley's Const. Lim. (7th Ed.), 559-561. The constitution of the State of Illinois provides : "Article IV, Sec. 22. The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say : * * * Granting to any corporation, association or individual any special or exclu- sive privilege, immunity or franchise whatever. ****** Regulating the practice in courts of justice. In all other cases where a general law can be made applicable no special law shall be enacted." "Article II, Sec. 19. Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation." The Federal constitution provides, in the Fourteenth Amendment, Sec- tion 1, that : "No State shall make or enforce any law which shall abridge the privi- leges or immunities of citizens of the United States, * * * nor deny to any person within its jurisdiction the equal protection of the laws." A mandatory statute, made expressly applicable to all employers of labor, might be held unreasonable by the courts, for manifestly a large number of the small industries of the State involve no particular hazard to the em- ploye, and it is a fundamental principle that any exercise of the police power of the State must be reasonable, in view of the conditions which the legisla- tion affects. On the other hand, it is also well established that the mere declara- tion by the Legislature that certain industries are hazardous, does not make them so as a matter of law, and it remains for the court to determine whether any classification, made on the basis of the hazards of the trade, is a reasonable one, and has a direct relation to the end apparently sought to be attained. Ritchie vs. People, 155 111. 98. EMPLOYERS' LIABILITY COMMISSION 71 Without going into an extensive review of the authorities on the sub- ject, suffice it to say that any classification, made on the basis of the dangers incident to the industries, is fraught with grave peril, in view of the decisions of the Supreme Court of the State of Illinois. Any discrimination against one class of workmen and in favor of another class would undoubtedly be held unconstitutional. Starne vs. People, 222 111. 189. In this case the Supreme Court held that the Act of 1903 (Laws of 1903, p. 252), requiring mine owners to provide a washroom at the top of each mine, for the use of employes, places upon mine owners a burden not borne by other employers of labor, and discriminates in favor of mining employes against laborers engaged in other occupations, and is special legis- lation, notwithstanding the fact that it applied generally to some 70,000 miners in the State of Illinois and operated alike upon all persons included in that class. It has also been held that a statute applying only to mines, which ship their coal by rail or water, requiring the weighing of all coal mined, In determining the payment therefor, is, on account of such classification, uncon- stitutional. (Harding vs. People, 160 111. 459.) It is also held that a regu- lation of the sale of goods of mining and manufacturing corporations alone, isunconstitutional, as special legislation. (Frorer vs. People, 141 111. 171.) This stringent rule in regard to class legislation does not obtain in the State of New York, where they have recently adopted a limited compulsory compensation law, applying to hazardous trades only, but it will be readily seen from the above decisions, that it would be exceedingly dangerous to attempt any classification whatever with reference to a change in the common law, so radical in its nature as any compulsory compensation system must necessarily be. Our Supreme Court and the Supreme Court of the United States have both sustained the classification adopted in the statute regulating mines and mining, which applies to coal mines "where more than five men are employed at any one time." This is a species of classification which the Legislature is at liberty to adopt, provided it be not wholly arbitrary or unreasonable. St. Louis Cons. Coal Co. vs. Illinois, 185 U. S. 203, 207 ; S. C. 186 111. 134. See also: Lasher vs. People, 183 111. 226. And it would seem that such a classification, exempting the small manu- facturer from the operation of the law, which would undoubtedly be burden- some to him, would be considered reasonable, in view of the precedents above cited. THE REMEDY. Viewed, therefore, as a matter of safe and practical 1/egislation, I would recommend a bill, compulsory in form, but elective in fact, and with a classification either embracing all industries or all those where five or more persons are employed at any one time. By compulsory in form and elective in fact, I mean a bill providing in general terms for the payment of compen- sation for all industrial accidents upon the basis of the scale to be included 72 EMPLOYERS' LIABILITY COMMISSION in the Act, such bill, however, to contain a provision reserving to both em- ployer and employe their rights at common law, with the proviso as to the employer that if he pursues his common law remedies his common law de- fenses shall be limited (the limitations to be fixed by the Act), and with the further proviso as to the employe that he shall be presumed to have accepted the compensation plan unless he expressly contracts to the contrary, and that any acceptance by him of compensation at common law shall bar him from all benefits to the compensation provide'd by the Act. Or it might be made elective in form, with the same penalties to follow an election not to pay the compensation provided. It will be observed that this plan would secure to both parties their constitutional rights of due process of law and trial by jury, with a penalty added for the purpose of inducing them to forego such rights and accept the statutory compensation. I am of the opinion that this plan of limitation .upon the common law rights of the parties may be properly included in the form of a proviso in the compensation act without violating that provision of the constitution, which provides that no Act shall embody more than one subject, which shall be expressed in its title, because it is manifest that the modification of the common law rights of the parties is in furtherance of the general pur- pose of the Act, viz. : to provide certain, definite and automatic compensa- tion for industrial accidents. Larned vs. Tiernan, 110 111. 173. It will be equally obvious that when these common law rights are reserved in this way, the other constitutional questions in regard to taking one's property without due process of the law, trial by jury, unreasonable classification, etc., are practically eliminated, because the Act, as a whole, is, in effect, elective and does not rest for its authority upon the police power of the State. In other words, if the reservation of the common law rights were not made, the Act could find its justification only in the police power of the State, and this would involve the necessity of demonstrating that any classification made was reasonable, and that although the property of the employer might in effect be taken away from him to compensate the injured employe, there existed an overruling necessity for such action, justify- ing the course of the Legislature in imposing this burden upon him ; whereas, under a bill drawn as above suggested, no objection could be made on the ground that the Act was not due process of law, because the courts would say that due process was reserved to him by the Act itself, and no vital objection could be made to the classification, because if the Act is in effect elective, those persons covered by its provisions would have the right, by their own volition, to place themselves in the same class with those who were not in terms covered by the Act. CONCLUSION. I personally feel that perhaps a more courageous stand should be taken with reference to preparing legislation of this character, and that more confidence should be felt in the desire of the courts to co-operate with the other co-ordinate branch of the government in securing for the State progres- sive legislation of this kind. The subject of compulsory compensation for EMPLOYEES' LIABILITY COMMISSION 73 industrial accidents, however, is a new one in this country, and while I thoroughly believe that another decade will find everyone agreed upon the proposition that any State may adopt such a law without exception or qualification, purely as a police measure, at the same time I also feel that in view of the lack of general information on the subject, and the con- sequent immature state of public opinion, it would be unwise as a question of practical legislation to attempt at this time to enact an unqualified compulsory compensation law, when the beneficial results which must follow from the operation of such a law are the real objective, rather than the mere establishment of the principle of compensation without negligence or fault That the law should read into every contract of hiring, a limited guaranty by the master to his servant, against injury to life or limb while the servant is going about his master's business, when it appears that the larger proportion of such injuries in almost all employments are entirely incidental to the business, does not seem any more unreasonable than that the law should conclusively presume that the servant, upon entering the employment, voluntarily assumes in advance all the necessary and inherent hazards of the trade. While such a proposition might seem novel and not in accord with the purely juristic notion of the State, in contrast with the social conception of the present, this fact alone should not be conclusive in determining whether it is sound or unsound. As Mr. Justice Holmes of the Supreme Court of the United States has recently said: "I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinion in law. The Fourteenth Amendment does not enact Mr. Herbert Spencer's social statics. A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State, or of laissvz faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel and even shocking, ought not to conclude our judgment upon the questions whether statutes embodying them conflict with the constitution of the United States." However, it is a practical question of legislation and not an academic theory with which we are dealing, and a safe and conservative course, which avoids, so far as possible, all questions of constitutional law, would seem to be wise. Respectfully submitted, SAMUEL A. HABPEB, Attorney, Employers' Liability Commission. THE LEGAL RECORD Some Reasons for Dissatisfaction in Our Present Legal System (Read right, or odd numbered, pages, for report; left, or even numbered, pages con- tain statistical records.) nnnn As bearing upon the question of the remedy for losses sustained through industrial accidents, and the relative importance of this question under present conditions as compared with the conditions existing during the early history of the State, a search was made under the supervision of the attorney for the Commission, through the printed reports of the Illinois Su- preme Court in order to ascertain the amount of litigation growing out of such accidents, and the results have been significant. In the first 14 volumes of the Supreme Court Reports, covering a period from 1818 to 1854, only one tort case is reported in which the relation of master and servant was in any way involved. In the 15th Illinois Supreme Court Reports, page 550, is reported the case of Honuer vs. Illinois Central R. R. Co. (1854), which decision not only bears the distinction of being the first tort case in our Supreme Court, between master and servant, but it is also the first and leading case in this State adopting the now familiar fellow- servant doctrine. It is also interesting to note that in the first 55 years of the history of our Supreme Court only 25 of these cases were decided by that Court, whereas in the last bound volume of our Supreme Court Reports, being No. 243, there are 13 such cases. This report covers only parts of two terms of the Court, viz. : December, 1909, and February, 1910, or not to exceed three months of the time of the Supreme Court. An investigation was also made into the records of the Illinois Supreme and Appellate Courts, the Superior and Circuit Courts of Cook County and the Municipal Court of Chicago under the supervision of the attorney for the Commission. The general tables showing the results of such investigation appear on alternate pages, beginning page 76. These cases were all taken in chronological order from the records of the various courts and the results should therefore represent the average experience in cases of this kind in the courts covered by the investigation. AVERAGE AMOUNTS RECOVERED. In the last eleven death cases decided in the Supreme Court prior to February, 3910, the average recovery as shown from the tables was $4,091.00. In the last 14 non-fatal cases the average recovery was $5,728.00. In the Appellate Court (a Court of limited appellate jurisdiction) the last ei.^ht death cases reported prior to March. 11)10, show an average recovery <>f EMPLOYERS' LIABILITY COMMISSION 75 $1,436.00 and the last 18 non-fatal cases show an average recovery of $585.00. These figures are not .influenced by the limited jurisdiction of the Court, because appeals may be taken under our court practice from the Superior and Circuit Courts of Cook County and the Municipal Court of Chicago from a judgment of 'any size to the Appellate Court, the limitation being imposed only on appeals from the Appellate to the Supreme Court. Forty cases disposed of in the Superior Court of Cook County from January 1st, 1907, to January 1st, 1908, disclose the following amounts recovered : Seven cases of death show an average of $1,313.00. Twenty-three non-fatal cases show an average judgment of $2,178.00. Thirty-eight cases examined in the Circuit Court of Cook County over practically the same period, show an average recovery for death in three cases of $379.00 and in 26 noii- fatal cases an average recovery of $600.00. In fifty consecutive cases examined in the Municipal Court of Chicago, the average amount of recovery in 41 non-fatal cases was $195.00. The fol- lowing secondary table gives in concrete form the results of such investi- gation. DEATHS. DISABILITY. COURT. No. of Cases. Average Anr.tuit Recovered. No. of Cases. i Average Amount Recovered. Supreme 11 $4,091 00 14 $5 728 00 Apellate 8 1,436.00 18 585.00 Superior .... 7 1,313.00 23 2,17800 Circuit 3 37900 20 600.00 Municipal 41 195.00 Totals 29 $2,302.00 122 $1,347.00 General Average : 29 Deaths $2,302.00 122 Disability 1.347.00 It should be borne in mind in considering these figures that they repre- sent only the cases in which suit was instituted, and which therefore were necessarily considered by at least one party to the controversy as being cases in which the employer was legally liable. The tables, of course, do not include that large class of cases which were settled without suit, either by the parties themselves, or by adjusters or attorneys, out of court. These averages would therefore be very materially reduced if these cases were included in the computation. DELAY. The tables prepared from the records of the Appellate and Supreme Court Reports (herewith), also indicate that it is seldom that the damages are actually received by the employe, or his dependents, for the loss which he sustained by reason of the industrial accident, within a period of less than three years. One of the cases shown in the Supreme Court covered by the EMPLOYERS' LIABILITY COMMISSION ie :| I* ' Id; EH be H!H LO ^Q cc 0^ c3 CD O *S I s J-S.S& g"o'S i cse i 03 a .' PH a, ! a ' : i, i-g"S : &, i-" 1 03 C3 C3 TO w TO C3 ^ 03 Co ^g 03 03 o3 -d ; 1 d ; -d 1 1 d^-J g g : 0) -d g 3 CD 1 a> i * C U o> > 3 ; OJ OS | 1 nT -*^ > 2 -2 o-d ^ ^ g _ .2 fl c 55 ^ d " a, 3 > C2 "d Oi o> ^3 \ : S "d c s S -rt ^ g "^ bC g ^ |l bfl 'g i s bC 1 .c*^ I c ' *"* 1-8 1-5 H D bC bC bC ht o d C^ C C! ^ C ^ ? O o 3 3 o O j 1 ^ o o l& ^ O ^j- 5 to to fe c o o o s o^ O Oi o^ O5 O5 13 T 1 I I r 1 2 i 1 i *d S i - 2 c3 1 O> ^ 1 o o E 1 I I o o I IS o j -3 PH W 5 u22 c o i J S 1 I i J 1 ! ! j oo *? 1 i i I 1^, i oo CO O5 s 00 ^ 1 1 : a> ' X3 . 1 ? d 1 : 1 o, X 1 if g 1 ! a '! '-< f fi -S C3 bC | ; 'be 1: Si ^D cT o i o b * -S QJ -. If ^ sl .9 : T3 ^ ell under en cT : 1? t-i *- O ^ ""1 ^g S g> 5-9 q o3 o 1 f if IS fi ^-d? Il| verloaded c jury to fool -d d aj 1! ^3 a P fe ^ w OQ H 03 P O ^ 00 05 T 1 > 1 r 1 CO 1 1 T-H 2 * EMPLOYERS' LIABILITY COMMISSION 79 of attorneys for both parties to the controversy, and in most cases, it will be seen by reference to the tables, -that the amounts of recovery were small. A record was also made from the cases in the Supreme and Appellate Courts and the Municipal Court of Chicago, of the number of attorneys en- gaged in each case, so far as the records of the various courts would show. The average number of attorneys engaged, as shown by these figures, is prob- ably too low, as in many cases other attorneys not shown of record in the particular case, were doubtless interested. The records of the Supreme Court, however, show that in the twenty-eight cases examined, from three to ten attorneys were employed, or an average of about five and two-thirds. In the Appellate Court the average is four and one-third, and in the Municipal Court of Chicago a little more than three. The Illinois Bar Association charges are $25.00 a day for office work and $50.00 a day, and upwards, for court work, iu cases of this kind. FAULT. The investigation into the question as to the proportion of negligence or fault as between the employer and employe, and the further questions to the number of accidents due to the trade risk, the act of God, or other cause, was attended with no little difficulty. The only court records where any informa- tion of this kind might be obtained, were those of the Supreme and Appellate Courts, and even here it was often very difficult to ascertain, for the pur- poses of classification, just what was the proximate cause of the accident. Out of the twenty-eight cases investigated in the Supreme and Appellate Courts, the following table has been prepared : Employers' Employe's Other Court. Negligence. Negligence. Causes. Supreme 20 4 4 Appellate 13 7 8 Totals 33 11 12 It will be seen that approximately 20% of the cases which reached the Appellate Courts of the State, involved injuries which were not the result of negligence on the part of either the employer or the employe. This table, of course, does not take into account any of those claims for injury in which the negligence of the employer was so doubtful that suit was not brought, or if brought was unsuccessful in the trial court. 80 EMPLOYERS' LIABILITY COMMISSION AJ1AOD3JI JO a|BQ OPINIONS OF MEMBERS OF THE BAR nnnn A letter was prepared by the attorney for the Commission and sent out to some 500 attorneys and judges in the State of Illinois, asking their opinion and advice on the constitutional questions involved in a workmen's compen- sation law for this State. The letter was as follows : Dear Sir : June 8, 1910. You are doubtless aware that by act of General Assembly of 1910, this Commission, of which I have the honor to be the attorney, was authorized for the purpose of investigating the problem of industrial accidents, and espe- pecially the present condition of the law of liability for injuries or death suffered in the course of industrial employment and for the further purpose of inquiring into the most equitable and effectual method of providing for compensation for losses suffered thereby. After considerable study, the Commission is convinced that the law relat- ing to Employers' Liability in this State, based on tort, is unsatisfactory to the employers and employes alike, as at present administered. In view of our conviction and the further fact that every industrial country of western Europe has discarded this basis for one of compensation, the Commission is of the opinion that it is now wise to consider whether or not it is advisable or, under our constitution, possible for the State of Illinois either to amend its laws in this regard or adopt some other basis of liability than the present one. In view of the importance of this question, I am asking the leaders of the bar of this State to co-operate with the Commission by submitting their opinions on the constitutionality of certain suggested changes of the law of this State in regard to Employers' liability, which, we believe, when embraced in the published report of the Commission, will add greatly to its value. In view of the importance of the legal questions involved, the Commission has endorsed my suggestion that the co-operation of prominent attorneys and judges throughout the State be solicited. The particular questions as to which we wish your opinion are as follows : Are there constitutional objections to the enactment by the Legislature of this State of the following statutes? 1. A statute providing that each employer in this State shall be directly liable to compensate each employe injured in his employment (without regard to the question of fault on the part of the employe) where the injury was not intentionally caused by the employe himself, the amount of compensation to be limited? 82 EMPLOYERS' LIABILITY COMMISSION =1 1 c a& O 88. O o s>c - ft o a o3 o5 J .Sf 53 5 and rm ing ir ening s* id E a! s| II - s STjj -^*" * ft-g S Hi =^ , ^ EMPLOYERS' LIABILITY COMMISSION 83 2. Should such a compensation law be limited to employes in hazardous trades only, in order to make it constitutional? 3. A statute of the same purport as stated in question No. 1, which shall also provide that the rights given thereunder shall be exclusive of all common law or statutory rights of injured employes or their dependents to resort to the courts of law for compensation? 4. A statute authorizing employers and employes to contract with regard to responsibility for negligence before any such cause for action shall arise? 5. May the right of trial by jury be taken away from either the employer or employe upon the question of liability, or the amount of compensation to be received? or may one or both of these questions be determined by arbi- tration? 6. Can we abolish the defenses of fellow servant, and assumption of risk, and limit or abolish the defense of contributory negligence? The theory of workmen's compensation, as you doubtless know, is that inasmuch as statistics show that approximately 50% of industrial accidents are due solely to the trade risk and are not traceable to the negligence of any one, the general subject therefore becomes of such public importance as to justify legislation under the police power providing a compulsory scale of compensation which shall be applicable to all industries alike which are cov- ered by the provisions of the law. Legislation of this kind has just been enacted in New York, and suggested in Wisconsin, Minnesota, etc. A statute containing some of these features has been attempted in Massachusetts, Mary- land and Montana. You will understand that the fact that the Commission asks these ques- tions is not an indication that it has reached a conclusion that any of these changes are feasible. Some of them, however, seem to raise legal questions of grave difficulty, and we are seeking as much light as possible from the bar as to the validity of each of them. May we hope to receive your co-operation and your opinion upon these constitutional questions by June 15, 1910? By order of the Commission: Respectfully, EDWIN R. WRIGHT, Secretary. SAMUEL A. HARPER, Attorney. Letters were received from the following attorneys and judges : Edward Osgood Brown, Chicago. Edgar A. Bancroft, Chicago. Ernst Freund, University of Chicago, Chicago. W. T. Alden, Chicago. Albert D. Early, Rockford. J. M. Riggs, Winchester. Maclay Hoyne, Chicago. Almon W. Bulkley, Chicago. Thomas G. Windes, Chicago. Marshall D. Ewell, Chicago. S. S. Gregory, Chicago. Isaac N. Bassett, Aledo. John S. Stevens, Peoria. These letters follow: EMPLOYERS' LIABILITY COMMISSION W"^ T3 w 3 S !" c iJrfl ^| *t*fl a wy ers ged. S i K l|| ll o a J |o 3^32 ;i > , J <3 S i 5g ."S _. .2 w 03 oJ OS * '?I n88 H IJ330 "S ^ EMPLOYERS' LIABILITY COMMISSION 85 June 7, 1910. Samuel A. Harper, Esq., Attorney for the Employers' Liability Commission of the State of Illinois, 714 Hartford Building, Chicago. My Dear Sir : I received today your letter of June 4th, asking me to give to you by June 15th my opinion on various constitutional questions stated in your letter and hereinafter in this. The short time within which the answers are desired and other engage- ments pressing on me prevent me giving to my reply that careful attention which it should have. I should prefer to renew in detail as to each question the investigation which I have incidentally or otherwise at former times given to it, that my answers might be the result of the best thought and con- sideration within my ability. But although this course is prevented by the circumstances I have named my very great interest in the subject, my entire sympathy with the work of the Commission, and the fact that my short experience on the nisi prius bench and my more extended one in the Appellate Court of the First District of Illinois make me feel very deeply in the mat- ter, and compel me to acquaint myself with the factors involved in the questions propounded by you, urge me to an immediate answer in the hope that it may not be entirely unserviceable. Your first question is: Are there constitutional objections to the enactment by the Legislature of this State to a "Statute providing that each employer in this State shall be directly liable to compensate each employe injured in his employment (without regard to the question of fault on the part of the employe) where the injury was not intentionally caused by the employe himself, the amount of compensation to be limited?" My answer is that I see none. The basis of such a statute would simply be that the law read into every contract of hiring a guaranty by the master to his servant up to a certain amount against injury to life and limb whilst the servant is going about his master's business. This certainly violates no principle of natural justice. When one man buys the use of another man's body in the labor market for a daily or weekly wage he may well by the law be held to have assumed to have insured that body against the happen- ing of events which if they do chance to happen will render the man and his family helpless. The compensation in such case has nothing to do with the negligence, delinquency or tort of the master. It is a matter of insurance one of the implied terms of an unwritten contract of hiring. And I not only think that limited insurance a reasonable factor in such a contract and in accordance with natural justice, but one that con- stitutionally may be enacted and read into every contract of employment thereafter made. Conditions in the world have very much changed in the two hundred years that have passed since the doctrine that a master must answer for his servant's negligence in the course of the master's business, was established by the English courts. It was a judgeniade doctrine and its applications and limitations were suited to the times and the society in which it found utterance. Since that time the English speaking peoples have 86 EMPLOYERS' LIABILITY COMMISSION ! i ^ c Js G 'G ^M ^ jj yjj i 2 G 38 ^ c *S c : 8 5 "" ^ -J g^T3 ,'C o?^.^ 8 ' OJ " ^ D _> .G c ;;S*o *'~ S b |oll || |*|| J* lli c3 o r bJD Ili i'-o 53 O> 'SJ*^ C o .S ^ 1" |^ a.as I'S ||.^i > W3 a l.s 3 hO fS 'S "S ; 3 , !3 o *a ^ ~ a "08 a ^a c 4? 1 *l _c c | 'B G ^ g G i i G O O o G O O -a d i; 1 .- 4 S 1 : 3^ 1 : d'a Q s RT Continued Reversed and manded Reversed with ing of facts . Reversed with ing of facts. Judgment affir f > a5 Judgment of Ci Court affirn: Judgment of 1 Court affirmed, o| Jil ^o o g r3 1-5 13 Q bC o G G G G o o LJ 1 1 O 1 2~ < to _J LJ a. 0. i i ? I i i 3-4-09 i s i CO O Z d _J o o IB G 1^ hC 3 '3 I z J3 3 5 o ^ Q co 1 1 1 02 111 CO s o i | o ! 1 00 2 2 3 P fl'g 'd : : (H 0> G tie g.S'g ii > * 'G^M ^ ^ ro b m -1.2. !3 fi ||_| ~J. e3 .0 g 3-ifr j|'? 3 a^ ^ Ml o a G 1 G sL 8| 1 'o S' .s|:t GO 'So S G i' G of a causinj l| 3 S s F 1'|| CO M-O ~ d o <6 111 ^ II Q Removal screen; I 1 "3 ^ pq - 00 05 - a 3 '""S m O _. 3 5C ** fl -2. ffi g. 8 Sg^ "* 0)** S S 1 s S 5--Q * ^^ ^5 H^ || Igf iii-s 1'1.2.1| 1 ^ bfiuT. Sa' O cSl |f Ml o giiil s s ' 3 1 : 1 -1 ~? I| 11 3 1 1 1 1 o o i o S I i 1 "d ID : t B ~o T3 i a 1 d) a ; a O O a ^ ^ - Q S ta (Q -d | i f" S| f 4S C S^4 _c do .^ aa 5 J * ^T^'E c. 1 ll O *4M 1 tiD 11 Q) **^ CO O t bC 111 cc I J* > 2 3 |' S l' s | S1 Z5 <_5 g bC d bfi .S g M d bfi d S o 2 o i 2 H * "o 55 oo" o I 1 _l U S ? 9 9 f Q. {N t- t>j t>- ^ o rH 1-* 1 1 | J 'S 3 z i * 2 6 'C _ (^ o i^ a . CO 02 LJ CO S 1 I 2 8 ? >o CO I 1 ub S A 2 gt i i T-t TH i i PH 11 18 dder and injured. paper, plaintiff smooth wrinkles, ; arm and hand . . ij 21 1 s-S if if l! .s M l i s 2 * contact with im- insulated cut- ;tric current run- rougb body C3 > W 3 * 1 M r* .. "OT T3 QJ O 111 lilll g 0,0,03,3 !i ji *1 altrj O, G 8 CO S 8 S s S EMPLOYERS' LIABILITY COMMISSION 91 In the case of any Workman's Compensation Act worth enactment, it seems to me these defenses must necessarily be eliminated, and indeed the whole matter of negligence, except, of course, that it would be not unrea- sonable to incorporate in such a statute of compulsory insurance, the lan- guage of the English Act "If it is proved that the accident is solely attributable to the serious and wilful misconduct of a workman, any compensation claimed in respect of injury to that workman shall be disallowed." I am, very truly yours, EDWABD OSGOOD BROWN. July 1, 1910. Dear Sir: Your circular letter of June 4th was duly received. I am very much in- terested in the purposes of this Commission and made it one of the main points in the President's address at the late meeting of the State Bar Asso- ciation. Of course, the legal questions which you raise are serious ones, and upon them I would not care to express an opinion until I had briefed them thor- oughly. It seems to me that the end to be attained is the removal of the whole question from the field of dispute and litigation ; the adoption of a plan which will give the employe promptly and certainly compensation for, and fairly measured by, his industrial disability from whatever cause except his own wilful acts. As to the constitutional questions : I presume you have had them thor- oughly briefed; if not, they should be, and, if the briefing were then submit- ted, with your inquiries, they would stimulate investigation and result in more valuable answers. I am sending you a copy of the Chicago Legal News containing my suggestions on the subject. Very truly yours, EDGAR A. BANCROFT. Samuel A. Harper, Esq., 714 Hartford Building, Chicago. The recommendations made to the Bar Association, and which Mr. Ban- croft refers to in his letter, are as follows : "The subject of 'Employer's Liability' or rather Workingman's Compen- sation and Industrial Insurance is worthy of special consideration by the Bar and the general public. Its chief importance is not in the legal questions involved, nor yet in providing a surer recompense to injured workmen. It lies in the fact that, if a plan is found for insuring every workman against loss in industrial efficiency through the accidents of his employment, it will not only end the personal injury disputes and relieve the courts of a very large burden, but it will also preserve the independence of the men and their families and avoid the wasteful anti-social influence of such strifes. For the efficiency of modern machinery is not more wonderful than the increasing efficiency of the workmen who operate the machines. And both are capable of indefinite enlargement if proper regard is paid to the character EMPLOYERS' LIABILITY COMMISSION paaaAoaay ^unoray 9- w I It II EMPLOYERS' LIABILITY COMMISSION 93 and welfare of the workmen. Without any additional physical labor or mental strain, the quality and quantity of their work may be increased by their good feeling toward their employer, and their interest in the success of the enterprise. Therefore, many manufacturers are joining sympathetically in the discussion of a uniform law which will, in some fair and complete manner, insure all employes against accidents occurring while on duty. As pointed out by Prof. Mechem's very instructive address of last year the employer's present liability for the acts of his servant within the scope of his duty has strictly no ethical or logical basis, but was engrafted upon the law. Of like origin are the counterpart rules as to 'fellow servant,' 'assumed risk' and 'contributory negligence.' To the proposal to abolish these defenses it is natural for the employer and the employer's lawyer to object that this is taking one man's property for the benefit of another. So far, the principal legislation in America is the federal law as to in- terstate railroads making the carrier the insurer of the safety of its em- ployes while on duty against injuries from all causes except their own willful acts. In Germany the whole matter is handled by a department of the Govern- ment, which operates a plan of compulsory industrial insurance. Every em- ployer must insure with the Government all his regular employes whose annual wage is less than $500. Each employe is enrolled in a Trade As- sembly embracing all workmen in that class of work, and his employer pays into the fund of such particular Trade Assembly a certain per cent of the total average annual wages of such employes the payment varying accord- ing to the hazards of the occupation. When an accident occurs the Govern- ment's Insurance Department takes charge of the man, provides surgical at- tention and hospital service, and pays certain monthly sums so long as his disability continues. If he dies, it provides for his funeral and gives a certain pension to the members of his family dependent upon him. Employes who receive $500 or more a year, or who are employed temporarily or outside any specified class, are insured only at their option and by making a monthly contribution from their wages. The employer is not required to make any provision for them, but has only his legal liability, if any, to meet in case of accident. Against this he can protect himself, as the employer often does in this country, by insuring in a private liability insurance company. The Government Insurance Department, in dealing with insured employes, has a fixed scale of compensation quite similar to that of the accident insur- ance companies of this country. Each permanent disability has its fixed compensation, being a certain specified per cent of the workman's average wages. In case of death, his family receive an amount equal to his average wages for a certain period, as two or three years. Of course the per cent varies according to the occupation. The loss of the left hand, for example, is relatively a smaller disability for a clerk than for a workman. In Russia the law casts the burden for all injuries to employes while on duty, except those due to the fault of the employe himself, directly upon the employer. And it gives to such employe or, in case of his death, to his dependent relatives a lieu on the factory for the payment of damages that have been or may be, recovered, and for the payment of any pension which EMPLOYERS' LIABILITY COMMISSION EMPLOYERS' LIABILITY COMMISSION 95- may be fixed by a judgment of the court with the consent of the plaintiff, or agreed upon between the parties. The English Employer's Liability Act, like the Russian, provides for a change in the rule of liability, rather than for a scheme of industrial insur- ance which takes and keeps the subject of compensation for accidents out of the courts. The difference between these two methods of dealing with the subject is important. The lawyer is apt to fix his attention upon the legal questions, and the discussion of changes in the rules of liability tends in the same direc- tion. But this, it seems to me, misses the essential point in the problem : which is to secure to the employes industrial insurance that will be auto- matic and free from wasteful expense; that will require no attorneys, nor court contests with their uncertainties and delays, but will give to the employe a fair and a fixed recompense according to his disability, and save the employer from the costs of litigation, and make the loss to the employer precisely equal to the benefit to the employe. Therefore, the discussion should not center upon constitutional ques- ^tions, or the changes in the law of liability or grounds of defense. But upon a plan, to be fairly worked out by competent and disinterested men, which will bring such a saving to the employer o^ time and annoyance and the expenses of litigation as will recompense him for waiving the question of his constitutional rights, and will bring such a similar benefit to the employe specific and certain compensation for each injury that he can well afford to waive the advantage which he may occasionally have in the unlimited damages which a jury may award. Under the present rules of the employer's liability in this State, the cost of accidents to a manufacturing business of average hazards is from i> : J- ,0* X! _Q f Q 'C r^ j^ r^ !! 1 ii 31 -M C .2-S a 02 ti ^ II i 1 a a 1 p S I i 1 1 T 1 1 K i CD CO co CO 3-25-07 3-16-08 l o i O T 12-14-08 1 I rH S T 1 I 1 1 ! CO s 6-28-07 i I 2-27-07 12-1-06 3 12-17-08 3-20-07 | 1 ^ 1 "oa ? ? o ? ? ? ? l ,or>ail dangerous em- ployments. '','.'* \ I ,,*','' 1 >, ' ' '\ J '% \ V ', However, within the class of extra-hazardous, or the class of dangerous employments, if you wish to make other discriminations you will be con- fronted by serious difficulty under the decisions of our Supreme Court. I am thinking particularly of the classification recommended by the New York Commission, which singles out employments on the ground that they are non-competitive as far as other states are concerned. If you say that these employments are singled out because they cannot move out of the State, it looks like arbitrary discrimination; if you say that they are singled out because they are not exposed to the competition of industries operating under less stringent laws, it looks like very reasonable discrimination. A good deal would therefore depend upon how the matter is put upon the face of the statute and a proper recital in the statute of the reason for the dis- crimination might be of considerable value. However, I feel great doubt as to the New York classification. As to question 3, I believe that it is more than doubtful whether the Legislature may provide that a common law right of action for actual dam- ages, based upon the fault of the employer, may be abrogated in favor of a right of action more limited as to the amount recoverable, although more extended as to the causes of recovery. I believe that it would be unsafe to try to take away the common law right to sue for injury caused by negli- gence. But I believe that the Legislature may require the employe, after the injury, to make his choice between the common law right of action and the new statutory right of action and provide that any step taken to enforce his common law right shall forfeit the benefit of the new statute. As to question 4, I think there is no doubt that the Legislature may authorize employer and employe to contract with regard to responsibility for negligence before a cause of action shall arise. As to question 5, I do not believe that the employer can be deprived of his right to have either the fact of his liability or the amount of the com- pensation payable by him determined by a jury. I think, however, that the employe, in so far as he gets an entirely new right, may be required to accept such conditions of recovery as the Legislature may impose. In other words, that the employe, but not the employer, may be required to have the claim determined by arbitration. A provision in the statute that there shall be a jury trial upon the demand of the employer would, I think, be necessary, and would also be entirely harmless since the employer would be pretty sure to waive his rights under this provision. As to question 6, I believe that the defense of fellow-servant and of assumption of risk may be abrogated. I also feel certain that the doctrine of contributory negligence may be superceded by the doctrine of comparative negligence. But the entire abrogation of the doctrine of contributory negli- gence is involved in the same difficulty as the imposition of liability upon the employer without any fault on his part. Yours faithfully, EENST FBEUND. 102 EMPLOYERS' LIABILITY COMMISSION ejjjwnaH < ' "> . . . ' * . . ff}[ivH itaanao t^X> "8 >x: & 1 oi ;_< oJD L) f 5 o3 >* Q S -o M BKWS ?U983JJ ^ -^ . ii 1 g G fi tf pajaAooa}! }unorav ee 1 r-T 4- ' - 3 10 N. t^ ! o !>. !M -toA009JJ JO 8}BQ i o i i i i-H 2-18-09 3-15-07 5-16-07 s o i i 1 i i r 1 1 i 1 2 05 9-25-07 -* t^ 4-22-08 paja^ng ;mg ^BQ s 4, 40 T 1 1 1 4-16-07 3-15^07 av. K. 5-16-07 ? s kli ! 3-13-08 10-10-07 4 , 9-30-07 Aintuj JO 3}BQ ?' > ^Q nd 5 g I Ji 1 b -1 .3 +> 'o t 1 i If a* w Killed by engine b | ,5 .s -u O | Fell into vat; burned to death. . . ,5 >. 1 i 1 5 1 =; I I Leg severely bruised i EJ k x: 1 s 1 -^ I C 40 >. 1 ^: I 1 ~ - M ? s >^ i g ^ 2 ,r a ^ "c PQ 1 S 3 8 ^ s ^ 3 i i CC $ ?S 5 '^ g s? 3 EMPLOYERS' LIABILITY COMMISSION 103 June 20, 1910. Mr. Samuel A. Harper, Attorney for Employers' Liability Commission, 714 Hartford Building, Chicago. Dear Sir: I duly received your letter of June 4th, and I regret exceedingly that I have been unable to give the very interesting subject matter of your letter but little consideration since that time, as I have been out of the city most of the time. The questions submitted are grave ones, and are entitled to much thought and consideration on the various propositions of law, which I regret to say I have been unable to consider or investigate up to this time. I am quite willing to give you my off-hand opinion on the constitutionality ;of the six propositions suggested, but I want you to thoroughly understand that my opinion is based entirely upon my first impressions, without any study of the law of the cases bearing on the subjects. 1st: It is my opinion that there are constitutional objections to an enactment by the Legislature providing that each employer in this State shall be directly liable to compensate each employe injured in his employ- ment, without regard to the question of fault on the part of the employe, even though the amount of compensation be limited. 2nd : While I do not feel at all certain that an enactment by the Legis- lature providing that an employer in hazardous trades shall be liable to compensate each employe injured would be free from constitutional objections, I am inclined to believe that such a law could be so drafted as to make it constitutional, if confined to hazardous trades. It seems to me that such a regulation would fall within the police powers, for certainly the preserva- tion of the health and life of the community is one in which society is interested, and consequently the Legislature has power to regulate it. 3rd: This question depends largely upon the answers to questions 1 and 2, and if the Legislature has power to enact a law such as suggested in question 2 (and I am inclined to the opinion that they have), then, of course, they would have the right to provide that such remedies should be exclusive of all common law or statutory rights of the injured employes or their dependents to resort to the courts of law for compensation. 4th : I am of the opinion that a statute could be enacted authorizing employers and employes to contract with regard to the responsibility for negligence before any such causes for action shall arise. 5th : I am of the opinion that the amount of compensation to be received for an injury can be fixed by statutory enactment, but I do not think the right of trial by jury can be taken away from either the employer or em- ploye upon the question of liability. 6th: I am of the opinion that the State, through its Legislature, can abolish the defenses of fellow-servant and assumption of risk, and can limit the defense of contributory negligence, but cannot absolutely abolish the defense of contributory negligence. I fear that these suggestions are of but little or no value to you or the Commission, as I have not had time to investigate the law. There can be no doubt about the wisdom of legislation of the kind proposed, if It can be had, and if at any time In the future I can be of any service to the Com- 104 EMPLOYERS'iLIABILITY.'COMMISSION IWJj, vmoQ w Amf XaaAoo3[ jo a^BQ = I S :ij IrfTS iff .Sj i ntiff andl 1 11 ^> c, I EMPLOYERS' LIABILITY COMMISSION 105 mission in helping along this work, I shall be glad to do anything within my power. Last winter a Mr. J. Francis Dainmann, Jr., 409 New York Life Build- ing, read before the Legal Club of Chicago, a very excellent paper on Co- operative Insurance Legislation, and in the discussion of this question he dealt to some extent with the questions suggested in your letter. If you have not already done so, and it is not too late I would suggest that you ask him for an opinion on these propositions. I believe Mr. Dammann is connected with some casualty insurance company, but I am quite sure that he has given this subject considerable thought and examination. Yours very truly, W. T. ALDEN. Mr. Samuel A. Harper, Rockford, 111., June 14, 1910. Chicago. My Dear Sir: I regret I have been unable to give my opinion to questions set forth in yours of the 4th instant. My clerk, who is also my stenographer, has been absent since its receipt and will not return until tomorrow night. The absence has entailed detail work on myself, and to work out an opinion with a stenographer unfamiliar to me would take more time, and possibly patience, than I have had to give. I would not desire a statute passed such as contemplated in question 1. Without regard to the constitutionality of such a statute, as a people are we not drifting too much toward governmental paternalism? There are too many academic writers, who, if they had a dollar, would not invest it in the employment of laborers, except servants of the house and person. The public direct their thoughts too much toward the great industrial concerns and the railroads and forget the great body of small establishments that are the industrial life of a great many communities. I think I never knew a new manufacturing business to start with sufficient capital to be comfortable, and especially so if it grew from the start. If to the business risk, which is fairly well known, is added an employers' liability risk without regard to negligence, do you think capital will seek manufacturing investments? When I speak of capital I mean such capital as we have here, and I think we afford a fair sample of an industrial center, free from trust domina- tion, with the abuses charged against it. Pardon this long, easy hand letter. I had no intention of more than acknowledging the courtesy of asking for my opinion and explaining why it was not given. I am, yours respectfully, A. D. EARLY. 106 EMPLOYERS' LIABILITY COMMISSION i; r .S : 2 S J5 EMPLOYERS' LIABILITY COMMISSION 107 Mr. Samuel A. Harper, j une 13, 1910. Chicago, 111. Dear Sir : I have the honor to acknowledge receipt of your letter of 4th instant asking my opinion on six questions, or points, mentioned by you, relative to legislation under consideration by the Employers' Liability Commission of this State. I will reply to the questions, in the order in which they are found in your letter, and by number, without here reproducing them. 1st: I do not see why a statute carefully drawn, with proper safe- guards, for compensation to injured employes, should be unconstitutional; and I believe a statute of this character may be enacted that would be free from constitutional objections. 2nd: I do not believe it necessary to limit the operation of such a statute to what are known as hazardous trades, in order to make it consti- tutional. 3rd: If I am right in the two preceding answers, then there can be no constitutional objection to providing that the rights and compensation given and secured under such a statute shall be exclusive of all other rights of damages and compensation. 4th: I do not believe there is any constitutional objection to providing by statute that employers and employes may contract with respect to re- sponsibility, for negligence, but think such legislation would be unwise. Such a provision in the law would give an opportunity for the employer of labor to take advantage of the necessities of men out of employment. 5th : The right of trial by jury should not be taken away in such cases. Whether it might constitutionally be taken away is a grave question. I am inclined to the opinion that a statute providing for compensation to take the place of present common law and statutory rights, with a provision depriving the parties of trial by jury, would be unconstitutional that is, the provision taking away trial by jury would be unconstitutional. And I am of the opinion that a provision for compulsory arbitration in such cases would also be unconstitutional. 6th : It is my opinion that the defenses of fellow-servant and assumed risk may be abolished, or so limited that the evils now resulting from them may be largely eliminated; and it is also my opinion that the defense of contributory negligence can, and should, be practically abolished, at least in a majority of cases. I have intentionally avoided detail, in my answers, and have generally omitted giving an opinion as to mere policy. Of course, you will understand that much time and study would be required to give details and state what, in my opinion, should be the character of the statutory provisions, for com- pensation for injuries to employes. So much time and study would be required that it could not be bestowed in the few days intervening receipt of your letter and the 15th of June the day named by which you want the reply. Respectfully, J. M. RIQGS. 108 EMPLOYERS' LIABILITY COMMISSION SJBIJX jo aaqomjj AiaAOOay JO 9!}BQ EMPLOYERS' LIABILITY COMMISSION 109 June 11, 1910. Mr. Edwin R. Wright, Secretary Employers' Liability Commission, 317 Fisher Building, Chicago. Dear Sir: I am in receipt of your communication of the 7th instant, requesting In behalf of the Employers' Liability Commission an opinion as to the consti- tutionality of certain suggested changes in the law of this State in respect to employers' liability. The subject of your inquiry is of the greatest importance, not only to the employers of labor and employes who will be immediately affected by the suggested changes in the existing law, but to the entire public, and more particularly to judges, lawyers and litigants in general. The present con- gested condition of the court calendars is due largely, I believe, to the great number of suits brought for personal injury. I therefore feel that you are entitled to call for opinions from the members of the Bar. I should cheer- fully devote the time to an examination of the authorities requisite for the preparation of an opinion in answer to your questions, if the time now at my disposal permitted. As an evidence of my interest in the work of your Commission, I submit the following answers, with little discussion of authori- ties: 1. A statute framed on the lines covered by your first question would, in my judgment, be unconstitutional. It offends against the provision of the fourteenth amendment of the Constitution of the United States, and if I understand your question, there is no principle of law upon which it is sustainable. The employer is made liable without regard to the nature of the business in which he is engaged, and without reference to whether or not he has been negligent in the slightest degree. He becomes an insurer of all his employes. I do not believe that there is an analogy between the European laws referred to in your communication, and similar laws in the United States where it is necessary to meet both Federal and State consti- tutions. 2. A statute limited in its application to employes in those trades which are known to the law as hazardous would be constitutional in my opinion, if the liability of the employer was thereby made to rest upon his negligence, whether such negligence was a result of defects in the premises devoted to his business, or in appliances or equipment used, or the result of the negli- gence of fellow servants. Nor would the constitutionality of such an act be affected if the right of recovery was given to the employe, even in the event that the latter was guilty of contributory negligence. The arguments against legislation of this character is based upon the principal that each individual is responsible for his own acts, and there is no general rule of law making one man liable for the negligence of another, and that the rule that the master must answer for the act of his servant where strangers are injured is an exception to the general rule. It is perfectly apparent that as civilization advances, the various indus- tries carried on by man change. The introduction of machinery, electricity and steam, and the attendant growth of manufacturing have made the con- ditions under which men labor much more complicated and dangerous. These conditions under which work is now carried on in factories and 110 EMPLOYERS' LIABILITY COMMISSION similar establishments has resulted annually in a large number of deatl and accidents, and the impairment of the health of many persons, resultii from "occupational disease." It is the boast of the police power that it is capable of adaptation new circumstances and conditions, however complex. The chief virtue of thj power, which has sometimes been criticized as a vice, is that its precis limits are incapable of definition. It is well termed the law of overruling necessity. But, returning to your second question, would a statute be constitutions which imposed upon the employers of labor, if they were guilty of no negli- gence liability for injury to their employes, caused by the negligence of th< latter. In short, can the master engaged in a dangerous enterprise be sul jected, without doing violence to constitutional principles, to the assumptioi of all the risks of his business, including the risk of self-injury by his serv- ants, caused by their own neglect? It is true that in all constructive legisla- tion, some speculation is necessary and may be indulged in, but to affiri in the present state of the law that so drastic a statute of general applicatioi is constitutional, certainly seems too radical a declaration. It verges on speculation pure and simple. The courts have long sustained many kinds of laws requiring the in- stallation of various devices intended to safeguard the servant, and it might even be said, to protect him from his own negligence, as much as to render the implements with which he works safe. The Supreme Courts of Minnesota and Mississippi, in upholding the constitutionality of laws requiring that operators of street cars be protected by enclosed platforms or shields, have recognized that exposure to severe weather conditions may incapacitate such employes for the proper per- formance of their duties. These decisions, it is true, rest upon the proposi- tion that the public is interested in the health of the motorman, because passengers upon street cars may be exposed to danger if he becomes be- numbed with the cold, but those decisions and many others that might be alluded to, recognize that those working in certain lines of industrial activity,, because of the dangerous nature of their employment, require protection against acts or omissions of duty, which if done or omitted to be done in a less hazardous employment, would be inexcusable carelessness. I conclude that such a law as is suggested, which requires the employer to assume all the risks of his business, if it covers a sufficiently narrow field of trades, would be valid; for instance, to take a striking example, is not the manufacturing and storing of gunpowder a trade so dangerous and the results of the slightest fault of any person engaged in it so frightful and so far reaching, that the employer might be compelled by law to assume all the risks of the business and become the insurer of everybody against the negligence of anybody else, including that of any of his employes? 3. A statute drafted on the broad lines indicated in your third ques- tion, would likewise be unconstitutional in my judgment. 4. A statute authorizing employers and employes to contract with re- gard to responsibility for negligence before a cause of action arose, would not, in my opinion, be constitutional. EMPLOYERS' LIABILITY COMMISSION 111 5. I think your fifth question should be answered in the negative. A discussion of it within the limits of a mere letter is out of the question. 6. I believe both the defenses of fellow-servant and assumption of risk may be abolished by statute, and that the defense of contributory negligence may certainly be limited by statute, and may even be abolished in the case of employes engaged in the exceedingly hazardous employments hereinbefore referred to. The reasoning in Farwell vs. Boston & Worcester R. R. cop- poration, 4 Metcalf, 49, the leading authority in support of the defenses of assumption of risk and fellow-servant, hardly applies to the conditions of today. It is no longer true that the servant is as likely as the master to know the perils of the employment in which he engages, or that he can as effectually guard against them as the master. As stated by your attorney, Mr. Harper, in his communication, the legal questions presented are of the greatest difficulty, and this becomes more apparent when we look at the recent decisions of the Supreme Court of this State. The case of People vs. Steele, decided in 231 Illinois, indicated a disposition to narrow the limits of the police power and may be considered a step backward by our court, while in the recent Ritchie case is observed a contrary tendency, all the more marked in that it involved, if not the abandon- ment of, at least a departure from the old case of Ritchie vs. People, dealing with substantially the same questions as to the right of the State to limit the working hours of women. Yours very truly, MACLAY HOYNE. June 14, 1910. Mr. Samuel A. Harper, 714 Hartford Building, Chicago, 111. Dear Sir: Your favor of the 14th inst, on behalf of the Employers' Liability Com- mission of the State of Illinois, asking my opinion whether there are con- stitutional objections to proposed statutes, etc., is at hand. I am very much in sympathy with this movement and realize that some method ought to be devised to do away with the large number of personal injury suits now incumbering the courts of the State, and to provide a more Just system to both employers and employes. The propositions you submit, however, involve careful consideration and study of constitutional questions. I have not had the time to investigate and study those questions as I should wish, to give an opinion which I would regard of any considerable value. It would seem to me, however, from a casual consideration that a law such as suggested by the first two proposi- tions would be unconstitutional, in that it would take away property without due process of law, by placing a liability upon the employer for an injury caused without his fault. The third proposition would be subject to the same constitutional objection, in that it deprives the parties of the freedom of contract and undertakes to make a contract for them. I see no objection to a statute authorizing employers and employes to contract in advance with regard to responsibility for negligence, so long as it does not protect the 112 EMPLOYERS' LIABILITY COMMISSION employer from liability for his negligence. I do not see how the right of trial by jury can be taken away from either the employer or employe upon either the question of liability or the amount of compensation, so long as the Federal Constitution remains what it now is. These questions, as a matter of course, may be determined by arbitration, which necessarily as- sumes that both parties agree to it. I should think that the defense of fellow-servant might be abolished by statute, and perhaps the defense of assumption of risk, although of this I have grave doubt. I do not believe that the defense of contributory negligence can be lawfully abolished by statute, for the reason that the effect of such a statute would be to place a liability upon the employer for an injury which would not have occurred but for negligence of the employe. These views are arrived at by a hurried consideration of the questions, without such an investigation or study as I should desire to give the subjects in order to render an opinion which I should be willing to stand by. Very truly yours, ALMON W. BULKLEY. June 9, 1910. Samuel A. Harper, Esq. Dear Sir: Your letter of June 7th, 1910, presents to me very important questions which, in case of legislation regarding industrial accidents, I may be called upon to decide in court, therefore it seems to me I should only say that, in my opinion, there should be legislation which would provide an "equitable and effectual method of providing for compensation for losses suffered" in the line you have indicated, and that I should express no opinion as to the validity of such law until I have heard arguments of counsel in an actual case in court. Yours respectfully, THOMAS G. WINDES. June 9, 1910. Samuel A. Harper, Esquire, Attorney Employers' Liability Commission. Hartford Building, Chicago. Dear Sir: I have your favor of 7th asking my opinion as to whether there are constitutional objections to the enactment by the Legislature of this State of proposed statutes as follows: 1. A statute providing that each employer shall be liable to each em- ploye injured in his employment, without regard to the question of fault on the part of the employer, where the injury was not intentionally caused by the employe himself? I give the question as I understand it and not as it is literally. In my opinion such a statute would not be admissible. To hold an employer liable for an accidental injury to his employe, without any fault on the part of the employer or neglect of duty, would seem to me, in effect, to deprive the employer of property without due process of law. EMPLOYERS' LIABILITY COMMISSION 113 2. Should such a compensation law be limited to employes in hazardous trades only, in order to make it constitutional? I am inclined to think a law could be drawn on these lines which our Supreme Court would sustain as a legitimate exercise of the police power. The question is a doubtful one, and to answer it affirmatively pre-supposes some effect on the course of decisions of the tendency of modern thought on these subjects. I also think legislative power in this regard is more extensive over corporations than over individuals. 3. A statute of the same purport as stated in question No. 1, which shall also provide that the rights given thereunder shall be exclusive of all common law or statutory rights of injured employes or their dependents to resort to the courts of law for compensation? My answer to this would be, having regard to the opinion already ex- pressed against the validity of such a statute as is referred to in question No. 1, that a statute such as suggested by question No. 2 might properly exclude all other remedies for such injury. 4. A statute authorizing employers and employes to contract with re- gard to responsibility for negligence before any such cause for action shall arise? It would seem to me plain that it would be competent for the Legisla- ture to pass such a statute. 5. May the right of trial by jury be taken way from either the em- ployer or employe upon the question of liability, or the amount of compen- sation to be received,- or may one or both of these questions be determined by arbitration? I answer this question in the negative. It would be possible, however, to provide that damages for injury should, in the first instance, be ascer- tained by a Commission, with right of appeal from the finding of the Com- mission to the Circuit Court. 6. Can we abolish the defenses of fellow servant, and assumption of risk, and limit or abolish the defense of contributory negligence? I see no reason to doubt that such a statute would be entirely con- stitutional. I have given you my views promptly, as requested, and with prac- tically no investigation and but little present consideration. The weight that should be given to any such opinion is, of course, but little, but such as it is I am glad to give it to the Commission. Yours truly, S. S. GBEGOBY. Mr. Samuel A. Harper, June 10, 1910. 714 Hartford Building, City. My Dear Sir: Answering yours of the 7th inst, and speaking from my personal knowl- edge of the subject (having for years given^ instruction in torts and consti- tutional limitations upon legislative authority), but without special inves- tigation of the authorities, I beg leave to state: 1. That I see no constitutional objection to the legislation stated in inquiry No. 1. It seems to me to be within the police powers of the State. 114 EMPLOYERS' LIABILITY COMMISSION 2. I see no objection to such legislation extending to other than has ardous trades. 3. If the legislation is constitutional, as I think it is, the legislatk may, in my opinion, be made exclusive of the common law and statutoi rights now existing. 4. This is open to more question, as it seems to me, as tending to against public policy; but I see no objection to its constitutionality. 5. I do not think that the ultimate right of trial by jury can urn the constitution be taken away; but it seems to me that arbitration may be authorized, and an attempt to arbitrate be made a condition precedent. 6. Yes, in my opinion, there can be no doubt of this proposition. Respectfully submitted. Yours truly, M. D. EWELL. Mr. Samuel A. Harper, June 8, 1910. 714 Hartford Bldg., Chicago, 111. Dear Sir: Your communication of June 4 was duly received and I laid it aside until I could have time to take it up carefully, and now answer your questions. As to the first question propounded: I think that such a statute as mentioned is constitutional and would be so held by the Courts, with the provision, however, as suggested in the second question that it would be limited to employes in hazardous trades only. I feel no hesitancy in my own opinion but what such a statute would be sustained by the Courts as constitutional. The Legislature may pass laws sustaining the police power of the State and the public health and security of its people. As to the third proposition: I do not feel that it is clear as stated in the question. It seems to me that there is a little confusion in saying that the rights shall "be exclusive of all common law or statutory rights of injured employes .or their dependents to resort to the Courts of law for compensation." By striking off the latter words "by Courts of law for compensation" I think the statute would be good. Perhaps I do not under- stand the question, however, and it is only intended to say that they should have no other rights of recovery except as provided by the statute and I think in that sense it could be sustained. The confusion to me seems to be that it might be said from the ques- tion that they could not resort to the courts of law for compensation, but I presume that was not intended to cut off the resort to courts of law. As to the fourth question : I feel some doubts about the validity of such a statute; unquestionably I feel doubts as to the wisdom of it for the employe. I do not think that there should be any statute allowing the employer and employe to make a contract that would relieve the employer of his liability for injury to tbe employe. I think the statute prohibiting such a contract would be valid and constitutional. As to the fifth question I answer in the negative. I do not think that any statute would be upheld that took away the right of trial by jury or that enforced arbitration without the consent of one of the parties. Yours truly, I. N. BASSETT. EMPLOYERS' LIABILITY COMMISSION 115 Mr. S. A. Harper, 140 Dearborn Street, Aug. 30, 1910. Chicago, 111. My Dear Mr. Harper: When you were in Peoria I told you I would look over the Brief filed by you for the use of the Employers' Liability Commission, and write you. I have been through the Brief with a good deal of interest, and think you have pre- sented the matter in all its phases for the use of the Commission. There can be no possible doubt of the right of the legislature to pass upon this question and the form adopted by the Commission of an elective bill, while practically coercive, is the proper form, and is fair to both employers and employes. Of course, I said the most I have to say on the different phases of the bill when the Commission was in Peoria. Those remarks were the result of impressions formed from time to time in cases of litigation by employes against employers. There is one thing that the Commission should bear in mind at the present time in formulating such a law, and that is the impossi- bility of the employers, especially railroads and large manufacturing industries, being absolutely free to employ only competent men and women and to dis- charge the incompetent. It is impossible to change conditions as they exist now with reference to organized labor, but in the framing of a bill it should be borne in mind that employers are now practically forced to accept and retain the services of incompetent persons whom the employers would not engage if entirely free to act. I merely mention this as one circumstance that should be considered in favor of placing the employer on an absolute equality with the employe. I think your argument from analogy in favor of the right of the legislature is absolutely unanswerable. There can be no reasonable doubt of the power, and I have been interested in your selection of instances sustaining the power of the legislature to enact the right kind of a law. There are some branches of business, and some railroad companies, that will be put to greater expense and outlay under the proposed Liability Act than under their present system of adjusting matters with their employes, where injuries occur, but I believe in the general round-up it will be infinitely better for both employers and employes to know what they have to expect and provide for it. There can be no law passed that does not work a hardship in some particular instances at some time. The only consideration should be to make the law of the greatest benefit to the greatest number. It would be obviously unfair to tie the hands of employers in their defense and at the same time provide for the benefit of the employe. All of those things should be mutual and there must be mutual concessions on the part of employers and employes. The bill an outline of which was presented with the exception of some matters that I pointed out to the Commission in Peoria, seems to me to be eminently fair. I would do away with all questions of comparative negligence, so as to properly define negligence as "being such a lack of care as an ordinarily prudent person would, under the circumstances, exercise for his safety." Whenever you go beyond this it is criminal negligence or willfulness. Should you adopt the idea of comparative, you would have "positive," "comparative" and "superlative." There is no logic in this, either in language or law. I would also define permanent injury as one that deprived the individual from making his living in his usual line of employment that for which he has 116 EMPLOYERS' LIABILITY COMMISSION fitted himself. That is certainly a permanent disability and should be com- pensated for as such, although in exceptional cases some men might ent some other field and prosper pecuniarily better in the long run, but it is enforced change, and provision should be made for such party as one perma- nently injured. One of the most cogent reasons for the passage of an appropriate law that hundreds deserving would receive compensation who are now deprive of it; others might not receive as much as could be recovered by litigatioi but the greatest good would undoubtedly accrue to the largest number. An- other thing, all the compensation paid by the employer would go to the injured party. The middle man in our profession who now reaps from one-third one-half the benefit of litigated cases would be entirely eliminated and the ambulance chasers would be out of business. There is another thing not very potential, but still of value to our profession as such. We remove the tempta- tion from lawyers anxious for money and weak in morals to take the cases and furnish a large part of the evidence. Every man who has been in the business as long as I have and defended as many cases of all kinds in the city and in country places has been up against the dangers of that kind of practice perfectly apparent and yet difficult of proof. We would save our profession from the temptation to depart from the strict line of professional duty. Of course I am near the end of my professional life and these things cannot make so much difference to me personally as to my younger brethren in the profession but I would like to see the time come when higher ideals prevail on the part of all, and I think that it is the duty of the profession to remove just as far as possible all temptation of lawyers to depart from the strict rules of moral and professional rectitude. I would make the law applicable to all classes of employes domestic and otherwise. There is no reason why girls and women working in mercantile houses or in the kitchen should not be provided for the same as any others. They are liable to accidents and injuries, and they should have the same right to compensation as those who are engaged in more hazardous employments. The bill should be equitable and just, and apply to all alike. In that it would not be open to the constitutional inhibition against class legislation. I did not intend to say as much as I have, only to give you my ideas of the unanswerable character of your argument. It is admirably presented, in plain language, and can be easily understood by all laymen as well as pro- fessionals. Yours very truly, J. S. STEVENS. Letters were also received from the following: Fred H. Hand, Cambridge. John L. Fogle, Chicago. Clarence A. Knight, Chicago. Horatio L. Wait, Chicago. Edgar B. Tolman, Chicago. The judges of the Courts generally refrained from expressing an opinion on the particular questions embraced in the circular letter, for the obvious reason that they might be called upon to pass upon the law finally drafted by the Commission, and that it would therefore be unwise to prejudge the matter. Several of the judges, however, expressed the opinion that some change in the present law ought to be made. GOAL MINING ODDD The coal mining industry of Illinois has long been recognized as of the greatest importance for several reasons, and should be of special concern to the State. ITS MAGNITUDE. It stands second among the coal producing States of the Union, with an output for the year ending June 30th, 1909, of 49,163,710 tons. For that year it required the labor of 72,733 men; some 350,000 people are directly dependent upon it for support, and entire communities in fifty- five counties of the State indirectly so. It is an important revenue pro- ducer for thirty-five railroads. There are 886 operations. ITS RAPID GROWTH. In 1897 the output was 20,072,758 tons. In 1909, 49,163,710 tons, an increase of 145% in thirteen years. In 1897, 33,788 men were employed. In 1909, 72,733 men, an increase in thirteen years of 115%. In 1897, 69 men were killed. In 1909, 213 men, an increase of 208%. In 1897, 292 men were injured so as to lose thirty days or more. In 1909, 894 men, an increase of 206%. ITS CONTRIBUTION TO THE INDUSTRIAL AND COMMERCIAL IM- PORTANCE OF THE STATE. It provides an unlimited supply of fuel at low cost to every industrial center in the State. Coal is cheaper in Chicago and St. Louis (supplied by Illinois) than any other great city of the civilized world, with the possible exception of Pittsburgh, which fact contributes largely to their industrial preeminence. Especially is this the case in the steel, railroad and Port- land Cement industries, and others in which the item of fuel constitutes a large proportion of the cost. - STATUS OF THE INDUSTRY. Notwithstanding its magnitude and rapid development, indeed largely because of the latter, the industry is not prosperous. Wage agreements are negotiated between organizations of employers and employes, respectively, which provide ample remuneration to the mine worker per working day, yet 118 EMPLOYERS' LIABILITY COMMISSION because of over producing capacity, the average days of operation of the shipping mines of the State in 1909 was but 168, so that the remuneration per man per annum was unsatisfactory. As a result, competition has been intense and the selling price of coal, relative to cost of production, has gradually but steadily declined. This over development has been brought about in part by the strike in the Anthracite field in 1902, which created an artificial, temporary demand for coal in the middle West, which in turn resulted in the opening of many mines in Illinois for which there was no normal commercial demand, and in part to the discovery of coal beds of superior grade in a certain section of the State, the extending of various railroad lines thereto, and the rapid opening of mines on the respective lines. The waste involved is enormous. Capital is tied up in mines for which there is no need; seventy thousand men are employed but little more than half time, although fifty thousand men would amply suffice and be better rewarded and twenty thousand men thereby be released to other vocations; the cost of production is materially increased by reason of irregular opera- tion of plants; the tendency to centralize ownership of mines, as the weaker enterprises are wrecked, is unmistakable; the coal deposits cannot be con- served when the pressure to control the cost of production is so insistent, and the physical condition of the mines, involving safety to the employes, cannot be made what it should be. It is not for the Commission to propose a remedy for this condition, but simply to present the situation itself, as bearing upon the question of em- ployers' liability and general compensation for industrial accidents. One remedy frequently suggested is to again legalize the reasonable restraint of trade permitted by the common law, but now forbidden by statute. In Germany this waste is prevented and the coal deposits and human life conserved by forbidding the opening of new mines without government consent. It is obvious that the existing condition serves no one. The coal miner, the coal operator, the carrier, the industrial consumer and the gen- eral public all are injured. The consumer, though apparently the gainer and at times actually so, loses heavily when industrial warfare exists, which warfare is at times inevitable under existing conditions. A case well in point was the strike of the coal miners extending from April 1st until Sept. 8th of the present year. Without attempting to go into the merits of the controversy, it is enough to say that the unsatisfactory annual earnings of the miners, and the meagre returns of the coal companies, constitute the condition making such conflicts of periodic recurrence. INTERSTATE COMPETITION. The coal mining industry of the State is closely and directly competi- tive with that of other coal producing States. With Indiana the competition is especially close and keen* so that the effect of any increase in the rela- tive cost of production in Illinois needs to be carefully considered. An im- aginary line only divides the two States. The coal seams are the same, I EMPLOYERS' LIABILITY COMMISSION 119 mining conditions are alike, wage scales are similar, the principal markets are common to both, while the best that can be said of freight rates is that they are designed to be competitive. ITS HAZARDS, INHERENT AND OTHERWISE. At the best, coal mining is hazardous. Accidents are inevitable and the trade risk is considerable. It need not, however, be more hazardous than in other states to the east or west, or than in Europe. The coal measures are horizontal. The roof conditions compare favorably with other states and with European countries. With the exception of one district of lim- ited size, gas is rarely found in dangerous quantities. The proportion of men killed, while gradually decreasing in Europe, has steadily increased in Illinois as well as other states. In 1909 out of each one thousand men em- ployed 2.9 lost their lives in Illinois, as against 1.28 in Great Britain, 2.06 in Prussia, 1 in Belgium, and 0.91 in France. Mining men appear to agree that this condition is due to a combina- tion of causes ; lack of respect for law and authority ; non-enforcement of law ; lax administration; lack of capital to maintain properties in the best phys- ical condition ; deteriorating supply of mine labor ; the improper and over- use of powder; the practice of shooting "off the solid" (forbidden by law in Europe), etc. In Europe coal mining is almost an hereditary calling, and the coal miners are homogeneous and largely of a single race and language. In the United States they are heterogeneous, of diverse races and tongues, and a considerable proportion possess limited experience and skill. The Legislature has repeatedly sought to remedy existing conditions. The Constitution of Illinois permits special legislation for the protection of workmen in coal mines, and for many years an elaborate codified law has been in effect. This law when enacted was regarded as the most com- plete and satisfactory of any in the United States, and while somewhat outgrown, it is probably still the most complete of any in the country, and if rigidly enforced, would be reasonably effective. Under its operation there has been a gradual improvement of physical conditions in the mines, especially as to safety appliances, safeguards, and ventilation. Nevertheless there has been a steady and alarming increase in the ratio of accidents, both fatal and non-fatal. The various factors previously mentioned all contribute to this degree of hazard. While differing as to which factors are most responsible for this condition, both coal miners and coal mine operators have recognized the need for further legislation. In response to this demand the Legis- lature in 1903 enacted a law seeking to further control the use of powder; and in 1905 passed a law requiring the employment of shot firers in mines where more than two pounds of powder are used per shot, or in mines where gas exists in dangerous quantities. While both of these Acts have been beneficial, the hazard to life and limb in the mines of Illinois is still increasing. 120 EMPLOYERS' ^LIABILITY COMMISSION Recognizing the serious increase in disasters involving great loss of life, the Federal Congress has authorized the establishing of rescue stations in certain mining centers of the country, including one in this State. At these stations rescue apparatus is provided and men trained at rescue work are located. In addition, the Illinois General Assembly at the last session authorized three of these rescue stations in mining centers. It also estab- lished a Department of Mining Engineering at the University of Illinois, where the science of mining can be studied . At the special session it au- thorized the formation of mining institutes locally throughout the State, under the auspices of the State University, which only failed to receive the approval of the Governor on account of a supposed technical defect in the form of the bill. It further created a Mining Investigation Commis- sion, composed of three mine w r orkers, three coal mine operators, and three impartial representatives of the public, for the purpose of making a thor- ough revision of the mining Statutes. Finally, as a result of the "Cherry" disaster, which will be hereinafter referred to, it enacted the most stringent, costly and far-reaching law known in this country for prevention of fire underground, and to guard against its dire consequences. In studying the conditions existing in this important industry, the Commission has drawn freely upon statistics compiled by the State Bureau of Labor, data furnished by the Illinois Coal Operators' Association, and personal investigation by the representative of the mine workers on the Commission. The data compiled by the Bureau of Labor Statistics are for the fiscal year ending June 30th, of the year designated, respectively. Down to and in- cluding the fiscal year 1897, the labor employed was largely unorganized. Since that time, union labor has been almost exclusively employed and the trade agreement has existed. The following table is taken from the Bureau of Labor Statistics : EMPLOYERS' LIABILITY COMMISSION 121 Sg'*g||' Qooco t^ O 00 CO Tf4 IO os CO CO C^ Tf i-H O OS OS SS2gg3 OO CO C CO oo -^ 3 cci S * co' ^ ^OOCOT-iCOO-*00 e& Tt< *H t>- co c^ CO CO O 00 oo 1 M CO 00 O 00 CO I o oq^ t^ i>^ ^ eo^cc^ . co oo s KKK ^zz a s a P =3 3 ^5 fc S5 122 EMPLOYERS' LIABILITY COMMISSION Of 922 coal mining operations in 1908, 504 or over one-half produced less than 10,000 tons annually each ; employed but 4% of the men ; pro- duced less than 2% of the tonnage, and are of little commercial importance. On the other hand, 174 mines, or some 19%, produced over 100,000 tons annually each, and over 75% of the total and employed over 68% of the men, as indicated by the second table. CLASSIFICATION OF MINES AS TO TONNAGE, SHOWING MINES, MEN AND TONS, WITH PERCENTAGES, 1908 MINES PRODUCING 8 $ 8 IS & Number of Men. Tonnage. PERCENTAGES OF Mines. Men. Tons. Less than 1,000 tons 248 256 146 98 92 82 823 2313 7,495 11,746 20,037 28,427 95,427 793,236 3,879,000 7,130,739 13,181,385 24,192,665 26.90 27.77 15.84 10.63 9.97 8.89 1.04 3.27 10.66 16.55 28.46 40.02 0.11 1.70 7.87 14.48 26.74 49.10 1,000 and less than 10,000 10,000 and less than 50,000 50,000 and less than 100,000 100,000 and less than 200,000 200,000 and over Totals 922 70,841 49,272,452 100.00 100.00 100.00 Of those employed under-ground, about 80% were used in the produc- tion of coal in 1899, and the remainder in transporting it, maintenance of the mine, etc. In 1908 about 71% were employed in the production of coal and the balance in these other ways. During this period the number of miners increased 85%; the number of other under-ground employes 155%; the number of boys (due to changing the legal age of employment from 14 to 16 and more rigid compliance with the law) 21%, and the number of employes above ground about 69%, as indicated by the following table: CLASSIFICATION OF EMPLOYES IN ALL MINES FOR 13 YEARS YEAR. ALL EMPLOYES UNDERGROUND. Above ground. Aggregate. Miners. Other employes. Boys. Total. 1897 25,498 26,520 26,449 27,875 30,829 32,875 34,904 37,987 41,202 42,920 45,498 48,931 50,834 4,750 5,082 5,455 6,047 7,595 7,273 8,526 9,812 10,694 11,605 13,026 13,929 13,788 "l',295" 1,281 1,326 1,397 1,276 ,562 ,540 ,499 ,595 ,564 ,752 30,248 31,602 33,199 35,203 39,750 41,518 44,703 49,361 53,436 56,024 60,119 64,424 66,374 3,540 3,424 3,792 4,181 4,393 4,487 5,111 5,413 5,794 6,259 6,596 6,417 6,359 33,788 35,026 36,991 39,384 44,143 46,005 49,814 54,774 59,230 62,283 66,714 70,841 72,733 1898 1899 1900 1901 1902 1903 1904 1905 1906 1907 1908 1909 Percent increase 13 years 99.3 190.27 35.1 119.4 79.63 115.2 This relative increase in labor not directly productive is apparently due in large part to three causes: Additional legal requirements; improved EMPLOYERS' LIABILITY COMMISSION 123 terms of employment secured by organized labor, and increased average age of the mines, with consequent increased cost of underground transportation and maintenance. As already stated, the ratio of accidents, both as to number of men employed and as to tonnage, has gradually but steadily increased. In 1884 there was one life lost for each 566 men employed ; in 1909, one for each 342. In 1884, out of each one thousand men employed 1.8 lives were sacrificed; in 1909, 2.9. That the number of tons of coal produced to each life lost is not sim- ilarly affected, Is apparently due to the development of thicker seams of coal and the increased use of mining machines, both of which materially increase the amount of coal produced per day, per man. The figures are as follows: FATAL ACCIDENTS FOR TWENTY-SEVEN YEARS YEAR 13 fe Total number of employes. Total tons of coal mined. Number of em- ployes to each! life lost. Rate per 1,000. Number of tons of coal produced to each life lost. 1883 . . . *134 23,939 12,123,456 179 6 5 6 90,474 1884 .... 46 25,575 12,208,075 566 1.8 265,393 1885 39 25,946 11,834,459 652 4 1.5 303,448 1886 52 25,846 11,175,241 497 2.0 214,909 1887 41 26,804 12,423,066 654 1.5 303,002 1888 ' . 55 29,410 14,328,181 534.7 1.9 260,512 1889 42 30,076 14,017,298 716.1 .4 333,745 1890 53 28,574 15,274,727 539 1 9 288,203 1891 60 32,951 15,660,698 549 .8 261,012 1892 57 33,632 17,862,276 590 .7. 313,372 1893 69 35,390 19,949,564 513 .9 289,124 1894 72 38,477 17,113,576 534 2.2 237,688 1895 1896 1897 75 77 69 38,630 37,057 33,788 17,735,864 19,786,626 20,072,758 515 481 489.7 2.3 2.3 2.0 236,478 256,969 290,910 1898 75 35,026 18,599,299 467 2.1 247,991 1899 . . 84 36,991 23,434,445 440 2.3 278,982 1900 . . . 94 39,384 25,153,929 419 2.4 267,595 1901 99 44,143 26,635,319 445.9 2.2 269,044 1902 1903 99 156 46,005 49,814 30,021,300 34,955,400 464.7 319.3 2.2 3.1 303,245 224,073 1904 157 54,774 37,077,897 348.9 2.9 236,165 1905 f!99 59,230 37,183,374 298 3.4 186,851 1906 155 62,283 38,317,581 402 2.5 247,210 1907 165 66,714 47,798,621 404 2.5 289,689 1908 183 70,841 49,272,452 387 2.6 269,248 1909 213 72,733 49,163,710 341.5 2.9 230,816 Average 27 years 97 40,890 24,043,674 421 2.4 247,778 *Includes 69 men drowned at the Black Diamond Mine, Braidwood, and 10 men killed by explosion at Coulterville. flncludes 45 men killed by explosion at Ziegler. Other disasters: 1909, 26 men killed by explosion at Ziegler; 1910, 257 killed at Cherry, not included in table. 124 EMPLOYERS' LIABILITY COMMISSION Investigation reveals the fact that there has been a great proportional increase in fatal accidents due to certain causes. For instance, out of 560 fatal accidents from 1888 to 1896 inclusive, but 66, or 11.8%, were caused by blasts and explosions. During the period from 1897 to 1909 inclusive, out of 748 fatal accidents, 385, or 22%, were due thereto; while for the year 1909, out of 213 fatal accidents, 69, or 32.8%, were due to the same cause. On the other hand, out of 560 fatal accidents from 1888 to 1896 inclusive, 326, or 58.2%, were caused by falling coal, rock and roof, as against 868 out of 1,748 fatal accidents from 1897 to 1900 inclusive, or 49% ; and 84 out of 213 in the year 1909, or 39%. The increase of fatal accidents caused by pit cars are 8%, 11.4%, and 11.2% respectively for the three periods. Figures indicate that the hazard on the hauling roads and from the use of powder, and from gas explosions have increased disproportionately, and preventative efforts should be applied particularly thereto. The figures follow : FATAL ACCIDENTS FOR TWENTY-ONE YEARS, BY LEADING CAUSES YEARS LEADING CAUSES OTHER CAUSES. ! T3 s 1 1 : 1 bfl^: I 1 : *; "3 i 1 W 1 "f it S-8 &< '*? 1 '55 rt 1 I 1 1 1 J! 1888 . 55 42 53 60 57 69 72 75 77 69 75 84 94 99 99 156 157 199 155 165 183 213 9 3 4 11 4 6 8 12 9 11 11 4 17 3 13 47 44 82 24 24 36 69 2 4 4 4 4 4 8 4 5 '2 5 4 1 2 6 4 6 5 8 1 4 33 26 36 * 33 28 48 43 38 41 46 43 51 51 57 55 77 65 80 84 84 91 84 4 2 i 8 3 5 4 6 5 4 4 1 1 7 2 8 4 9 6 3 5 5 4 3 2 5 2 2 7 4 1 1 3 4 4 6 5 3 2 6 2 6 5 7 1 2 6 11 11 15 18 21 10 18 28 35 24 1 i 2 1 1 2 1 1 1 1 1 2 2 '2 1 4 4 8 8 44 55 40 53 57 54 66 72 69 21 66 70 75 87 74 94 150 144 186 144 158 174 198 100.0 95.2 100.0 95.0 94.7 95.7 100.0 92.0 92.2 95.7 93.3 89.3 92.6 74.7 95.0 96.2 91.7 93.5 92.9 95.8 95.1 93.0 1889 1890 1891 1892 1893 2 4.8 3 3 3 "e 6 3 5 9 7 25 5 6 13 13 11 7 9 15 5.0 5.3 4.3 8.0 7.8 4.3 6.7 10.7 7.4 23.3 5.0 3.8 8.3 6.5 7.1 4.2 4.9 7.0 1894 1895 1896 1897 1898 1899 1900 1901 1902 1903 1904 1905 1906 1907 1908 1909 Total 22 years. . . Percentages 22 years 2,308 451 87 1,194 92 47 242 2,157 93.5 151 6.5 19.5 3.8 51.7 4,0 2.0 10.5 1.9 t 6.5 EMPLOYERS' LIABILITY COMMISSION 125 That the increasing degree of hazard in the coal mines of Illinois is due in considerable part to the over use of powder where the coal is not undercut, is clearly indicated by comparing the Bureau of Labor Statistics for the years 1897 and 1909, which show that with the proportionate in- crease of both fatal and non-fatal accidents, there has been a corresponding decrease in the amount of coal produced per keg. In 1897 there was pro- duced in all mines of the State using powder 49.60 tons per keg. In 1909, 35.54, a decrease of 28.35%. In 1897, for mines shooting "off the solid"' 31 tons per keg; in 1909, for all hand mines (including both coal undercut t by hand and shot "off the solid") 25.81 tons, a decrease of 16.74%. In 1897 the data for mines shooting "off the solid" and mines in which coal is undercut either by machine or by hand, are compiled separately. In 1909 data for hand mining mines, whether "solid shooting" or undercut by .hand, and mines in which the coal is undercut by machines only, are compiled separately. Since the figures for 1909 are for all coal mined by liand, whether undercut or not, the actual amount of coal produced per keg of powder for "solid shooting" mines only in that year would be ma- terially less. That this is so is revealed by the 1909 figures in the Fourth and .Sixth Inspection Districts of the State, in which coal is most extensively shot "off the solid" where the number of tons produced per keg in 1909 was but 19.06 and 19.36 respectively; and by the experience in Sangamon County where practically all the coal is shot "off the solid," and where 28.72 tons per keg of powder was produced in 1897, and but 22.38 tons in 1908. These figures would indicate that the actual number of tons now produced from all "solid shooting" mines in the State is about 22 tons, or a decrease of about 29% since 1897. On the other hand, in 1897, 96.62 tons per keg of powder were produced in mines where the coal was undercut by hand or machine; in 1909, 112.16 tons in mines where the coal is undercut by machines, an increase in coal produced per keg of powder of about 16%. Since it makes little difference in so far as the amount of powder required is concerned, whether coal is undercut by hand or by machine, this latter comparison is reasonably ac- curate. The tables follow: TONS OF COAL PER KEG OF POWDER, SHIPPING MINES, WHERE POWDER IS USED YEARS INCLUSIVE. HAND MINES. MACHINE MINES. Tons. Kegs. Tons per Keg. TOM. Kegs. Tons per Keg 1888-1892... 1893-1897 1898-1902 1903-1907... 1908-1909... 38,276,734 51,016,235 35,595,588 109,303,224 50,543,726 1,005,078 1,419,824 1,121,818 4,014,867 1,971,741 38.08 35.93 31.73 26.97 25.63 12,989,371 18,726,468 17,962,235 36,370,548 21,859,305 138,260 188,084 166,603 345,486 214,830 93.94 99.56 107.81 105.27 101.80 TONS OF COAL PER KEG OF POWDER, SANGAMON COUNTY YEARS. Tons. Kegs. Tons per Keg. 1897.. 1908 1,834,458 5,039,334 63,879 225,234 28.72 22.38 126 EMPLOYERS' LIABILITY COMMISSION The statistics show that there was a steady relative increase in the number of fatal accidents due to the use of powder and a steady decrease in the amount of coal produced for each fatal accident prior to the passage of the amended act of the General Assembly requiring the employment of shot firers in 1907, and that there was a relative decrease in the number of fatal accidents due to the use of powder and an increase in the amount of coal produced for each fatal accident thereafter. The tables follow: FATAL YEARS INCLUSIVE Total Injured Number of Men Killed in Powder Accidents Percent Powder Fatalities of Total Fatalities 1888-1892 267 27 10 11 1893-1897 362 49 13 54 1898-1902 451 74 16 40 1903-1907 . ... 774 162 20 93 1908-1909 396 58 14 64 TONS OF COAL PRODUCED FOR EACH FATAL ACCIDENT DUE TO POWDER FROM 1888 TO 1907, AVERAGE 5 YEAR PERIOD, AND FOR 1908-1909 ALL COAL MINED 3,000,000 2,000,000 1,000,000 2,5: 8,000 1.932 2.000 1,67: 1.000 1,628,400 I.2O 5.000 1866-1892 1893-1897 1898-19O2 19O3-1907 18O8 19O9 EMPLOYERS' LIABILITY COMMISSION 127 RELATIVE PERCENTAGES OF FATAL POWDER ACCIDENTS TO ALL FATAL ACCIDENTS FROM 1888 TO 1907, AVERAGE 5 YEAR PERIOD, AND FOR 1908-1909 20% 1O 1156 13. 16 40$ 14-65$ 1888-1892 1893-1907 1 898-1 9O2 1903-1907 1908-1909 The most hazardous calling in the mine is that of the shot firer, and next that of the driver. Assuming that four shot firers and twenty drivers are employed in a mine requiring two hundred miners, the position of shot firer is found to be nearly fourteen times as hazardous as that of the coal miner, and the position of driver nearly three times as hazardous. The following table shows the occupation and conjugal relation of the men killed in 1909. OCCUPATION AND CONJUGAL RELATION OF MEN KILLED AT THE MINES FOR THE YEAR 1909. OCCUPATION Total Deaths Percentages CONJUGAL RELATION. Married Single Widows Children De- pendents Blacksmiths. . . 1 3 1 3 23 2 1 1 1 45 1 5 4 1 89 25 1 2 2 2 0.47 1.41 0.47 1.41 10.80 0.94 0.47 0.47 0.47 21.12 0.47 2.35 1.88 0.47 41.78 11.73 0.47 0.94 0.94 0.94 "2 1 2 4 2 29 3 1 60 13 1 2 1 1 1 Cagers 2 1 2 4 2 1 1 1 29 1 4 3 .1 7 4 5 7 1 5 1 5 51 1 15 3 9 5 7 11 3 6 2 6 80 2 19 6 1 181 31 6 9 Carpenter. . Car Trimmers 1 19 Drivers. . . . Electricians . . . Engineer Fireman Foreman ie i i Laborers. Loader . Machine Helpers. . . . Machine Runners ... Mine Examiner Miners Shot-firers : 29 12 57 12 1 2 155 22 5 7 Timberman Trackmen. . .... "2" 1 Tripriders 1 4 5 Totals 213 100.00 129 84 125 298 392 128 EMPLOYERS' LIABILITY COMMISSION As already stated, the non-fatal accidents have increased at a greater rate than the number of men employed or the production of coal. The Bu- reau of Labor Statistics for the period prior to and including 1901, reported accidents involving a disability of one week or over. From the year 1902 inclusive they have reported only non-fatal accidents involving a disability of thirty days or over. Data regarding non-fatal accidents involving dis- ability of more than one week and of less than thirty days not being available since 1901, the only possible intelligent comparison covering the period both before and since that year is on the basis of a disability of thirty days or more. For the purpose of such comparison a detailed analy- sis of the non-fatal accidents occurring in the fiscal year 1897 has been made and that basis taken for the period prior to 1902. The analysis shows that out of 518 non-fatal accidents reported in 1897, involving disability of one week or more, 432, or 83%, involve a disability of two weeks or more, and 292, or 56%, a disability of thirty days or more. The figures show that for the eighteen years down to and including 1900, the number of employes to each man injured decreased from 104 to 65, or an increase In injuries for each one thousand employed of from 9.6% to 15.5%. On the basis of a disability of thirty days or more, the number of employes to each men injured decreased from 186 to 115, or 38.17%; and the number of tons produced to each man injured decreased from 52,482 to 41,168, or 21.53%. Since 1902 inclusive the number of employes to each man in- jured, involving disability of thirty days or over, further decreased from 127 in 1902 to 81 in 1909, a total decrease for the twenty-seven year period from 186 to 81, or 105%, or an increase of injuries for each one thousand men employed of from 5.4 to 12.3, or 146.29%. The tables follow: NON-FATAL ACCIDENTS, 1897. DISTRICT Total One Week or More Two Weeks or More i* - V fcB=S! -..-..: j Thirty Days or More 1 190 {150 79% f86 45% 2... 100 77 77% 5 % 55 55% 3 11 8 73% 6 55% 4 57 52 81% 34 60% 5.. 54 52 96% 41 76% 6. 64 54 84% 44 69% 7. . 42 39 93% 26 62% . 518 432 83% 292 56% (Beginning with the following page, the left, or even numbered, pages are devoted to detailed statistics referred to repeatedly in the text, but which, on account of the extreme length of the tables, cannot be directly inserted in their proper places. The right, or odd numbered, pages carry the continuous story of our work. SECRETARY.) EMPLOYERS' LIABILITY COMMISSION 129 painful UBJV 8U(j 0; paonpojj JBOQ SUOX jo o oTT-i OOCD'O >-H co ^CD rta-H-iCOOOOOO OOt^^'-ii-H(MO OOOit^OO(MOi-H \VOQ JO SUOX 142,4 040, io t>ToTi>. t^os o cxco o co i-HT-lr-(rHrHTH(M'-IC^ CO 00 ii ^ CO J3AQ JO stfo I p8iq -SIQ paanfuj ajY jo isquinjyj ilS M9AQ ao -si<3 u *O CO s 1 130 EMPLOYERS' LIABILITY COMMISSION Investigation of non-fatal accidents by causes has also been made, con- fined to the more recent period of nine years. Outside of the significance of the powder increase already considered, the most important factor re vealed is the comparatively new hazard arising from gas explosions. Prior ta 1903 less than 1% of the non-fatal accidents arose from this source, while in 1908 they amounted to 4.5% of the whole, and in 1909 to 2.8%. Most of these accidents occurred in Franklin, Williamson and Saline Coun- ties, where the coal measures have been extensively developed of late years, and where more gas is found than elsewhere in the State. It is not be- lieved that the hazard there from this source is inherently greater than with gas coal measures in other parts of the country, and it is to be ex- pected that with increasing experience, the hazard arising from this source will be steadily decreased. The figures are as follows : PERCENTAGES OF NON-FATAL ACCIDENTS FOR EIGHT YEARS, 1901-1909, BY CAUSES PERCENTAGES. YEARS USE OF POWDER IJ "S 3 m 'f |1 I 9 OTHER CAUSES. ALL CAUSES. &! il a Ij Ja ji P 1 ts. c 'i 1 I || tf l g i J a > i it PQ ri 1 J 11 e4( I 2 i S 1 1909 1908 1907 1906 36.8 22.2 16.0 21.9 26.0 11.1 27.7 53.6 7.9 8.3 8.0 3.1 6.0 9.3 6.3 3.6 40.7 ii'.Q 18.8 12.0 3.7 25.5 3.6 7.4 29.0 30.6 32.0 28.1 30.0 53.7 14.9 21.4 18.5 26.3 38.9 30.0 28.1 26.0 22.2 25.5 17.8 33.4 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 2.9 4.5 1.5 1.3 6.2 1.3 1.4 0.6 0.8 49. 4 51.4 55.8 56.5 55.5 58.3 45.2 52.4 59.0 29.1 26.7 29.2 24.6 26.6 27.2 35.3 33.0 28.7 18.6 17.4 13.5 17.6 11.7 13.2 18.1 14.0 11.5 4.2 4.4 7.9 6.7 9.3 10.6 11.5 6.9 6.4 2.8 4.3 1.4 1.2 0.6 1.2 1.2 0.5 0.8 47.3 49.1 51.4 52.7 50.3 52.1 40.0 48.8 53.1 27.9 25.5 26.9 22.4 24.2 24.3 31.2 30.7 26.8 17.8 16.7 12.4 17.0 15.7 11.8 16.1 13.1 10.9 1905 1904 1903 1902 1901 Bine years . . . 23.2 9.4 10.0 30.1 27.3 100.00 1.9 53.4 28.6 16.1 7.1 1.8 49.6 26.6 14.9 The percentage of increase and decrease from year to year in number of men employed and tons produced, in men killed and in men injured during the past 25 years also has been ascertained. The period from 1885 to 1901 inclusive, is considered separately because for that period the non- fatal accidents cover a disability of one week or more, while in subsequent years they cover a disability of thirty days or over only. The indicated decrease in non-fatal accidents in 1901 is probably more apparent than real, judged by the figures for both previous and later years, and is probably due to the State Mine Inspectors in this transition year reporting in part on the seven day basis theretofore existing, and in part on the thirty day basis thereafter established. For the seventeen year period ending 1901, figures show an aggregate increase in men employed of 72.60%; in tonnage produced of 118.18%; in men killed of 153.85%, and of men injured of 139.83%. For the eight year period from 1902 to 1909 inclusive, the figures show an increase in men employed of 39.31%; in tonnage produced of EMPLOYERS' LIABILITY COMMISSION 131 8 : : : 8 :: S8 :g :: :gg :: :g C. T-I 00 H O Tj l>. IN. to CO OQOQQQaQCQ O3 OQ 02 OQ OQ g . *^* rt >H o3 >H o *H '^ c3 Ui *^ I l-l s'ds- C3 cd '^ d " ^H 03 11 III PI HoQ-< co OQ T-H . i-t0 lljilj-8|||<8B 00^^^,00,0000000^ 136 EMPLOYERS' LIABILITY COMMISSION NATURE OF INJURY No. Married. Single. Children. Depend- ents. TIME LOST DAYS. Total. Average Internally injured 20 2 9 1 3 10 3 3- 1 3 1 2 4 1 i i 12 1 1 1 1 i 8 Knee Cap broken Knees dislocated 4 5 22 5 5 6 34 6 1 35 156 90 847 90 180 92 373 30 344 384 177 102 39 186 32 145 251 120 35 156 90 42.3 90 180 46 41.5 30 114.6 38.4 59 34 39 62 32 72.5 62.7 120 Pelvis bone broken Ruptured Ribs broken Shoulders, Thigh and Hip injured Stomach injured Shoulders dislocated 2 5 Shoulders injured 4 1 2 3 1 1 18 1 7 2 1 4 22 1 9 4 2 5 Shoulders broken Shoulder Blade broken Toes broken 1 7 2 2 1 1 1 "2 Toes injured Toes amputated Toes cut and Ankle bruised Thumbs injured 2 "2 2 1 4 6 Thumb cut off Thigh broken and Back injured. . . Wrists injured 3 7 2 5 8 3 Wrists broken Total 819 424 375 920 1,326 41,456 50.6 COST UNDER TENTATIVE PLAN. With the ratio of increase of accidents from year to year seemingly fixed, we may assume that 200 fatal and nearly 1,000 serious accidents should be provided against for the year 1911. Estimating wages at $2.50 per day, we find $750 as the proper maximum amount upon which to base our compu- tations : 200 fatal accidents 3x200 X $750.00 $450,000 200 serious or permanent accidents 2 X 200 X $750.00 300,000 800 temporary (or 30 day) disability cases at $2.50 per day 30X800X$2.50 60,000 Probable cost under Commission plan $810,000 (This does not include medical, surgical, hospital or similar expendi- tures.) This maximum total of $810,000 provided under the Commission's plan, forms a striking contrast to the haphazard system revealed in the tables ac- companying this report. It is the position of the Commission that a workman is a unit of value to his family, Ms industry and to society, and that the at- tempt to shift the burden of his loss from the industry which caused it to his family or to society is economically wrong. Let the coal carry the cost. That is where the cost belongs. With 50,000,000 tons of coal annually produced, a uniform increase of 1.6 cents per ton would recoup the coal operators for the necessary expendi- tures. The present estimated value per ton at mine is $1.02. Should this prompt the exercise of extra care, as the Commission confidently anticipates, EMPLOYERS' LIABILITY COMMISSION 137 iO O O -O l^. iO O *O 8 ; S :8 S 8 : 8 : CO- 8S : S8 II ^^ OQ CQ I a a a i 138 EMPLOYERS'iLIABILITY COMMISSION only a portion of this increase would be utilized for the purpose of compensa- tionthe remainder going into the plant in additional safeguards and con- veniences. From the figures gleaned from individual cases presented herewith, fatal accidents would seem to compensate the family of the miner in the sum of $168 each or for a total of $33,600, as against the sum of $450,000 estimated in our secondary analysis as probable maximum cost under the Commission plan. Compensation for non-fatal accidents under the plan proposed would increase from an estimated total under present conditions of $300,000 for both fatal and non-fatal to a possible total of $360,000 per year for non-fatal accidents alone under the Commission plan. The additional burden would therefore not be so serious to the con- sumer of the product as at first suggested. The necessity for protective pro- vision to avert disasters, such as the Black Diamond, Ziegler, and Cherry catastrophes, has created now a fixed charge against the industry, although one shrunk from by the whole industrial group in the effort to meet com- petitive conditions in our surrounding mining commonwealths. A twenty-six year summary of cases similar to the Cherry horror, and not inclusive of the ordinary hazard, shows a total of 416 deaths or 16 per year. This (the calamity hazard) may be guarded against at a very small per cent of pay- roll. This sum divided between 922 mines employing 72,000 men, with a probable pay-roll of $60,000,000 a year, should not present serious difficulty. FATAL ACCIDENTS. The Commission has also investigated 120 fatal accidents occurring in 1908, securing this data also from the employer through the Illinois Coal Operators' Association. The data in regard to settlements are of limited value, because of the number of suits pending or yet to arise. Moreover where the employer carried liability insurance, many settlements may have been made either out of court, or in court, by the insurance company, without the em- ployers' knowledge, and hence would not appear in the report. The tables are found on pages 131, 133, 135 and 137. In the 120 cases investigated by the Commission, twenty-six were settled by the operator without recourse to law. The total compensation paid amounted to $7,648.55 an average settlement of $294.18. Ten cases reached the courts and in these cases a total judgment was had of $11,021.50 an average of $1,102.15. These cases are complete and exceptions noted above do not apply. Nine cases are pending in court. Seventy-five fatal accidents have not reached the courts and no settlement can be discovered. The reasonable presumption is that there was none. Adding the amount of compensation received through private settlement ($7,648.55) to the amount credited to court recoveries ($11,021.50) and di- viding by the number of recorded cases (120), less the number of suits pend- ing (9), an average payment is recorded of $168.20. EMPLOYERS' LIABILITY COMMISSION 139 : ooooooo P!V g JO S33BAY 03 -02 8 :::::: :g : :8 : : : :8 8 : : : :8 : : : : : :8 : . . o ic o . .0 Head and Body in- jured Arm injured Hand injured Head and . Leg in- jured 1 l 7 1 ? 10.00 Hand lacerated. Wrist injured Back and Leg injured. Collar Bone broken. . . Spine broken Spine injured Wrist broken 6 4 11.41 18.34 12.00 60.00 **4.16 Finger amputated Fingers injured Finger injured 6 16 c 2.16 2.25 ii!ie 200.00 10.43 Shoulders injured Body and Arms burned Body and Arms in- jured 17 1 1 4.19 5.00 Finger mashed Finger broken Fingers lacerated Finger lacerated. . . 1 2 1 3.00 2.00 Arms and Legs burned Arms and Hands in- jured 1 1 1 2.50 5.00 2.25 Thumb broken 1 50.00 Finger broken, Body bruised . . . 1 1185 3.00 8.87 50.00 115.03 Breast Bone broken. . Leg broken (Continued on page 142) EMPLOYERS' LIABILITY COMMISSION 141 piy jaiflQ uoiufl sap&ij, VPl 83313^ : ooo ;ooo ;o 5 858 r-J 3 :'3 :-3 O2 -GO s : :88 : :g :8 : : : : 88 :88 :88 : : OO -OO ' ^ -' s > ' '. '. '. '. ! ! i ! ! ! ! ; i : i 1 i : g : : -5" : : g : : : : : : : : : fJ jj O .- PS o ; ; o ; ; J2 ; ; "o ::::::::::::: :g :: : : :::::::: piyaaqw I : : : : : : : : : ; ; : : <-; : ; ; : ; ; ; ; : ; ; ; a is !!;;;;;; ; ;* ; ; ; ; ; ; ; ; ; ; g | :S? =*" w o-oo g O O 1-H -1 S2 M ::::::::: :8 :^^i :::::::: :8 : : ': fe *-* * T* ''''' -Q ' g - . . . ._< :' : :S : :^^ :S : :S3 : I ^ 'aoiu^^ C^ > t i 1 ? I T-H T-HrH rH Tj< C< CO 1-H Tt< Tt tH t. C "^ O CO 1-1 '. !;!'.; !!!!!!!!!! '.'' ^ 1| 2 28 'g j | ' '88 '||| ^ 'a ^ ^a .13 ^ 'a .13 ^^a 'a o 'a ei '.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.','.'.''''' I-B I I !..!.-! ^j : ;;;; w) ;:::::::::::::::: 2 "o "o ^ "o a o o o ^fef^ ^ 'ON ^ 9 X I oo oo c oo cc 146 EMPLOYERS' LIABILITY COMMISSION tributed by the United Mine Workers and the American Red Cross in equal amounts. Early in 1910 the Cherry Relief Commission was created to map out and execute a plan for the care of dependents until the youngest chil- dren should reach the age of self-support and to this Commission was turned over the various contributions last referred to to the extent not already ex- pended for temporary relief. The plan provides for a monthly pension graded according to the number of dependents except in instances where, in the judgment of the Commission, the paying of a lump sum is preferable. The Commission consists of one representative each of the State of Illi- nois, National Red Cross Society, United Mine Workers of America, and Illinois Coal Operators' Association and one representative for the various municipal relief funds. Provision has also been made for giving representa- tion to any other body offering a sufficiently large contribution and desir- ing it. Comparison has been made as to the indemnity received directly from the employer by 50 Cherry families on the basis approximately of the general compensation plan presented by this Commission and what 50 families re- ceived for ordinary fatal accidents elsewhere. The comparison is graph- ically portrayed in the exhibit found on the next page. EMPLOYERS' LIABILITY COMMISSION 147 CM CM CO CM lf> CM CM O O CD CD CD CD if) CD Lf> O> Lf5 LD CD CD >*> C7> lO O O CS r*. O CM C3 CO tO CO CM CM C f t/t 00 .s ^ .a 5 =1 3 U.C/5 GO O O or CO ^3 Q S CO I a 00 QC J CO O s J CD C "s o S CO "o i> >: O CO 1 ' C3 I STEAM ROADS (The left, or even numbered, pages show the record of individual cases referred to in the text found on the right, or odd numbered, pages.) nnnn Recognizing that the successful operation of railroads depends largely upon the reciprocal relations existing between them and their employees, and to avoid the strife incident to controversies growing out of per- sonal injury accidents to employees sustained in the line of their employ- ment, the railroads, with the co-operation of their employees, very early adopted various schemes of Insurance, Relief and Pensions, which operate automatically, and perhaps no industry has given more serious thought and consideration to the question of arriving at a practicable scheme of com- pensation than have they. In view of the fact that figures pertaining to the number and kinds of accidents resulting in personal injury, occurring on railroads are obtain- able through the published reports of the State Railroad and Warehouse Commission, to an extent not equalled by the published reports of any other industry, the Commission, of necessity, was compelled to devote much of its time and resources to an investigation of the railroad situation, and after such investigation, it is of the opinion that a compensation measure, fair and equitable to the railroads and their employees, is necessary in view of all the facts. It is the purpose of this section to briefly indicate what those facts are. The following tables show the railroad employment in this State for five years and the number of fatal work accidents during the same period: FATAL ACCIDENTS STEAM RAILROADS 5 Years EMPLOYES *1904 1905 1906 1907 1908 Average per Year Trainmen 159 173 164 121 1541 Switch Tenders, Cross- ing Tenders, Watch- men. . . 16 26 - 40 28 27* Stationmen 5 8 7 3 5} Shopmen 17 12 12 13 131 Trackmen. . 65 59 70 55 61 Telegraph Employes. 1 3 1 2 If Other Employes. . . 34 52 80 50 531 Total. . . 326 297 333 374 272 *Classification by occupation not available. EMPLOYERS' LIABILITY COMMISSION 149 NUMBER OF MEN EMPLOYED YEAR NUMBER OF ROADS NUMBER OF MEN 1904 118 QQ 1KO 1905 125 107 *>*!*> 1906 137 m702 1907 147 120 230 1908 150 106 017 These preliminary tables were taken from the reports of the State Rail- road and Warehouse Commission and follow the same classifications: Rail- road men engaged in the active operation of trains are classed as "train- men." The relationship between the number of fatalities and the number of men employed is interesting. According to these tables one man was killed in : 1904 for each 304 employed 1905 for each 362 employed 1906 for each 335 employed 1907 for each 321 employed *1908 for each 389 employed *These figures do not include the six postal clerks, express messengers and Pullman employees reported by the Railroad and Warehouse Commission. While these figures show a marked decrease in the number of employees killed in proportion to the number of employees, in the year 1908 as com- pared with the preceding years, yet it must be conceded the number is still high. The following table briefly summarizes the totals of employees killed and injured for the five-year period chosen: STEAM RAILROADS 5 Years 1904 1905 1906 1907 1908 Employes killed OOA 007 qqq 374 272 "{"Employes injured. 2,800 3,270 4,010 4,888 4,704 Total. . . . 3,126 3,567 4,343 5,262 4,976 Total number fatal accidents five years Total number non-fatal accidents five years. . Average number of deaths per year Average number of non-fatal accidents per year. 1,608 19,672 321$ 3,934| [Official figures for 1908 show apparent error of 100 in injuries. 150 EMPLOYERS' LIABILITY COMMISSION ;;>;;;> T3 . . *X CL Q-t J i. : :.-g : : :.ts -GO -GO CO So o o o o -oooo O O O O O -OOOO > g, 1 CAUSE OF ACCIDENT sa -s l--i|-3 6 d 6 EMPLOYERS' LIABILITY COMMISSION 151 The following table shows the occupations of the railroad employees injured during the period under discussion : NON-FATAL ACCIDENTS STEAM RAILROADS 4 Years EMPLOYES 1904 1905 1906 1907 1908 Average per Year Trainmen 1490 1 966 2 igg 1 993 1 903? Switch Tenders, Cross- ing Tenders, Watch- men. . . 92 134 QQ 115 109$. Stationmen 273 332 453 353 352 1 Shopmen 451 328 663 792 558i Trackmen 554 580 818 565 629J Telegraph Employes. . . 6 7 11 g 8J 404 663 679 777 630| Total . . **2 800 3270 4 010 4 888 4 604 **Contains other than employes. The enforcement of the safety appliance laws and the consequent installa- tion of safety devices from time to time, together with the efforts being voluntarily puk forth by the railroads themselves, will undoubtedly reduce the number of accidents resulting in injury and death in the future, yet it is obvious, by reason of the natural hazard of the industry, how deeply concerned should be the railroads and their employees with the proposed plan of compensation, as a reference to the following classification will dis- close that the greatest number of fatal accidents were of the kind which ordinary mechanical devices cannot be expected to check and which no liability law can reach. For example: Those falling from trains, those run over, etc. Attention is called to the cases listed in the following tables as due to causes "other than the movement of trains." These figures indicate that railroads have not only accidents peculiar to themselves, but in their shops they have the usual hazards of ordinary industry. FATAL KIND OF ACCIDENT *1904 1905 1906 1907 1908 Movement of Trains, etc. Coupling and Uncoupling 27 25 29 28 12 Collisions . . 66 39 34 21 18 Derailments 25 22 15 27 18 Parting of Trains 1 1 2 Locomotives or Cars Breaking Down . . . 5 3 1 2 Falling from Trains, etc Jumping On or Off Trains, etc . . Struck by Cars, Locomotives, $tc 72 36 12 119 48 .18 128 45 13 161 32 9 129 Overhead Obstructions 7 4 18 12 4 Other Causes 152 24 23 33 24 Other than the Movement of Trains 11 16 32 28 Total 349 297 333 374 278 *Contains other than employes ?. 152 EMPLOYERS' LIABILITY COMMISSION EMPLOYERS' LIABILITY COMMISSION 153 NON-FATAL KIND OF ACCIDENT 1904 1905 1906 1907 1908 Movement of Trains, etc. Coupling and Uncoupling. . . 235 219 249 299 ory. Collisions ... . . 493 206 269 256 010 Derailments 156 99 105 128 ion Parting of Trains 18 26 18 oq Locomotives or Cars Breaking Down 37 42 3 10 Falling from Trains, etc Jumping On or Off Trains, etc . . 327 208 224 341 294 352 300 395 297 Struck by Cars, Locomotives, etc 120 203 186 164 Overhead Obstructions 42 36 77 62 63 Other Causes 248 687 890 1,042 1 045 Other than the Movement of Trains 1,870 1,416 1,514 2,237 2 160 Total. . . *3,371 3,270 4,010 4,888 4704 *Contains other than employes. So far we have dealt with averages and tables of figures recognized as fairly authentic and so presented by State officials. Inasmuch as the name of the employee, the designation of the railroad and the character of the injury suffered must be filed with the Railroad and Warehouse Commission at Springfield, the reasonable assumption is that the data is correct -so far as it goes. But unfortunately the tables supplied by the Railroad and Warehouse Commission, for the purposes of this investi- gation, are deficient in this, that they do not show what amounts were paid by the railroads in death cases, and there is no other public source from which to obtain this information. However, the Commission is able to supply this deficiency, as per the table furnished by general managers of the railroads, and found on left-hand pages of report, beginning page 150. According to this table the railroads of Illinois, exclusive of benefit, insurance and pension schemes, paid in settlement of death cases of employees, the sum of $165,210, or an average of $1,180 for each fatality. In turning from the fatal accidents to the non-fatal, exact comparisons become more difficult and averages less correct. But the following table will not be without interest It classifies the injuries and indicates the average amounts in compensation which the various injuries were paid. 154 EMPLOYERS' LIABILITY COMMISSION 88888 :888 SBBBSB :S888888S888 gsgg'g iggg i8ll8S :88888g88S88 g : : : " EMPLOYERS' LIABILITY COMMISSION 155 RAILROADS NON-FATAL NATURE OF INJURY Total Number of Cases. i i 0> 1 Wages Per Day. j Surgical and Medical. Compensation. , I 1 1 1 1 Scalp wound Scalp, hip and hand.. Head injured 6 1 6 1 1 1 1 6 1 2 1 1 1 66 18 126 56 76 17 4 1 3 1 1 1 1 1 1 1 $4.01 2.80 3.16 4.42 3.10 3.50 1.65 3.65 2.25 2 1 3 $ 4.00 4 1 1 1 $ 26.22 11.50 38.00 -200.00 3 27.00 $ 42.00 Head, back and knee injured Head, shoulder and arms injured Head and neck in- jured 1 320.00 1 25.50 Head and shoulders inj ured 1 2 75.00 43.00 Face injured 2 1 1 1 3 1 1 1 8 2 1 1 1 1 1 1 1 1 3 7 14 16 6 27 1 15.00 1 1 8.00 7.50 Face and hands burned : Face and eye scalded Ear lacerated Eye injured Jaw broken Jaw injured Neck injured 2.35 2 1 2.00 39.00 1 i i 2 1 40.00 27^00 22.00 22.00 168.00 2 1 6.00 28.00 1 1 6 1 1 1 1 55 19 20 96 78 30 15 1 1 3 2 1 1 1 2.55 4.44 2.80 3.50 2.68 2.70 4.06 Back injured 7 2 1 6.00 74.11 86.75 Concussion of spine . . Back and groin inj'd Back and stomach injured 1 1 2,500.00 450.00 1 1 45.00 3.46 Back and shoulder inj ured i 4 i i 2 2 4 1 7 Collar bone broken 59.40 "il.'lO 49^00 165.00 82.80 122.25 * 2,500. 00 153.50 Shoulder blade br'kn Shoulder injured. . . . Ribs broken Rib broken Internal injuries. . . . Abdomen injured. . . Side injured Body injured . 1 9 3 3 2 4 4 13 1 11 1 5 1 15 7 1 1 1 1 1 1 1 6 3 2 1 3 2 12 6 1 3 1 9 7 1 28 22 42 11 42 31 16 26 51 34 780 73 31 240 30 125 18 25 92 1 5 2 1 2 4 3 8 1 4 1 8 7 1 1 1 1 1 1 2.02 3.23 2.75 3.41 3.00 2.57 2.89 3.22 3.78 2.93 3.74 3.00 2.71 4.23 1.80 3.34 1.80 2.10 3.88 1 5 1 1 2 1 1 8 1 9 1 2 28.00 10.00 10.00 3.00 24.63 12.00 52.50 26.08 27.42 21.46 12.25 43.13 1 4 2 1 1 3 1 6 28.00 26.00 137.50 21.00 57.00 40.13 9.50 24.40 Body scalded. Body bruised Hands, hip and chest inj ured 1 3 1 4 7 59.00 79.50 1,273.00 342.65 26.57 Hip injured 1 Y 30.00 232.43 Heart lesion Arm broken 7 37,94 Arm bruised. Arm and body inj'd. Arm and hand inj'd. Arm, face and hip . . Arm and hip Elbow and finger injured Wrist dislocated 1 1 17.50 145.00 125.00 1 184.00 *0ut of court after suit. (Table continued on page 157.; 156 EMPLOYERS' LIABILITY COMMISSION :::::>: :8 :: :8 : :* ::::> :8 . a . . - . OH 8iO O 1> O 8 CO UJ 3 a. u u. O CO i a cr o : :8 Ul 8 : g gOO ; ;0 :g 8 88 Ogg T-H CO O O5 ^ CO OS O5 OS OS OS '- OO OS OS EMPLOYERS' LIABILITY COMMISSION 157 RAILROADS NON-FATAL Continued NATURE OF INJURY | Total Number of Cases. , Time Lost Days. , j 1 ( Surgical and Medical. Compensation. , 3 , I 1 Wrist joint crushed . Wrist injured 1 7 18 4 1 5 1 1 5 16 4 1 5 63 24 16 57 135 38 1 4 12 4 1 4 1 18 11 1 $2.50 3.12 2.55 3.11 3.59 2.77 3.74 2.90 1.90 3.50 i 6 3 1 1 1 3 5 $ 4.00 7.67 44.22 5.25 33.25 42.00 16.00 20.15 5 11 4 4 16' 5 1 $ 48.00 30.00 81.25 2 4 $ 15.73 29.00 Hand injured Hand crushed Fingers amputated . Finger amputated. . Fingers crushed (both hands) . . . 1 244.00 38.40 68.66 10.50 30.00 2 4 Suit 270.00 46.25 Fingers crushed. . . . Fingers injured Thumb broken Thumb crushed .... Finger broken, hand injured 20 16 1 1 1 2 5 20 12 1 1 1 1 44 14 30 10 1.20 34 1 12.50 1 1 3 2.47 2.90 1.80 1 1 180.00 17.00 Finger broken Leg amputated 1 2 6 2 3 3 6 5 7 69.00 213.91 590.00 107.47 62.00 44.60 5.25 9.11 20.83 10.12 1 3 111.00 2,050.00 Leg fractured (com.) Leg broken 1 10 2 8 9 14 8 23 1 6 11 8 9 1 6 6 1 1 1 1 2 2 8 2 5 5 10 1 3 8 3 4 4 3 1 1 1 547.00 201.75 423.00 38.13 19.50 29.50 129.00 31.40 471.00 268.20 54.25 15.00 12.63 82^17 563.25 52.00 34.50 2 2 8 8 13 6 20 220 197 42 11 15 90 16 2 2 8 4 5 5 8 1 4 9 5 1.83 3.86 2.87 2.19 3.36 2.93 3.62 2.75 2.36 2.57 2.40 1.76 4 337.00 Legs seriously inj'd. Legs injured Legs hurt 2 3 2 6 52^50 126.00 245.00 58.04 Knee injured Ankles seriously sprained Ankles sprained. . . . Foot amputated. . . . Foot crushed Foot injured 3 10 7 8 1 5 5 1 1 1 54 39 13 16 110 38 25 387 45 23 3 2 4 2 1 3 2 1 71.00 18.00 5.31 13.50 97.71 29.00 47.25 121.39 1 3 3 1 1 1 2 2,850.00 58.50 18.34 56.00 1.00 650.00 25.00 Foot bruised .... Foot hurt Toe amputated Toes crushed 6 1 1 1 2.34 2.74 2.42 3.47 2.68 Toes injured Heel crushed Heel injured Heel hurt. . Having this far discussed the records of the railroads of Illinois in the matter of the adjustment of personal injury matters between them and their employees, so far as the public documents of the State and the records furnished by the railroads will permit, and having shown the uncertainty in the matter of compensation, as it exists under present conditions, the Commission endeavored to outline its conception of 'an automatic plan of compensation. The general principles of the plan have been discussed elsewhere, and it is sufficient to close this report of railroad data with such additional data as will enable any one to estimate approximately what the compensation would amount to for the occupational groups in the railroad service. The table of wages found on page 161 will afford assistance. 158 EMPLOYERS' LIABILITY COMMISSION ^ '"""" 5& GO o : : :888888 : : :88S2S8 8.88 :888S888 1-OO -iOiOiOOiOiOkO g ir 8 :888 g : .8 :8 : : : . -go : gooo 8 ,H ^H (M i-H rH (N i-< rH i-l CO (N (M rH H CO CO ajSuig . . . CO . .COCO . . . . CO . . . CO COCOCOCO 'C -'Cooooooo 'Coo^oo^ooooo lag og.gg l ll CQfe .3.9 3g 043-0 SP^COOCO V-^COO ^ 'fS' OOOOOOOOOOOOOO A CO--iOClOT^C^r-iT-i^-(T-((CCOCOC>C ^COOS^COCO^COCOCO^COCOCOT^-^TtlCO^COCOCOCOCOCOCOCOCOCO EMPLOYERS' LIABILITY COMMISSION 159 COST TO RAILROAD COMPANIES. The average daily wages for the year 1908 was $2.43, making the average yearly wage the sum of $729 (300 days at $2.43) ; the compensation in case of death, according to the terms of the plan considered by the Commission, would be three times this amount, or the sum of $2,187. This is based on the average wages, but as the hazard is unequally distributed it is probable that the average amount of compensation for death would be about the sum of $2,750. For illustration, take the report of killed and injured for the year 1908. Assuming that of the 4,704 injured, 1,000 were of a character to entitle them to compensation as in permanent disability cases and 3,604 to thirty days' compensation. Further assuming that the sum of $2,750 represents the average amount to be paid in death cases, we have the following schedule, based upon the experience of that year : 272 Death Cases, at $2,750 $ 748,000.00 1,000 Permanent Disability Cases, at 50 per cent of four years' wages at $729 per year 1,458,000.00 3,604 Temporary Disability Cases (30 days), at 50 per cent of $2.43 per day 131,365.80 160 EMPLOYERS' LIABILITY COMMISSION 88S88888S8S8S8 CO CO 8 : 88S : :|S CO i-l *O 02 / . " . ^ Sn'ofeS w OPkQQO EMPLOYERS' LIABILITY COMMISSION 161 o *-H ^H O CO CM CM i CN (N ' T-l ' 10 < I CN O (N O O f T*" rc > drv.etoc s JoiC5iOCN os t^- . Ti< O l> T I COOC^- CO- t>-iO^ CO t& ' '. '. '. '. co" ; ; en 1 2 g;i;g;:;;; s \\ '. s aouBjnsui :: 11::::: :::^ 3 O O O OO-OO- -OOO *O* t-c O sasnadrg [BJaunj iOO' O OO-OO OOOO *O- !> *O >O *O ^ CO ^^ *O C^l OO lO I* : 5T - :^^ S? : : 1 a S^^ ^^ o ^5 * ^^ ^5 O O O- O O O *O O-- OO- oaoTTO/T VT~ Ttxt nrjy T >> a i .p IV # t-3 . . . w . . ^ . ^ ..... . g tf.* :* 'gdG^^aj' -liSos g-o -.2>.2^a.2g | fe^.s S -dSS -3 5 -2 "S * t^ ' ' o--S J : : a *ls | o|^^|^|o| o| ||^|^ j||| o o > 1 - s Is! * ^ ON AH I S< D $^222" H w Tl1 ^2 t ^c33S ^ 166 EMPLOYERS' LIABILITY COMMISSION 8 : : : : 88 : ; : : :88 : : jt ' ' 888 : : : :88 : : C O O CO Q * : : : : : : u J3 CO iC tO VJ3 O.T3 sin i II I t&o,. %oU 3 ill! jilll 111 H III S^-s ** s I*-*** 1 $ 200.00 "720:00 $ 200.00 ""72o:oO $ 48.00 66.50 $ 48.00 66.50 $1,153.16 286.94 1,046.04 43.90 637.18 100.00 393.28 656.34 2,851.75 428.06 584.00 50.00 2,200.00 1,423.21 3,473.51 4,350.00 130.00 934.25 9,282.88 1,735.00 468.08 72.00 700.00 150.00 1,350.00 220.00 180.00 450.00 562.63 2,528.77 1,598.64 470.00 85.00 750.00 95 00 18.00 975.00 570.00 61.50 2,297.00 934.25 1,250.00 2,068.86 720.00 312.04 750.00 479.16 "425.66 1,200.00 1,218.00 439.15 399.38 6,760.00 1.551.92 9,167.66 1,525.00 450.00 72.00 3,379.66 182.00 372.00 505.00 1,060.00 880.00 690.00 210.25 1,005.54 885.00 560. 77 4,000.00 $1,153.16 286.94 1 046 04 $ 130.79 33.75 $ 130.79 33.75 $ 130.79 33.75 ' 43.90 318.59 10.00 196.64 328.17 1,425.88 214.03 292.00 25.00 733.33 1,423.21 1,984.64 362.50 65.00 934.25 9,282.88 867.50 234.04 36.00 700.00 75.00 450.00 110.00 180.00 225.00 281.31 1,264.39 4,795.92 470.00 28.30 375.00 285.00 18.00 975.00 438.45 61.50 459.40 934.25 3,750.00 1,034.43 360.00 156.02 375.00 479.16 '"212:50 600.00 609.00 1,317.45 199.69 3,380.00 775.96 1,833.53 508.33 225.00 36.00 1,689.83 91.00 186.00 168.33 530.00 440 00 345.00 210.25 1,005.54 442.50 280.38 2,000.00 41.25 '"56:60 '"32:60 900.00 124.42 '"m.ia 82.50 310.07 216.00 22.50 39.26 4,686.96 129.60 '$"450:00 "2,256:00 "396:60 537.50 41.25 '56.60 32.66 900.00 124.42 '"lee'.is 532.50 310.07 2,466.00 22.50 39.26 5,076.96 667.10 "lO:50 30 00 25.47 41 25 5^ 16.00 450 00 62.21 "55:39 532 50 177 00 205.50 11 25 S9 26 5,076 96 333.55 "5:25 30.00 12.74 "l5:66 12.00 ::::..:::: 50.00 100.00 25.00 10.00 '300.00 '850^00 529.98 " 6o:66 '"156:66 '"966:60 '"456:60 "'850 '.66 302.80 "'30:00 24.00 '"56:60 50.00 437.74 1,950.00 ' i56:6o 2,348.65 * 1,000.00 24.00 12.00 '"ie'.w 50.00 250.00 162.50 '"150:60 2,348.65 500.00 12.00 10.50 30.00 25.47 150.00 75.00 30.00 12.00 30.00 12.00 75.00 75.00 '"m'.w '"5i9"oo 139.69 397.50 69.85 198.75 41.68 200.88 415.65 56.70 27.00 101.00 '"450:00 945.00 4i.68 650.88 1,360.65 56.70 27.00 101.00 20.84 325.44 4,081 95 56.70 9.00 50.50 85.00 28.30 18.00 18.00 26.25 450.00 264.00 71.65 72.00 31.50 195.00 26.25 450.00 264.00 71.65 72.00 31.50 720.00 26 25 450.00 198.00 71.65 14.40 31.50 2,16000 '"S9:38 '"9"66 53.00 7:56 169.20 7-88 1,493.64 47.44 618.68 1,152.00 1,211.90 275.00 275.00 50.00 61.50 1,000.00 150.00 38.45 61.50 200.00 150.00 ' ' '525 66 '"350!66 "i',656:66 '"26:66 25.00 50.00 150.00 '"i6:oo 12.50 25.00 150.00 78.75 78.75 18.00 53.00 18.00 53.00 "15:66 338.40 15.75 427.88 94.88 1,237.35 2,304.00 6,059.50 '2,665:56 36.00 671.00 20.25 96.00 32.25 566.96 18.00 104.75 2,567.28 70.00 19.50 156.90 4,576.80 . 75.00 37.50 15.00 338.40 15.75 137.88 94.88 877.35 120.00 '"46:50 36.00 165.00 20.25 96.00 32.25 66.96 18.00 104.75 17.28 70.00 19.50 156.90 76.80 "360." 00 "360.00 2,184.00 6,059.50 2,625:66 '"SOeioO 560:00 '2,550:6o 4,500.00 "4,5fi6!66 2,280 :66 150.00 145.00 25.00 400.00 1,000.00 75.00 435.00 12.50 200.00 500.00 " i',666!66 '"566:60 25.00 100.00 72.00 200.00 8.33 50.00 36.00 100.00 1,032.75 18.00 335.50 10.13 48.00 10.75 283.48 9.00 52.37 2,567.28 70.00 9.75 78.45 2,288.40 192.00 25.00 180.00 200.00 150.00 25.00 '"lO:00 96.00 8.33 90.00 100.00 75.00 25.00 '"5:60 "506.00 1,000.00! Continued on page 175. 174 EMPLOYERS' LIABILITY COMMISSION ILLINOIS MANUFACTURERS' PRESENT PLAN ! CHARACTER OF BUSINESS . ill Number of Accidents. 1 I 1 *1 *i Total Disability. i Ts" i s s it s& < 3 & Jtt> o5 -i? gl ill! ^ Liability Insur- ance Cost. ||- & 45 50 46 47 41 16 134 110 106 12 107 19 137 68 159 133 78 83 32 132 113 43 118 61 129 141 21 154 73 139 98 144 25 17 58 99 88 136 147 2 22 164 30 92 143 77 75 135 67 48 76 123 156 52 10 24 82 91 95 122 101 104 100 93 34 158 112 14 128 127 Mill Work 24 16 24 24 29 24 28 24 24 24 180 24 24 24 4 24 24 24 24 12 24 24 24 24 60 24 24 24 48 12 24 24 24 12 96 384 12 24 28 12 28 24 12 6 12 24 24 24 24 12 24 24 24 24 24 24 24 24 24 36 12 24 24 24 24 4 24 48 24 36 60 3 23 17 7 16 9 2 15 17 2 *14 *12 *5 906 50 180 168 138 396 261 48 299 180 24 $1.53 1.55 1.71 2.00 2.75 2.60 2.14 1.94 1.61 1.60 2.00 $ 1,390.20 79.10 309.60 347.20 379.50 1,029-60 555.00 93.00 483.21 288.00 48.00 $ 1,610.00 256.82 1,982.00 4,172.40 4,108.00 1,213.28 1,470.00 150.00 1,295.50 750.00 $ 805.00 192.62 991.00 2,086.20 1,700.00 606.64 630.00 75.00 647.75 375.00 Box Factory do do Tank Works .Typewriter Factory. 'Sewing Machines Glass Factory Tanners Paper Mill . . . '*i' '*2 do Envelope Factory Paper Boxes do do Lithographers Engravers do 224.34 391.60 450.00 34.00 150.00 400.00 70.60 96.00 300.00 520.00 112.17 195.80 225.00 102.00 75.00 200.00 35.30 48.00 300.00 260.00 4 15 2 90 180 85 2.10 1.17 .85 189.00 210.00 72.60 .... "4 *i "i20 2^6' "'moo do do do . . do Confectioner y 1 .... 119.01 726.58 300.00 60.00 150.00 665.00 400.00 59.50 363.29 60.00 30.00 75 00 332.50 100.00 324 12 1.17 .83 379.44 10.00 do do do 2 36 1.50 54.00 Chewing Gum '"i 3 Bakery *i 65 2.50 162.50 iei.oo 80.50 '"251.59 3,004.75 8.66 "275:66 64.12 624.84 1,888.20 3,514.20 1,065 70 125.50 144.00 150.00 250.00 130.00 450.00 200.00 1,500.00 215.35 do do 5 38 2 54 552 24 3.00 2.50 1.67 162.00 1,380.00 40.00 503.19 3,004.75 69.28 do Brewers' Supplies Brick and Tile ' Brick Yard 275.00 128.24 1,457.93 1,888.20 8,200.00 2,131.40 125.50 72.00 150.00 500.00 260.00 900.00 400.00 1,50000 430.70 do 1 5 9 25 27 '*i' '*2 19 66 328 494 696 1.60 3.28 1.75 2.00 1.95 L67' 30.46 216.60 581 ..74 988.00 1,357.20 "'26!66 Paving Brick. '*6 2 *i Cement Plant do do Cloth Trimmings do Clothing do 1 12 Shirts "" 3 4 Knitting Mill do Department Store Manufacturing Jewelers. . Watch Manufacturer *i '.'.'.'. 153 72 90 1.30 1.50 2.50 198.30 108.00 225.00 7 132 2.12 242.29 200.00 396.71 100.00 50.00 500.00 120.00 225 .41 2,001.74 325 00 437.42 420.00 785.00 865.96 2,833.33 160.00 730.75 41,342.11 4,417.66 100.00 198.35 50 00 25 00 250.00 60.00 112.70 667.24 325.00 218.71 210.00 392.50 432.98 8,500.00 80.00 182.69 20,671.06 1,472 55 do' Laundry Naval Stores Wholesale Grocers Cereal Mills Gullet Yeast Manufacturer Soap Manufacturer Spice Manufacturer Packers' Supplies 5 9 2 4 1 4 52 2 11 60 11 ' *i *i 180 72 36 114 40 102 984 72 244 810 159 2.38 2.00 2.00 2.94 3.60 2.10 1.75 2.50 1.78 2.82 2.70 428. i6 144.00 72.00 336.00 144.00 215.00 1,722.00 181.00 435.70 2,284.20 429.30 Packing House do Packers Feathers Factory Dredging Grain Elevator 3 '*i' *5 *3 32 . .. .... *r *i 3966 1120 5 55 19649 $2.12 $ 41812.29 $166384.61 $100715.95 EMPLOYERS' LIABIU TY COMMISSION 175 ASSOCIATION TABLE No. I Continued. PRESENT PLAN COMPENSATION PLAN Contributions to Mutual Aid. 3 "9 ISi Jlf |il 8J t.STf II |SI f a^i iff! ills > s*,* j*a |iii *!!,; |iJ -S'" jHfc Scgx 1 lij I&HS |-~ 11 3 1| ~J 5-= jllll Ml 6 gl 1|1 '1 *^ as^g fill iisfc a $ 3,108. 0( )$ 1,554. (X $""66-:8C %""b\.k 1 4,718. OC 323.6 1,982. OC 4,172. 4C 4,308. OC 1,213-2 1,470-OC 150. OC 3,506. 5C 1,750. OC ""3i4:3 583.9 655.0 34.00 150.00 400.00 70.60 96.00 838.8 541.3 1 2,359.0 249. OC 991. OC 2,086.2 1,782.7 606.6 630. OC 75. OC 1,753.2 875. OC "i57:i 291.9 327. 5C 102. OC 75.00 200.00 35.30 48.00 838.8 270.6 * 695.1 39. 5* 154. 8C 173. ^ 189.7 514. 8C 277.5 46. 5C 241. 6C 144.0 24. OC giisc 105.00 36.3 1 3,914 OC " 2,587 :5C 3,032. 5C $ 4,609.10 29.55 2,742. 3C 3,206.10 189. 75 514.80 2,677.50 46.50 241.60 1,494.00 24.00 "'94.'50 105.00 36.3 '"i56:oo 262.50 S 2,304.55 29.66 1,371.15 1,603.05 78.60 257.^0 ! 1,147.50 23.25 120.80 797.00 1.60 47:25 52.50 108.90 iso:oo 131.25 200. OC 82. 7t 2,466 :6c 1,350. 6c 1,136. OC 568. OC 1,075.00 1,000.00 537. 5C 500. OC ::::::::: 90.00 192.30 205.00 45.00 96.15 102.50 538.82 21.35 538.82 10.67 150.00 "'262:50 119.0 1,650.19 315.00 60.00 210.00 665.00 400.00 '"242:60 26.00 553.19 3,504.75 119.26 '"275:60 145.74 1,495.03 1,888.20 11,250.00 4,335.15 135.50 72.00 150.00 650.00 260.00 900.00 500.00 4,500.00 530.70 5,153.05 200.00 396.71 100.00 50.00 580.00 120.00 250.41 3,681.11 795.00 437.42 840.00 885.00 86596 6,356.25 416.00 830.75 41,542 11 5,597.86 59.50 825.1 63.00 30.00 105.00 332.50 100.00 '"i2i:6o 13.00 276.59 3,504.75 14 9 "'275:6o 72.87 640.74 1,888.20 4,821.36 2,167.57 135.50 144.00 150.00 325.00 130.00 450.00 250.00 4,500.00 265.35 2,576.53 100.00 198.35 50.00 25.00 290.00 60.00 125.20 1,227.03 795.00 218.71 420.00 442.50 432.98 19,088.76 208.00 207.69 20,771.06 1,865.95 '"is'g'j 5.00 "27:60 "'8i:25 "'si'.oo 690.00 20.00 50.00 25.00 873.61 15.00 436.80 3.00 189.7 500 94.86 1.00 60.00 30.00 '"iso'.oo 27.00 13.50 ""8i:6o 26.00 50.00 500.00 50.00 '"46:56 13.00 25.00 500.00 6.25 180.00 81.25 180.00 40.63 81.00 690.00 20.00 40.50 690.00 2.50 15:20 108.30 290.87 494.00 678.60 '"io:6o ""276:66 15,216.66 3,000.00 '"15:26 378.30 290.87 15,704.00 3,678.60 17.50 37.10 8.75 15.90 7.60 162.21 290.87 6,730.00 1,839.30 3,050.00 2,203.75 10.00 1,307.04 1,101.87 10.00 10.00 20.00 150.00 75.00 "'99.'i5 54.00 112.50 "'121.18 Xsoo.oo "'99"i5 54.00 1,612.50 '"49:58 27.00 1,612.50 "50:6o 3,000.00 50.00 26.53 100.00 3,000.00 100.00 53.05 s.ioo'oo '2,550.' 00 121.14 60.59 80.00 '"25:00 1,679.37 470.00 40.00 12:56 559.79 470.00 '"214:65 72.00 36.00 168.00 72.00 107.50 861.00 90.50 217.85 1,142.10 214.65 '"48o":66 825.00 4,725:00 ' 1,500 .'OO 10,632.00 9;i80.00| 694.'05 897.00 36.00 168.00! 72.00J 107.50 5,586.00 90 50 1,717 85 11,774.10 9,394.651 "23'i:35 897.00 18.00 84.00 36.00 53.75 16,758.00 45.25 429.46 5,887.05 3,131.55 2,522 92 ' 7,588 .'76 377:35 420.00 100.00 ' i',000.00 256.00 100.00 200.00 48.15 210.00 50.00 "3,000:00 128.00 25.00! 100.00 16.05 " 1432:65! 1 22066.9511 19539.91 31689.41 20841 .95)1220140. 97 141142.81 20856. 14! S 85640. 50J$106496.64J$ 74023.62 176 EMPLOYERS' LIABILITY COMMISSION TABLE No. 2. ESTIMATED COMPENSATION UNDER PROPOSED LAW FOR DEATHS AND PERMANENT DISABILITY REPORTED BY MANU- FACTURERS IN PREVIOUS TABLES. I 1 c INDUSTRY RESULT OF INJURY 1 1 Estimated Compensa- tion. 1 jl ' death finger amputated " broken $420.00 300.00 450 00 $1,500.00 150.00 125 00 47 2 Packing Boxes. . . injury to head three fingers crushed. . . . ankle crushed 420.00 750.00 345 -00 420.00 537.50 300 00 3,032.50 $1,516.25 134 H Sewing Machine. . . 1 death.. 800.00 2,400.00 1,800.00 6 deaths 3,600 00 10,800 00 1 arm and leg amputated . 630 00 2,520 00 22 ''4 Cement Plant 1 hand amputated 630 00 945 00 1 foot " 630 00 945 00 15,210.00 6,518.60 14 4 Factory 1 death 480.00 1,500.00 375.00 5 deaths 3,300 00 9,900 00 128 2 Dredging 1 loss of eye 975 00 732 00 10,632.00 5,316.00 3 deaths 2,460 00 7 380 00 12/ 3 Grain Elevators. . . 1 spine in j ured 900 00 1 800 00 9,180.00 3,060.00 1 death . . . . 600 00 1 800 00 b9 12 Electrical Mach'y 1 loss of eye 600.00 450.00 ::::::::: 2,250.00 187.50 )i 126 2 Furniture 1 death 675 00 2025 00 1 012 50 79 1 Coffins 1 death 850.00 2,550.00 2,550.00 ; 2 deaths 1,200 00 3,600 00 115 2 Lmbr. and Mill Wk. 1 arm amputated 600 00 900 00 4,500.00 2,250.00 EMPLOYERS' LIABILITY a > EMISSION 177 TABLE No. 2 Continued 1 T 2 INDUSTRY RESULT OF INJURY Wages per Year. Estimated Compensa- tion. Compensation per Year. Lumber. . 1 death 1 three fingers cut 1 arm hurt 2 foot mashed. 1 finger broken $ 345.00 375.00 405.00 810.00 690 . 00 300.00 270.00 540.00 420.00 405.00 270.00 405.00 450.00 480.00 $1,500.00 187.50 202.50 405.00 45.00 150.00 135.00 270.00 210.00 202.50 135.00 202.50 110.00 160.00 1 arm broken 1 hand cut 1 " " 1 " " 1 ankle broken 1 collar bone broken 1 wrist fractured $1,957.00 1 finger cut 1 fingers cut off 3,914.00 * Agricultural ImpPt. 1 three fingers. 480.00 360.00 1,080.00 2 1 Furniture 1 loss of eye 750.00 500.00 250.00 Paving brick 1 foot injured 540.00 270.00 116.00 Dept. Store 1 death 250.00 1,500.00 1,500.00 Packers 3 deaths 1,575.00 4,725.00 14,175.00 2 Agricultural Impl. . 1 death 728.00 2,184.00 1,092.00 5 Agricultural Impl. . 2 deaths 1 blind 1,026.00 450.00 525.00 525.00 3,078.00 2,000.00 394.00 787.50 1,251.90 1 loss of eye 1 hand amputated 6,259.50 2 Cement plant 2 deaths 1,000.00 3,000.00 1,500.00 2 2 Mining Machinery . 1 leg injured 900.00 450.00 225.00 Steel Specialties... . 1 lost two fingers 1 u u 375.00 700.00 187.50 350.00 268.75 537.50 * Iron and Steel 1 leg broken and badly healed 1 loss of eye 540.00 540.00 540.00 405.00 2,835.00 945.00 178 EMPLOYERS' LIABILITY COMMISSION TABLE No. 2 Continued Jz; 1 Period in Years. INDUSTRY RESULT OF INJURY Wages per Year. Estimated Compensa- tion. t 13 2 Foundry 1 loss of eye $ 600 00 $ 450 00 $92n nn 124 i Plumbers' supply . 1 four fingers 525.00 525.00 1,575.00 ; 7 2 Agricultural Mach. 1 three fingers 480.00 360.00 180.00 26 2 Furniture 1 loss of eye 675.00 506.00 253.00 1 crushed hand 450.00 450.00 12 Paper mill 1 hand amputated 600.00 900 . 00 1,350.00 675.00 113 2 Printers 1 spinal injury (not per- KOK fit) 9A9 ffl 131.50 139 1 Bakery 1 two fingers (girl) 360.00 180.00 180 . 00 122 3 Yeast Mfr 1 finger amputated and hand injured 960 00 480 00 160 00 101 1 Soap Mfr 1 loss of eye 1,100 00 825 00 825 00 157 1 Railway Equipm't . 1 spine injured (not per- manent) 780 . 00 390 00 390 00 ' 1 right hand cut 615 00 307 50 1 right thigh broken 330 00 165 00 1 thumb and first finger cut 390 00 195 00 1 right leg broken 1 one finger 675.00 450 . 00 337.50 150 . 00 46 1 Packing Boxes. 1 eye inflamed 535 . 00 262 . 50 1 hip and arm bruised 600 00 300 00 1 right thumb 300.00 150.00 1 two fingers 450 00 225 00 1 right forearm bruised 300 00 150 00 1 thumb mashed 360 . 00 180 . 00 1 three fingers mashed 330 00 165 00 $2,587.50 2,587.50 Total... $58,028.50 EMPLOYERS' LIABILITY COMMISSION 179 RECAPITULATION-TABLE No. 3 141 firms reporting show: Fatal accidents 32 Total disability Partial * '. '/. '. '. '. ] .' .' .' .' ] .' .' [ 55 Temporary " 1^28 Total 1,120 1028 temporary disability cases entailed: Loss of time in days 19,649 Average rate per day $ 2 . 12 Loss in wages to employes 41,812 . 29 Average wage loss per employe 40.99 Total. Per year. Liability insurance cost to employers under present plan. . $166,384.61 $100,715.95 Estimated cost to employers under compensation plan: Compensation for 32 deaths 59,442.00 40,108.90 " total and partial disability 26,198.50 17,919.60 temporary disability 20,856 . 14 16,045 . 12 Total $106,496.64 $74,073.62 Estimated cost of medical attendance, assumed at $10.00 for each case of temporary disability, $50 . 00 for each case of partial disability, $200.00 for each case of total disability 14,030.00 9,800.00 $120,526.64 $83,873.62 Difference between cost of liability insurance and commission plan $45,857.97 $16,742.33 No account has been taken in these figures of the cost of administration and the profit of insurance companies under a Compensation Act. CHICAGO BRANCH NATIONAL METAL TRADES' ASSOCIATION The same blanks used by the Commission in securing data among the manufacturers were sent to the Chicago branch of the National Metal Trades' Association, through their secretary, and nineteen answers were received. The average period covered shows six years, although a majority of the reports are for a much shorter period. A total of twenty- six accidents are given, three of which are classified as total. In one case the amputation of a finger is so classed, although no such intention should be credited to the Commission. No fatal cases are reported. Twelve temporary disabilities occurred and 1,098 days' time was lost to employes at an average rate of $2.30 per day. The cost to employers shows a total of $6,736.24, divided between insurance, voluntary contributions and medical and surgical expense. Not all the accidents were compensated, 180 EMPLOYERS' LIABILITY COMMISSION and the apparent waste is considerable. The reports are not complete enough to more than approximate the cost of the average accident at $260. The complete report follows: 6 Period Reported- Months. Number of Accidents. Total DiFability. i Loss of Time Days. Average Wage per Day. Wage Loss to Employ- ee. Liability Ins. Cost. s 2 .Is P a i* ~ - 1 > Cost to Employer un- der Present Plan. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 24 24 24 60 120 12 24 24 180 132 240 12 12 60 12 240 12 3 5 2 2 'ti *54 120 652 3.00 2.73 *$162.00 327.60 $ 770.00 1,358.00 903.71 $ 700.00 $1,470.00 1,358.00 903.71 2.00 403.03 108.50 403.03 108.50 3 i .* 3 i 24 : 2 . : 66 1,050.00 1,050.00 48.00 42.00 189.00 150.00 900.00 37.00 75 'OO 50'00 37.00 117.00 189.00 200.00 900.00 1 '1 3.00 1 1 7 . . . i i 7 36 18 194 2.50 1.50 1.60 27.00 313.68 Yes $240.00 1,212 26 r 12 1,098 18.33 $878.28 $5,874.24 $240.00 $862.00 $6,736.24 Fatal accidents none reported. *Excess of total given, but not specified. fArm amputated. JFinger amputated in one case. Eye destroyed. CARPENTERS' AND BUILDERS' ASSOCIATION OF CHICAGO Only one organization of building contractors answered the request of the Commis- sion, although each of the twenty or more organizations were requested to assist the Commission. From the Carpenters' and Builders' Association we secured sixty answers to our circular' letter, forwarded by Secretary McCumber. A summary would indicate a very low death rate from accidents among the workmen following this branch of industry. The average period for forty-eight contracting firms specifying the time for which figures are given shows about seven and one-half years. Four fatal accidents occurred, no permanent injuries, and only thirty-eight accidents caused temporary disability. To guard against these accidents the contractors expended $30,164.14 in liability insurance. Mutual aid associations, probably from the nature of the industry, are not popular, as only one item is found in this column. As no accident is reported, this item seems out of EMPLOYERS' LIABILITY COMMISSION 181 place or is a contribution to a former employe suffering from sickness or other disability than an industrial accident. The showing is remarkable in view of the generally accepted belief that the industry should be classified as dangerous a belief shared by liability insurance companies in fixing their rates for insurance. The full text of the report follows: d 1 I 1 Number of Accidents. Fatal Accidpnts. Partial Disability. Loss of Time Days. Average Wage per Day. 1 P. 1 Contribution to Mu- tual Aid. 1 Cost to Employer un- der Present Plan. Cost to Employer un- der Compensation Plan. 1 11 $ 287 00 $ 287 00 2 3 24 384 1 1 110 $4.50 $ 495.00 325.00 6,400 00 325.00 6,400 00 $ 247.50 4 5 6 12 12 24 10 1 1 2 8 1 1 136 66 3.00 4.80 5 40 408.00 316.80 59 40 2,000.00 300.00 $75.00 2,000.00 300.00 6,204.00 158.40 7 8 144 6 6 176 4.50 792.00 J2 Yrs. 1 \ 1,187.80] 507.00 /2 Yrs. \ \1,187.00] 396.00 q 10 24 500 00 500 00 11 48 120 1 1 f 1 Yr. \ f 1 Yr. 1 13 144 \ $100.00] f2 Yrs. \ \ $100.00] 870 00 H 24 \ $870.00] 36 16 216 1 1 00 105 20 fl Yr. \ fl Yr. 1 52 60 17 360 \ $150.00] 1 $150.00] -| ( - 12 250 00 250.00 24 2% 2% 2% 2% 99 24 [Some \ 50.00 /Some 1 < n , , f 24 \Contraets. / 225 00 IContracts. ] 225 00 91 240 '; o og 4 00 284 00 142.00 0- fifi 950 00 950 00 Yr' Yes Yes 97 24 1,000.00 5.00 1,005.00 228 0( 48 on 360 00 360 00 01 04 " * o on 3 00 90 00 900 00 700.00 45 00 0- Yes Yes 60 Vpc Yc 121.00 121.00 31 o- 10 ' ' 4 80 58 00 58 OC 79 >- 12 38 60 24 1 22 4.80 105.60 fl Yr. | { 800.00] 100.00 900.00 52.80 182 EMPLOYERS' LIABILITY COMMISSION jl Number of Accidents. Fatal Accidents. Partial Disability. Loss of Time Days. Average Wage per Day. 1 1 Liability Ins. Cost. Contribution to Mu- tual Aid. Voluntary Contribu- tions, Medical, etc. Cost to Employer un- der Present Plan. Cost to Employer un- der Compensation Plan. 40 41 42 43 4*4 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 00 72 300 360 96 ' /Part of 1 \ Time. / /Part of \ \ Time. / 12 $100.00 $100.00 24 48 1,200.00 1,200.00 192 180 12 24 192 300 12 240 12 1 300.00 300.00 $330.00 52.80 Yes.. $426.74 $6,165.00 26.40 2 10 1 110 11 $3.00 4.80 11,521.64 11,521.64 /Part of\ (Wages./ Yes . . . 380.00 380.00 264 4,484 42 4 38 727* $3.64 $3,038.80 $30,164.14 $426.74 $858.00 $30,616.38 $13,489.70 THE COOK COUNTY CORONER'S RECORD (The left, or even numbered, pages show the record of individual cases referred to in the text found on the right, or odd numbered, pages.) nana The two basic industries of mining and transportation are responsible for so large a proportion of our industrial accidents that the Commission made them the subject of special investigations. But they are not responsible for all. Far from it. Here and there, on buildings, in mills, behind teams in the streets, men are dropping daily to their death or suffering accidents that throw them and their families into hopeless poverty. The Commission recognized at the start that the facts regarding these miscellaneous accidents were quite as important, if not so vivid to the popular mind, as those to be found in the industries like transportation 'and mining, where the haz- ards are better appreciated. It was important to know, for example, whether the workingman who suffers an injury on the ordinary job is likely to be as well cared for as those in the extra-hazardous trades. To get a good cross-section of this situation the Commission turned to the records of the Coroner of Cook County and drew off a list of the 600 deaths which occurred in Cook County in 1908 as the result of industrial accidents. From this list of 600 the Commission took the names of all who were employes, killed in the course of duty. Cancelling the names of the steam and electric railway men whose cases were being traced through the records of the Illinois Railway and Warehouse Commission, the Commis- sion found itself in the possession of data covering some 200 fatal indus- trial accidents in Cook County in a single year. A member of the Commis- sion undertook the investigation of these cases. In a number of instances, of course, the families could not be found, but the Commission was successful in getting the facts in regard to 149 cases. In the tables accompanying this section the details of those 149 cases are shown. The most extraordinary fact disclosed by our investigation of what might be called the common run of industrial fatalities was- the large num- ber of cases in which not a penny was recovered, either in court or out of court. Seventy cases out of the 149 were without a settlement of any sort. This is practically half. These were not all single men either, with none dependent upon them. In at least thirty-four cases they were mar- ried and had families. Of course, in many of these seventy cases the em- ployer contributed something toward the medical and funeral expenses, and the trade unions also stood between the family and the economic blow which fell with the loss of the wage earner. But the fact remains that in 50 per cent of the cases the industry avoided the burden practically in toto. In only forty-two of the 149 cases had the adjustment of the claims for damages been taken into court. Although at least a year and a half had elapsed since the families of these men were crippled by the loss of the bread winner, in only two instances had their claims been judicially passed 184 EMPLOY RS' A LI ABILITY^COMMISSION UMOUH uaq^ : :s :8 :::::::: :g : : : H) uj 88S :8 88 JJTIOQ jo ;no 88 :{2 PO iO t^ C^l aoue^sissy Jaq^Q 8 88 :8 :8 8 :8 :8 :88 cc u o QC O O I UJ 888 :8 :8 :8 : 8 :8 U5t>-O -O -lOO^O- iO S 8888 : : :88 888 : : :8 :8888 :8 c*3 * :::::: :s ::::: :88 : :8 :8 : : :S ~ to ooooo d EMPLOYERS' LIABILITY COMMISSION 185 upon. One was lost and the other won ; the remaining thirty-nine were pend- ing and seem likely to remain in.that status for a considerably longer period. In only one instance, as we have said, had there been a successful suit. In that, the case of a carpenter who left a widow and three children, dam- ages amounting to $2.000 were awarded. The lawyers' fees left $1,800 for the family. In only one other case such were the delays of the law had a suit been pushed through to completion, but in that case the plaintiff lost. He was an electrician, a single man, and his employer had paid $175 for his funeral expenses. The Commission makes no attempt to pass upon the merits of the case. The facts are worth something as tending to show that the course of litigation for the plaintiff is not always smooth. There were almost as many settlements out of court as there were at- tempted settlements in court. The former numbered thirty-eight and ranged from the $50 paid for the death of a fireman and the $100 paid for the loss of a structural ironworker to the very exceptional settlement for $4,500 made with the family of a foreman who had been struck by a derrick. The average settlement that is, the average of those that were actually settled was $847. In only six of the cases that were settled out of court was the Commission able to learn the amount of the attorneys' fees. These were found to average $150. If we subtract from the average settlement of $847 the average amount paid the lawyers in half a dozen representative cases, the net amount of the average settlement will be in the neighborhood of $700 for the loss of a human life. There will probably be no disputing the fact that the settlements made out of court are not adequate to meet the loss. Without a system of compensation behind them, the families of the deceased workers are at a serious disadvantage in the negotiations. The average out-of-court settlement in the building trades amounted, the Commission found, to $835. The average settlement for the teamster, on the other hand, was noth- ing whatever. Not one of the families of the nineteen teamsters killed during 1908 received a penny in settlement. Six of them have sued and their cases are pending. The miscellaneous trades had an average settlement of $1,368. That this was so large was due to the occurrence of a couple of settlements for $3,000 each. Laborers working for contractors were not valued so high. In only a single case was there a settlement, and that one was for $150. On the other hand, the deaths of laborers in the steel mills was compensated for at an average of $845. The average settlement in the table of general laborers was $693. But these figures are not satisfactory, because they tell merely the story of the minority who made settlements; they give no hint of the large number of cases in which no settlement whatever was made. Outside of the county of Cook, the Commission received the same cour- teous treatment shown us by Coroner Hoffman. A circular letter reached every county in the State, and among the gentlemen who gave us freely of their services were: Coroners Rhodes of Sangainon, Oleson of Du Page, Dougherty of McDonough, Baker of Saline, Slyder of Livingston, Creland of Cumberland, Rutherford of Douglas, Buxton of Macon, Martin of Richland and Grear of Union. 186 EMPLOYERS' LIABILITY COMMISSION S*K>0 PUB 833^ Xaujowv jo ;jno aooumsuj .ratflo uotufi saptij, 88 : :88 : 8 : : : :8S : :8888 ^ :SS8 IO CO : : : :8 :8 to : 8 : : : S : S : : : 3 s^uapuadaQ eo o H EMPLOYERS' LIABILITY COMMISSION 187 PUB aj jo J :S 8 : 8 : : :S . . co" I . T-co : 88 : :88 : : :g : : : : :8 : : : 83 g OOO g : O 5 rt< CO aping jo paijai\[ C "3 CO rt< TH Z&K&KS bC M) .3.9 888888 88 88 888 8 : : : :8 "tf CO CO CO TH ... ' ' PH fin : . ; . "tanoQ jo ?HQ - : : ;;;;;;;;;;; SmmiMin aou^gissy aaqiQ : : :8 : : :8 : : : : :8 : : :S : : :::*::: ' : : : MiMfMNI!; LUjJllLU U aonfcmsui aatflO 8 : : : : :88 '8 : 8 : : : : : :::::: :::: :g ::::.:: QQ -^ ^ * *"* r-H ! uotufl sapiux 3 ooo : : ;8 : :8 : ; : : loiiiio- :^:::; t>...t^. -t>..-.- iO 000 :.:-:>.: :S22 . & . . . . . . . . . FUNERAL joXoidraa "88 : 8 : :8 :i8 : : I ; ; ; ; : ;l^ ; i LABORERS CONTRA 8 : :| ;||| aXoiding[ : : : '. '. m ::::::::; s a ^ : :#:::: :E : : {*:::::::;: 'ivoiaaw <"^ CUT 1 C IAI jaXojdtuy; :::::: :8 :: 8 : : : :8 : : :8 : : ;;;;;;;!;: : :: :8 ::::: aXoidrag : S :S : : : : : : c; >-l ->H H ;;;!;;;;;;;;; s S'juapuodaQ ^ : ^ ^ r* '. '. < Pi P ^; iitliinin I||!||^!|j lllllSl III t3 -So -oooooo^o 0^wT3,_;'T3'O-O'T3T3-O2' r3 s3l S o OCCUPATION :::::::::::: 1 rjOOOOOOOOOO 'O'OT3T3T3i3' i OT3'O-a 1 - ^ "gooooooooooo 'S'i' ON tog I Oi-HODt>.QOO5O'-<(NCO 1 1^***~'"~~~**<* EMPLOYERS' LIABILITY COMMISSION 189 LABORERS CONTRACTORS. Continued. aA\ou2 uaq^ SJS03 ^11103 pus saa J Aamowy * " LABORERS STEEL PLANTS. fOut of court after suit. LABORERS-PACKING HOUSES. SETTLEMENT w . D 12 o r . . two bb P : '.9 3 fc o o o o o o o ^3 ^2 O O ^ O O 8 : :||l| 111 aouB^sissy laij^O 8 :::.;; ; ; ; o ' ' : "5 : : : . 3 aoatunsaj Jati^o 8 T 1 uotui saptiij, 8 '.'..'.'.'.'. '.'.'. ; FUNERAL j3Xo[dtu%[ S ; ;00 ;0 ;O ; ; i | 88 gg ^ iO O O *O ^O |^.t^ O O -00 !> a^ojdrag :::::::::::: MEDICAL jaXojding; i '. i a :s I ! '. '. '. '.'.'.'.'.'. . . . . siuapuadaQ ^^ ^ CO lO -^ CO CO CO CO -i ; aiBiiiS 10 paunn Sa>S &^&^mW&mm^ EOOO5Oi-H(NCO^OCOI>.00 ^C^COT} ;s :, ''' ' ' S : 8 :::: ::: :88 : : : 88 : : : : :8 : : : : :8 88 : : : 88 : : 888 88 -UOtUfl 83DBJT -SB :::::::::: :888888 :88 :g i! -rt< -OCDINOCO 8 5 1 o 3 OOOOOOftjOOO,J.5oOOOOOOdOOOOOgO 5 -8 ^ 'S -8 -8 W T3 T3 T3 -^ "g T5 -O T3 T3 T3 T3 T3 'gj'd 73 "O T3 T3 g T3 192 EMPLOYERS' LIABILITY COMMISSION fl cj b d o> ; " o 13 9 ' ' 9 'S ' *3 888888 :8 ;88 :88 : : : ;888 ' : : : :88 : : : 8 : : : : : :SS : S :8 : : :8 : : 8 -SSS 10 -lOiOiO CO CO CO CO SS O 'Ot^ C s lQOOCOO u ' O O O O 9.10 l> O O O i I r-< CO H U3 a : -s 4 III* ON COMPENSATION THROUGH LAW SUIT (The left, or even numbered, pages show the record of individual cases referred to in the text found on the right, or odd numbered, pages.) naan There is a widespread notion that the victim of an industrial accident is not unlikely to get a handsome, not to say spectacular, award if he or his family can only hold out long enough to fight the case through the court This optimistic view assumes, perhaps correctly, that the average jury sympathetic toward the plaintiff and is rather prone to make the damages heavy as possible. Its main weakness, the Commission found, lies in its failui to square with the average fact. The Commission was forced to conclude as the result of its general invest gations that the spectacular damages which figure so prominently in the poj ular- conception of this question were, on the whole, exceedingly rare. Moi over, when they did occur they were commonly the result of a jury trial in lower court and shrank considerably on appeal to a higher court or a ret And the average was low. In order to test its conclusions further, the Commission asked a numl of attorneys who make a specialty of such cases for specific information this point. What was the average compensation they had been able to secu] for their clients in a given number of cases? What was the net compensation* Two attorneys threw open their books to the investigators of the Commissi( permitting them to draw off very full records as to closed and pending cas This data proved most interesting, but its summary only confirmed the coi elusions reached elsewhere. For example, a study of the dockets of the first attorney, who is a well known specialist in liability suits, showed the following record for fatal cases : Fatal cases in litigation Number in which final award secured Total net compensation $30,1( Average net compensation 1,( EMPLOYERS' LIABILITY COMMISSION 195 The dockets of the second attorney showed that seven completed cases had awards aggregating $3,106, an average of $443. These were ordinary cases, encountering the usual exigencies of the law. The common law doctrines of fellow servant, contributory negligence and trade hazard did not play a con- spicuous part in these cases. The elimination of these defenses would have changed the averages but slightly. These were ordinary cases, taking the ordinary chances. But the investigation was pushed still further. It was sought to learn what awards had been secured in disability cases. Some of the spectacular verdicts referred to above began to appear at this stage of the investigation. A switchman who had his legs amputated won a verdict of $25,000, gave his attorney $8,500 and retired to his wheel chair with $16,500. Another switch- man, earning the same wages and suffering the same mishap, took $6,600 out of the lottery. But the total compensation received in the thirty-five completed cases found in the dockets of these two attorneys amounted to $87,228, an average of $2,520. But the full tables printed in this section are more eloquent than the averages. They tell of the delays which were suffered. They emphasize, too, the pure gamble of the results. The Commission is confirmed in its conclusion that litigation is a wasteful and utterly inadequate method of providing com- pensation for the victims of industrial accidents. One of the strongest aspects of the situation as revealed by these tables is the element of delay. A switchman whose leg is broken October, 1905, recovers $200 in December three years later. A steel worker who is blinded by an accident in November, 1907, recovers nothing until May, 1910. A switchman who lost both legs in 1903 gets his damages in 1910 after a delay of seven years. And so it goes, until the wonder arises how any sane community can find words to defend such a snail-like method of procedure. At the moment of greatest strain, when aid is needed, when the panic is at its height, when the children are taken from school and put to work, the present system withholds assistance unless the family will accept blindly the terms that are offered. This point was frequently made in the numerous letters which the Commission received. One of the most interesting communications of this sort was one from Mr. William Hard, one of the foremost students of the subject in this country. Mr. Hard said, speaking of the material which the Commission had gathered: 196 EMPLOYERS' LIABILITY COMMISSION 8888 : 18888 : : :8 :8S8S88SS8 ^ w -./ofi-TcsT r-T T-T ; ; ; ,-T ; c^T c> 03 C3 03 ; o p' O T3 *^3 op j pp8< -o : :^gp gR^^gCOH^S^ScOOSZ COS s| S SSS o si si 8 il^-g-s^l i-s ^s.^gasl^^ '^ >: gp :^O^feS^.Q --~< c^ :J : :^ : s'jj I pip i|^}l!;i P iiisiig *&f :2lif ^"^o^^ ^I'sSlll :3 ?g o o'i 2J2-4? II 11 --igUis :| Ip^ljiw pQQp4rtco '.ofeOPwQ :p S'co OO S5 C COOJ j'S CO Pn O CO O 00 i-H (N r)< rH t- TH C T-H O i-i I-H 88 :8888888 :::::::: O O iO "* "2. ' ^ i-Tc^T I T-7 00 CO S -5 *s <^ v 1 1 CQ -fj|>l>l>-^w|> ;** * COCOCOCOHh^CO EMPLOYERS' LIABILITY COMMISSION 199 S 88888888888 :88888888888 ' .1 p 885S8SSS " 8888888888888 :88888888888 O CO O O O -*i o' O r-i O o' O " J>COQOOO CO i IT i O O t>- i I ; i-*r- :88 : :8 : : : : :8 :888 g 8 : : 88 :88888 :8 88-8 :8 :88888 O5 b- -1C -OCOOrH OOOO5OO5OOO ;! OJCD -CO^T^t^OSOSOl -l^T^t^iOO5O5 -COTtHl-^aOOO -00 00 -0000000 -000000 -00000 -O CO CD 00 O CN GO OO CO lO GO O CO CN I CO CM lO r-l III ill t~- o CO CO O5 CD iO cq_ co^ . 8 8 : s :5 *I 8 : ll ." G 9 1 88S8 88 1 s | ^^ lO T"* 00 ^^ CO 6 5 o ** : c3 ^3 a *o ii b- *0 Oi 10 ll S8 J ? Ji g ^ < g *g ll- CO O5 b j3 4 C*l CO CO i^ t/3 CO O "^ ^ ^ <" ^ r/C rv~T t3 PN fa & q cG CO r9 z ll 8888888 ^ !l s _1 CD i| T-T ^T < _J H 00 1 CO >> ? >> 88 3 O o UJ T3"eS 1 *i o o ^> h- |H <0 LJ is O l> | _j z (M c OH p E nfl o CJ 5^ o X; *trt 3 o * 1 -t-= -*a i- 3 -M "5 : -3" o w 1 C T3 C T3 C O S S CD P S 2 '! 3 4 -i 1 a J e J M J J O i 11 t^ CO CO CO CO CO O5 O5 O5 O5 O5 O5 li III 0~ 1 1 (5 rH i < ^H iC +j G " -2 : "E, ^ o ^ o : s . ; X* H : 'a ' H ~? PH iLf* : I-IIIU^ llalJ ,o2 : Il c ^ " 03 CO M s C< ? TH C^ CO Tt< iO CO l>* (N 1-1 CO N 3 X WHAT BECOMES OF THE INJURED WORKMAN ? (Read right, or odd numbered, pages, for reports; left, or even numbered, pages contain statistical records.) nnnn The Commission attempts no extended answer to the question : "What becomes of the injured workman and his family?" To do so would require an intensive search through hundreds, if not thousands, of personal cases from the records of organized charity, fraternal societies, churches and labor unions, and the time has been far too short for the accomplishment of such a task. But, fortunately or unfortunately, the community has long had, staring it in the face, certain records which, when analyzed and extended, tell all too plainly of the hardships of the present irresponsible system. These are the records of the cases which the community itself has had to succor, the records of public charity. THE COUNTY AGENT OF COOK COUNTY. Through the office of the County Agent of Cook County, investigators for the Commission secured the names of all the families which, during a given period, were forced to appeal to the County for help as the result of the death or incapacity of the wage-earner through an industrial accident. During the period chosen from January, 1906, to June, 1910, covering three and one-half years Cook County alone cared for 147 such families, num- bering 558 individuals. The economic resources of these 147 families were carefully investigated and the facts about them may be found, carefully tabulated, in the tables which accompany this section. But the main facts are not difficult to carry in mind. In seventy-two' families the wage-earner had been killed; in seventy-five cases he had been merely crippled. The Commission is frank to say that it found painfully instructive the stories of how the women and children in these 147 families met the load thus thrust upon them. As was, perhaps, to be expected, many of them were in no position to meet it at all. Of the entire 147 families, only forty-three had any wage income whatever. This left 104 families without a wage income of any sort. The forty-three families which were able to market the labor of the children or the mother or both, had an average weekly income of i This represents in a large degree the children's burden, for the thirty women who were able to secure employment averaged but $3.39 each week. One gets, perhaps, a clearer sense of the economic strain of this situation through a survey of the averages. This whole group of industrial accident 202 EMPLOYERS' LIABILITY COMMISSION 08 I cs * "" s ~> .H.S ;;- fl S 13 ^3 W> s-g S ** 8 bC 60 1 : H :f : :g i : ! : : : S. S. : :S i V. (N 1 -g g 8 : : :g g 8 8 888 o o o C* CO OS 8 OOO-iO OC l> '-1 ^ H O 888 :::::: :8 88 :8 :S : :8 o o <3 PL, Ow 'l^l 1 PHI ojj as3 EMPLOYERS' LIABILITY COMMISSION 203 victims has an aggregate average income per week of $295.75, which is about $2.00 per week per family, or about 50 cents per week for each person. Whether one takes these averages or the real wages actually secured by the group of forty-three families, there is no escape from the conclu- sions involved. Wages of this sort, in a community like Illinois, mean only one thing ; they mean labor in a severely "sweated" industry or, at best, labor of a casual and precarious sort. Too much cannot be said in praise of the heroism uncovered by our investigators in many of these cases. They were doing their part, although it cannot be said that the community was doing its own part in any adequate fashion. And the painful character of the situation is not lessened in such a case as -that of the widow with four daughters who finally gave up the struggle to make ends meet and embarked upon a career of immorality. It will not do to assume that these were families of exceptional weak- ness. They were not, for example, at the economic disadvantage commonly imputed to immigrants. Almost half of them (seventy-two) were native Americans. It seems altogether conclusive that their pitiful economic con- dition was due almost solely to the absence of any freely-working system of compensation for the unforeseen and unescapable accident. If, in place of the County as the relief agent, one substituted other agencies, such as the fraternal order, the benefit fund of the trade union, or private philanthropy, it seems altogether probable that, so far as the economic ability of the family to bear the load alone is concerned, we should find much the same set of facts as are here revealed. THE COOK COUNTY HOSPITAL. Further evidence was gathered from the records of the Cook County Hospital for the years 1907, 1908 and 1909 inclusive. A total of 1,579 cases, the victims of industrial accidents, were investigated, particularly as to occupation and nationality. In occupations they were divided into four broad groups as follows: Building trades 223 Teamsters 293 Laborers 648 Miscellaneous 415 Total 1,579 In the full occupational table accompanying this report a more detailed view of the occupations of these disabled workers may be secured. The large proportion of unskilled labor is noteworthy; likewise the hazardous nature of the teamster's work. The returns from the hospital as to nationality are not wholly trust- worthy. At all events, we found many more injured workmen classified as Americans than we had been led to expect from the report of the State Factory Inspector. The hospital authorities classified 620 as American while only 163 are designated in a like number of cases compiled from the records of the Factory Inspector's ofiice for the whole state. Germans came second with 168; Irish, 157; Russians, 93; Poles, 87; and 32 other 204 EMPLOYERS' LIABILITY COMMISSION :g co 8 bO c . 3 GC : : a : : : . P CO :S 88 88 0 O (N i-i co (N CO * l^lllli-as |3 ^QooM EMPLOYERS' LIABILITY COMMISSION 205 nationalities in a descending ratio, including two Assyrians, one Manxman, one Mexican, one Turk, and one Galatian. The record of the family relationships of the victims turns up the familiar fact that young men, or at all events, the unmarried men, figure in accidents more frequently than do married men. The County Hospital record shows that 580 of the workers were married and 764 were single : 1907 1908 1909 Married 195 Single 245 Widowers 38 Not given 63 Total , . 541 466 TABLE OF OCCUPATION. 1907 1908 1909 Total Carpenters 22 22 19 63 Painters 21 24 22 67 Cement finishers 1 1 Brick layers 3 8 8 19 Plasterers 3 4 Steam fitters 1 Constructors 2 Electricians 3 4 3 10 Stone cutters 1 Plumbers 6 2 Roofers 2 1 Iron workers 5 Wood workers 3 Sheet metal workers 2 1 Derrick man 1 Gas fitter 1 1 Elevator constructor 2 Wrecker 1 Teamsters 96 73 104 273 Chauffeurs 1 Barnmen 9 10 Factory workers 'Molders 7 Machinists 18 12 27 57 Butcher workmen 7 Firemen 6 Switchmen 6 Engineers 3 1 7 11 Conductors Other railway employes 6 Hostlers Bakers Blacksmiths 5 Laborers 228 201 219 648 Domestics Miscellaneous 85 24 Unclassified 3 Total .^541 466 572 1,579 206 EMPLOYERS' LIABILITY COMMISSION Compensation (if known) M bC .S :.S ! ''B 3 02 -OJ ?ts . g-3 1 g g o c"^ a _c 3 8 H o o si ^ 1 tf 1 8 8 w 0( CQ g | -S CO O z P5 1 4 i-l iH O* Tj< ^ T^ III.' I .s ! ! ' ' Xa ' ' s t ::::&:: & : S S : ' iflfjl-i "3 |5 S'oo P^ "^ OQ l> Comtwnsation from employer (if kno\vn). g :8 :8 :S 8 : : : : : :8 : : :8 sri EMPLOYERS' LIABILITY COMMISSION 207 TABLE OF NATIONALITY, COUNTY AGENT. 1907 1908 1909 Americans 200 185 242 Assyrians 1 Australian .......... Austrians ! . 1 26 14 18 Belgians -^ Bohemians ] ! ] 18 10 14 Bulgarians \[[ _ 1 Canadians ". "7 7 15 Danes [ 2 6 8 English \ 11 7 Finns 1 Germans '.'.'. 52 59 60 French 2 Greeks ', '3 ! '{ Galatian ]_ Hollanders [', Q 3 Hungarians 7 4 5 Irish 49 54 56 Italians 22 22 31 Jews 2 . . 3 Mexican 1 Lithuanians 7 . . 2 Macedonians 1 Manxman 1 * . New Mexico . . . . i New Zealand , , i Norwegians 9 6 10 Poles 34 30 23 Roumanians 1 2 Russians 29 30 36 Servian 1 Slav '. '. i Scot 6 7 Swedes ; 12 11 15 Swiss 1 1 2 Turk 1 Welsh 1 Unclassified 38 5 4 Totals 541 466 572 EYE AND EAR INFIRMARY, CHICAGO. From the Eye and Ear Infirmary of Chicago the Commission took 200 cases for investigation. These were the cases received for "house treatment" that is, for more or less serious treatment during 1907, 1908 and 1909. These did not include purely casual cases and they were all of them, further- more, directly due to industrial accidents. Twenty-six of these men were building tradesmen, seventy-six were laborers, twenty-nine were miners, thirty-six metal workers, nine were wood workers, five were railway men, five teamsters, and fourteen worked at varied occu- pations. These 200 men spent 8,730 days at the hospital or an average of forty-three and one-half each. Seventeen cases are not recorded as to length of treatment. 208 EMPLOYERS' LIABILITY COMMISSION 3-3 OQCC 3 3 i-HO -CO i-l *O ^ CO CO i-l 00 -e o - ^o :-S-S o- I'l ill' PL, A a U a'S'a'S'S S"a fe^jsa^a ^^ 0-3 i EMPLOYERS' LIABILITY COMMISSION 209 Both eyes were injured in fifty-five cases, and 142 suffered an injury to one eye. Three received injuries in the nose. One hundred and forty-nine patients registered from Cook County and fifty-one from other places in the State. COUNTY CASES. 1907 1908 1909 Eye Cataract By injury 3 2 Eyes burned 8 . . 3 Eye burned . . 4 kye pierced 17 17 7 Eyes injured 29 . . 2 !Eye injured 29 20 STATE CASES. 1907 1908 Nose fracture . . Eye Cataract By injury 1 Eyes burned 1 1 Eye burned 7 Eye pierced 6 Eyes injured Eye injured 10 20 Ears 2 1909 1 CLASSIFICATION BY TRADES. 1907 1908 1909 Building trades.... 10 9 7 ;aborers 23 32 21 Miners 8 15 6 Metal workers 16 12 8 1907 1908 1909 Wood workers 5 3 1 Miscellaneous 5 6 .3 Railroads 3 2 Teamsters 4 1 Total time (days) in hospital, 7,748. Number of cases giving length of disability, 183. Total number of cases investigated, 200. STATE FACTORY INSPECTION. Under the terms of the Health, Safety and Comfort law, drafted by a former Commission, the State is in the possession of data (Factory Department re- 3orts) relative to injuries in certain specified lines of industry. The law is still in the first year of its operation, but the first six months >f its trial, from Jan. 1, 1910, to July 1, 1910, show remarkable results. Two hundred and forty-eight concerns out of a possible total of 5,000 report 1,649 ndustrial accidents, of which thirty-six were fatal and seventy-eight of a sufficiently permanent or serious character to handicap the workman in his effort to maintain himself and family. The period of incapacitation seems to average 22.7 days and the average ige of the injured workman would indicate that 31 years closely touched the danger line. There were 568 married men and 390 single men. Foreign- born workmen suffered 684 accidents, native Americans 163, while 119 of those who met with death or disability were unclassified. It is interesting to note the large number of men who did not return to work again after the accident despite the fact that the latter was but tem- porary. There were 636 of them, more than a third. This must mean in many cases a search for employment elsewhere. If this assumption is cor- rect, then the length of average disability (22.7 days) must be lengthened somewhat. 210 EMPLOYERS' LIABILITY COMMISSION : :8 :::::::::::::: S : : :S : :g : : : :g : : : :gg CO rH IO CO >-l * '1-1 CO rH tai? 0f ilUutotH 317 FISHER BUILDING TEL. HARRISON 6253 CHICAGO EDWIN R. WRIGHT, SECRETARY Name of organization Secretary Address Number of accidents resulting in death 1908; 1009 Number of accidents causing loss of more than two weeks 1 time Wages per hour Hours of labor per day Are you in favor of a system under which all accidents to employees shall be com- pensated for without regard to negligence, but under which the compensation shall be limited in amount? Please state reasons for your answer: If you are in favor of such a plan, are you of the opinion that the expense should be borne by the employer, or shared between employer and employee?. What, in your experience, is the value of relief associations of employees? What are the methods and provisions of your union for tlw care of its injured mem- bers? How large a percentage of the expenses of your union per annum are paid for the relief of injured members? Kindly fill out the blank on the back of this report, as well as answering the above questions, and return with the least possible delay to the Secretary of the Commission. EMPLOYERS' LIABILITY COMMISSION 223 g| Q z |a| h- 2^ Ul * E & ocn M M o u< ^ c 'c <2 S 9ffii U.UJ H g^h ul ffs a vB^ 2.1 CO CO * 0* UJ XX cr TT Q; Q tr\ z Q h i < cr 9 2>S z 1 2 8 n fc v/ z . 1 h J OCCUPA' M 1 QC |< Zu. . UJ _l ^_ cr P (/) o 1 1 1 LL. * a: CO u : a> h ADDRESS a a i f h 99 ^u? 09 B Ul Z I i j N * ll fs z. a a ID CO \- LL a ,9 M UJ e h "Z. Z & 01 05 UJQ i| |S 224 EMPLOYERS' LIABILITY COMMISSION After canvassing the situation in detail the following letter was drafted and authorized sent to each railway organization in the state : To the Railroad Organizations in Illinois. Chicago, July 14, 1910. Gentlemen and Brothers : On Thursday, July 7th, a conference was held in the rooms of the Employ- ers' Liability Commission, Chicago, for the purpose of conferring on the best manner of advancing the interests of the railroad employes of the State along legislative lines. The meeting was attended by the legislative representatives of the Brotherhood of Railway Trainmen, Order of Railway Conductors, Brotherhood of Firemen and Enginemen, Switchmen's Union of North Amer- ica and International Association of Car Workers, together with the president of the Illinois State Federation of Labor. Inasmuch as we find from the official records of the State of Illinois that an average of 321 men are fatally injured and 3,924 men non-fatally injured every year, the need for united action is apparent. The committee, after care- fully considering the question of procedure, hereby officially request the offi- cers and members of the brotherhood to collect at once all possible data and forward the same to the secretary of the Liability Commission. We are unanimously of the opinion that the present average settlement for industrial accident is wholly inadequate and that the substitution of a more equitable plan is desirable, but until we learn just what amounts are received for injuries, we are at a loss in perfecting our agreement. All data will ~be strictly confidential and no names will ~be used in our report, which will be immensely valuable in showing the^inequality of our present liability laws. Kindly give name of injured party, road employed by, whether married or single, number of dependents, if any, date and nature of injury, time lost, medical expense, and any further information readily obtainable. All answers should be directed to Edwin R. Wright, 317 Fisher Building, Chicago. Information may be had of Mr. Wright or from any representative of the joint conference. Respectfully, EDWIN R. WRIGHT, President Illinois State Federation of Labor, Secretary Employers' Liability Commission. HARRY F. SMITH, Chairman Legislative Board, B. of R. T., Beards- town, 111. C. H. EVERLY, Legislative Board, B. of R. T., 3522 Walnut St., Chicago. M. J. BOYLE, Member Executive Board, S. U. of N. A., 317 Fish- er Bldg., Chicago. W. W. CARROLL, Chairman Legislative Board O. R. C., 115 Frye Ave., Peoria, 111. GEO. GODING, Chairman Legislative Board, B. of L. F. and E., 6133 Drexel Ave., Chicago. GEO. W. GIBSON. International Secretary I. A. of C. W., Morton By order of the Conference. Bldg., Chicago. EMPLOYERS' LIABILITY COMMISSION] 225 PRESIDENT CARTER ON COMPENSATION. The following letter from President W. S. Carter of the Brotherhood of Locomotive Firemen and Enginemen probably expresses the feeling among rail- road employes as a whole : BROTHERHOOD OF LOCOMOTIVE crigjj^ea FIREMEN AND ENGINEMEN W. S. CARTER, President. Peoria, Illinois, July 28, 1910. Mr. Edwin R. Wright, President Illinois State Federation of Labor, 317 Fisher Bldg., Chicago, Illinois. Dear Sir and Brother : I have received your letter of the 27th instant, and note the dates on which the Employers' Liability Commission will hold meetings. I regret exceedingly that I am called to Texas on important matters and probably will not return before your Chicago meeting. Perhaps I can refer in this letter in a brief manner to what I would like to present to your Commission, and ask you to do it for me in my absence. In drafting a tentative Employers' Liability and Employes' Compensa- tion Bill I believe it would be unwise to relieve the employer of all liability for defective machinery, appliances, etc., for in that event I believe we would see a great increase in deaths and injuries. My purpose in all legislation is to prevent deaths and injuries, rather than to secure compensation. It is much better that the law remain as it is, if under the present law thousands of lives and limbs are saved. A few hundred dollars to the widow and orphans of a man killed in a railroad wreck, or by defective machinery, is no exchange for the life and service of that man for his family. In fixing compensation I believe that the "expectancy" of life should be considered. Let us compare a young engineer of twenty-five years, a wife and three small children, with an old engineer of sixty years, whose wife per- haps has long been dead and all of his children are married and doing well. In some of the compensation bills proposed the purpose seems to base the amount of compensation upon the earning capacity of the deceased employe at the time of his death. Under such a rule the engineer of sixty years, after having almost completed his expectancy of life, and after having fulfilled all of his obligations to his family, would receive a larger compensation than the young engineer who had the responsibilities of life ahead of him, the responsibility of providing for a wife and three small children. In the event of the death of the older engineer no one would be found dependent upon him. In the event of the death of the younger engineer we would find a widow and three small children, to be educated and to be provided for over a period of many years. Again, I believe that a compensation bill should have regard for the expectancy of life just as a jury does in a "personal damage suit" under our existing laws. In any event if we are to have a compensation bill, which deprives the injured employe (or his surviving family) of entering suit to recover from the employer, such compensation should be adequate. Our members would 226 EMPLOYERS' LIABILITY COMMISSION greatly regret to see a law which would give a widow and several small children three or four hundred dollars as "compensation" when they had been robbed of the support of the family for many years to come. With best wishes and thanking you for your assistance in this matter, I remain, Yours Fraternally, W. S. GARTER, President. ATTEMPT TO SECURE STATISTICS. The work of gathering data continued unabated until Sept. 1st. The labor members of the Commission worked unceasingly, without regard to hours or trying conditions. Hampered on every turn by lack of adequate record of accidents and indifference on the part of men who should have freely offered their co-operation, the showing made in this report reflects the energy of the individual members of the Commission rather than a unified demand from any organization for any specified remedy. The Commission also received from President Gompers of the American Federation of Labor a series of model drafts of liability and compensation measures. These were presented early in the work of the Commission and the subsequent first draft of a bill followed many of the provisions contained therein. A liability measure, patterned after a bill submitted by the Illinois State Federation of Labor and the joint labor lobby to the last Legislature, was included in the American Federation model bills and is here given in full : EMPLOYERS' LIABILITY BILL. A bill to amend the law relating to the liability of employers for injuries to their employes. I. Be it enacted by the General Assembly of : (1) Where, after the commencement of this Act, personal injury is caused to any employe, by reason of the negligence of his employer, or of any other person in the service of such employer, the employe, or in case of death, his representatives, shall have the same rights to compensation and remedies against such employer as if the employe had not been an employe of, nor in the service of such employer, nor engaged in his work : Provided, however, That the fact that such employe may have been guilty of contribu- tory negligence shall not bar a recovery in any action hereafter brought to recover such compensation, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employe; and provided further, Thut no such employe shall be held in such action to have been guilty of contributory negligence in any case where the violation of the employer of any statute enacted for the safety of employes contributed to his injury. (2) An employe shall not be deemed to have assumed any risk incident to his employment by reason only of his having entered upon, or continued in, the employment after he knew of the risk, and shall in no event be held to have assumed any risk arising by reason of the negligence of his employer or of any person in the service of such employer. (3) All questions of negligence and contributory negligence and as- sumption of risk shall be for the jury. EMPLOYERS' LIABILITY COMMISSION 227 II. (1) A contract whereby an employe relinquishes any right to com- pensation to himself or his representatives for personal injury caused to such employe by reason of the negligence of his employer or of any person in the service of his employer shall not, if made before the accrual of the right, constitute a defense to any action brought for the recovery of such compen- sation. (2) Where an employer has contributed to an insurance or fund pro- viding any benefit for an employe or his representatives in case of injury or death, in any action brought against such employer for negligence in caus- ing such injury or death, the jury in assessing the amount of compensation payable shall treat as a payment on account of the employer's liability so much of any money which has been or will be paid to the employe or his* representatives out of the insurance or fund as in the opinion of the jury is attributable to the employer's contribution, but the agreement to accept, or acceptance of such benefit in whole or in part by such employe or his rep- resentatives, shall not constitute a defense to such action. III. In this Act: (1) The term "employe" includes every person who has entered into employment to give service, or who works under a contract or agreement of service or apprenticeship with an employer. (2) The term "employer" includes individuals, partnerships, and bodies of persons corporate or incorporate, and shall be construed as including the representatives or receivers of deceased, defunct or insolvent employers. (3) The term "representatives" means legal representatives and shall be construed as including the persons entitled to compensation in case of death of any employe. IV. Nothing in this act shall prejudicially affect any right or remedy to which an employe is entitled independently of this Act. V. This Act shall be in force from and after its passage and shall apply to all contracts of employment thereafter made and entered into. t A. F. OF L. COMPENSATION BILL. In connection with the first (liability) bill a series of compensation measures were also forwarded by Mr. Gompers. The following was pre- sented the Commission and given consideration by the attorney preparing the first draft or tentative bill, which was discussed at the public meetings throughout the state: To provide compensation for accidents in dangerous occupations, with- out litigation therefor. Be it enacted by the General Assembly of the State of That if in any employment to which this Act applies personal injury or death by accident, arising out of and in the course of the employment, is caused to any employe, the employe so injured, or in case of death, the members of his family, as hereinafter defined, shall be entitled to receive from his employer, and the said employer shall be liable to pay, the com- pensation provided for in this Act. This Act shall apply to every employe who shall at the time of his* accident be engaged in employment on, in or about any railway, street railway, factory (including any premises where steam, water or other mechanical power is used in aid of any manufactur- 228 EMPLOYERS' LIABILITY COMMISSION ing or other process for gain, or on which explosives or inflammables are made or -used), mine, quarry, or any engineering, building or construction work in the State of The employers to whom this Act shall apply shall be any person or persons, association, partnership or corporation carrying on any such industry as aforesaid. Save as herein provided, no such employer shall be liable for any injury or death for which compensa- tion is recoverable under this Act. Sec. 2. The employer shall not be liable under this Act in respect of any injury which does not disable the employe for a period of at least two weeks from earning full wages at the work at which he was employed, except for medical fee, as hereinafter provided, but for that period shall remain liable as though this Act had not been passed. Sec. 3. When the injury or death was approximately caused by (a) the criminal act or omission, or (b) the negligence (including thereunder neg- ligence in choice of servants, but excluding the negligence of competent serv- ants and their negligence in performance of employers' duties delegated to them) of the employer, committed or omitted by him individually, if the em- ployer be a natural person, or by any of its officers individually, if the em- ployer be a corporation, or by any of its partners individually, if the employer be a co-partnership, or by any member of the association individually, if the employer be an association, the liability independent of this Act of (such employer) shall not be affected by this Act; but in such case the. injured employe, or in case of death the members of his family, as herein defined, may elect between claiming compensation under this Act or pursuing any remedy which was available before the passage of this Act. Sec. 4. If it is proved that injury or death results from the deliberate intention of the employe to produce such result, or his wilful failure to use a protection against accident required by statute and provided for him, or solely by his deliberate breach of statutory regulations affecting safety of life or limb, or by reason of his intoxication, any compensation claimed by him under this Act shall be disallowed. Sec. 5. Any employer who would be liable under this Act to employes if directly employed by him shall be liable hereunder to the employes of in- dependent contractors for accidents occurring to them in the course of any work undertaken by such employer, or for the purposes of his business, on or in or about the premises or places under his control or management. Such liability shall be to pay such compensation as would be payable if the employe has been directly employed by him, but at the wages he was actually receiving. Any employer who shall have paid compensation under this Act for any accident, or any independent contractor who has indemnified himself, shall be subrogated to all the rights of recovery therefor of the person or persons to whom such compensation shall have been paid. An employe may, however, if he so elects, proceed against or recover compensation directly from any other person liable for his accident instead of from the employer. Sec. 6. Proceedings for the recovery of compensation under this Act shall not be maintainable unless written notice of the accident, stating the time, place and cause thereof, and the name and address of the person injured has been given within thirty days after the happening of the acci- dent, and unless claim for compensation has been made within six months EMPLOYERS' LIABILITY COMMISSION 229 from the occurrence of the accident, or in case death results therefrom, within six months from the time of death. Provided, always, that the want of, or any defect in such notice shall not be a bar if the employer is not thereby prejudiced, or if such want or defect was occasioned by mistake or other reasonable cause. The failure to make a claim within the period above specified shall not be a bar if such failure was occasioned by physical or mental incapacity or other reasonable cause. Such notice shall be deliv- ered to or sent by registered letter addressed to the employer at his office, place of business or last known residence. Sec. 7. Scale and condition of compensation: There shall be selected by every employer subject to this Act one or more doctors who shall be approved by the Commission of Arbitration and Award, hereinafter constituted and referred to as the Commission, and it shall be the duty of such doctors to report forthwith to the Commission every accident under this Act, and also whenever practicable to render pre- liminary medical attention to the injured, and they shall be paid by the em- ployer a fee of one dollar for such service in each case. The amount of compensation payable under this Act shall be : (a) Where death results from the injury : (1) If the employe leaves any dependents who at the time of the acci- dent were wholly dependent upon his earnings, a sum, equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of one thousand dollars, whichever of these sums is the larger, but not exceeding in any case five thousand dollars: Provided, That the amount of any weekly payments made under this Act shall be de- ducted from such sum; and if the period of the employe's employment by the same employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be nine hun- dred and thirty-six times his average daily earnings during the period of his actual employment under the same employer. (2) If the employe leaves only dependents who at the time of the acci- dent were partly dependent upon his earnings, such sum, not exceeding in any case the amount payable under the foregoing provisions of this section as may be agreed upon or in default of agreement may be determined on arbitration under this Act. (3) If the employe leaves no dependents who at the time of the accident were dependent, the reasonable burial and medical expenses, not exceeding in all two hundred dollars. (b) Where total or partial incapacity results from the injury: A weekly payment during the incapacity after the second week, not ex- ceeding one-half of his average weekly earnings in such employment, during the previous twelve months if he has been so long employed, but if not, then for any less period during which he has been in the employment of the same employer. If, however, the employe is a minor whose average weekly earn- ings are less than ten dollars, his compensation shall be a payment not ex- ceeding his full average earnings. Such weekly payments shall not in any case exceed fifteen dollars, and it shall not extend over a period exceeding ten years, unless the injured will thereafter be permanently totally disabled from engaging in any work or occupation for wages. 230 EMPLOYERS' LIABILITY COMMISSION Sec. 8. All death payments under this Act shall be paid into court where the accident happens, and also any payments to persons under legal dis- ability if the court on application to it so directs. Any question as to who is a dependent and the amount payable to each dependent shall be decided by the said court, if not settled before such payment into court. The receipt of the court shall be a sufficient discharge for any amount paid in, and it shall be apportioned and distributed for the benefit of the persons entitled thereto in such manner as the court may think best. Pro- vided, that the court may thereafter on application to it vary any of its previous orders or apportionments. The courts referred to in this Act shall be the Probate. Sec. 9. The Commission shall make regulations under which an em- ploye injured shall, if so requested by the employer, submit himself for examination by a duly qualified doctor, furnished and paid by the employer as soon as practicable after his injury, and also from time to time during the receipt by him of any weekly payments hereunder. A copy of the report of the employer's doctor shall be furnished to the employe, or if no such examination be made, then the employe shall be examined by his own doctor and furnish a report thereof to his employer. Such reports shall be fur- nished within six days after the examination. If a dispute then exists as to the employe's condition, or as to whether or to what extent the incapacity is due to the accident, such regulations shall provide for the examination of the employe by a medical referee on an order to that effect being given by the court hereinafter specified, and the payment of a fee not exceeding five dollars, to be taxed by said court. The certificate of the medical referee shall be conclusive evidence of the matters so certified. If the employe re- fuses to submit himself to such examinations, or in any way obstructs the same, his right to take compensation and to take or to prosecute any pro- ceeding under this Act in relation to compensation may be suspended, and his compensation during such period of suspension shall be forfeited until such examination has been made. Sec. 10. Any weekly payment may be reviewed at the request either of the employer or of the employe, and on such review may be ended, dimin- ished or increased, subject to the maximum provided above. Provided, That where the employe was at the date of the accident under twenty-one years of age, and the review takes place more than twelve months after the acci- dent, the amount may be increased to any amount not exceeding 50 per cent of the weekly sum the employe would probably have been earning at the date of the review if he had remained uninjured, but not in any case exceed- ing ten dollars. Sec. 11. Where any weekly payment has been continued for not less than six months, the liability therefor may on application by or on behalf of the employer or employe, respectively, be redeemed by payment of a lump sum, but if the incapacity is permanent or total, the sum shall not exceed the purchase price of an annuity yielding 75 per cent of the weekly pay- ments calculated under the American Experience Table of Mortality at 4 per cent per annum. EMPLOYERS' LIABILITY COMMISSION 231 Sec. 12. If an employe receiving a weekly payment ceases to reside in the United States, he shall thereupon cease to be entitled to receive any weekly payment. Sec. 13. In default of agreement between the parties interested, the following questions shall be settled by arbitration under this Act, subject to judicial procedure as hereinafter provided: All questions as to the employ- er's liability to pay compensation and the amount payable, and as to the duration, review or redemption by a lump sum of any weekly payment; any question as to whether the employe is one to whom the Act applies, and whether he has dependents, and if so the amounts payable to them ; all ques- tions as to the liability of an independent contractor, and of any third party by consent, under Section 5. Arbitration proceedings shall be as follows: First: The employer and his employes may choose a committee, whose unanimous adjudication of a matter within three months shall be final and binding on both parties, unless either objects in writing before it is considered. Second: On failure of such unanimous adjudication the matter shall be investigated and settled by a single arbitrator agreed on by the parties, and in the absence of such agreement a statement of the facts shall be filed in court in such form as may be prescribed by the rules of said court, and unless within thirty days thereafter a written application for a jury trial is also filed, a jury trial shall be deemed to have been waived, and the matter shall then be determined by the judge of the said court, or by a referee appointed by the said court under such procedure as may be prescribed by rules of court, and such referee shall for the purposes of this Act have full power to procure witnesses and all evidence which he may regard as necessary to his decision, and his fees shall be fixed by the Commission and paid out of the appropriation for this Act. Said court may compel the attendance of witnesses and the production of evidence before said referee in the same manner and under the same penalties as apply to the attendance of witnesses and the production of evidence before said court. Any question of law may be submitted for the opinion of the State's Attorney for the jurisdiction where the accident happens by any committee, arbitrator or referee, and an appeal shall He from them to such judge on a question of law only, and his decision shall be final, unless reversed on appeal taken in accordance with appellate practice of the courts of the state. The services of a medical referee may be utilized in all arbitration pro- ceedings under regulations made by the Commission. The cost of arbitration proceedings shall be in the discretion of the com- mittee, the arbitrator or the referee, respectively. They shall not exceed, however, the taxable costs for similar services allowed by the rules of court. Sec. 14. Any sum awarded as compensation under this Act shall be paid on receipt of the person to whom it is payable under any agreement or award; and in case of the death of the person injured the same shall be payable, as the court may determine, to the members of his family de- pendent upon the injured at the time of his injury, namely, the widow or husband, as the case may be, and the children, or if no widow or husband or children, the parents or grandparents, or if no parents or grandparents, the grandchildren, or if no grandchildren, the brothers and sisters. 232 EMPLOYERS' LIABILITY COMMISSION Sec. 15. All proceedings for compensation under this Act shall take place in the judicial district where all the parties reside unless otherwise pre- scribed by order or regulation of the Commission. Sec. 16. Whenever the amount of compensation under this Act has been ascertained, or any weekly payment varied or redeemed, or any other matter decided by any referee, committee or arbitrator, or by agreement, a memorandum thereof shall be sent by said referee, committee or arbitrator, or by any party interested, to the clerk of the said court in the jurisdiction in which such decision was rendered, in the form and manner prescribed by such court. The said clerk shall forthwith send notice thereof to the parties interested, and shall seven days after the sending of such notice file such memorandum and register it without fee as the judgment of said court. Such memorandum shall thereafter for all purposes have the same force and effect as the judgment of said court. Provided, That the judge may at any time, on evidence proving to his satisfaction that any agreement as to the redemption of a weekly payment by a lump sum, or as to the amount of compensation payable to a person under legal disability, or to dependents, was inadequate, or was obtained by fraud or undue influence or other improper means, order that the memo- randum be not recorded, and if recorded, he may order the record to be erased within six months after it has been so recorded, and he may hear such evidence, take such proceedings, and make such order as will effectuate the purpose of this Act. Sec. 17. An agreement as to the redemption of a weekly payment by a lump sum, or as to the amount of compensation to be paid to a person under a legal disability or to dependents, if not registered in accordance with this Act, shall not, nor shall any payment under such agreement, exempt the per- son by whom the compensation is payable from liability to pay compensa- tion unless he prove that the failure to register was not due to any neglect or default on his part. Sec. 18. The fees of any attorney or other representative of the person to whom any payment is made under this Act shall be determined by the Commission. Sec. 19. No payment under this Act shall be assigned or subject to attachment or liable in any way for any debts. Sec. 20. If any employer becomes bankrupt or insolvent and has any insurance against his liability under this Act to any employe killed or in- jured, such employe, or his beneficiaries hereunder shall thereupon be sub- rpgated to such employer's rights and remedies therefor under such insur- ance; and if the employer has no such insurance, or such insurance is insuf- ficient, any amount then due such employes or such beneficiaries shall have priority over all other claims against the bankrupt or insolvent estate. Sec. 21. If the Commission certifies in writing that any scheme of com- pensation, benefit, or insurance provides scales of compensation not less fa- vorable to the employes and their dependents specified in this Act than the corresponding scales contained in this Act, or is on the whole not less favora- ble to such employes and their dependents than are the provisions of this Act, and that where the scheme provides for contribution by the employes, the scheme confers benefits at least equivalent to those contributions in addi- EMPLOYERS' LIABILITY COMMISSION 233 tion to the benefits, or the equivalent thereof under this Act, the employer may agree with any of his employes that the provisions of the scheme shall be substituted for the provisions of this Act, and thereupon the employer shall be liable only in accordance with the scheme, but save as aforesaid this Act shall apply, notwithstanding any contract to the contrary made after the passage of this Act. No scheme shall be certified which contains an obliga- tion upon the employes to agree to it as a condition of their hiring, or which does not contain provisions enabling an employe to withdraw from the scheme. Such agreement or withdrawal shall be in writing and signed by the employe. If the Commission shall at any time find that the scheme no longer fulfills the requirements of this section, or other reasonable cause exists for so doing, they shall revoke the certificate. When a certificate is revoked or expires any moneys or securities held for the purpose of the scheme shall, after due provision has been made to discharge the liabilities already accrued, be distributed as may be arranged between the employer and his employes, or as may be determined by the Commission in the event of a difference of opinion. The Commission may make regulations for the purpose of carrying this section into effect. Sec. 22. Nothing in this Act shall affect any proceeding for the recovery of penalties under Safety Appliance and other enactments relating to the safety of employes, except that hereafter, in the discretion of the judge before whom the penalty is enforced, such penalties shall be payable in whole or in part to any employes injured as a direct result of the absence of the appliance for which such proceedings were brought, or for the benefit of the family of any employe killed. Sec. 23. There is hereby created for the purposes of this Act a Com- mission of Arbitration and Award, which shall be composed of three Com- missioners, who shall be appointed by the Governor by and with the advice and consent of the Senate. The Commissioners first appointed under this Act for the purpose thereof shall continue in office for the term of two, four and six years, respectively, from the first day of July, 1910, the terms of each to be designated by the Governor; but their successors shall be ap- pointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired time of the Commissioner whom he shall succeed. Any Commissioner may be removed by the Governor for inefficiency, neglect of duty, or malfeasance in office. Not more than two of the Commissioners shall be appointed for the same political party. No vacancy in the Commission shall impair the right of the remaining Commis- sioners to exercise all the powers of the Commission. The Commission is hereby authorized to exercise any and all lawful powers necessary to perform the duties imposed upon it by this Act, and to make all such rules and regulations not otherwise provided for as they may consider necessary to carry into effect the purposes thereof. The Commission shall have full power and authority to investigate acci- dents to which this Act applies, to administer oaths, and require the attend- ance and testimony of witnesses and the production of any evidence relating to such accidents, and to employ agents who shall have like power or author- ity. It shall be the duty of the Commission to include in its annual report a 234 EMPLOYERS' LIABILITY COMMISSION list of all accidents and a full report in detail of each accident investigated, to require from employers at stated intervals returns showing amounts of compensation paid, to ascertain the means adopted for the prevention and treatment of accidents to employes covered by this Act, and to make recom- mendations relative thereto, and to appoint such properly qualified medical practitioners as are necessary to be medical referees for the purposes of this Act, to remove them, and to determine their fees. Sec. 24. This Act shall not apply to accidents happening to seamen employed on vessels of the United States engaged in navigation. Sec. 25. This Act shall take effect on the first day of July, 1910, and shall not apply to contracts of employment made before that date. A TENTATIVE BILL. The principal features of two measures given above were amalgamated into a single bill and formed the basis of work for the labor members of the Commission. The printed report of the New York Commission report gives the remarks of President Samuel Gompers of the American Federation of Labor as follows; Alderrnanic Chamber, City Hall, New York, Nov. 24, 1909. Third public session. Chairman, Senator J. Mayhew Wainwright. 10 A. M. Mr. Samuel Gompers, Mr. Chairman, and Gentlemen : I doubt that there is much division of opinion in our day as to the advisability of having com- pensation to workmen for accidents, to take the place of the old-time, and even present-time liability of employers. I haven't the slightest hesitation in believing and saying that as time will go on under compensation that very much better results will be achieved in the diminution in the number of acci- dents, as well as vocational diseases. * * * Simply taking cause and effect, I would like to supplement an expression of this thought upon that very sub- ject. That is, that annual reports under the operation of the Compensation Act of Great Britain will show that there is a decrease in the number of accidents year by year. We might take, for instance, that if there was entire absence of the report of the mortality of a state, and then suddenly a law or an ordinance were passed requiring reports, and reports were made, it would scarcely be a fair estimate of the fact of mortality to say that during the period when no reports were necessary people didn't die. It might appear as a consequence there was such an increase in the number of deaths because they were really reported, where, as a matter of fact, they were not reported before. I believe in compensation. It is not a new thought ; but I want to express it, that it is not for the sake of compensation, but rather for what I believe it will tend toward the diminution of accidents to the limit of human in- genuity. During a four months' hurried trip through Europe, and the many in- teresting things I saw, none of them impressed me so much as the museum at Munich, which is but the counterpart of similar museums in several parts of Germany. In the museum I visited I saw the safety devices, the safe- guards against accidents, as well as the devices, and information for the pro- tection of health and better sanitation. From the machines that I saw in operation it was practically impossible for an accident to occur to the worker, unless, perhaps, the building itself might, cave in. * * * EMPLOYERS'JJABILITY COMMISSION 235 If the State shall determine upon compensation and the better protection of life and limb and health, it would make for a very much better state of affairs. I am very much in sympathy with a remark made by Mr. Mitchell the day before yesterday at a meeting in this city in which he said in answer to the statement that employes should contribute towards the insurance or compensation. His statement was substantially that if that were to be inaug- urated. It would not increase the responsibility of the employers, and it would not have its deterring -effect in preventing negligence and accidents which are preventable. But if such a system were introduced he believed it would be an element of justice upon which insistence ought to be had; that where em- ployers are responsible for accidents to workers through their own negli- gence or parsimony they ought to be criminally prosecuted and punished. Then, and then only, would there be an element of such justice before him that would induce him to take all precaution he could in order to prevent accidents. * * * I think that when the workmen of New York or of the country ask for compensation that they base it upon the thought that industry or society should bear the cost, and that they, as one in society, if it be in taxation, would bear their share as workers. They receive in wages not too much not such an amount as to warrant their contribution to a special fund for that purpose. * * * I do not think that (the future earning power) could be considered in a Compensation Act. I doubt it. It is speculative after all. * * * Chairman Wainwright: Mr. Gompers, I would like to ask you gen- erally as to whether you think that the adoption of a Compensation Act in this State on the lines of the English Act would be advisable? I think that the adoption of a Compensation Act would be advisable. Can you sug- gest in any way in a general way the kind of an Act you think should be adopted? Mr. Gompers: Not now, sir. CRITICISM OF THE WORK OF THE COMMISSION. During the public discussions several labor officials and attorneys bitterly attacked the proposed measure, and by some unforeseen chance selected for attack the very provisions submitted in the model draft officially received from President Gompers of the American Federation of Labor. Provisions incorporated from the New York law were likewise criticised, and in an effort to clarify the atmosphere Attorneys Clarence Darrow, Daniel L. Cruice and Henry M. Ashton were called upon by the labor men to assist them in an attempt to straighten out the tangle. A meeting was held in the office of Mr. Darrow on the night of Thursday, Sept. 1st, at which were present the attorneys mentioned above, all the labor members of the Commission except Mr. Boyle, who was absent from the city, Mr. John Fitzpatrick, president, and Mr. Edward Nockels, secretary of the Chicago Federation of Labor; Mr. Daniel Tobin, international president of the Teamsters, and Mr. William A. Near of the joint council of Chicago local unions of teamsters. Other labor men and attorneys had been invited, but were unable to attend. Attorney Cruice had been furnished one of the first drafts of the tenta- tive bill printed and had been consulted almost from the day the Commis- 236 EMPLOYERS' LIABILITY k COMMISSION sion was appointed by the Governor as the questions arose in the minds of the labor men. The secretary of the Commission had called upon him re- peatedly for advice and counsel, and he was familiar with nearly, if not every phase of the work of the Commission from labor's standpoint. The tentative bill had not been agreed to in any particular by either the employing or labor members on the Commission, and this was the first joint meeting where an attempt was made to effect an understanding as to what should constitute labor's wishes. Other meetings had been attempted but failed. It developed early in the meeting that while the proposed measures offered by the American Federation of Labor, the New York law, the pro- posed Wisconsin bill, etc., might be considered as a basis, many changes would be advisable. Mr. Criiice led a general discussion on the subject and offered the many changes. A stenographic report of the meeting was kept and at the next meeting of the Commission the recommendations offered by Attorneys Darrow, Criiice and Ashton were offered by the secretary. The Commission authorized a committee consisting of the chairman, secretary and attorney to redraft the bill. The revised bill was an attempt to meet the criticisms offered by the attorneys mentioned, and the final draft of the measure, given in another portion of the report, shows nearly all of the suggestions incorporated. At a meeting held in the Briggs House Friday evening, Sept. 2d, called by officers of the Amalgamated Association of Street and Electric Railway Employes the pending measure was discussed at length. President Wright of the State Federation attended this meeting by invitation. International President William D. Mahon was outspoken against any compensation meas- ure and advocated a straight employers' liability law. Other officers of the union took the same position. On Saturday afternoon, Sept. 3rd, a meeting of the Commission was held and an attempt made to ascertain the wishes of the interests represented on the Commission. Attorneys Cruice, Tone and Ashton were present and a lengthy discussion followed. Attorney Ashton was outspoken in his advo- cacy of a compensatory measure as against a liability law. Attorney Cruice found fault with the terms of the compensation bill, but expressed himself as favoring such form of measure if the terms were ade- quate. After a lengthy discussion Mr. Cruice said he would give the matter further study. THE LAST WORD. The final meetings of the Commission were held September 13th and 14th. At these meetings much discussion was indulged in as to the terms and provisions of the measure. Two of the labor members of the Commission refused to consider any other plan than a liability bill. Four members rep- resenting labor, while conceding the wisdom of a compensation enactment, were unable to agree with the members representing the employers as to the terms of the bill. The reasons given and points of difference are found elsewhere in the report. A business meeting was held September 15 for the purpose of winding up the affairs of the Commission. BUREAU OF LABOR STATISTICS (The left, or even numbered, pages showthe record of individual cases referred to in the text found on the right, or odd numbered, pages.) nnnn The first work of the Commission in its effort to secure accurate data upon which to frame a law was the securing of reports issued by the various State Departments. The report of the Bureau of Labor for the first six months of 1907, the full year of 1908, and a synopsis for 1909, gave us a first basis for compila- tion and investigation. Selecting the year 1908 (the first full period of twelve months during which the State attempted to keep a record of industrial acci- dents), the Commission endeavored to locate the families of the 524 workers who met death as a result of mishap or misadventure. Necessarily, a considerable latitude was exercised, as fatalities occurred in this year when the primal cause may have originated some time before. Again the industrial depression during this period would so distort the per- spective as to give rise to an entirely erroneous conclusion. The first six months of the report the closing half of 1907 show 298 fatal and 1,094 non- fatal casualties. The year 1909, when industry again began to assume its nor- mal aspect, shows 857 fatalities. During this period occurred the awful catas- trophe at Cherry, in which 258 men lost their lives. This exceptional case when subtracted from the total, gives us an increase of seventy-five fatal and 131 non-fatal accidents over the last given year. A reading of the tables submitted herewith, as exemplifying reports received by the Bureau of Labor Statistics, leads the Commission to the con- clusion that not all industrial accidents are reported as required by the statutes. The analysis offered reflects a certain disregard for statutory requirements of this nature. The law is plainly worded and explicit. It reads : "That it shall be the duty of every person, firm or corporation employing laborers, artisans, mechanics, miners, clerks, or any other servants or employees of any character, to make report to the State Bureau of Labor Statistics of every serious injury, entailing a loss of thirty or more days' time, or death of every employee caused by accident while in the performance of any duty or service of such employer." In this connection, it is exceptionally worthy to note that, during the period this law has been in force, which time is covered by the report, not a 238 EMPLOYERS' LIABILITY COMMISSION l^. CO . ^ '3 '3 'S '3 '"3 o . > t_ o < o Z rH rH co ?C I " uapu^l irn : qsuj -i-HlOO rH CO IO CO i-( i-l r4 SO CO i-l PUB qsrjgug I : S : "" omuaqog; i !C -g 8 25 But Under 30. 30 But Under 35. 35 But Under 40- $ 1 -5 2 107 2 55 1 79 8 1 7 4 45 But Under 50- 1 P S 'si 3 22 30 5 "2 2 55 But Under 60. GO and Over 1 21 J 1 ~ s *a .1 J * I .!! * ? s g 0) O 05 jj > ro 50 o _ >> .3 oi 1 5"S 5 | mil * r- ~ l OQ +* O S ^^2 a O 43 o of fe ra -^ S a P^ 3 9 -si u c c3 S OJ bJO _ a .2 3 f g|j -d ^ s .. ^a g 5 fl O) O ^i CO u 03 -g O 73 ^ ^5 * Q > S = c3 ^ ^3 PU O JO UOISIAIQ -ABJ rang duinq JQ insBaK jo ado oog AjosfndraoQ i ii HI r II I i 3 XT3 HI iti . ft ii % I! & : i! 1 C^l S'^T PR . ; 1 1 248 EMPLOYERS' LIABILITY COMMISSION S srantraaaj jo's^so.) JO UOISIAIQ Employer 90%. Employe 10%. TJ a contrib- establish enefits. Wor ute hig Legal cos rosecutin P^mplo death Mutual uoi^esuad -1003 jo M 3* o o , not less th Sl.OOO. Inj 50% of wa eath, 3 year not less than $1,000. Injury 50% of wages. ted. ' Sjuatu -tod rang dranq jo !l ^1 Mo pay l suotj -BdnooQ jo adoog Harvester employes. All cupatio 4 ./tiosjnduioQ Compulsory. from ppings n work s. alysis m newspaper commentin of commiss . : I ; s act is not yet ctively in effect. afforded ' marrieci ing to ac fa pen en common f emplo gw Is cl .,3 hJ rep- at- t by osed by labor esentatives: no ention paid to it mployers. l been reng- first -'i-nt law has amended and st thened fro draft in 188 original Vjject of insur- l ) rol)abl law o work ance. I I g EMPLOYERS' LIABILITY COMMISSION 249 papjoo 00 ^ o * ^ vO ^\ co 05 - r^ N cog CO S^T^ S i-H CO ^TH i-H T-H O jo aouaStpfotf ?utf CO i-H i-H OS 00 b- i 1 co C5 i i g "8 H C/3 |- 1 W jouad -ng jo J3A'o{durj 00 ^J- O 00 fs CO < s^uapiooy jo joqmn^ I i (N S S i I b- !? 8 1 1 g d O ""C u 55 a 1 3 ccT rH 1 3 PH 1 "i So o N mauinooQ 5! CO co co CO CO i-H a CO CO M 3 g CQ QQ -! H^ f s i o 3 6 co 0*2 I s " # New York Commissi New York Commissi New York Commissi New York Commissi **Pittsburg liabilil fatalities, pages l|e *Minnesota report page 26 ***Minnesota, same i o 1! I] a SO tbD w The first row c *Text accompa **Negligence of ***See page 36 of RETURN TO the circulation desk of any University of Caiifornia Library or to the University of California Richmond, CA 94804-4698 prior to due date ^TsSTAMPED BELOW YC YC 34522 639381 A UNIVERSITY OF CALIFORNIA LIBRARY