Before substituting a workmen's compensation act for the laws already upon the statute books of the several states and particularly this state, the proposed legislation, to-wit: Compensation Act, should run the gauntlet of the judiciary to first ascertain whether or not the particular act is constitutional; as otherwise, we would have a speculative compensation act and no protection other than common law protection for employes until further legislation could be passed, after the judiciary had declared null and void the compensation act. The industry should pay all the compensation unless the State might be made to pay for the administering of commissions, etc., then the individual employer would not have to suffer, particularly, from a financial standpoint, as a result of such drastic law, but on the other hand, the individual managers should be compelled by law to exercise the highest degree of care in the conduct of the industry, otherwise, they would be so careless in many respects that there would be a useless sacrifice of life and limb, because of the fact that it would make no particular difference to them, individually, whether the employes were safe or otherwise, provided they were allowed to charge enough for the commodity produced or rates for the conduct of the business so as to pay all the expenses over and above a fair profit. The writer has given a great deal of time to the subject of employer's liability, and also to the administering, negotiating and fighting on the law of the killed and wounded, and is deeply interested in this whole subject matter. You will hear from me much more fully when the Commission sits in this city. Yours very truly, C. W. DILLE. CINCINNATI, O., November 17, 1910. HON. J. HARRINGTON BOYD, 529 Nicholas Bldg., Toledo, Ohio. DEAR SIR-In reference to the questions submitted to me for my opinion, I beg leave to answer as follows: In reference to question 1, the legislature can, in my opinion, modify the common law, by statutory enactment, without overstepping its rights. Accordingly, there is not, in my opinion, any constitutional objection to the enactment of such a statute as mentioned in question 1. In reference to question 2, my opinion is that the legislature would have the right to enact such a statute. In reference to question 3, my opinion is that there is a constitutional objection to the enactment by the legislature of such a statute. These opinions are given after careful consideration of the questions submitted, and whilst they may not be absolutely correct, they are the result of much time and study given to the subjects. Very sincerely yours, JAMES J. SMILEY. MR. J. HARRINGTON BOYD, Toledo, Ohio. PORTSMOUTH, OHIO, October 13, 1910. DEAR SIR: Your circular letter of the 8th inst. is before me. I think that all workmen who are injured or killed in industrial employment, should have compensation for their injuries and their families for their death, if the injury was not caused by the employe himself by his wanton recklessness. This compensation should be paid either by the employer or the State, or in part by each. Second: The present statutory rights should not be abrogated, but parties should be allowed to have the present remedies or take under the Workman's Compensation Act to be enacted. Third: I do not think that the employers and the employes ought to be permitted to contract in regard to responsibility for injuries or death before the cause of action should arise as the parties are not upon equal terms in making the contract. If the making of the employer liable should be found unconstitutional which I think will not be done, then the State should pay the compensation. I regret that I do not have a British Workman's Compensation Act before me in answering this letter, or the recent New York Act, both of which I should like to consult, but 1 think that the present plan of making the loss of the party injured or killed fall upon him or his family is a relic of barbarism about equal to the defunct institution of African slavery. I also think that the doctrines of assumed risk, contributory negligence and fellow servant are worked to the disadvantage of employes and ought to be abolished by legislation, in no case would I be willing that a man should have compensation where his injury is solely due to his own foolhardiness or recklessness. These are the best suggestions that I can make offhand, on receipt of your letter and without further investigation or thought, Yours respectfully, N. W. EVANS. MARIETTA, OHIO, October 14, 1910. MR. J. HARRINGTON BOYD, 529 Nicholas Building, Toledo, Ohio. DEAR SIR: In reply to your circular letter to the attorneys of Ohio under date of October 8th, the matter of employers' liability legislation and the constitutionality of such legislation, are matters in which I have a great deal of interest, but which I regret to say up to this date I have given very little study, none worthy of the name. I am interested in these questions, not only as an attorney, but also on account of being, so far as this community is concerned, a pretty active employer of labor, as a stockholder in several large plants. In view of the fact, that I have not given the matter anything approaching the study that it deserves and being exceedingly busy, fully realize that many others have already done the work which I will have to do to prepare myself to give an opinion in regard to any of these questions, either from a practical or legal standpoint, and that I can get the benefit of their work by hearing what they have to say, I will make no attempt to write you prior to November 24th, 1910, as to the constitutionality of the questions suggested, but will make every effort to attend your hearing commencing at Cleveland on October 31st, and hear what the persons attending such meeting have to say. If at such meeting ideas occur to me, I shall be very glad to state them; and, in any event, as the result of the information I then receive, I shall give the matter some special attention, and should I come to any conclusions later I shall ask the privilege of then writing you my views, though they might not be formulated prior to November 24th. I shall try to keep the dates of your hearing absolutely vacant on my calendar to so attend your full hearing at Cleveland. In the meantime, you have doubtless already examined decisions of the various courts of the various states in regard to constitutional questions involved in your letter of October 8th and it would seem idle for me to go through the digests for such citations. If you will therefore kindly send them to me, I will take the benefit of the work that has been done, to the extent of looking through some of these cases at least before attending the Cleveland meeting. I have, as one of the attorneys for the Aetna Life Insurance Company, a pamphlet issued by it containing the New York Employers' Liability and Compensation Laws, together with a discussion of such laws by Mr. Scofield Rowe. If this pamphlet has not already been put in your hands, as I assume that it has, you will of course be glad to get it and can do so by writing to the Aetna Life Insurance Company, Hartford, Conn. I might add that while I represent practically all the corporations in my county which injure people, both public service corporations and manufacturing corporations, my general trend of opinion has been towards the French system, which I have some knowledge of through a French lawyer engaged in representing a French corporation operating for oil in this State and West Virginia, and that my sympathies have always been very strong with employes who were injured, though I fully realize their unaccountable tendency to be careless and take very long chances, even to the extent of refusing to use, and actually putting out of service safety devices intended to protect them, and my relations with the labor unions of this vicinity has always been extremely free, so I believe my attitude of mind is open and fair to both sides, and I know that I should be very glad to give such study to these questions as I shall be able. Very truly yours, A. D. FOLLETT. CAMBRIDGE, OHIO, October 20, 1910. HON. JAS. H. Boyd, Chmn., 529 Nicholas Bldg., Toledo, Ohio. DEAR SIR: Replying to your circular inquiry of recent date I can, at this time, offer no more than the following: 1st Question: Recognizing two classes of service, one of which includes all employments which are inherently and necessarily hazardous, and the other of which includes all other forms of employment, legislation of this sort as to the first class should be upheld upon that ground. Legislation of that sort as to the second class probably could not be upheld in the absence of constitutional sanction, by amending the present instrument. 2nd Question: If the proposed legislation be not made exclusive how can the constitutional question arise. Is it meant that the second question refers to legislation which is mandatory upon both master and servant, and that the first refers to such as shall be mandatory upon the employer only? My answer to the first question proceeds upon the theory that the proposed legislation shall be reciprocal and mandatory upon both, so that, while the master be held always liable as suggested the servant, reciprocally, must be content with that form of remedy. 3d Question: I doubt the expediency or necessity of such a statute if we have the legislation which the preceding questions suggest; and my judgment is against trying what the third question proposes unless it be as an alternative after the former has failed. Broadly it seems that the relation between master and servant should be no more immune from such legislation than is the relation of servants of like degree, i. e., fellow-servants, among themselves. Yet this last-mentioned relation, as you are aware, has been dealt with in several States so as to either abrogate or greatly modify the common-law in respect to it and its common-law consequences. The effect of this legislation operates upon the master as well as upon the servants, thus affecting two sorts of relations. If the analogy is as strong as it seems, then the numerous decisions of courts of last resort upholding such statutes perhaps settle the principle. A valuable note, citing such decisions from State and federal courts, including the U. S. supreme court, may be found in 12 L. R. A. (N. S.) at page 1040; and if you have not already seen this it may be of much interest and help to you. Very respectfully, FRED L. ROSEMOND. APPENDIX XXXIX. CONCLUSIONS OF CONFERENCE OF COMMISSIONERS ON COM- held at Chicago, Illinois, November 10, 11, and 12, 1910. Chairman. AMOS T. SAUNDERS, Clinton, Massachusetts, Secretary. The complete stenographic report of the proceedings of this Conference can be secured from the Secretary. Price, one dollar. COMMISSIONERS PARTICIPATING. UNITED STATES EMPLOYERS' LIABILITY COMMISSION. Daniel L. Cease, Cleveland, Ohio. Launcelot Packer, Secretary, Washington, D. C. NEW YORK COMMISSION ON EMPLOYERS' LIABILITY, ETC. EMPLOYERS' LIABILITY COMMISSION OF OHIO. W. J. Winans, Galion, Ohio. J. P. Smith, Cleveland, Ohio. MINNESOTA EMPLOYEES' COMPENSATION COMMISSION. H. V. Mercer, Minneapolis, Minn., President. Geo. M. Gillette, Minneapolis, Minn. W. E. McEwen, St. Paul, Minn. ILLINOIS EMPLOYERS' LIABILITY COMMISSION, 317 Fisher Building, Chicago, Ill. Edwin R. Wright, Secretary, 317 Fisher Building, Chicago, Ill. E. T. Bent, Chicago. George Golden, Chicago. NEW JERSEY EMPLOYERS' LIABILITY COMMISSION. Wm. B. Dickson, President, 71 Broadway, New York, N. Y. Dr. Albert A. Snowden, Sec., Roselle Park, N. J. EMPLOYERS' LIABILITY COMMISSION OF MONTANA, Judge W. L. Holloway, Helena, Mont. |