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at night in cases of that kind. Were they to blame for the wrecks that were occasioned by the engineers and trainmen that worked hours and hours, and I have seen them out weeks without seeing a bed, excepting the caboose bunks and cab cushions. Were they to blame for those wrecks? No. If the railroad companies permitted that to exist and continue to exist until Congress stepped in and stopped it, can the gentleman to-day say they are to blame for the accidents or any part of them that are happening? Surely no. Acci dents happening to-day are occasioned by reason of the drive that is put upon the men doing five days' work in one; driven to the last ditch to make up time, and when they sleep and something goes wrong the result is death and loss of property.

This information I secured from an actual connection with them for 15 years of service, and I know what I speak of; and I have the incidents to recite, and I state that to answer the statement. This loss of life, these accidents-there are some, of course, preventable— but the great majority are brought about by the necessities of the business. Men must work. When God Almighty commanded that he created a blessing and a curse. Having to work, the man must accept these conditions here and the dangers. He must eat; he must sleep; and now, having by that precept imposed eating and sleeping, he must have something to eat, and to get something to eat he must have some place to work; and if the employer creates conditions so terrible and overbearing, presses him and crowds him, he goes on until there comes a time when something slips—a signal is wrong; an order is forgotten; a mistake is made; out into the night go the trains and crash-the result is death; and then to the innocent victims we should have the application of this law to help the wives and children. You can not replace the lives; you can not put back blood into the veins, nor can you make the crippled what they were before the wreck; you can not bring into the desolate home, where the cloud of death hangs o'er, any brighter rose in the form of tender sympathy and affection than this substitute in the giving to them of some little sum to keep the wolf from the door and to save the wife and children from the most detestable of places-a pauper's home.

I thank you, gentlemen.

(Thereupon, at 4.55 o'clock p. m., the commission adjourned until 10 o'clock December 16, 1911.)

SATURDAY, DECEMBER 16, 1911.

EMPLOYER'S LIABILITY AND WORKMEN'S
COMPENSATION COMMISSION,

SENATE OFFICE BUILDING,
Washington, D. C.

The commission met at 2 o'clock p. m., at the call of the chairman. Present: Senators Sutherland (chairman), and Chamberlain; and Mr. D. L. Cease, editor the Railroad Trainman, also the secretary, Launcelot Packer, Esq.

STATEMENT OF MR. GEORGE M. GILLETTE, MINNEAPOLIS, MINN. The CHAIRMAN. You may proceed, Mr. Gillette.

Mr. GILLETTE. I will endeavor to keep you here this Saturday afternoon just as short a time as I can. At the outset, I wish to say

that I am not engaged in the railroad business. I am president of the Minnesota Employers' Association and a member of the committee of the Bridge and Structural Society, composed of practically all large concerns in the country engaged in the manufacture of structural iron steel. I am also a member of the Minnesota commission on employers' liability, or an ex-member of it, because, our commission terminated February last.

I have been very much interested in this subject for a considerable number of years, and while a member of the Minnesota commission spent considerable time in Europe in investigating the workings of the foreign countries with reference to recommending an act for the State of Minnesota.

My interest in the measure which this commission will present is largely measured by the effect and the influence which it will have upon State legislation throughout the country. I take a great interest in it in that regard, feeling that the influence of whatever measure you may enact will be great, and I trust salutory, upon acts passed by the various State legislatures.

Now, in the beginning, I desire to say that having spent a very large amount of time myself in attempting to frame a bill of this character, I appreciate the labors of this commission, and I desire to compliment you most highly upon this bill you have presented. Without going into a discussion at all of the constitutional features which have been argued by most eminent counsel, and whose arguments I have read with great interest, in justice to myself I would say that a year ago I came to the conclusion that I was unable to subscribe to a compulsory act of this kind for two reasons: First, I was not satisfied as to its constitutionality, and, secondly, if I had been satisfied that a purely compulsory act would stand the constitutional test, or, rather, that the courts in the view of what they might deem a great public necessity, would sustain a law framed along compulsory lines. I questioned in my own mind the beneficent effects of such position and such an attitude, as related to the security of other rights.

In other words, as an employer I have felt that it was perfectly right for the employers, as they do under existing employers' liability laws, to be compelled to respond in damages for the results of their own acts, either of omission or commission. I have gone further than that and I have felt it was perfectly proper and right and just that under these modern conditions of rapidly-moving machinery and very dangerous appliances that probably the employer should be rightfully held responsible for the results of the agencies he has set in motion, and, therefore, might justly be required to respond either in compensation or in damages for the results of those accidents which naturally flow from the agencies which he has set in motion. I had been unable to follow my own associates on the Minnesota commission, and you will pardon me if I am unable quite to follow this commission in stretching the Constitution to that point where the dangers of a hazardous occupation and that class of injuries which are the result not of the acts of the employer, and those acts which could not have been prevented by the employer, but which are solely the result of the acts of the employee himself, and could be prevented by the employee himself, can be justly and 30198°-S. Doc. 338, 62-2, vol 2-81

reasonably laid at the door of the employer for compensation, remuneration, or damages. I mean under a straight compensation act. I have come more and more in these later days to view with less approval the term "compensation act," and I believe that while it may be necessary to use the term for convenience, after all the ideal legislation would be along the lines of some form of mutual insurance. I just touch on this in passing to show my own frame of mind. I desire to say, at the same time, that I am quite willing that the commission should promulgate a bill of this kind, even if it meets with their approval and their judgment, and I presume it will be absolutely necessary that the Supreme Court should finally determine whether this is the best mode of procedure or not.

Now, in regard to the bill itself. Its main features I very heartily approve of. I understand that you are just now going over the bill and clearing up some matters, and there are a few suggestions I would like to make in regard to it in detail.

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In the first section of the bill you refer to the compensation for personal injuries. I am not, myself, satisfied that it is necessary or advisable or best to use the term personal injuries;" and I view with a great deal of misgivings the results which will flow from it. In a bill which I once prepared myself I used the term "bodily injuries. It is more restrictive, and, in my opinion, would give rise to less difficulty of construction; but, at the same time, I appreciate the fact that possibly it might be construed-even the word "bodily "-to eliminate a certain class of injuries which necessarily flow from accident, and which should be compensated.

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I only just wish to call your attention to it, and I want to briefly preface what I have to say further by this: I trust that this commission will not compromise their views with me or anyone else. What I mean by that is this-that I am very glad to submit some ideas which have occurred to me, but I should feel very much disappointed if any of my own ideas or those of anybody else should be adopted without meeting your full concurrence, and my only hope is that a bill of this kind-which is as practical as I find this bill to be now-can pass through both Houses of Congress without becoming emasculated.

In the same section, lines 7 and 8, it has occurred to me, further, it would be well to limit it to the hours of service. I presume you have considered that, and I only desire to call it to your attention, if by any possibility this has not been done. "While he is employed" possibly governs it, but it seems to me that it could be somewhat more definite.

In the second section of the bill, where you use the term "accident," I see you have not attempted to define it in your glossary. After seeing the difficulties they have had in Great Britain, not only in the definition of the term, but in trying to arrive at what was contemplated by the law, it would seem to me as if it would be very advisable, indeed, if you could arrive at a definition which in your own minds would absolutely and definitely determine what

you mean.

The CHAIRMAN. By the word "accident"?

Mr. GILLETTE. By the word "accident;" yes, sir.

The CHAIRMAN. I put in some time thinking about that and going through the dictionaries and some of the cases, and I could not frame

in my own mind a definition that was not itself subject to more or less definition.

Mr. GILLETTE. I made a definition once. I just merely submit it to you by way of suggestion. You are undoubtedly familiar with the decisions in the English cases, and especially in the earlier English cases. I am not a lawyer, but a great deal of difficulty in construction, as I understand it, grew out of that law by reason of the fact that they did not entirely eliminate diseases, occupational or otherwise, from the operation of the law.

The CHAIRMAN. We undertook to do that.

Mr. GILLETTE. That will do away with part of it, but I can see a great many cases where that question might arise. At one time I made this definition:

The word "accident" as used in the phrases "bodily injuries due to accident," or "injuries or death caused by accident," in this code shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.

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I do not know but that is more complex than the word itself, but the only thing I wished to do was simply to call your attention to the advisability of finding a proper definition for the term "injury if you can find one that will satisfy your own minds. It would simplify matters in the future wonderfully.

The CHAIRMAN. When you undertake to define the word "accident" you are apt to get into more difficulty than if you leave it alone. The only way in which I think it ought to be dealt with is by way of negative limitation-" that it shall be held not to include certain contingencies," etc.

Mr. GILLETTE. I agree with you as to that. You have eliminated a class of accidents which have to be compensated for in Great Britain under their act. For instance, you are entirely familiar with the case of the man who had a slight abrasion of the skin and who went to work in the factory and did not take care of it, and through lack of cleanliness infection and blood poisoning set in and a most distinguished judge said that was an accident; that the accidental lighting of a bacillus upon that microscopic wound constituted an accident.

On page 3 of the bill we find the words "unless such employee elects to secure his own physician or surgeon." I was wondering if, compared with the context where it is used in the previous part of the clause, the word "furnish" would not more clearly define what you had intended?

The CHAIRMAN. I think that may be a very good suggestion. That is, use "furnish" instead of "secure."

Mr. GILLETTE. I mean "secure his " instead of "furnish his."

The CHAIRMAN. "To furnish "--I think that a good suggestion. Mr. GILLETTE. In section 6-" that no compensation shall be allowed for injury or death of any employee where it is proved that any such injury or death was occasioned by the willful intention of the employee to bring about the injury of himself or another, or that the same resulted from his intoxication."

Mr. CHAMBERLAIN. We have changed that.

The CHAIRMAN. We have added "while on duty"-if it results from intoxication "while on duty"--we have changed the phraseology, but not the meaning.

Mr. GILLETTE. But not the meaning. You will pardon me if I am going over the ground you have already gone over. I do not want to bother you with that, but there is one very vital thing in that section which is not included there. Whether you intended to include it or not, I do not know, and that is the willful disobedience. of orders.

The CHAIRMAN. Yes; we considered all of those things, and while it might be wise in some respects

Mr. GILLETTE. I see the difficulties on both sides.

The CHAIRMAN. We simply concluded to eliminate from this measure all questions of negligence upon either side.

Mr. GILLETTE. That is perfectly right; but it struck me, or it has been my opinion, that a willful disobedience of orders in cases where such disobedient acts were not performed with a view to preservation of life or property might possibly be eliminated from the bill. The CHAIRMAN. You mean by that

Mr. GILLETTE. I mean by that, for instance, a railroad engineerI can conceive of cases where he would be perfectly justified in disobeying orders to preserve the lives of passengers on his train.

The CHAIRMAN. What I want to get at is just what you mean by "orders." Do you mean to include in that the rules of the company-general rules that are prescribed?

Mr. GILLETTE. I see the difficulties on both sides of that, Senator, and I can see how in a factory advantage might be taken of the men to paste on the walls rules covering every contingency which might arise, and therefore estop the employee from securing the compensation that was intended.

The CHAIRMAN. Yes; I think you would introduce a very difficult question in all cases of that kind. In the work of the railroads an employee is sometimes called upon to act in an emergency very quickly.

Mr. GILLETTE. I appreciate that.

The CHAIRMAN. It is different from almost any other kind of employment.

Mr. GILLETTE. I appreciate that. It is different from almost any other kind of employment, and in my own mind it is not very clear, but I know there is a very strong sentiment abroad, at least in those classes of rules and regulations which apply to the use of safety devices, that the man who, without bringing in the question of negligence, willfully disregards those rules and the use of safety devices which are furnished to him and which he is instructed to use, that it raises a very nice question as to whether in those cases the burden of compensation should be thrust upon the employer.

The CHAIRMAN. There is a good deal to be said upon that.

Mr. GILLETTE. If you have considered it, I do not wish to press these matters upon you. My only hope was that I could make one or two suggestions here.

The CHAIRMAN. That particular phase of it we have considered at very great length.

Mr. GILLETTE. In the section on page 4, in line 7: "In the absence of such written notice the employer shall not be liable to pay any compensation under this act," etc. I would ask a question about that, as to whether he would be liable for hospital bills?

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