the law of liability. Indeed, where the elective form has been adopted the justice and wisdom of compulsion is recognized by prescribing penalties for a failure to accept it, the usual provision being that if the employer elects not to be bound he shall be liable as at common law stripped of all the common-law defenses and that if the employee elects not to be bound he shall be entitled to the common-law remedy burdened with all the common-law defenses. Such legislation has been justly characterized as "the highwayman's law." Ostensibly it allows those who are affected to accept or decline; in fact, it coerces acceptance at the muzzle of the legislative revolver. Every consideration of justice and economy likewise demands that the law should be exclusive; that is to say, it should not permit after the accident has happened, a choice of remedies on the part of the employee. These considerations may be briefly stated as follows: 1. It is unjust to the employer, since its effect is to compel him to respond for such unlimited and sometimes extravagant damages as a jury may see fit to impose, whenever his negligence can be established, and then superadds a liability to pay the definite amounts prescribed by the law in all cases where he is without fault, including those where the injury was due entirely to the negligence of the employee. There is, to say the least, grave doubt whether such a law is not so arbitrary in character that the Supreme Court of the United States would declare it void as constituting a denial of due process of law. The exclusive law is based upon perfectly defensible considerations of mutual burden and mutual advantage. It compels the employer to pay definite compensation in all cases, but relieves him of the liability to respond in unlimited damages in some cases. It deprives the employee of his right to recover unlimited damages in some cases, but gives him in exchange the right to recover definite compensation in all cases. The effect of it is to make the employer an insurer of the safety of his employees in a fixed and limited amount, but to leave in his treasury the fund theretofore available for the payment of indefinite damages to assist him in meeting the new obligations. It gives to the employee an insurance policy in exchange for the gambler's chance, and in effect says to him, "You may hereafter sustain an injury, which may or may not be due to your employer's negligence. You may be able to recover damages or you may not be able to recover anything. This law guarantees you the certainty of compensation in place of the uncertainty of damages." 2. By making the law exclusive larger compensation can be given than would be possible if a choice of remedies were allowed, since it is manifest that if the employers' liability to pay unlimited damages in case of negligent injuries be continued and in addition he be compelled to pay large compensation in all other cases his industry will be taxed beyond its capacity to pay. It must be frankly recognized that the compensation law substitutes the communistic idea of benefit for the whole class in place of the individualistic theory which permits a minority of the class to recover much and the majority little or nothing. The justification for a compulsory and exclusive workmen's compensation law rests in the conception that the workmen employed in any enterprise are industrial soldiers, who being injured in its service are entitled to be cared for to a fair and equitable extent, having in view the ability of the industry to pay. Theoretic S D-63-1-vol 21- -17 ally, therefore, we are to consider that we have a fund, which, however large, is still limited; that this fund is to be distributed among the workmen who sustain injury resulting in disability and the dependents of those who sustain injury resulting in death; that this fund is to be distributed not for the purpose of penalizing the employer, but for the purpose of aiding the injured, and that finally it is better that everybody injured should receive compensation than that only a portion of those injured should receive damages and the remainder nothing. 3. The double remedy will result in a continuation of the great waste which it is one purpose of the compensation law to avoid. To allow an election of remedies is to permit the injured employee to still remain a bone of contention between the personal-injury lawyer, who urges him to sue for the sake of the contingent fee involved, and the claim agent, who seeks to make inadequate settlement in order to save the treasury of his company. Suits will go on as heretofore. Half of the amount recovered will be lost on its way from the treasury of the company to the pockets of the employees. The unfortunate feeling of antagonism between employer and employee, which now results, will continue without abatement. The expense to the taxpayer incident to the trial of personal-injury cases will still continue. 4. To allow an election of laws or a choice of remedies destroys one of the most pronounced advantages of the compensation principle, namely, the element of certainty. So long as we allow the employee to seek damages upon the basis of the employer's fault or the employer to defend upon the basis of the employee's negligence, just so long will the uncertainty of the lawsuit counteract the certainty of the fixed schedule and just so long will the fund which should be husbanded and utilized for the benefit of all be frittered away for the benefit of some. A compulsory and exclusive law saves the vast sum which is now wasted and which would continue to be wasted under a composite system for distribution among those who are injured. Expense will be saved to employer and employee and to the public. The only individuals who will suffer will be the personal-injury lawyer and his lawsuit hunting agents. 5. A compulsory and exclusive law will, in my judgment, prove a powerful aid in the prevention of accidents. Under the liability system the employer and the employee are interested in exaggerating or concealing the real facts in so far as they tend to prove or disprove negligence, the employer coloring and distorting them in one direction and the employee coloring and distorting them in the opposite direction. Between the two the precise truth as to how the. accident occurs is effectually concealed. When the employer knows that he must pay and the employee knows that he must receive a certain prescribed sum wholly irrespective of the way in which the accident happened, neither will have any reason for misrepresentation, and we shall be able to ascertain the cause of the accident, and knowing why and how it happened we shall be able to prescribe remedies which will have a tendency to prevent similar accidents in the future. After all, the vital objection to the liability system is that it does not in the main permit of average justice, and this is particularly so in death claims where by the death of the employee quite often the evidence which would have established liability is lost. The conse quences to the dependent family of an engineer who is killed as the result of his own negligence are precisely the same as where there is no negligence at all or where the employer is at fault. Both families have lost a provider and both must be cared for. It is certainly more in consonance with sound public policy to require that both families shall be compensated within fair and reasonable limits than that the employer should be penalized for the benefit of one family at the expense of the other. Experience is always a more valuable guide to human conduct than precept. Every country in Europe except one has abandoned the theory of employers' liability based upon fault and substituted that of compensation for accidental injury based upon status alone. These laws have been in operation in some of these countries for many years-in England for 17 years, in Germany for more than a quarter of a century. If they did not on the whole work well, if they were not of superior benefit to the employee over the old system, we should expect that long ago there would have been serious efforts for their repeal, but, on the contrary, the workmen in these countries have repeatedly indorsed their principles and declared in favor of their continuation. It is furthermore significant that among the scores of official and nonofficial commissions, committees, and civic organizations in our own country which have investigated the subject, upon most of which bodies both employer and employee have been represented, practically all have reported in favor of the principle of compensation as opposed to that of employers' liability. If a widespread consensus of opinion, based upon long experience, careful investigation, and earnest desire for a wise and just solution of a great problem can ever establish anything, surely it may be taken for granted that the desirability of workmen's compensation is no longer open to dispute. The demand for a more or less automatic adjustment of compensation for accidental injuries to workmen is but one of the many phases of a world-wide movement for the readjustment of the relations of labor to capital and of both to society more in consonance with modern notions of social justice. The thought behind this movement is that if society en masse for the general welfare- may command the selfeffacing loyalty of each of its constituent units society in turn must shape and preserve conditions which will protect each unit in the unequal struggle for individual well-being. There is a growing feeling that the individualistic theory has been pushed with too much stress upon the dry logic of its doctrines and too little regard for their practical operation from the humanitarian point of view. We are discovering that we can not always regulate our economic and social relations by scientific formulæ, because a good many people perversely insist upon being fed and clothed and comforted by the practical rule of thumb rather than by the exact rules of logic. In the rebound, however, from the old notion which, carried to its final conclusion, compels each not only to wage his own battle for existence and happiness, even though he fall in the fight, but which bids him lie where he falls, there is danger that we may go too far in the opposite direction and while helping the weak, which is good, encourage the indolent, which is bad. We must be careful that in the effort to relieve ourselves of the burdens which bear us down we do not take away the stimulating necessity of personal effort which compels us to rise. We must find at our peril the happy mean between the hardship which breaks and the coddling which saps our strength. That in our righteous anxiety to minimize human suffering we may miss this crucial point is one of the grave dangers which the great civilized nations face to-day. The unfortunate must be cared for; the soldiers of industry who fall must be lifted up, but no deadlier check could be put upon the upward march of civilization than to embark upon such a scheme of emotional socialism as would put upon the backs of the strong not only the care of those who can not but of those who can but will not bear their own burdens. In framing our laws we must never lose sight of the vital distinction between helplessness, which is a misfortune, and laziness, which is a vice. It is a lovely thing to give in case of need, but it is a far more important thing to so adjust conditions that giving will not be necessary. Laws which afford financial aid for the old and sick and unfortunate who can not help themselves are necessary and righteous, but laws which, by insuring safe and healthful and remunerative work for the young and strong, enable them to care for themselves in time of misfortune and sickness and old age are better. Laws which compel industry to pay, irrespective of negligence, for accidents which entail injury and loss of earning ability or death are commendable and desirable, but laws which will prevent the accidents are far more so. Clean, sanitary hospitals for those who are torn and mangled by defective machinery or diseased by unwholesome surroundings are necessary and good, but safe machinery and sanitary workshops are better still. In other words, in dealing with industrial conditions, the prime duty of society, and therefore the prime study of the lawmaker, should be to prevent or minimize the evils which give rise to the necessity for assisting the helpless, for in law as in medicine the homely maxim holds good, that "an ounce of prevention is worth a pound of cure." о BENEFITS PAYABLE UNDER WORKMEN'S COMPENSATION BILL LETTER OF HERMAN E. WILLS Assistant Grand Chief Engineer and Acting National TO THE MEMBERS OF THAT ORGANIZATION ILLUSTRATING THE BENEFITS PAYABLE PRESENTED BY MR. CHAMBERLAIN WASHINGTON |