am not foreclosing myself from changing my mind-but it does seem to me that the time has come in this country, if we have the power to do it, to cut up this common-law system which involves the question of negligence of the employer, the defense of contributory negligence, the fellow-servant doctrine, and that of the assumption of risk, and various modifications of those several defenses; that the time has come to cut that whole thing up, root and branch, and put in the place of it some reasonable compensation law, and I for one shall be glad if the way can be pointed out for us to make a report

of that character.

Mr. LEWIS. I think your attitude is quite right as a plain proposition of sociology. There is a feeling, however, among lawyers that at least some of the common-law privileges of suit would have to be retained.

Mr. Moon. I think I have your bill in my hand. Your alternative scheme permitted, by Article V, as provided for here, does not reserve the common-law right of action at all.

Mr. LEWIS. No; the alternative scheme does not, but I think you will find the common-law reservation in Article I applies where the alternative scheme in Article V is not adopted.

Mr. Moon. I thought it was under the head of "Article V, alternative scheme permitted." That provides for an entirely different thing.

Mr. LEWIS. The alternative scheme in Article V is for an entirely different purpose. Some railroads are now conducting relief funds, or even gratuitously, I believe, providing pensions. The relief schemes extend to sickness as well as to accidents, and the English treatment of the subject has been such as to suggest the wisdom of giving the employer and the employee the right to agree among themselves upon some larger relief for those sick as well as for those who may be disabled, and the alternative scheme in this bill, it seems to me, possesses not only the merits it would have in other countries, but the particular merit here that it would enable the employer and the employee to cover the whole subject of railway accidents by provisions mutually considered just, and that the restrictions upon the power of Congress to deal with this subject can then be remedied by adopting an alternative scheme, under the sanction of the Interstate Commerce Commission, who must certify that employers contribute benefits at least equal to those provided for by the bill. I do not think, Mr. Chairman, that the danger of litigation is very great under the plan of the Civic Federation bill.

I attach here a copy of my bill, incorporating it-H. R. 8654:

[H. R. 8654, Sixty-second Congress, first session.]

A BILL To regulate interstate and foreign commerce in relation to accidents, and to provide a system of compensation for accidents in dangerous occupations thereunder, and also in jurisdictions subject to the legislative power of Congress, with a view to prevention of accident.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

ARTICLE I.-GENERAL.

THE OBLIGATION.

SECTION 1. That if in any employment to which this act applies personal jury by accident arising out of and in the course of the employment is 30198°-S. Doc. 338, 62-, vol 2—3

caused by an employee, his empolyer shall, subject as hereinafter mentioned, be liable to pay compensation to the employee, or, in case of death of such employee, to his dependents as hereinafter defined, in accordance with this act.

This act shall apply to employment by every common carrier by railroad while engaging in commerce between any of the several States or Territories or between any of the States and Territories or between the District of Columbia or any of the States or Territo.ies and any foreign nation or nations. Such carrier shall be liable under this act only to any person in such employment and the dependents of such person suffering injury while he is employed in such commerce by such carrier.

And shall apply also to employment by any common carrier by railroad in the Territories, the District of Columbia, the Panama Canal Zone, or other possessions of the United States. Such carrier shall be liable only to any person in such employment and the dependents of such person while he is employed in any of said jurisdictions by such carrier.

Save as herein provided, no such employer shall be liable for any injury for which compensation is recoverable under this act.

Provided, That

(a) The employer shall not be liable under this act in respect of any injury which does not disable the employee for a period of at least two weeks from earning full wages at the work at which he is employed.

(b) If it is proved that the injury to the employee results from his deliberate intention to cause such an injury, or from his refusal to use a guard or protection against accident required pursuant to any statute and provided for him, or solely from his deliberate breach of statutory regulations affecting safety of life or limb, or from his intoxication, any compensation in respect of that inJury shall be disallowed.

SEC. 2. RESERVATION OF LIABILITY FOR WRONG OR NEGLIGENCE IN CERTAIN CASES.-Where the injury was proximately caused by the individual negligence, either of commission or omission, of the employer (including such negligence of the directors or of any officer if such employer is a corporation, or of any of the partners if such employer is a partnership, or of any member if such employer is an association, but excluding the negligence of competent employees in the performance of their duties or of the employer's duty delegated to them), the common-law liability of the employer shall not be affected by this act, but in such case the injured employee, or if death results from such injury, his dependents as herein defined if they unanimously agree, otherwise his personal representative, with the approval of any court having jurisdiction hereunder, may elect between any right of action against the employer upon such commonlaw liability and the right to compensation under this act.

SEC. 3. RESERVATION OF PENALTIES.-Nothing in this act shall affect the liability of the employer to a fine or penalty under any other statute.

SEC. 4. REMEDIES BOTH AGAINST EMPLOYER AND STRANGER.-Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof

(a) The employee may take proceedings both against that person to recover damages and against any person liable to pay compensation under this act for such compensation, but shall not be entitled to recover both damages and compensation; and

(b) If the employee has recovered compensation under this act, the person by whom the compensation was paid shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the employee to recover damages therefor.

SEC. 5. DEFINITIONS.-In this act, unless the context otherwise requires— (a) "Railroad" means all kinds of railroads, including private railroads, logging roads, and so forth, excluding only horse-car roads; and "employment on railroads" includes work in depots, power houses, roundhouses, and other appurtenances, and in private yards, switches, and so forth, and work on railways for express companies, while engaged in commerce, as specified in section one of this act.

(b) Employer" includes any body of persons, corporate or unincorporated, and the receiver of a corporation or the personal representative of a deceased employee. Any reference to an employee who has been injured shall, where the employee is dead, include a reference to his dependents, as hereinafter defined, or to his legal representative, or where he is a minor or incompetent, to his committee or guardian.

(c) "Dependents" mean such members of the employee's family as were wholly or in part dependent upon the employee at the time of the accident. And members of a family” for the purposes of this act mean only widow or husband, as the case may be, and children; or if no widow, husband, or children, then parents and grandparents; or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters. In the meaning of this section parents include step-parents, children and grandchildren include stepchildren and stepgrandchildren, and brothers and sisters include half brothers and half sisters, and parents, grandparents, children, and grandchildren include all those between whom the mutually acknowledged relation of parent and child subsists at the time of the accident.

(d) "Accident" and "injury" in this act mean only such an accident and injury as cause the injured employee to be absent at least five consecutive hours or an entire half day's time from his work, and "injury" includes an injury resulting in death.

SEC. 6. INCOMPETENCY OF EMPLOYEE.-In case an injured workman is mentally incompetent or a minor (or where death results from the injury, in case any of his dependents as herein defined are mentally incompetent or a minor) at the time when any right, privilege, or election accrues to him under this act, his committee or guardian may, in his behalf, claim and exercise such right, privilege, or election; and no limitation of time, in this act provided for, shall run, so long as such incompetent or minor has no committee or guardian.

ARTICLE II.-SCALES OF COMPENSATION, AND SO FORTH.

SEC. 7. AMOUNT OF COMPENSATION.-The amount of compensation under this act shall be

(a) Where death results from the injury—

First. If the employee leaves any dependents wholly dependent upon his earnings, a sum equal to his earnings in the employment of the same employer during the four years next preceding the injury, but not exceeding in any case three thousand dollars: Provided, That the amount of any weekly payments made under this act shall be deducted from such sum; and, if the period of the employee's employment by the said employer has been less than the said four years, then the amount of his earnings during the said four years shall be deemed to be one hundred and fifty-six times his average weekly earnings during the period of his actual employment under said employer: Provided, however. That if the employee does not leave any dependents residing at the time of the accident in the United States or the Dominion of Canada the amount of compensation shall not exceed in any case one thousand dollars.

Second. If the workman does not leave any such dependents, but leaves any dependents in part dependent upon his earnings, such proportion of the amount payable under the foregoing provisions of this section as may be agreed upon or determined to be proportionate to the injury to the said dependents.

Third. If he leaves no dependents, the reasonable expense of his medical attendance and burial, not exceeding one hundred dollars.

(b) Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity, commencing at the end of the second week, equal to, in the case of total incapacity, and not exceeding, in the case of partial incapacity, fifty per centum of his average weekly earnings 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: Provided, however, That if the employee is under twenty-one years of age at the date of the accident and his average weekly earnings are less than ten dollars, his compensation shall be a weekly payment not exceeding his full average earnings.

Provided further, however, That

First. No such weekly payment shall exceed ten dollars.

Second. No such weekly payment shall extend over a period exceeding ten years, nor continue after the employee has reached the age of sixty years, unless at the date of the injury he was over fifty-five years, in which case it may continue for a period of five years after such date.

(c) In addition to the compensation hereinbefore prescribed, the injured employee shall be entitled to receive at the expense of the employer such immediate medical and surgical relief as shall in the judgment of a competent physician be deemed to be imperative, such professional service, in default of agree ment to the contrary, to be performed by one selected by the employer: Pro

vided, however, That the employer shall in no such case be obligated hereby to pay more than one hundred dollars toward such services: And provided further, That in case such professional services are performed by one selected wholly by the employer the injured employee shall be obliged to pay no part of such expense.

SEC. 8. RULES FOR COMPUTATION.-For the purposes of the provisions of this article relating to “earnings” and “average weeking earnings" of an employee, the following rules shall be observed:

(a) “Average weekly earnings " shall be computed in such manner as is best calculated to give the average rate per week at which the employee was being remunerated: Provided, That where by reason of the shortness of the time during which the employee has been in the employment of his employer, or the casual nature or the terms of the employment, the actual rate of his remuneration can not be computed, regard may be had to the average weekly amount which, during the twelve months previous to the accident, was being earned by a person in the same grade employed at the same work by the same employer, or if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district.

(b) Where the employee had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer his "earnings" and his average weekly earnings" shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident.

(c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident, uninterrupted by his absence from work due to illness or any other unavoidable cause.

(d) Where the employer has been accustomed to pay to the employee a sum to cover any special expenses entailed on him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings.

(e) In fixing the amount of the weekly payment, allowance shall be made for any payment or benefit which the employee may receive wholly from the employer during the period of his incapacity.

(f) In the case of partial incapacity the weekly payment shall be computed to equal as closely as possible fifty per centum between the amount of the "average weekly earnings of the employee before the accident, to be computed as herein provided, and the average weekly amount which he is most probably able to earn in some suitable employment or business after the accident, subject, however, to the limitations hereinbefore provided.

SEC. 9. PAYMENTS TO INJURED EMPLOYEE.-The Interstate Commerce Commission shall prescribe reasonable regulations governing the time, place, and manner in which weekly payments shall be made, having regard to the security and convenience of the employer and the welfare of the employee; any judge of a court having jurisdiction hereunder, upon the application of either party, may modify such regulations in a particular case, as to him may seem just. If an employee receiving a weekly payment shall change his residence and cease to reside along the line of the railway of the common carrier, his right to weekly payments may cease and he be entitled to receive monthly or quarterly, as may be agreed upon or as the judge of such court, upon application, having regard to the welfare of the employee and the convenience of the employer, may determine, the sum of the weekly payments accruing during the preceding month or quarter, so long as he proves, in such manner and at such intervals as may be prescribed by the rules of the court, his identity and the continuance of the incapacity in respect of which the weekly payment is payable.

SEC. 10. COMPENSATION TO DEPENDENTS, AND SO FORTH.-Where death results from the injury, and the dependents of the deceased employee as herein defined have agreed to accept compensation, and the amount of such compensation and the apportionment thereof between them has been agreed to or otherwise determined, the employer may pay such compensation to them accordingly, or to a personal representative if one be appointed, and thereupon be discharged from all further liability for the injury. Where only the apportionment of the agreed compensation between the dependents is not agreed to the employer may pay the amount to the personal representative of the deceased employee with the same effect. Where the compensation has been so paid the proper probate court, upon the petition of such personal representative, or of any such dependents, and upon such notice and proof as its rules may provide, shall determine

the distribution thereof among such dependents. Where there are no dependents medical and funeral expenses may be paid and distributed in like manner. SEC. 11. PREFERENCES AND EXEMPTIONS.-In case of the insolvency of any employer under this act, the right of the employee to compensation shall constitute a lien upon the property of the employer of equal rank and effectiveness with any first lien thereon, if such there be. And such compensation shall be unassignable by the employee and be exempt from any attachment or execution against such employee.

SEC. 12. REPORTS AS TO COMPENSATION.-Employers subject to this act shall report annually to the Interstate Commerce Commission such reasonable particulars in regard thereto as may be required, including particulars as to all releases of liability under this act and any other law.

ARTICLE III.—EXAMINATION OF INJURED EMPLOYEES.

SEC. 13. MEDICAL EXAMINATION.—An injured employee shall submit himself to examination by a duly qualified medical practitioner provided and paid by the employer as soon after the accident as demanded, and from time to time thereafter during the pendency of his claim for compensation or during the receipt by him of payments under this act; but he shall not be required to so submit himself otherwise than in accordance with regulations made by the Interstate Commerce Commission, nor at more frequent intervals than prescribed by those regulations.

It shall be the duty of the employer to cause such an examination to be made of the injured employee immediately after knowledge or notice of the accident and to serve a copy of the report by his medical practitioner of such examination upon the employee within six days after such examination. If no such examination be made and report furnished by the employer within that time, the employee shall be examined by his own medical practitioner and shall furnish a report thereof by his medical practitioner to the employer, for which he shall be entitled to recover one dollar from the employer, which amount may be added to the compensation. Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes such report or any statement therein, shall notify the other party of that fact within six days, otherwise such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this act.

If thereafter a dispute exists as to the condition of the employee, the court having jurisdiction hereunder, upon application of either party, shall order an examination of the employee to be made by a medical examiner appointed by it. The fees of such examiner shall be fixed by the court at not to exceed ten dollars and shall be paid in advance by the applicant. Such medical examiner stail report his conclusions from such examination, in duplicate, to each party, and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this act.

SEC. 14. EXAMINATIONS IN ARBITRATIONS.—If an arbitrator has been selected or appointed pursuant to the provisions of this act, the employee shall submit himself for examination by such arbitrator or by a medical practitioner selected by him whenever, wherever, and under such conditions as such arbitrator in the exercise of a reasonable discretion may order.

SEC. 15. REFUSAL OF EXAMINATION.-If the employee refuses to submit himself to an examination hereinbefore provided for or in any wise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this act shall be suspended until such examination takes place. And when a right to compensation is suspended, no compensation shall be payable in respect of the period of suspension.

ARTICLE IV.-PROCEEDINGS UNDER THIS ACT.

SEC. 16. NOTICE AND CLAIM.-Proceedings for the recovery of compensation under this act shall not be maintainable unless written notice of the accident, stating the time, place, and particulars thereof, and the name and address of the person injured, has been given within seven days after the accident, and unless a claim for compensation has been made within six months after the accident, or, in case of death, within six months from the date of death. Such notice shall be delivered personally or by registered letter. The want of or any defect in such notice or in its service shall not be a bar unless the employer proves that he has in fact been thereby prejudiced, or if such want or defect