AMERICAN EXPERIENCE WITH WORKMEN'S

COMPENSATION

Experience under the American compensation statutes has justified in fair measure the hopes and claims of those who have advocated the legislation. It has not been millennial. But it has realized no small part of the advantages which were predicted. So much may be stated with entire confidence and after due allowance for the present incompleteness of definitely relevant data.1 In fact, a reasonably confident conclusion of that character might be reached without examining any of the detailed reports upon the practical working of the statutes and with only a knowledge of the rate at which the compensation system has been extended from state to state. Ten years ago the early and ready acceptance of workmen's compensation in other lands was urged as a strong argument for the enactment of compensation legislation in this country. It was pointed out that within a quarter century the newer principles and policy for the relief of employees injured in industry had been adopted in some forty foreign jurisdictions, including all of the industrially important ones, and that, once adopted, there nowhere had ever been any serious proposal to give them up.

But foreign readiness to enact compensation laws has been more than matched in the United States. It is not yet nine years since the first of the really effective American workmen's compensation statutes were enacted.2 Yet such laws now have been enacted in forty-two of the forty-eight states and in Alaska, Porto Rico, and Hawaii. Only the District of Columbia, North Carolina, South Carolina, Georgia, Florida, Mississippi, and Arkansas are still without compensation statutes. And a late appropriation for the District of Columbia brings all public employees in that jurisdiction under the provisions of the federal workmen's compensation law. It is not credible that the states would have taken action so speedily, one after another and in full knowledge of what had been done elsewhere, often in adjacent states, except upon conviction that the action taken was of proved wisdom. Doubtless none of

1 Conditions growing out of the war have delayed and even suspended the publication of data in several of the states, including some of the largest of them, whose experience would be most instructive. Here may be mentioned New York, Pennsylvania, Ohio, and Illinois, as well as a number of others. 2 In Kansas and Washington on the same day, March 14, 1911.

the tardier legislatures knew every effect of the earlier enactments. Nobody knows as much as that, even now. But they did know, through universal report and belief, that of evil effects there had been as good as none and that general results had been eminently satisfactory. And upon such knowledge they acted.

There is other general evidence of the same presumptive character. As in foreign lands, so in America there has been never a voice raised for the repeal of the statutes. Rather the tendency of legislation everywhere has been to go farther, to strengthen and improve the first laws. The field of the acts has been broadened somewhat, by the inclusion of additional workmen. Rates of compensation have been increased in various ways, by higher percentile ratings upon wages, by raising the fixed maxima, by shortening the waiting periods, by extending the duration of the payments, by more liberal provisions for medical care, and in still other minor ways. The original limitation to accidental injuries has been done away in a few states. The certainty of payments to injured employees has been made greater, by stricter requirements of insurance and by corrections of administrative procedure. And the simpler and more summary administration by boards or commissions, rather than through the courts of law, has been increasingly favored.

3

By many tokens employers have shown their approval of the system. There are, to be sure, some regrettable failures of the optional statutes to win acceptance by employers. But these are not very numerous, relatively. Much the larger numbers of the employers affected have accepted their new obligations cheerfully. In the states in which the employer's acceptance of the optional statute is presumed, in the absence of his notification to the contrary, positive rejections have been few. And in states with optional statutes there have been a great many purely voluntary elections of the compensation system by employers who have been under no constraint of fear that they might have to face suits at law without their old-time common law deferses. So in California in 1918 there had been more than 20,000 such voluntary elections which had been formally notified to the Industrial Accident Commission, and in addition to these an unknown number of oth

3 Diseases now are included in California, Connecticut, Massachusetts, North Dakota, and Wisconsin.

See Bulletin of the United States Bureau of Labor Statistics, no. 240, p. 34.

ers which had been legally implied by the taking out of compensation insurance. And, in fact, a good part of the liberalizing amendments to which reference has been made have had the support of employers, or even have been proposed by them.

Employees have become even more cordial than employers in their approval. Unorganized laborers, of course, on the farms and elsewhere, never were on record, or even heard as to their wishes about workmen's compensation. But organized laborers, as a rule, were at first skeptical or positively hostile. It was but natural that the representatives and spokesmen of the labor unions, knowing little about the measures proposed for their avowed benefit, and by outsiders at that, should be doubtful of the real advantage to themselves. The verdicts for large sums now and then won in personal injury actions loomed in their minds as the grand prizes of the lottery loom in the minds of ticket-holders. And they did not appreciate fairly the fact that the compensation awards, limited although they might be, would come very much oftener than the rich damage verdicts. In 1909 Mr. Samuel Gompers, as president of the American Federation of Labor, declared his preference for an improved employers' liability law. Two years later the president of the Connecticut Federation of Labor appeared in his official capacity at a legislative hearing to oppose a pending workmen's compensation bill, announcing that the organized laborers of Connecticut wished rather a simple abolition of the common law principle of the fellow-servant. In Illinois the opposition to early proposals of workmen's compensation had some of its sharpest, even bitterest, expressions by organized laborers. But now, after a few years of experience with compensation, laborers, both organized and unorganized, are generally enthusiastically in favor of it, not necessarily in its present typical form and with its commonest limitations, but certainly as a general principle and in contrast with employers' liability. Perhaps the great railway unions, to whose highly paid members the modest maxima of the ordinary compensation awards appear particularly unjust, are the only important bodies of laborers who

5 Report of the Commission for 1917-18, p. 6. Hereafter in this article definite references usually will not be cited for statements based upon official reports of the various compensation boards and commissions. In most cases the statements themselves will indicate sufficiently the source of the authority, the state and the year; and any interested reader will find the page without difficulty.

cannot be considered as now having renounced their former hostility.

It is clear also that the doubts and fears and the opposition which were so widespread among the general public a few years ago have been dissolved. When the agitation for workmen's compensation was first gathering strength some ten years ago, and even after the earliest statutes had gone into effect, many among those who could not properly be regarded either as employers or as industrially employed, and who, therefore, were not directly affected, were decidedly skeptical about proposals to import such radical European measures, if, indeed, they did not range themselves definitely with the opposition. But now-what a change! It is not merely that employers, high and low, great and small, are old and ardent friends of workmen's compensation—at least such of them as declare themselves at all. So also are the insurance men. So also are nearly all audible workers. And among other classes of the general public it is scarcely possible now to find a well informed person who is not friendly. Truly it is a marvel that the struggle for compensation laws could have been so hard: there are so many long-time friends on every side. But, at any rate, there have been enough reversals of judgment to make present public opinion emphatically favorable to the new system. And this general and cordial approval of workmen's compensation is of greater practical importance than may appear at first. It has had and continues to have important bearings upon judicial decisions as to the validity and the practical meaning of the laws.

But much more to the point, under the American system of government, is the fact that the constitutionality and the general legal propriety of workmen's compensation may be said to be now definitely established-established, that is, beyond any possibility of unsettling. For they have been affirmed abundantly in the highest courts, both state and federal. Early unfavorable decisions in Montana, New York, and Kentucky, and in lower courts elsewhere have been made quite negligible, by changes in the provisions upon which they turned, by constitutional amendments,"

6 As in New York, Ohio, California, and Wyoming. The New York amendment of November 4, 1913 (art. 1, sec. 19), is of general interest in political science, as a perfect illustration of the popular recali, or reversal, of a judicial decision. Both in form and in substance it is nothing else. It made not a word of change in existing provisions of the constitution, but merely declared, in effect, that the decision of the Court of Appeals in the Ives case-which

and by the accumulated weight of later favorable opinions. Of these there have been a great many, perhaps fully half a hundred by now, which may be said to have covered questions of constitutionality, sustaining the statutes of more than a score of the states, some of them of the so-called optional type and some directly compulsory. It is true that the scope of some of the favorable judicial opinions is not quite so comprehensive as at times is assumed and that, therefore, their weight is not quite so overwhelming as the list of states might indicate. But none the less it is now entirely safe to conclude that no attack upon any essential feature of either optional or compulsory compensation statutes will prevail in the highest courts, whether state or national. Notwithstanding volumes of over-fine analysis and distinctions, the one strictly vital question is whether an employer may free himself from the obligation to pay compensation by proving his own freedom from negligence or fault. And that he may not claim such a right, in the face of a statutory declaration to the contrary, is determined sufficiently in at least five decisions from the Supreme Court of the United States, to say nothing of a score or more of cases in state supreme courts.

It, therefore, may be taken as settled that henceforward the workmen's compensation system is to be a part of our industrial order. If there were less adequate sanction for it in definite prinhad annulled the compensation statute of 1910-was reversed, or recalled. It enacted simply that "nothing in this constitution shall be construed to limit the power of the legislature to enact laws for" [compulsory workmen's compensation].

Optional: Illinois, Iowa, Kansas, Louisiana, Kentucky, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, West Virginia, Wisconsin; compulsory: California, Hawaii, New York, Washington, Wyoming. Perhaps other states should be added. It would be gratuitous, and tedious also, to keep the list up to date.

8 The early favorable decision in Wisconsin, in the case of Borgnis et al. v. Falk Co., 1911, 147 Wisc. 327; 133 N. W. 209, has been cited as authority in nearly all of the later decisions sustaining the optional statutes. But the Wisconsin law does not abrogate the defense of assumed risks in so far as the risks are "inherent" or "necessary." Accordingly, the Falk decision cannot properly be cited as authority for sustaining laws which do abrogate the doctrine of assumed risks completely.

• Northern Pacific Railway Co. v. Meese, 229 U. S. 614. N. Y. C. R. R. Co. v. White, 243 U. S. 188. Hawkins v. Bleakley, 243 U. S. 210. Mountain Timber Co. v. State of Washington, 243 U. S. 219. Middleton v. Texas Power and Light Co., 249 U. S. 152.