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 OF THE 
 
 NEW YORK STATE SCHOOL 
 
 OF 
 
 INDUSTRIAL AND LABOR 
 
 RELATIONS 
 
 AT 
 
 CORNELL UNIVERSITY 
 
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 http://www.archive.org/details/cu31924002403420 
 
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 MESSAGE 
 
 j 
 
 
 GOVERNOR OF NEW JERSEY 
 
 Transmitting to the Legislature the 
 
 Report of Commission on Employers' Lia- 
 bility/together with the Evidence and 
 -Testimony Taken ; also a Pro- 
 posed Act in Relation Thereto 
 
 JANUARY 16, J.9JJ 
 
 , T - TRENTON, N. I. 
 MacCreiAish & Qbigmy, Stats Printsss. 
 
 1911. 
 
MESSAGE 
 
 OF THE 
 
 GOVERNOR OF NEW JERSEY 
 
 Transmitting to the Legislature the 
 
 Report of Commission on Employers' Lia- 
 bility, together with the Evidence and 
 Testimony Taken ; also a Pro- 
 posed Act in Relation Thereto 
 
 JANUARY 16, \9\\ 
 
 TRENTON, N. J. 
 MacCreiaish & Quigley, State Printers. 
 
 1911. 
 
To the Legislature : 
 
 By Joint Resolution No. 2, entitled "Joint Resolution for the 
 appointment of a commission to inquire into and report legisla- 
 tion upon the subject of an employers' liability act," approved 
 April 9, 1910, a commission was duly constituted by the appoint- 
 ments made in the manner required by that Joint Resolution. 
 
 The said Commission has been industriously at work holding 
 public and private sessions for the consideration of the questions 
 referred to them from the time of their appointment (soon after 
 the adjournment of the Legislature) until the eleventh of Jan- 
 uary, instant, when they presented their report to the Governor, 
 together with a bill for such legislation as they recommend 
 should be enacted into law by the Legislature. 
 
 The said report, together with the accompanying testimony 
 and documents presented to the Governor, are herewith trans- 
 mitted to the Legislature and recommendation is made that the 
 said report and the accompanying evidence and documents be 
 printed. 
 
 It is quite apparent from a careful perusal of the report, so far 
 as the Executive has been able to make it, that there will be a 
 wide demand for the. act recommended, as well as the report of 
 the Commission and the testimony taken before it at the several 
 hearings held. 
 
 The legislation proposed is of the most advanced character, 
 and the report presented shows the greatest care in its prepara- 
 tion, and that the most thoughtful consideration has been given 
 to the entire subject. 
 
 The character of this Commission, composed as it is of two 
 business men, representative of the very largest business inter- 
 ests in this country, and two members of labor organizations, 
 representative of the best thought of the labor interests, in our 
 day, together with two representatives, one of the Senate and 
 one of the House of Assembly of the State, makes the joint 
 report of this Commission of very great value upon this vital 
 question of such great public concern. 
 
 The recommendations contained in my annual message pre- 
 sented at this session are all covered in this report and in the 
 bill presented with it. I have given great care to the considera- 
 
tion of this proposed act since it was presented to me by the 
 Commission, and am prepared to give it, practically, unqualified 
 approval. 
 
 The act proposed seems to me to solve the various questions 
 arising out of the common-law rules with relation to master and 
 servant in a way that is exceptionally satisfactory. That the 
 Commission should have unanimously reached a result, save on 
 one minor point, is a matter of congratulation to the Legislature 
 and the people of the State, and it voices the evident public in- 
 terest on this great subject. 
 
 If New Jersey shall adopt this statute she will have taken a 
 position on this great question which will be a model for her 
 sister States in the Republic. 
 
 At the last conference of Governors held at Louisville last year, 
 the subject of employers' liability acts was discussed and the 
 suggestions- in the report herewith transmitted were largely 
 before that body, and seemed to meet the universal approval of 
 the Executives at the conference. ' 
 
 It is evident that the old rule with relation to employer and 
 employe, called in the common law the "law of master and 
 servant," needs revision and change, and if this act be added to 
 the statutory law of our State and permitted to modify the com- 
 mon law in the respects in which it does modify it, it will be a 
 long step in the right direction. 
 
 A judicial experience of many years impressed me, at times, 
 with not only the injustice but the absolute cruelty of the present 
 rules of the common law with relation to master and servant 
 under existing business conditions, and if through the act pre- 
 sented by the Commission and herewith transmitted with its 
 report, the manufacturer and the laborer can be brought together 
 under contractural relations and statutory conditions which will 
 work rjght and justice in the place of the present inequalities 
 and unjust results, a great advance in the economic problem of 
 solving the questions between labor and capital will have been 
 made. 
 
 Respectfully submitted, 
 
 JOHN FRANKLIN FORT, 
 
 Governor. 
 
REPORT TO GOVERNOR. 
 
 State op New Jersey. 
 
 Employers' Liability Commission. 
 
 Oeeice: Newark Board of Trade Rooms. 
 
 71 Broadway, New York, January nth, 191 1. 
 
 My Dear Sir — The Commission to inquire into the question 
 of Employers' Liability, pursuant to Senate Joint Resolution No. 
 3, Laws of 1910, reports as follows: 
 
 Public hearings have been held at the following times and 
 places : 
 
 Newark, N. J., June 29th, 1910, Board of Trade rooms. 
 
 Jersey City, N. J., September 12th, 1910, Board of Trade 
 rooms. 
 
 Paterson, N. J., October 7th, 1910, Municipal Court rooms of 
 City Hall. 
 
 Camden, N. J., October 19th, 1910, Camden county court 
 house. 
 
 At these hearings employers and representatives of labor pre- 
 sented their views as set forth in the minutes, a copy of which is 
 transmitted herewith. While the statements made at these hear- 
 ings have a certain value as showing the trend of public opinion, 
 yet, generally speaking, those advocating radical changes in the 
 present law had little or no appreciation of the limitations im- 
 posed on legislation by the Federal and State Constitutions. 
 
 The hearings have served a useful purpose in acquainting 
 those present in a general way with some of the constitutional 
 difficulties, thereby making possible a more intelligent discussion, 
 both among employers and workmen, of the problems involved 
 in making changes in the law. 
 
 The President and Secretary of the Commission participated 
 in a conference of Commisioners on Compensation for Industrial 
 Accidents from 1 ten States, held at Chicago, November 10th, nth 
 and 12th, 1910, at which conclusions were reached, as shown in 
 the attached Appendix, marked A. These conclusions were not 
 
•unanimous in every case, but fairly reflected the opinion of the 
 majority of those present. 
 
 At the conclusion of the conference a committee was appointed 
 to draft two bills, one of which was to be a compulsory com- 
 pensation act, based on the assumption that such an act would 
 be constitutional, and the other an elective act based on the 
 assumption that the first-named wquld be unconstitutional. A 
 copy of these bills, marked Appendix B, is attached hereto. 
 
 The Commission has sent out to certain members of the bar a 
 letter reading as follows : 
 
 "The Employers' Liability Commission of New 
 Jersey, recently appointed by Governor Fort under 
 authority of a resolution of the last Legislature, has 
 held during the past summer a series of open meetings, 
 at which a large number of employers and representa- 
 tive associations of workmen appeared. 
 
 "As a result of these meetings and from a general 
 study of the working of the present system of adminis- 
 tering 'the law oi employers' liability in this State, the 
 Commission is convinced that, speaking generally, the 
 present status of the law is not satisfactory either to 
 the employer or the employe. While convinced that 
 some changes are desirable, we are duly impressed with 
 the fact that if the work of the Commission is to have 
 any practical results, any modifications of the present 
 common or statute law must be in harmony with the 
 requirements of the Federal and State Constitutions. 
 
 "Having in view the importance of the above require- 
 ment, the Commission desires to ascertain the views of 
 prominent members of the bar of this State as to the 
 constitutionality of certain suggested changes. The 
 members of the Commission are serving without com- 
 pensation; the small appropriation ($1,300.00) being 
 used exclusively for office and other incidental expenses. 
 The Commission has no express authority nor has it 
 means to employ counsel. We therefore seek legal 
 assistance from such public-spirited members of the 
 
bar as are willing to give us the benefit of their views 
 as a public duty. 
 
 "The particular questions on which we wish your 
 opinion are as follows : 
 
 "Are there constitutional objections to the enactment 
 by the Legislature of this State of statutes to the fol- 
 lowing effect : 
 
 "i. A statute abrogating as a defense the doctrine of 
 'fellow servant.' 
 
 "2. A statute abrogating as a defense the doctrine 
 of 'assumption of risk.' 
 
 "3. A statute providing that contributory negligence 
 of the employe should not bar the action, but that the 
 damages should be assessed by the jury in proportion 
 to the comparative negligence of the parties. 
 
 "4. A statute providing that the burden of proof as 
 to contributory negligence shall be upon the employer. 
 
 "5. A statute providing that no claim for legal ser- 
 vices or disbursements shall be a lien upon the recovery 
 or enforceable in law unless the same be taxed and 
 approved by a court of record. 
 
 "6. A statute providing that the employer shall be 
 directly liable to compensate the employe injured in his 
 employment (without regard to the question of neglect 
 or failure of duty of the employer) unless the injury 
 was intentionally caused by the employe himself, but 
 also providing that the compensation so paid be fixed 
 in amount. 
 
 "7. If the answer to query No. 6 is in the negative — 
 A statute making void any agreement to forego or 
 limit the liabilities imposed by the statute suggested in 
 query No. 6. 
 
 "8. If the answer to query No. 6 is in the affirma- 
 tive, would you consider a permissive or elective act to- 
 the same effect constitutional and desirable? 
 
 "9. A statute providing that every employer and em- 
 ploye as a part of their express or implied contract of 
 employment shall be presumed to have accepted the 
 
provisions of the proposed workmen's compensation 
 act, unless they give written notice to the contrary to 
 some designated public official. 
 
 "10. A statute providing that an employer who does 
 not accept the provisions of the proposed workmen's 
 compensation act and forces his employe to bring suit 
 at common law, shall not escape liability by reason of 
 (i) the fellow-servant rule; (2) the rule of assump- 
 tion of risk, or (3) the contributory negligence of the 
 employe, unless that contributory negligence be greater 
 than the negligence of the employer; burden of proof 
 to be on the employer. 
 
 "This statute would also provide that an employe 
 who refuses to accept the provisions of the proposed 
 act, and sues at common law, shall be subject to all 
 three of the defenses named as they now stand. 
 
 "Aside from the question of constitutionality of each 
 of the above-suggested statutes, we would be glad to 
 have your opinion as to the desirability in each instance 
 oi making these changes in the law of the State, or as 
 to any other changes pertinent to the subject. We 
 would appreciate a reply, if possible,. by December 1st." 
 They have also sent to certain judges a letter reading as fol- 
 lows : 
 
 "We are addressing a letter to prominent members 
 of the bar of this State, a copy of which is enclosed. 
 
 "We recognize the fact that in view of your judicial 
 office it would be improper to ask you to give an opinion 
 as to the constitutionality of the proposed legislation. 
 We feel, however, that your experience at the bar and 
 on the bench has given you exceptional opportunity to 
 form definite views as to the efficiency of the existing 
 employers' liability laws. 
 
 "If you are willing to express opinions as to the 
 practical merits of the suggestions contained in our 
 letter they will be greatly appreciated." 
 The members of the Commission are unanimous in their be- 
 lief that compensation to injured workmen is a legitimate charge 
 
against the cost of manufacture, and that the victim of an in- 
 dustrial accident, or his dependents, should receive compensa- 
 tion, not as an act of grace on the part of his employer, but as a 
 matter of justice. 
 
 The burden of industrial accidents now falls in the most hap- 
 hazard and unscientific manner on the victim himself and his 
 dependents, the benevolent employer, the sympathetic fellow- 
 workmen, or the public authorities, or on all of these. 
 
 We regret, however, that we are forced to the conclusion that 
 the weight of legal opinions received by correspondence and 
 verbally is against the constitutionality of an act which would 
 compel an employer to compensate an injured employe without 
 regard to the fault or negligence of the employer. 
 
 We are advised that, as the law stands at present, the em- 
 ployer is held liable only when the accident is due to his fault or 
 neglect. He is not liable — (a) when the negligence of the em- 
 ploye contributes to the accident; (b) when the accident is 
 due to a natural risk of the employment; (c) or when the acci- 
 dent is due to the act of a fellow-servant. 
 
 CONTRIBUTORY NEGUGENCE. 
 
 As to the first of these defenses of the employer, i. e., the con- 
 tributory negligence of the employe, we believe that the theory 
 of this defense is founded on principles of justice. A change 
 has been suggested to the so-called doctrine of comparative negli- 
 gence which involves on the part of the court or jury a balanc- 
 ing of the relative amount of fault or negligence as between 
 employer and employe. 
 
 While this doctrine is theoretically sound, we are advised that, 
 in those States where it has been adopted, in practice it has re- 
 sulted in substantially a complete abrogation of the defense by 
 the employer of negligence by the employe. We are unable, 
 therefore, to recommend the complete abrogation of this defense 
 until constitutional barriers are removed which now prevent the 
 adoption of a comprehensive scheme of compulsory compensa- 
 tion which shall distribute the burden of industrial accidents 
 
IO 
 
 fairly among all employers, and through them on the purchasers 
 of their products. 
 
 In order, however, to prevent the nonsuiting of the injured 
 employe on a mere technicality, *'. e., where his negligence is 
 relatively trivial, we recommend the modification of the present 
 law as stated in our proposed bill requiring the proof of "willful 
 negligence." While, technically, these words are a contradiction 
 of terms, we are advised that they have a well-established mean- 
 ing in judicial procedure. 
 
 In this connection the members of the Commission desire to 
 emphasize the fact that they are unanimous in their belief that as 
 a jiractical question compensation to an injured employe should 
 be based on the fact of the accident or injury and not on the 
 question o>f fault or negligence. 
 
 In the elective section of our proposed bill we therefore elimi- 
 nate entirely the question of contributory negligence. 
 
 As to the second and third of these defenses, i. e., "assumption 
 of risk" and "fellow-servant," we believe that, however just 
 these may have been at the time of their adoption, they are unjust 
 as applied to modern conditions of employment for the follow- 
 ing reasons : 
 
 ASSUMPTION OF RISK. 
 
 While, theoretically, a workman may be presumed to have a 
 choice in the selection of his employment, taking into account 
 the natural risks inherent therein, as a matter of fact in the vast 
 majority of cases the choice is narrowed down to the acceptance 
 of such risks or no work. 
 
 FELLOW-SERVANT. 
 
 In the great majority of cases the employe has no voice in the 
 selection of his fellow-servants, and the mere fact of having 
 the same employer should not, in itself, release the employer 
 from a liability which he would otherwise incur. The injustice 
 of this rule may be illustrated thus : "An accident occurs, due to 
 the act of an employe, which results in the injury of a fellow- 
 
1 1 
 
 employe and also of an outsider in no way connected with the 
 work. The outsider may, and often does, secure redress, while 
 the fellow-employe is barred solely on account of his being- a 
 fellow-servant." 
 
 We therefore believe that the time has come in the develop- 
 ment of our civic life for the abrogation' of these two defenses, 
 and we have incorporated' this recommendation in the proposed 
 bill which we present herewith. While, for reasons stated, we 
 are unable to recommend the passage of a compulsory "compen- 
 sation act, we recommend the elective act which is included in 
 the bill. This is done with the expectation that such an elective 
 act will be generally accepted by both employers and employes 
 for the following reasons : 
 
 By the employer — 
 
 ist. Because his liability is limited and he is thus relieved of 
 the danger of harassing law suits for excessive damages. 
 
 2d. By reason of the abrogation of the two defenses of "As- 
 sumption of Risk" and "Fellow-Servant," the position of the 
 employer who refuses to accept the elective law will be less 
 tenable. 
 
 3d. Because he can in a large measure add the expense to cost 
 of manufacture and recover it in his selling price. 
 
 4th. Because he can readily insure his liability. 
 
 By the employe — 
 
 ist. The practical certainty of settlement in accordance with 
 the schedule as against the uncertainty of an appeal to common- 
 law rights. 
 
 2d. Promptness in settlement as against the "law's delay." 
 
 3d. All of the money is paid to the injured person or his de- 
 pendents as against the heavy attorneys' fees and court expenses 
 of the suit at law. 
 
 We desire to express our appreciation of the valuable assist- 
 ance which the Commission has received from Mr. Nelson B. 
 
12 
 
 Gaskill, Assistant Attorney-General, in the drafting of our pro- 
 posed bill. 
 
 Respectfully submitted, 
 
 William B. Dickson, 
 J. William Clark, 
 Walter E. Edge, 
 Edward K. Mills. 
 Hon. John Franklin Fort, 
 
 Governor, Trenton, N. J. 
 
 We concur in the foregoing report and approve of the bill 
 submitted therewith, with the exception of the maximum com- 
 pensation provided by the elective compensation feature in case 
 of death, which we believe should be extended to equal the com- 
 pensation provided for total disability, that is, a maximum of 
 ten dollars per week during a period of four hundred weeks, or 
 four thousand dollars. 
 
 John T. Cosgrove, 
 Samuel Botterill. 
 Albert A. Snowden, 
 
 Secretary. 
 
13 
 
 An Act prescribing the liability of an employer to make com- 
 pensation for injuries received by an employe in the course 
 of employment, establishing an elective schedule of com- 
 pensation and regulating procedure for the determination 
 of liability and compensation thereunder. 
 
 Be it enacted by the Senate and General Assembly of the 
 State of New Jersey: 
 
 SECTION I. COMPENSATION BY ACTION AT LAW. 
 
 i. When personal injury is caused to an employe in the course 
 of his employment, of which the negligence of the employer is 
 the natural and proximate cause, he shall receive compensation 
 therefor from his employer, provided the employe was himself 
 not willfully negligent at the time of receiving such injury. 
 
 2. The right to compensation as provided by section I of this 
 act shall not be defeated upon the ground that the injury was 
 caused in any degree by the negligence of a fellow-employe, or 
 that the injured employe assumed the risks inherent in or inci- 
 dental to his employment, or arising from the failure of the 
 employer to provide and maintain safe premises and suitable 
 appliances, which said two grounds of defense are hereby abol- 
 ished. 
 
 3. If an employer enters into a contract, written or verbal, 
 with an independent contractor to do part of such employer's 
 work, or if such contractor enters into a contract, written or 
 verbal, with a subcontractor to do all or any part of such work 
 comprised in such contractor's contract with the employer, such 
 contract or subcontract shall not bar the liability of the employer 
 under this act for injury caused to an employe of such contractor 
 or subcontractor by any defect in the condition of the ways, 
 works, machinery or plant, if they are the property of the em- 
 ployer, or are furnished by him, or if the defect arose or had not 
 been discovered and remedied through the negligence of the 
 employer or some one entrusted by him with the duty of seeing 
 that they were in proper condition. 
 
14 
 
 4- The provisions of paragraphs one, two and three shall 
 apply to any claim for the death of an employe arising under an 
 act entitled "An act to provide for the recovery of damages in 
 cases where the death of a person is caused by wrongful act, 
 neglect or default," approved March third, eighteen hundred and 
 forty-eight, and the amendments thereof and supplements thereto. 
 
 5. In all actions at law brought pursuant to section I of this 
 act the burden of proof to' establish willful negligence in the 
 injured employe shall be upon the defendant. 
 
 6. No claim for legal services or disbursements pertaining to 
 any demand made or suit brought under the provisions of this 
 act shall be an enforceable lien against the amount paid as com- 
 pensation, unless the same be approved in writing by the judge or 
 justice presiding at the trial, or, in case of settlement without 
 trial, by the judge of the circuit court of the district in which 
 such issue arose. 
 
 SECTION II. ELECTIVE COMPENSATION. 
 
 7. When employer and employe shall by agreement, either 
 express or implied, as hereinafter provided, accept the provisions 
 of section II of this act, compensation for injuries to or for the 
 death of such employe in the course of his employment shall be 
 made by the employer according to the schedule contained in 
 paragraph ten, in all cases except when the injury or death is 
 intentionally self-inflicted, and the burden of proof of such fact 
 shall be upon the employer. 
 
 8. Such agreement shall be a surrender by the parties thereto 
 of- their rights to any other method, form or amount of com- 
 pensation or determination thereof than as provided in section 
 II of this act, and an acceptance of all the provisions of section 
 II of this act, and shall bind the employe himself and for com- 
 pensation for his death shall bind his personal representatives, 
 his widow and next of kin, as well as the employer, and those 
 conducting his business, during bankruptcy or insolvency. 
 
 9. Every contract of hiring made subsequent to the time pro- 
 vided for this act to take effect shall be presumed to have been 
 made with reference to the provisions of section II of this act 
 
15 
 
 and unless there be as a part of such contract an express state- 
 ment in writing, either in the contract itself or by written notice 
 from either party to the other that the provisions of section II 
 of this act are not intended to apply, then it shall be presumed 
 that the parties have accepted the provisions of section II of this 
 act and have agreed. to be bound thereby. 
 
 10. Every contract of hiring, verbal, written or implied from 
 circumstances, now in operation or made or implied prior to the 
 time limited for this act to take effect shall be presumed to have 
 been made with reference to section II of this act, unless either 
 party shall, in writing, notify the other party to such contract 
 that the provisions of section II are not intended to apply; if 
 such notice is not given prior to the time stated for this act to 
 take effect, it shall then be presumed that the parties have ac- 
 cepted the provisions of section II of this act and have agreed to 
 be bound thereby. 
 
 ii. The contract for the operation of the provisions of sec- 
 tion II of this act may be terminated by either party upon thirty 
 days' notice in writing. 
 
 12. Following is the schedule of compensation : 
 
 (a) For injury producing temporary disability, fifty per cent, 
 of the wages received at the time of the injury, subject to a 
 maximum compensation of ten dollars per week and a minimum 
 of five dollars per week; provided, that if at the time of injury 
 the employe receives wages of less than five dollars per week, 
 then he shall receive the full amount of such wages per week. 
 This compensation shall be paid during the period of such dis- 
 ability, not, however, beyond three hundred weeks. 
 
 . (b) For disability total in character and permanent in quality, 
 fifty per cent, of the wages received at the time of injury, subject 
 to a maximum compensation of ten dollars per week and a mini- 
 mum of five dollars per week; provided, that if at the time of 
 injury the employe receives wages of less than five dollars per 
 week, then he shall receive the full amount of wages per week. 
 This compnsation shall be paid during the period of such dis- 
 ability, not, however, beyond four hundred weeks, 
 
 (c) For disability partial in character but permanent in qual- 
 ity, the compensation shall be based upon the extent of such 
 
i6 
 
 disability. In cases included by the following schedule the com- 
 pensation shall be that named in the schedule, to wit : 
 
 For the loss of a hand, fifty per cent, of daily wages during 
 one hundred and fifty weeks. 
 
 For the loss of an arm, fifty per cent, of daily wages during 
 two hundred weeks. 
 
 For the loss of a foot, fifty per cent, of daily wages during 
 one hundred and twenty-five weeks. 
 
 For the loss of a leg, fifty per cent, of daily wages during one 
 hundred and seventy-five weeks. 
 
 For the loss of an eye, fifty per cent, of daily wages during 
 sixty weeks. 
 
 The loss of both of any such members or of any two thereof 
 shall constitute total disability, to be compensated according to 
 the provisions of clause (b). 
 
 In all other cases in this class the compensation shall bear such 
 relation to the amounts stated in the above schedule as the dis- 
 abilities bear to those produced by the injuries named in the 
 schedule. Should the employer and employe be unable to agree 
 upon the amount of compensation to be paid in cases not covered 
 by the schedule, the amount of compensation shall be settled 
 according to the provisions of paragraph twenty hereof. 
 
 The amounts specified in this clause are all subject to the same 
 limitations as to maximum, minimum and duration as are stated 
 in Clause "A." 
 
 In case of death compensation shall be made as follows : 
 
 (i) Total dependents. 
 
 If orphans, fifty per cent, of wages of deceased. 
 
 If widow alone, twenty-five per cent, of wages. 
 
 If widow and one child, forty per cent, of wages. 
 
 If widow and two children, forty-five per cent, of wages. 
 
 If widow and three children, fifty per cent, of wages. 
 
 If widow and four children, fifty-five per cent, of wages. 
 
 If widow and five children or more, sixty per cent, of wages. 
 
 If widow and father or mother, fifty per cent, of wages. 
 
 Dependents not distinctly provided for in the above schedule 
 shall receive compensation in the discretion of the court having 
 jurisdiction as hereinafter provided, as nearly as possible on the 
 
17 
 
 basis of this schedule, having regard to comparative degrees of 
 relationship. 
 
 (2) Partial dependents. 
 
 Fifty per cent, of the portion of the wages contributed by the 
 deceased to the partial dependents. 
 
 (3) No dependents. 
 
 Expenses of last sickness and burial not exceeding two hun- 
 dred dollars. 
 
 In computing compensation to children only those under six- 
 teen years of age shall be included, and only during the period 
 in which they are under that age. 
 
 The compensation in case of death shall be subject to a maxi- 
 mum compensation of ten dollars per week and a minimum of 
 five dollars per week ; provided, that if at the time of injury the 
 employe receives wages of less than five dollars per week, then 
 the compensation shall be. the full amount of such wages per 
 week. This compensation shall be paid during three hundred 
 weeks. 
 
 Compensation under this schedule shall not apply to alien de- 
 pendents not residents of the United States. 
 
 13. No compensation shall be allowed for the first two weeks 
 after injury received, except as provided by paragraph fourteen, 
 nor in any case unless the employer has actual knowledge of the 
 injury or is notified thereof within the period specified in para- 
 graph fifteen. 
 
 14. During the first two weeks after the injury the employer 
 shall furnish reasonable medical and hospital services and medi- 
 cines as and when needed, not to exceed one hundred dollars in 
 value, unless the employe refuses to allow them to be furnished 
 by the employer. 
 
 15. Unless the employer shall have actual knowledge of the 
 occurrence of the injury, or unless the employe t or some one on 
 his behalf, or some of the dependents, or some one on their be- 
 half, shall give notice thereof to the employer within fourteen 
 days of the occurrence of the injury, then no compensation shall 
 be due until such notice is given or knowledge obtained. If the 
 notice is given, or the knowledge obtained within thirty days 
 from the occurrence of the injury, no want, failure or inac- 
 
 2 
 
i8 
 
 curacy of a notice shall be a bar to obtaining compensation, 
 unless the employer shall know that he was prejudiced by such 
 want, defect or inaccuracy, and then only to the extent of such 
 prejudice. If the notice is given, or the knowledge obtained 
 within ninety days, and if the employe or other beneficiary shall 
 show that his failure to give prior notice was due to his mistake, 
 inadvertence, ignorance of fact or law or inability, or to the 
 fraud, misrepresentation or deceit of another person, or to any 
 other reasonable cause or excuse, then compensation, may be 
 allowed, unless and then to the extent only that the employer 
 shall show that he was prejudiced by failure to receive such 
 notice. Unless knowledge be obtained, or notice given, within 
 ninety days after the occurrence of the injury, no compensation 
 shall be allowed. 
 
 16. The notice referred to may be served personally upon the 
 employer, or upon any agent of the employer upon whom a sum- 
 mons may be served in a civil action, or by sending it through 
 the mail to the employer at the last-known residence or business 
 place thereof within the State, and shall be substantially in the 
 following form : 
 
 To (name of employer) : 
 
 You are hereby notified that a personal injury 
 was received by (name of employe injured), who 
 was in your employ at (place) while engaged as 
 (nature of employment), on or about the ( ) 
 
 day of ( ) , nineteen hundred and ( ) , 
 
 and that compensation will be claimed therefor. 
 Signed, 
 
 ( )• 
 
 but no variation from this form shall be material if the notice 
 is sufficient to advise the employer that a certain employe, by 
 name, received an injury in the course of his employment on or 
 about a specified time, at or near a certain place. 
 
 17. After an injury the employe, if so requested by his em- 
 ployer, must submit himself for examination at some reason- 
 able time, and as often as may be reasonably requested, to a 
 physician or physicians authorized to practice under the laws of 
 
19 
 
 this State. If the employe requests, he shall be entitled to have 
 a physician or physicians of his own selection present to partici- 
 pate in such examination. The refusal of the employe to submit 
 to such examination shall deprive him of the right to compensa- 
 tion during the continuance of such refusal. When a right to 
 compensation is thus suspended no compensation shall be payable 
 in respect of the period of suspension. 
 
 18. In case of a dispute over, or failure to agree upon, a claim 
 for compensation between employer and employe, or the de- 
 pendents of the employe, either party may submit the claim, 
 both as to questions of fact, the nature and effect of the injuries, 
 and the amount of compensation therefor according to the sched- 
 ule herein provided, to the judge of the Court of Common Pleas 
 of such county as would have jurisdiction in a civil case, or where 
 there is more than one judge of said court, then to either or any 
 of said judges of such court, which judge is hereby authorized 
 to hear and determine such disputes in a summary manner, and 
 his decision as toi all questions of fact shall be conclusive and 
 binding. 
 
 19. In case of death, where no executor or administrator is 
 qualified, the said judge shall by order direct payment to^ be made 
 to such person as would be appointed administrator of the estate 
 of such decedent, upon like terms as to bond for the proper ap- 
 plication of compensation payments as are required of adminis- 
 trators. 
 
 20. Procedure in case of dispute shall be as follows : 
 Either party may present a petition to said judge setting forth 
 the names and residences of the parties and the facts relating to 
 employment at the time of injury, the injury in its extent and 
 character, the amount of wages received at the time of injury, 
 the knowledge of the employer or notice of the occurrence of said 
 Injury, and such other facts as may be necessary and proper for 
 the information of the said judge, and shall state the matter or 
 matters in dispute and the contention of the petitioner with refer- 
 ence thereto. This petition shall be verified by the oath or affir- 
 mation of the petitioner. 
 
 Upon the presentation of such petition, the same shall be 
 filed with the clerk of the court of common pleas, and the judge 
 
20 
 
 shall fix a time and place for the hearing thereof, not less than 
 three weeks after the date of the filing of said petition. A copy 
 of said petition shall be served as summons in a civil action, and 
 may be served within four days thereafter upon the adverse 
 party. Within seven days after the service of such notice the 
 adverse party shall file an answer to said petition, which shall 
 admit or deny the substantial averments of the petition, and shall 
 state the contention of the defendant with reference to the 
 matters in dispute as disclosed by the petition. The answer 
 shall be verified in like manner as required for a petition. 
 
 At the time fixed for hearing, or any adjournment thereof, the 
 said judge shall hear such witnesses as may be presented by each 
 party, and in a summary manner decide the merits of the con- 
 troversy. This determination shall be filed in writing with the 
 clerk of the common pleas court, and judgment shall be entered 
 thereon in the same manner as in causes tried in the court of 
 common pleas, and shall contain a statement of facts as deter- 
 mined by said judge. Subsequent proceedings thereon shall 
 only be for the recovery of moneys thereby determined to be due; 
 provided, that nothing herein contained shall be construed as 
 limiting the jurisdiction of the Supreme Court to review ques- 
 tions of law by certiorari. Costs may be awarded by said judge ■ 
 in his discretion, and, when so awarded, the same costs shall be 
 allowed, taxed and collected as are allowed, taxed and collected 
 for like services in the common pleas court. 
 
 21. The amounts payable periodically as compensation may 
 be commuted to one or more lump sum payments by the judge of 
 the court of common pleas having jurisdiction as set forth in the 
 preceding paragraph, upon the application of either party, in his 
 discretion ; provided, the same be in the interest of justice. Un- 
 less so approved, no compensation payments shall be commuted. 
 
 An agreement or award of compensation may be modified at 
 any time by a subsequent agreement, or at any time after one 
 year from the time when the same became operative it may be 
 reviewed upon the application of either party on the ground 
 that the incapacity of the injured employe has subsequently 
 increased or diminished. In such case the provisions of para- 
 
21 
 
 graph seventeen with reference to medical examination shall 
 apply. 
 
 22. The right of compensation granted by this act shall have 
 the same preference against the assets of the employer as is now 
 or may hereafter be allowed by law for a claim for unpaid wages 
 for labor. Claims or payments due under this act shall not be 
 assignable, and shall be exempt from all claims of creditors and 
 from levy, execution or attachment. 
 
 23. For the purposes of this act, willful negligence shall con- 
 sist of ( 1 ) deliberate act or deliberate failure to act, operating 
 as the proximate cause of injury, or (2) such conduct as evi- 
 dences reckless indifference to safety, or (3) intoxication. 
 
 Wherever in this act the singular is used the plural shall be 
 included; where the masculine gender is used the feminine and 
 neuter shall be included. 
 
 Employer is declared to be synonymous with'master and in- 
 cludes natural persons, partnerships and corporations ; employe is 
 synonymous with servant and include all natural persons who 
 perform service for another for financial consideration, exclusive 
 of casual employments. 
 
 Amputation anywhere below the elbow shall be considered as 
 the loss of a hand, and amputation anywhere below the knee as 
 the loss of a foot. 
 
 24. In case for any reason any paragraph or any provision of 
 this act shall be questioned in any court, and shall be held to be 
 unconstitutional or invalid, the same shall not be held to affect 
 any other paragraph or provision of this act, except that sections 
 I and II are hereby declared to be inseparable, and if either sec- 
 tion be declared void or inoperative in an essential part, so that 
 the whole o<f such section must fall, the other section shall fall 
 with it and not stand alone. 
 
 25. All acts or parts of acts inconsistent with the provisions of 
 this act are hereby repealed. 
 
 26. This act shall take effect on the fourth day of July next 
 succeeding its passage and approval.. 
 
22 
 
 APPENDIX A. 
 
 Conclusions of Conference of Commissioners on Compen* 
 sation for Industrial Accidents, heed at Chicago, 
 Illinois, November ioth, iith and 12TH, 1910. 
 
 H. V. Mercer, Minneapolis, Minnesota, Chairman. 
 Amos T. Saunders, Clinton, Massachusetts, Secretary. 
 
 commissioners participating. 
 
 United States Employers' Liability Commission. 
 Daniel L. Cease, Cleveland, Ohio. 
 Launcelbt Packer, Secretary, Washington, D. C. 
 
 New York Commission on Employers' Liability t Etc. 
 Hon. J. Mayhew Wainwright, Chairman. 
 
 Wisconsin Industrial Insurance Committee. 
 Hon. A. W. Sanborn, Ashland, Wis. 
 Paul J. Watrous, Secretary, Madison, Wis. 
 
 Employers' Liability Commission of Ohio. 
 James Harrington Boyd, Toledo, O. 
 W. J. Bohr, Cincinnati, O. 
 W. J. Winans, Calion, O. 
 Z. E. Smith, Cleveland, O. 
 
 Minnesota Employes' Compensation Commission. 
 
 H. V. Mercer, Minneapolis, Minn., President. 
 George M. Gillette, Minneapolis, Minn. 
 W. E. McEwen, St. Paul, Minn. 
 
 Illinois' Employers' Liability Commission, 
 
 317 Fisher Building, Chicago, 111. 
 Edwin R. Wright, Secretary, 317 Fisher Building, Chi- 
 cago, 111. 
 E. T. Bent, Chicago. 
 George Golden, Chicago. 
 
2 3 
 
 New Jersey Employers' Liability Commission. 
 
 William B. Dickson, President, 71 Broadway, New York, 
 
 N. Y. 
 Dr. Albert A. Snowden, Secretary, Roselle Park, N. J. 
 
 Employers' Liability Commission of Montana. 
 Judge W. L. Holloway, Helena, Mont. 
 
 Massachusetts Commission on Compensation for Industrial Acci- 
 dents, 
 
 Room 227, State House, Boston, Mass. 
 James A. Lowell, Chairman, Equity Building, Boston. 
 Amos T. Saunders, Clinton, Mass. 
 Magnus W. Alexander, Lynn, Mass. 
 Henry Howard, Brookline, Mass. 
 Carroll W Doten, Chief Investigator, Boston. 
 
 Connecticut — Special Delegate. 
 
 Walter S. Schutz, Hartford, Conn. 
 
 Special Committee of Commissioners on, Uniform State Laws' to 
 Prepare a Uniform Workmen's Compensation Law. 
 
 Hollis R. Bailey, Chairman, 19 Congress street, Boston, 
 
 Mass. 
 Aldis B. Browne, 1419 F street, N. W., Washington, D. C. 
 John H. Wigmore, Dean Northwestern University School 
 of Law, Northwestern University Building, 87 Lake 
 street, Chicago, 111. 
 
 United States Commissioner of Labor. 
 
 Hon. Charles P. Neil, Washington, D. C. 
 
 1. What employments shall the act cover? 
 
 All employments. 
 
 2. Shall all injuries be covered irrespective .of negligence ? 
 (a.) Irrespective of employers' negligence ? Yes. 
 
 (b) Irrespective of employes' negligence? Yes, except 
 where injury is self-inflicted for the purpose of 
 recovery. Burden of proof that injury was self- 
 inflicted to be placed on the employer. 
 
 3. Shall all persons engaged in such employments be included ? 
 
 Yes. 
 
24 
 
 4- Shall compensation be paid in a lump sum or in install- 
 ments ? 
 (b) Permanent disability or death? Installments with 
 right to commute after given time with approval of 
 some public official. 
 
 5. Amount and duration of compensation? 
 
 (a) Temporary disability? Fifty per cent, of the impair- 
 
 ment of wages; maximum of $10 per week, mini- 
 mum of $5 per week; or if wages less than $5, then 
 full wages (or 66% per cent, of wages up to $7.50 
 of wages per week, then 50 per cent, of balance until 
 compensation amounts to the maximum of $10 per 
 week, maximum) . Payments not to extend beyond 
 period of 300 weeks. 
 
 (b) Permanent disability? Same as temporary disability. 
 
 (c) Partial permanent disability? Fifty per cent, of im- 
 
 pairment of wages. Maximum of $10 per week. 
 Payments not to extend beyond period of 300 
 weeks. 
 
 (d) Death? 
 
 (1) Total dependents. 
 
 If orphans, 50 per cent, of wages of deceased. 
 If widow alone, 25 per cent, of wages. 
 If widow and one child, 40 per cent, of wages. 
 If widow and two children, 45 per cent, of 
 
 wages. 
 If widow and three children, 50 per cent, of 
 
 wages. 
 If widow and four children, 55 per cent, of 
 
 wages. 
 If widow and five children or more, 60 per cent. 
 
 of wages. 
 If widow, father or mother, 50 per cent, of 
 
 wages. 
 Children under 16 years of age only to be in- 
 cluded and only during period they are under 
 
 sixteen years of age. 
 Maximum of $10 per week, minimum of $5 
 
 per week or if full wages less than $5, their 
 
25 
 
 full wages (or 66% per cent, of wages up 
 to $7.50 of wages per week, then 50 per 
 cent, of balance until compensation amounts 
 to $10 per week, maximum). Payments not 
 to extend beyond period of 300 weeks. 
 
 (2) Partial dependents. 
 
 Fifty per cent, of the portion of the wages con- 
 tributed by the deceased to the partial de- 
 pendents. 
 
 (3) No dependents. 
 
 Expenses of last sickness and burial not exceed- 
 ing two hundred dollars. 
 
 6. Length of waiting period? 
 
 Two weeks, during which period employer shall furnish 
 medical treatment or hospital care, to an amount not 
 exceeding $100 in value. 
 
 7. Shall dependents include aliens and illegitimate relations ? 
 
 Shall not include aliens residing outside the country. Il- 
 legitimate children not to be mentioned. 
 
 8. Shall employes contribute? 
 
 No. 
 
 9. Shall it be permissible for employers to substitute voluntary 
 
 schemes ? 
 Yes, provided the voluntary scheme covers all points 
 covered by the law and is approved by some public 
 official to be determined in the law. 
 
 10. Method of determination of controversies? 
 
 A system of board of arbitration approved. 
 
 11. Nature of scheme; compensation, insurance or State in- 
 
 surance, (a) voluntary, (&) compulsory? 
 Compulsory insurance, State insurance. If these not pos- 
 sible then compulsory compensation providing that the 
 employer may transfer his liability by insuring in com- 
 panies approved by a legally-constituted public body or 
 official. 
 
 12. Repeal of other laws? 
 
 All other laws should be repealed. 
 
 1 3 . Constitutionality ? 
 
 General discussion, no definite agreement reached. 
 
26 
 
 APPENDIX B. 
 
 The following acts were drafted after the close of the Chicago 
 Conference by a committee, consisting of H. V. Mercer, of Min- 
 nesota, John H. Wigmore, of Illinois, and A. W. Sanborn, of 
 Wisconsin, who were appointed by the Conference to draft two 
 acts, one compulsory, the other elective. These acts have not 
 been submitted to the other members of the Conference, and, 
 therefore, reflect only the views of the members of the com- 
 mittee on the several points where they are not in accordance 
 with the votes of the Conference. The Notes following were 
 also prepared by the committee, and will serve to explain the 
 reasons for any divergence of the acts from the votes of the Con- 
 ference. 
 
 Conference Uniform Draet op an Employes' Compensa- 
 tion Code. 
 
 (Form i : Making the Compensation System Mandatory. ) 
 
 Preamble. 
 
 i. Rights and Liabilities Defined. 
 
 2. Amounts of Compensation Allowed. 
 
 3. Mode of Claiming Compensation. 
 
 4. Legal Effect of Settlements and Claims. 
 
 5. Board of Arbitration; Jurisdiction and Powers. 
 
 6. Procedure and Awards under Arbitration. 
 
 7. Insurance. 
 
 8. Rights and Liabilities of Third Persons. 
 
 9. Words and Phrases Defined. 
 10. Time of Code's Taking Effect. 
 
27 
 
 Conference Uniform Draft of an Employes' Compensa- 
 tion Code. 
 
 (For meaning of Code, see Committee Note on "Title.") 
 
 PREAMBLE. 
 
 (See Committee Note on "Preamble.") 
 
 Whereas, our modern industrial conditions have outgrown 
 the common law and statutory remedies hitherto given to em- 
 ployes for injuries incident to their employments, and the injuries 
 now annually received by thousands of workmen not only burden 
 the community by converting industry into idleness, plenty into 
 poverty, but also give rise to speculative and unscrupulous litiga- 
 tion which is a disgrace to our system of justice; and 
 
 Whereas,' most of the European nations have already cor- 
 rected, and the United States Government and many of our 
 States are now seeking to correct, this deplorable condition by 
 a system of assured compensation which will tend to prevent 
 accidents, to support the families, and to safeguard the general 
 welfare of the State, and will provide simplicity, certainty and 
 uniformity of obligation, and simplicity, rapidity and certainty of 
 remedy; and 
 
 Whereas, Commissions appointed by many of our States have 
 investigated this subject, both at home and abroad, to determine 
 what the facts demand and the constitutions allow, and numer- 
 ous conferences- have been held between the commissioners of 
 those States, many of whom were appointed to represent em- 
 ployers, employes or bar associations, with representatives of the 
 Federal Government and private institutions interested in the 
 subject, including a committee of the National Conference on 
 Uniform State Laws, at which conferences various theories and 
 provisions of bills have been discussed, with a view to making 
 them applicable to the situation within the Constitution; and 
 
 Whereas, it has been the satisfactory experience of more than 
 twenty foreign countries and seems to be the unanimous view of 
 those well informed on the subject that a code, changing the 
 basis of compensation for an employe from that of negligence 
 or fault of the employer to that of a risk of the industry or that 
 
28 
 
 of industrial insurance, should replace the present inadequate 
 system; and 
 
 Whereas, at the last of such conferences a committee was 
 appointed and empowered to formulate such a code to protect 
 adequately the general welfare under the police power of the 
 State, which draft this Legislature has herein followed as con- 
 sistently as possible with our interests in this State, — 
 
 NOW, THEREFORE, BE IT ENACTED BY THE LEGISLATURE OE 
 
 the State op that : — 
 
 I. RIGHTS AND LIABILITIES DEFINED. 
 
 (For Section i, see Committee Note and Conference 
 Proceedings, p. 210.) 
 
 Section 1. Rights and Remedies Granted and Amended. The 
 right to compensation and the remedy therefor, herein granted, 
 shall be in lieu of all rights and remedies now existing, either at 
 common law or by statute, either upon the theory of negligence 
 or otherwise, for the injuries covered by this Code; and no other 
 compensation, right of action, damages, or liability, shall here- 
 after be allowed to either the injured or dependants for such 
 injuries, so long as this Code shall remain in force, unless, and 
 to the extent only that, this Code shall be specifically amended. 
 (For Section 2, see Committee Note 2 and Confer- 
 ence Proceedings, pp. 31, 277.) 
 
 Section 2. Dangerous Employment Defined. Every employ- 
 ment in which there occurs hereafter to any of the employes 
 personal injuries arising out of and in the course of such em- 
 ployment is for the purpose of this Code hereby declared a 
 dangerous employment, and consequently subject to the pro- 
 visions of this Code and entitled to all the benefits thereof. 
 
 (For Section 3, see Committee Note 3 and Confer- 
 ence Proceedings, pp. 38, 146.) 
 
 Section 3. Compensation, Conditions of the Right to. Every 
 employer engaged in such dangerous employment shall be sub- 
 ject to the provisions of this Code, and shall pay compensation, 
 according to the conditions herein named and the schedule of 
 rates contained in Section 4 hereof, to every such employe so 
 
2 9 
 
 injured in his employment, or, in case of death caused by such 
 injuries, to the dependants as hereinafter . defined and appor- 
 tioned, for all personal injuries received by such employe arising 
 out of and in the course of such employment and disabling such 
 employe from regular services in such employment, and not 
 purposely self-inflicted to obtain compensation; but on the con- 
 dition that, in case of dispute between the parties as to the in- 
 jury or any of the matters herein named relating thereto, the 
 controversy shall be brought before and determined by the Board 
 of Arbitration as hereinafter provided. 
 
 2. AMOUNTS OF COMPENSATION ALLOWED. 
 
 (For Section 4, see Conference Proceedings, pp. 99, 
 302.) 
 Section 4. Compensation for Waiting Period. No compen- 
 sation shall be allowed for the first two weeks after injury re- 
 ceived, except that covered by Sections 5 and 6, nor in any case 
 unless the employer has actual knowledge of the injury or is 
 notified within the period specified in Section 14. 
 
 (For Section 5, see Committee Note 5 and Con- 
 ference Proceedings, p. 135.) 
 Section 5. Compensation for Medical Expenses. During the 
 first two- weeks after the injury the employer shall furnish 
 reasonable medical and hospital services and medicines, when 
 needed, not to exceed one hundred dollars in value, unless the 
 employee refuses to> allow them to be furnished by the employer. 
 (For Section 6, see Conference Proceedings, p. 135.) 
 Section 6. Compensation for Funeral Expenses. In case the 
 injury causes death within the period of years, the reason- 
 
 able funeral expenses not to exceed one hundred dollars shall 
 be paid by the employer. 
 
 (For Section 7, see Conference Proceedings, pp. 57, 
 70, 101, 106, 174 and Committee Notes 7-9.) 
 Section 7. Compensation upon Death. In case the injury 
 causes death within the period of years, the compensation 
 
 shall be in the amounts and to the persons following : — 
 
3° 
 
 Par. a. No Dependants. If there be no defendants,' then the 
 medical, hospital, and funeral expenses, as above provided in 
 Sections 5 and 6. 
 
 Par. b. Dependants. If there are wholly dependent persons 
 at the time of death, then a payment of per cent, of the first 
 
 dollars of the weekly wage and per cent, of the 
 
 balance of such wage, to be made at the intervals when such 
 wage was payable, and to continue for the remainder of the 
 period between the death and the end of the years after 
 
 the occurrence of the injury, but in no case to continue longer 
 than years after the injury or to amount to more than 
 
 thousand dollars on account of the compensation for the 
 injury to that person. 
 
 Par. c. Partial Dependants. If the deceased leave only per- 
 sons partially dependent, they shall receive only that proportion of 
 the benefits provided for those wholly dependent which the 
 amount of the wage contributed by the deceased to such partial 
 dependants at the time of injury bore to the total wage of the 
 deceased. 
 
 Par. d. Who are Dependants. The entire compensation 
 granted by this Code in case of death shall be paid to one of 
 the following persons, if dependent, who shall be entitled to 
 receive such payments after the due date in the order in which 
 they are named : — 
 
 (1) Husband or wife, as the case may be. (2) Guardian of 
 children. (3) Father. (4) Mother. (5) Sister. (6) Brother. 
 
 Payment to a person subsequent in right shall be lawful, and 
 shall discharge all claim therefor if the person having the prior 
 right has not claimed the payment prior to the time when the 
 same is in fact made. 
 
 Par. e. Applicationyf Payments. The person to whom the 
 payment is made shall apply the same to the use of the several 
 beneficiaries according to their respective claims upon the dece- 
 dent for support. In case any payee or employer is not certain 
 as to the person to whom payment or distribution should be 
 made, and in case any beneficiary is not satisfied with the dis- 
 tribution thereof, application may be made to the Board of 
 Arbitrators to designate the person to whom payment shall be 
 
3i 
 
 made, and the apportionment thereof among the beneficiaries and 
 payment and distribution shall thereafter be made in accordance 
 with the decision of the Board. If the 'matter be in dispute or 
 incapable of prompt determination, the Board may order the 
 money to be paid over to it, to be held for the proper dependants. 
 (For Section 8, see Conference Proceedings, pp. 51, 
 70 and Committee Notes 7-9.) 
 
 Section 8. Compensation upon Total Disability. In case of 
 temporary or permanent total disability of the employe from the 
 time the payment period begins until the end of the year 
 
 period or during any portion thereof, the compensation shall be 
 
 per cent, of the first dollars per week and 
 
 per cent, of the balance of such wage during such disability; pay- 
 ment to be made at the intervals when such wage was payable, 
 but in no case to continue longer than years from the 
 
 injury or amount to more than thousand dollars for that 
 
 injury, and not to include the time when the rule for payment 
 upon death would operate. 
 
 (For Section 9, see Conference Proceedings, p. 70 
 and Committee Notes 7-9.) 
 
 Section 9. Compensation for Partial Disability. In case of 
 temporary or permanent partial disability the employe shall re- 
 ceive per cent, of the decrease of his earnings during the 
 continuance thereof, but not to continue more than years 
 in time from the injury or to amount to more than thou- 
 sand dollars for that injury, and not to include the time when 
 the rules for payment upon death or total disability would 
 operate. 
 
 (For Section 10, see Conference Proceedings, p. 56, 
 and Committee Note 10.) 
 
 Section 10. Payment in hwmp Sum. 
 
 Par. a. The amounts payable periodically under the foregoing 
 sections may be commuted to one or more lump-sum payments by 
 the Board of Arbitration at any time after one year if special 
 circumstances be found which, in the judgment of the Board, 
 require the same. 
 
 Par. b. The Board of Arbitration may at any time by award 
 allow any employer or any insurer of such employer to compro- 
 
32 
 
 raise and settle any award by the transfer of property on the 
 settlement of an annuity or other form of benefits, provided that 
 the same be in the interests o<f justice. 
 
 Section n. Wages Defined. 
 
 Par. a. Regular Employe. When the employe is employed at 
 the time of the injury in a regular capacity at a fixed and reason- 
 able wage which remains unaltered substantially throughout the 
 year either in his own case or in the case of persons engaged in 
 the like employment, the wage taken as the basis of compensa- 
 tion under the foregoing sections shall be the wage he is actually 
 receiving. 
 
 Par. b. Other than Regular Employes. Where the employe 
 is at the time of the injury employed other than as above, the 
 wage so taken shall be an average or fair wage which the par- 
 ticular employe ought to receive on a reasonable basis, consider- 
 ing the rate he has been getting, his ability and willingness to 
 work, the nature of the service he was performing, and all of 
 the other circumstances of the case. 
 
 (For Section 12, see Conference Proceedings, p. 126, 
 and Committee Note 12.) 
 
 Section 12. Conditions varying Compensation. 
 
 Par. a. If the employer shall clearly establish that the injuries, 
 death or disability, was due in whole or in part to the employe's 
 previous injuries, sickness, disease, physical ailments or de- 
 ficiencies, age or infirmity, then and to that extent only the com- 
 pensation herein allowed shall be correspondingly reduced; and, 
 if the employe or a beneficiary under this Code shall clearly 
 establish that the injured was a minor of such age and experience 
 when injured that under natural conditions he would be expected 
 to increase in wage, this fact may be considered in arriving at 
 his reasonable wage, to conform to the spirit of this Code. 
 
 Par. b. The compensation awarded shall never be vested ex- 
 cept subject to such changes as the provisions of this Code allow. 
 
 3. MODE OF CLAIMING COMPENSATION. 
 
 Section 13. Employer's Actual Knowledge. If it be found as 
 ■a fact by the Board in its award that the employer had actual 
 
33 
 
 knowledge of the occurrence of the injury, the notice provided 
 for under Section 14 shall not be essential. 
 
 (For Section 14, see Committee Note 15.) . 
 
 Section 14. Time of Notice. 
 
 Par. a. Unless the employer shall have actual knowledge of 
 the occurrence of the injury, or unless the employe or some one 
 on his behalf, or some of the dependents or some one on their 
 behalf or some other person, shall give notice thereof to the 
 employer within fourteen days of the occurrence of the injury, 
 then no compensation shall be due until such notice is given or 
 knowledge obtained. 
 
 Par. b. If the notice is given or the knowledge obtained within 
 thirty days, no want, failure, or inaccuracy of a notice shall be a 
 bar to obtaining compensation unless the employer shall show 
 that he was prejudiced by such want, defect or inaccuracy, and 
 then only to the extent of such prejudice. 
 
 Par. c. If the notice is given or the knowledge obtained with- 
 in ninety days, and if the employe or other beneficiary shall 
 show that his failure to give prior notice was due to his mistake, 
 inadvertence, ignorance of fact or law, or inability, or to the 
 fraud, misrepresentation or deceit of another person, or to any 
 other reasonable cause or excuse, then compensation may be al- 
 lowed, unless and then to 1 the extent only that the employer shall 
 show that he was prejudiced by failure to> receive such notice. 
 
 Par. d. Unless knowledge be obtained or notice given within 
 ninety days of the injury, no compensation shall be allowed. 
 
 Section 15. Service of Notice. The notice may be served per- 
 sonally upon the employer, or upon any agent of the employer, 
 upon whom a summons may be served in a civil action, or by 
 sending it through the mail to the employer at the last-known 
 residence or business place thereof within the State, and may be 
 in substantially the f ollowing ' f orm : 
 
 "Notice to Employer oe Personal Injury Received. 
 
 "You are hereby notified that a personal injury was received by 
 (name) , who was in your employ at 
 
 (place) , at the job of (kind of work) , 
 
 3 
 
34 
 
 on or about the day of I 9 > 
 
 and that compensation will be claimed therefor. 
 "(Signed), 
 
 (For Section 16, see Committee Note 16.) 
 
 Section 16. Joint Medical Examination. 
 
 Par. a. After an injury the employe, if so requested by his 
 employer, must submit himself for examination at some reason- 
 able time to a physician selected by the employer authorized to 
 practice under the laws of the State. 
 
 Par. b. If the employe requests, he shall be entitled to have a 
 physician of his own selection present at some reasonable time to 
 participate in some examination. 
 
 Par. c. Unless there has been a reasonable opportunity there- 
 after for such physician selected by the employe to participate in 
 the examination in the presence of the physician selected by the 
 employer, the physician selected by the employer shall not be per- 
 mitted afterwards to give evidence of the condition of the em- 
 ploye in a dispute as to the injury. 
 
 Par. d. Except as provided herein in this Code, there shall be 
 no other disqualification or privilege preventing the testimony of 
 a physician who actually makes an examination. 
 
 Section 17. Medical Examination by Neutral Physician. The 
 Board of Arbitrators shall have the power to employ a neutral 
 physician of good standing and ability, whose duty it shall be, at 
 the expense of the county, to make such examination or exami- 
 nations as the Board may request on its own behalf or on the 
 petition of either or both the employer and employe or depend- 
 ents. 
 
 Section 18. Testimony by Board Physician. If the employer 
 or the employe has a physician make such an examination and no 
 reasonable opportunity is given to the other party to have his 
 physician make examination, then, in case of a dispute as to the 
 injury, the physician of the party making such examination shall 
 not give evidence before the Board unless a neutral physician of 
 the Board of Arbitration either has examined or then does ex- 
 amine the injured employe and gives testimony regarding the 
 injuries. 
 
35 
 
 Section 19. Refusal of Medical Examination. If the employe 
 shall refuse examination by a physician selected by the employer, 
 either with or without the presence of a physician of his own 
 selection, and shall refuse an examination by the physician of the 
 Board of Arbitrators, he shall have no> right to compensation 
 during the period from such refusal until he or some one on his 
 behalf notifies the employer or Board of Arbitrators that he is 
 willing to have such examination. 
 
 Section 19 a. Certificate of Physician. A physician making 
 an examination may give to the employer and to the workman a 
 certificate as to the condition of the workman, and such certificate 
 shall be competent evidence of that condition if his testimony 
 would have been admissible. 
 
 4. LEGAL EFFECT OE SETTLEMENT AND CLAIMS. 
 
 (For Section 20, see Committee Note, p. 20.) 
 
 Section 20. Settlements'. 
 
 Par. a. All settlements and releases made, in which the em- 
 ploye is given the full benefit of this Code, shall be binding upon 
 all parties, except that no settlement or release in which the pay- 
 ments shall run longer than ninety days from the injury, and no 
 lump-sum settlement whatever shall be binding upon the employe 
 unless and until the same be approved by the Board of Arbitra- 
 tion. 
 
 Par. b. The Board may at any time require from the employer 
 a copy or report of any settlement or release or class of settle- 
 ments or releases made with him. 
 
 (For Section 21, see Conference Proceedings, p. 
 
 284.) 
 
 Section 21. Preference or Lien. The right of compensation 
 granted by this Code shall have the same preference against the 
 assets of the employer as is allowed by. law for a claim for unpaid 
 wages for labor. 
 
 Section 22. Exempt and not Assignable. Claims or payments 
 due under this Code shall not be assignable, and shall be exempt 
 from all claims of creditors and from levy, execution or attach- 
 ment. 
 
36 
 
 5. BOARD OF arbitration; JURISDICTION and awards. 
 
 (For Section 23, see Conference Proceedings, pp. 
 180, 295, and Committee Note 23.) 
 
 Section 23. Submission to Arbitration as a Condition Prece- 
 dent to Claim for Compensation. 
 
 Par. a. As a condition precedent to recover upon a claim for 
 compensation, in case of a dispute over or failure to agree upon 
 a claim for compensation or of a failure or refusal of the em- 
 ployer to pay a claim for compensation, the employe or the 
 dependents or others entitled to the benefits hereof, as the case 
 may be, shall submit the claim for compensation hereunder, both 
 as to the fact and nature of the injuries and the amount of com- 
 pensation therefor, to a Board of Arbitrators as hereinafter 
 specified, in substatial compliance with this Code, and shall be 
 and remain bound by the award and such modifications thereof 
 as shall be made under the provisions of this Code. 
 
 Par. b. If the employer, or any other interested person, 
 appeal in any proceeding herein to contest the merits thereof, or 
 to get or accept or carry out the benefits of the provisions of this 
 Code, such person shall be deemed to have appeared generally 
 and joined in a submission of such matter to the decision of the 
 Board and the conditions of this Code. 
 
 Par. c. The Board shall acquire jurisdiction of the employer 
 and all other persons interested in said proceeding by the service 
 of the notice upon them according to Sections 30, 31 and 32 of 
 this Code, or by their general appearance. 
 
 Par. d. When the Board obtains jurisdiction of any party 
 or matter, then it shall retain the same so long as may be neces- 
 sary to carry out the purposes of this Code, provided that, while 
 any portion of said matter be before the District Court or 
 Supreme Court for determination, the jurisdiction of this Board 
 for that matter shall be suspended. 
 
 Par. e. No employe or dependent or other person interested 
 in such compensation shall be entitled to commence or maintain 
 any action at law or suit in equity for such compensation until 
 the amount thereof shall have been determined as herein pro- 
 vided, and then only for the amount so awarded, and according 
 
37 
 
 to the terms and conditions of the award and the benefits of this 
 Code. 
 
 (For Section 24, see Committee Note 24.) 
 
 Section, 24. Appointment of Board of Arbitration. 
 
 Par. a. There is hereby created a Board of Arbitration for 
 each county in this State, consisting of three competent members, 
 who shall be appointed by the District Court for their respective 
 districts, and hold their offices subject to the will and discretion 
 of the District Court by which they were appointed. 
 
 Par. b. The court may, from time to time, appoint additional 
 boards to act for such length of time as it deems necessary for 
 the expeditious despatch of the business of the district. 
 
 Section 25. Organisation of Board. 
 
 Par. a. No person shall sit as an arbitrator in any case where 
 he is related, to either party by marriage or blood within the 
 second degree, or who has any personal interest in the matter 
 in dispute; provided, that objection to any arbitrator must be 
 made in writing and filed with the Board before hearing; and, 
 if the matter be not otherwise disposed of, it shall be heard and 
 determined by the District Court on motion, and its determina- 
 tion thereof shall be final. 
 
 Par. b. The court may fill all vacancies, whether temporary 
 or permanent, occurring at any time in the Board. 
 
 Par. c. During a vacancy the remaining two members shall 
 exercise all the power and authority of the Board until such 
 vacancy is filled. 
 
 Par. d. The Board shall organize by choosing one of its 
 members as chairman. 
 
 Par. e. A majority of the Board shall be a quorum for the 
 hearing and decision of any matter, and the decision of any two 
 thereof shall be the decision of the Board. In case the Board 
 shall be equally divided as to any matter, the same shall be tried 
 de novo before a full Board of three members. 
 
 Par. /. The District Court shall have the same power to 
 punish for contempt of the Board that it has for a similar con- 
 tempt of its own power. 
 
 Section 26. Clerks and Assistants. The District Court may 
 appoint a clerk of the Board and employ experts, and such other 
 
38 
 
 clerical help as it may deem necessary, who may or may not be 
 of the .regular county officers. 
 
 (For Section 27, see Committee Note 27.) 
 
 Section 27. Salaries and Expenses. 
 
 Par. a. All salaries and expenses, including the fees of wit- 
 nesses within thirty miles, authorized by this Code, shall be 
 audited and paid out of the general funds, the same as District 
 Court expenses. 
 
 Par. b. The compensation of the Board shall be fixed by the 
 court, and shall be paid in the same manner as other county 
 employes. 
 
 Par. c. The compensation of clerks and other assistants shall 
 be fixed by the Board, subject to the approval of the District 
 Court. 
 
 Section 28. Jurisdiction. 
 
 Par. a. The Board of Arbitration shall have jurisdiction 
 throughout their respective counties to arbitrate all controversies 
 arising within the counties and permitted by or growing out of 
 this Code, and to make awards consistent herewith. 
 
 Par. b. The Boards shall also have jurisdiction to arbitrate 
 any such controversies arising within the State outside of their 
 counties, if all parties interested therein shall consent thereto in 
 writing. 
 
 Par. c. Any matter of arbitration commenced in one county 
 may be transferred to another county to be heard by the arbitra- 
 tors of the county in which the injury occurred or by the arbi- 
 trators in the county to which it is transferred, if all parties con- 
 sent thereto 1 in writing. 
 
 (For Section 29, see Committee Note 29.) 
 
 Section 29. General Powers. 
 
 Par. a. The Board, with approval of the District Court, may 
 make rules of practice and procedure not inconsistent with this 
 Code, but so far as possible uniform throughout the State. 
 
 Par. b. The Board may fix the amount of compensation which 
 any attorney or other agent of an employe 01- dependent shall be 
 entitled to receive for services out of the sum awarded as com- 
 pensation. 
 
39 
 
 Par. c. There is hereby granted to the. Board of Arbitration, 
 and to all the persons vested herein with rights, powers, or obli- 
 gations, such further powers as may be necessary and proper to 
 carry out the purposes of this Code and are not inconsistent with 
 the fundamental laws. 
 
 6. PROCEDURE AND AWARDS UNDER ARBITRATION. 
 
 (For Section 30, see Committee Note 30.) 
 
 Section 30. Request to Board. 
 
 Par. a. Any person in interest desiring a determination by 
 said Board of any necessary matter may bring it before the 
 Board by a written and signed request, filed with the clerk of 
 the Board. 
 
 Par. b. The Board of its own motion by notice made and 
 served as provided in Sections 31 and 32 hereof may bring any 
 of the parties before it for the purpose of determining whether 
 any matter growing out of any such personal injuries is pro- 
 ceeding according to the spirit of this Code. 
 
 Par. c. The request shall be in such form as may be prescribed 
 by the Board, with the approval of the District Court, and shall 
 furnish so> far as possible the data for service of notice. 
 
 Section 31. Notice. Upon the filing of such petition, on re- 
 quest, the clerk shall issue under the name of the Board a notice 
 toi all o-f the interested parties so far as known to 1 him, and cause 
 the same to be served in the method prescribed in this Code for 
 the service of notice of injuries to the employer. 
 
 Section 32. Contents of Notice. The notice shall cover the 
 following things : — 
 
 (a) The request made, giving the name or names of the per- 
 son or persons making the same. 
 
 (b) The general nature of the matter to be investigated, suf- 
 ficiently describing the same to enable the parties to prepare for 
 hearing. 
 
 (c) A summons to appear at a time and place for the hearing 
 and a notice that otherwise he will be awarded in default. 
 
 (d) A notice that such other and further relief may be claimed 
 and awarded as will do justice in the premises. 
 
40 
 
 Section 33. Time of Hearing. The time for a hearing upon 
 the merits of a claim for compensation shall not be less than ten 
 days, and upon other matters not less than five days, after notice 
 given, unless as to such other matters the Board shall shorten the 
 time by order to show cause. 
 
 (For Section 34, see Committee Note 34.) 
 
 Section 34. Pleadings. No formal or written pleadings shall 
 be required in the hearing of any controversy arising under this 
 Code. 
 
 Section 35. Rules of Evidence. The Board shall not be bound 
 by the usual common law or statutory rules of evidence or by any 
 technical or formal rules of procedure, other than as herein pro- 
 vided ; but may make the investigation in such manner as in their 
 judgment is best calculated- to ascertain the substantial rights of 
 the parties and to carry out justly the spirit of this Code. 
 
 Section 36. Po-wer of Inspection, Subpoena, and Oath. The 
 Board shall have the power : 
 
 Par. a. To inspect or cause to be inspected the premises where 
 the injury occurred. 
 
 Par. b. To require any books or papers, tools, or other mov- 
 able chattels to be produced or inspected. 
 
 Par. c. To require any employe claiming compensation to be 
 physically examined by a physician appointed by the Board. 
 
 Par. d. To issue subpoenas to compel the attendance of wit- 
 nesses or parties, and the production of books, papers, records or 
 chattels. 
 
 Par. e. To administer oaths. 
 
 Section 37. Continuance, Rehearings, Interim Awards, etc. 
 
 Par. a. With a view to carrying out the provisions of this 
 Code which require or authorize payments to continue by in- 
 stalments during the period of disability or dependency, the Board 
 may retain jurisdiction, and continue from time to time the pro- 
 ceedings upon any claim, and may hold such interim hearings 
 and make such interim awards and such modifications of prior 
 awards, as may be necessary until the claim can be finally dis- 
 posed of by final award. 
 
41 
 
 Par. b. In case of failure to serve notice or to reach all the 
 parties, or in case it appear that a default should be removed, or 
 any other matter done in the interest of fairness, the Board may- 
 take such action thereon as will promote justice and tend to carry- 
 out the spirit of this Code. 
 
 Section- 38. Records. The clerk shall keep a record of the 
 proceeding's of the Board, showing separately each case by the 
 Board considered, including the nature of the injury, the names 
 of the parties and their agents or attorneys if any appearing 
 therein, the names of the witnesses who testified before the Board, 
 with such exhibits as can reasonably be kept, or copies or photo- 
 graphs thereof, furnished by the parties, and the award, and such 
 other records as may from time to time be directed by the Board. 
 
 Section 39. Award to be Conclusive. The findings and awards 
 made hereunder shall be conclusive, unless and till reopened or 
 set aside by either the Board or the court. 
 
 Section 40. Form of Award. The Board shall make its awards 
 in writing in such terms as it shall decide to be consistent with 
 the facts and the spirit and powers of this Code and in the follow- 
 ing form : 
 
 1. Title of the claim. 
 
 2. We find in the above case that (employe's name) 
 
 on (date) , received injuries arising' in and growing out 
 
 of the course of the employment of (employer's name) 
 
 at (place) , while working at the job of (kind of 
 
 work) , and was receiving as wages the sum of $ per 
 
 , payable 
 
 3. That the injuries appear now to be and are as follows : 
 
 4. That for (temporary, etc.) disability it is hereby 
 found and awarded that the said employer shall pay compensa- 
 tion in the amount of $ in all, payable to the following 
 persons (names) during (length of period) 
 
 5. (If the injuries are for any other cause or convenience re- 
 quires it), this proceeding is hereby adjourned to the day 
 of for further consideration. 
 
42 
 
 6. (Amount of compensation, if any, allowed to attorney or 
 other agent.) 
 
 7. (Any further or different material matters that conform' to 
 the facts.) 
 
 Section 41. Application for Judgment on Award. Either 
 party to any controversy before the Board, when an interim 
 or final' award is rendered and the payment thereof has been re- 
 fused, may present a certified copy thereof to the District Court 
 of the county, and upon five days' notice in writing to the other 
 party apply for judgment thereon. 
 
 Section 42. Judgment on Award. The District Court shall 
 thereupon render a judgment in accordance therewith, unless 
 such award is vacated as herein provided. Such judgment shall 
 have the same effect as though duly rendered in an action tried 
 and determined by said court, and shall with like effect be en- 
 tered and docketed ; but no execution shall be issued thereon for 
 more than is then clue, and the judgment shall not be a lien on 
 realty except for due payments. 
 
 Section 43. Vacating the Award. Any party aggrieved by 
 any award may, within twenty days after the filing thereof and 
 before judgment thereon, apply to the District Court of the 
 county upon five days' notice to the other party, for an order 
 vacating such award and granting a new hearing; but such order 
 may be made only on a showing of fraud or gross error of the 
 arbitrators or of want of jurisdiction ; and then, if the application 
 is granted, the claim shall be recommitted for arbitration. 
 
 7. INSURANCE. 
 
 (For Section 44, see Conference Proceedings, p. 
 192.) 
 Section 44. Insurance Authorised. An employer who is re- 
 sponsible for compensation as provided in this Code may, for the 
 purpose of meeting payments, place the industrial risk in insur- 
 ance by any method or methods, otherwise lawful, which may by 
 him be selected. But such methods of insurance shall in every 
 case be subject to the following conditions respectively applicable. 
 (For Section 45, see Committee Note 45.) 
 
43 
 
 Section 45. Insurance by Corporation for Profit or by Mutual 
 Association. If the employer is insured by any person or private 
 corporation doing an insurance business for profit or by any asso- 
 ciation or corporation formed of employers or employes, or by 
 employers and employes to insure each other and operating by 
 the mutual assessment of losses or otherwise, then 
 
 Par. a. In so far as policies are issued on such risks, they shall 
 provide a schedule of compensation for injuries identical with 
 the schedule set forth in Sections 4 to 13 of this Code or a sched- 
 ule duly approved pursuant to law as including the substantial 
 equivalent to that of this Code. 
 
 Par. b. It must contain a clause to the effect that notice and 
 knowledge of the accident on the part of the employer shall be 
 .deemed notice and knowledge on the part of the insurer; that 
 jurisdiction o<f the employer for arbitration and other purposes 
 shall be jurisdiction of the insurer, and that the insurer shall in 
 all things be bound by, and subject to, the awards rendered 
 against such employer upon the risk so insured. 
 
 Par. c. It must provide that the employe shall have an equit- 
 able lien upon any amount which shall become owing on account 
 of such policy to the employer from the insurer, which amount, 
 in case of the legal incapacity of the employer to receive the said 
 amount and pay it over to the employe or dependents, will be by 
 the said insurer paid direct to said employe or dependents, thereby 
 discharging all of the obligations under the policy to the employer 
 and all of the obligations of the employer and the insurer to> the 
 employe. 
 
 Par. d. The company must have and maintain sufficient re- 
 serve within this State or subject to the risks therein to discharge 
 all the risks so insured by it, and secure all the payments as they 
 become due. 
 
 (For Sectjon 46, see Committee Note 46.) 
 
 Section 46. Self -insurance. If the employer is insured by 
 means of self-insurance, that is, by an account representing a 
 part of his own assets and carrying the risk or a specific part of 
 it on a plan for periodical sums paid or credited into the account, 
 or by a fund granted or set aside separately by him in trust for 
 the purpose, then : — ■ 
 
44 
 
 Par. a. The compensation schedule of such insurance ac- 
 count fund may, in all payments, be substituted for the schedule 
 described in this Code, provided it is duly approved pursuant to 
 law as substantially aquivalent to that of this Code in the benefits 
 thereby secured to the employe. 
 
 Par. b. The fact that the employes, under such a plan, con- 
 tribute to the account or fund either with or without other or 
 greater benefits or risks, such as sickness, other accidents, old age, 
 or death, shall not prevent the plan from being deemed a sub- 
 stantial equivalent, provided the employes in the other features 
 of the plan receive a proportionate increase of benefit and are 
 represented in the management of the account or fund. 
 
 Par. c. The schedule so substituted shall be filed and posted 
 in a principal workshop of the employer. 
 
 Par. d. The account or fund so credited shall be subject to an 
 equitable lien, and, in case of insolvency, to a preference claim 
 similar to that given by law to unpaid wages of labor, to the 
 amount of any compensation claims accrued and unpaid. 
 
 (For Section 47, see .Committee Note 47 and Con- 
 ference Proceedings, pp. 177, 192.) 
 
 Section 47. Transfer of Liability to Insurer. If the em- 
 ployer desires both to place the risk in insurance and to transfer 
 to the insurer thg primary liability of making payments to the 
 employe, he may do so in any of the following modes : — 
 
 Par. a. He may cause it to be insured by any private in- 
 surance corporation duly authorized by the State to insure the 
 risks under this Code. 
 
 Par. b. He may cause it to be insured by any corporation in 
 the nature of a mutual association of employers duly authorized, 
 by the State to insure the risks under this Code. 
 
 Par. c. He may cause it to be insured by any corporation in 
 the nature of a mutual association of employes duly authorized 
 by the State to insure the risks under this Code. 
 
 Par. d. He may cause it to be insured by any corporation in 
 the nature of a mutual association of employers and employes 
 duly authorized by the State to insure risks under' this Code. 
 
 In such case the responsibility and duty to make compensation 
 shall be subject to the conditions of the following sections : 
 (For Section 48, see Committee Note 48.) 
 
45 
 
 Section 48. Same: Compensation Schedule. Such insuring 
 corporation, association, or fund, hereinafter termed the insurer, 
 shall provide a schedule of compensation for injuries identical 
 with the schedule set forth in Sections 4-13 of this Code, or a 
 schedule duly approved pursuant to law as including the sub- 
 stantial equivalent to that of this Code in the benefits thereby 
 secured to the employe, and shall keep and maintain sufficient 
 reserve to be able to discharge all the risks so insured by it, and 
 secure all the payments as they accrue. 
 
 Section 49. Same: Contract Recorded. Such insurance of 
 the liability shall be made by a writing, executed by the em- 
 ployer and the insurer, acknowledged in the manner provided for 
 deeds of realty, countersigned by the Insurance Commissioner, 
 and filed in his office. The insurer shall therein expressly assume 
 the liability to make to the employe or other beneficiaries all 
 payments that may become due under this Code to such classes of 
 employes and their beneficiaries as may be therein described, and 
 the employer shall expressly assume to pay the premiums of in- 
 surance as agreed upon. 
 
 A copy shall also be posted in a principal workshop of the 
 employer. 
 
 Section 50. Same: Effect of Contract. Upon the execution, 
 filing and approval of such writing, the employer's primary lia- 
 bility under this chapter shall be deemed to be suspended as to 
 him, and to be transferred to the insurer, to the following extent : 
 
 Par. a. The insurer shall be the party primarily liable in 
 law to the employe for all payments that may become due under 
 this chapter. 
 
 Par. b. The employe's notice of injury may be served upon 
 the employer as agent for the insurer ; and any employer failing 
 to transmit to the insurer a copy thereof shall remain liable for 
 compensation to the employe so giving notice. But the insurer 
 shall be served with all notices, orders, and other documents 
 required by this Code to be served by the Board of Arbitration 
 upon the employer. 
 
 Par. c. The insurer's property shall be subject to the same 
 preference claim described in Section 21 of this Code, but the 
 preference claim on the employer's property shall also remain as 
 provided in the said Section 21. 
 
4 6 
 
 Par. d. The insurer shall be the party competent to give and 
 receive all receipts and releases and to do all other acts necessary 
 or proper to settle claims arising under this Code. But copies 
 of such documents must on demand be furnished the employer. 
 
 Par. e. The insurer shall have a preference claim on the em- 
 ployer's property for all sums due as permium under the contract 
 of insurance. 
 
 Par. /. In the case of failure of any insurer, by reason of lack 
 of assets, to make any payment adjudicated to be due under this 
 Code, the employer's liability to make the payments to> the em- 
 ploye shall revive, and be in full force as if it had not been 
 suspended and transferred. The employer shall thereafter be the 
 party respondent for all purposes of notices, payments, orders; 
 and other acts in all claims of compensation for injuries incurred 
 after the insurer's failure to make payment. The court shall 
 order an equitable adjustment of the assets of the insurer for the 
 discharge of claims accrued before said failure to make payment. 
 
 Par. g. The insurer's property shall be subject to the same 
 preference claim described in Section 21 of this Code, but the 
 preference claim on the employer's property shall also remain 
 as provided in the said Section 21. 
 
 8. third persons' rights and liabilities. 
 
 Section 51. Independent Contractors. 
 
 Par. a. If the injury to' the employe was received on or in or 
 about the premises on which a person has undertaken to execute 
 work, and if such person has as principal made a contract with 
 an independent contractor or sub-contractor, whom he has not 
 required to fully insure the risks created by this Code, to do part 
 of such principal's work, and if such employe was a person em- 
 ployed by any such independent contractor or by any sub-con- 
 tractor in any series of further sub-contracts covering any part 
 of work comprised in such independent contractor's contract 
 with the principal, then the employe shall, for the purpose of this 
 Code, be deemed to be an employe of such principal. Such prin- 
 cipal shall be liable to pay to any employe employed in the 
 
47 
 
 execution of the work any compensation under this Code which 
 he would have been liable to pay if that employe had been im- 
 mediately employed by him. 
 
 Par. b. Where compensation is claimed from or proceeding's 
 taken ag-ainst the principal hereunder, then in the application of 
 this Code references to the principal employer shall be substituted 
 for references to the employer, except that the amount of com- 
 pensation shall be calculated with reference to the wage of the 
 •employe under the contractor by whom he is immediately em- 
 ployed. 
 
 Section 52. Indemnity to Principal. When such principal 
 ■employer is liable to pay such compensation, he shall be entitled 
 to be indemnified by any person' who' would have been liable to 
 pay compensation or damages to the employe independently of 
 this and the preceding section. 
 
 Section 53. Employe's Right Preserved. Nothing in the next 
 two preceding sections shall be construed as preventing an em- 
 ploye from recovering compensation under this Code from the 
 contractor or sub-contractor instead of the principal employer. 
 
 9. WORDS AND PHRASES DEFINED. 
 
 Section 54. Words and Phrases. 
 
 Par. a. The term "employer," as used herein, shall include 
 every person actually employing another to perform a service 
 such as comes within this Code; and shall mean any person or 
 corporation, or copartnership, or association, or group of per- 
 sons, associations, or corporations, and their successors or legal 
 representatives after death, and shall include State, county, vil- 
 lage, town, city, school district and other public employers. 
 
 Par. b. The term "employes" shall include all persons em- 
 ployed to work in a dangerous employment. 
 
 Par. c. The term "dependent" shall mean a person receiving 
 and using for necessary support a part of the employe's wage or 
 of the proceeds obtained by the employe with such wage. 
 
i^T' - 
 
 48 
 
 IO. TIME OE CODE'S TAKING EEEECT. 
 
 Section 55. Intervening Period. Until this Code shall take 
 effect, no right of any employe or dependent to recover against 
 the employer or any other person for injuries shall be in any 
 way affected hereby; and the Code shall not apply to injuries 
 incurred before that date. 
 
 Section 56. Time of Taking Effect. This Code shall take 
 effect on the first day of , 19 . 
 
 CONFERENCE UNIFORM DRAFT OF AN EMPLOYES' 
 COMPENSATION CODE. 
 
 (Form 2: Making Compensation System Elective.) 
 
 contents. 
 Preamble. 
 
 Chapter I- Rights and Remedies Declared, Granted 
 and Codieied. 
 
 Chapter II. Compensation System. 
 
 1. Rights and Liabilities Defined. 
 
 2. Amounts of Compensation Allowed. 
 
 3. Mode of Claiming Compensation. 
 
 4. Legal Effect of Settlements and Claims. 
 
 5. Board of Arbitration ; Jurisdiction and Powers. 
 
 6. Procedure and Awards under Arbitration. 
 
 7. Insurance. 
 
 8. Rights and Liabilities of Third Persons. 
 
 9. Words and Phrases Defined. 
 10. Time of Code's Taking Effect. 
 
49 
 
 Preamble. 
 (Same Preamble as in Form i.) 
 
 NOW, THEREFORE, BE IT ENACTED BY THE LEGISLATURE OE 
 
 the State of- that: 
 
 Chapter I. 
 
 RIGHTS AND REMEDIES DECLARED, GRANTED AND CODIFIED. 
 
 (For Section i, see Committee Note i, Form 2.) 
 
 Section 1. Rights and Remedies Codified. An employe, for 
 an injury incurred in the course of his employment, shall be enti- 
 tled to compensation or damages as provided in this Code, and 
 not otherwise. 
 
 (For Section 2, see Committee Note 1, Form 2.) 
 
 Section 2. Right to Compensation Granted. He shall have a 
 right to compensation in such amount, on such conditions, and 
 by such remedy as is now granted and provided in Chapter II of 
 this Code. 
 
 (For section 3, see Committee Note 1, Form 2, and 
 Conference Proceedings, pp. 210, 234, 269.) 
 
 Section 3. Right to Damages Confirmed and Amended. He 
 shall have and maintain the same right to damages as he now has 
 (a) by the rules of common law now in force, and (&) by any 
 statutory rule now in force; provided (1) that no claim of any 
 employe hereafter arising and maintainable under this right shall 
 be subject to be' defeated on the ground (a) that the employe's 
 injury was caused in any respect by a fellow-servant's act or 
 omission, or (b) that the employe assumed the risks inherent in 
 the employment or those arising from the failure of the employer 
 to provide safe premises and suitable appliances ; which said two 
 grounds of defense as hitherto existing are hereby abolished; 
 and provided (2) that in any claim arising out of the death of 
 an employe the amount recovered shall not exceed three thousand 
 dollars; and provided (3) that no contract of an attorney-at-law 
 for any contingent interest in any recovery, under this right, shall 
 be a lien on the employe's claim, cause of action or judgment, 
 
 4 
 
5o 
 
 except only in such amount and on such terms as the trial court 
 shall on motion and showing order. 
 
 (For Section 4, see Committee Note 4, Form 2, and 
 Conference Proceeding's, pp. 210, 234, 277.) 
 
 Section 4. Employe's Election. 
 
 Par. a. The employe shall not be entitled to hold and exercise 
 both of the foregoing rights named in Section 2 and Section 3, 
 but must elect which right he will exercise. 
 
 Par. b. Such election may be in writing, signed by the em- 
 ploye, and delivered to the employer upon entering the employ- 
 ment or at any time thereafter and before injury. 
 
 Par. c. A failure to make such election in writing shall be con- 
 clusively deemed an election to abandon his right under Section 3. 
 (For Section 5, see Committee Note 5, Form 2, and 
 Conference Proceedings, pp. 210, 234, 277.) 
 
 Section 5. Employer's Election. 
 
 Par. a. The employer shall not be subject to liability under 
 both of the rights accorded to the employe named in Section 2 
 and Section 3 above, and may elect, at any time before injury 
 occurred, which liability he will be subjected to. 
 
 Par. b. If the employe makes election in writing to maintain 
 his right under either Section 2 or Section 3 above, the employer 
 may, by himself or his agent, make election by countersigning 
 such writing. 
 
 Par. c. If the employe fails to make such election in writing, 
 the employer may notify his election by notice posted in the place 
 of employment or printed or written on a paper delivered to the 
 employe, or otherwise as shall be found sufficient by the court. 
 
 Par. d. A failure to countersign or to notify, as above pro- 
 vided, shall be conclusively deemed an acceptance of his liability 
 to the employe's right named in Section 2, if the employe has so 
 elected. 
 
 (For Section 6, see Committee Note 6, Form 2.) 
 
 Section 6. Injuries Before Election Rejected. In case an 
 injury occurs after one of the parties has signified his election to 
 come under Section 3 above, but before the other party has had 
 opportunity to reject the same, the provisions of Section 2 shall 
 apply. 
 
5t 
 
 (For Section 7, see Committee Note 7, Form 2.) 
 Section 7. Interim Rights not Affected. Until this law shall 
 be in effect, no right of any employe to recover against the em- 
 ployer or other person for injuries shall be in any way affected ; 
 and this law shall not apply to injuries incurred before that date. 
 (For Section 8, see Committee Note 8, Form 2.) 
 Section 8. Employe's Representatives. The term "employe," 
 as used in Sections 1, 2, 3 and 7, above, includes his legal repre- 
 sentatives and next of kin after death, in so far as they may 
 have or receive any right to damages or compensation arising 
 out of the employe's death. 
 
 Chapter II. 
 
 COMPENSATION SYSTEM. 
 
 Sections 1-53. 
 
 (This Chapter II incorporates identically the pro- 
 visions of the other Draft entitled "Form 1," making 
 Compensation System Mandatory. 
 
 The section numbers remain the same, being separate 
 series for each of the two chapters.) 
 
 NOTES. FORM 1. 
 
 "Employes' Compensation Code." 
 
 note on title. 
 
 The term "Code" is used to mean "system of law," to avoid 
 the constitutional objections frequently urged in States, that the 
 "title" is insufficient, and covers more than one subject. 
 
 In Johnson v. Harrison, 47 Minn. 5/5, the court sustained the 
 Probate Code against such objections,, using this definition : — 
 
 "The word 'Code' as now generally used, and as 
 
 obviously used in this title, means 'a system of law,' 
 
 * * * 'a systematic and complete body of law.' " 
 
 In a valuable decision with many illustrations of what may be 
 
 done in the general language o<f a code, the Supreme Court of 
 
 Georgia, in Central of Georgia Ry. Co. v. State, 31 S. B. 531, 
 
 104 Ga. 831, 42 L. R. A. 518, said : — 
 
5 a 
 
 "There is quite a difference between a code of laws 
 for a State and a compilation in revised form of its 
 statutes. The code is broader in its scope, and more 
 comprehensive in its purposes. Its general object is to 
 embody as near as practicable all the law of a State, 
 from whatever source derived. When properly adopted 
 by the lawmaking power of a State, it has the same 
 effect as one general act of the legislature containing 
 all the provisions embraced in the volume that is thus 
 adopted. It is more than evidentiary of the law. It 
 is the law itself." 
 
 NOTES ON PREAMEIvE- 
 
 (a) Like the preamble to the Federal Constitution (8 Fed. 
 Stat. An. 84), this preamble originated with the committee of 
 draft. It had been pointed out in the Conference that the court 
 may not examine the debates before the Legislature or before 
 Congress, to ascertain the meaning of plain provisions, or the 
 necessity for the legislation. 
 
 U. S. v. U. P. Ry. Co., pi U. S. p. 72. 
 In the above case it is said : — 
 
 "In construing an Act of Congress, we are not at 
 liberty to recur to the views of individual members in 
 debate, nor to consider the motives which influenced 
 them to vote for or against its passage. The Act itself 
 speaks the will of Congress, and this is to be ascertained 
 from the language used. But courts may, with propri- 
 ety, in construing a statute, recur to the history of the 
 times when it was passed, and this is frequently neces- 
 sary, in order to ascertain the reason as well as the 
 meaning of particular provisions in it." 
 
 (b) It was further suggested that the reports of commissions, 
 formal applications and arguments of other interested persons 
 and bodies, and the common knowledge of the subject showing 
 the necessity of the law are proper subjects for the court to 
 examine to ascertain whether the conditions warranted the legis- 
 lation under the police power. 
 
53 
 
 This was done : — 
 
 (i) To show the necessity for regulating grain commission 
 merchants in Minnesota. 
 
 State ex rel. Beek v. Wagener, 77 Minn. 483-496. 
 
 (2 ) To determine the notice for legislation in Kansas, intended 
 to regulate the oil business. 
 
 State ex rel. Coleman, Atty.-Gen. v. Kelly, 70 L,. R. 
 A. 450. 
 
 (3) To determine the necessity for the Contract Labor Law, 
 in the U. S. Church of Holy Trinity v. U. S., 143 U. S. 45/. 
 
 (4) To show the great dangers to employes prompting the 
 Safety Appliance Act to prevent injuries to- workmen. 
 
 Johnson v. So. Pac. Ry. Co., 196 U. S. 1. 
 
 (c) It is evident from, cases cited under one of the sections 
 below that it is for the Legislature, first, to determine that legis- 
 lation of this sort is necessary to protect the general welfare: 
 if that determination be based upon reasonable necessity as dis- 
 tinguished from arbitrary action, the courts must uphold the 
 power. 
 
 (d) Preambles are not without precedent in the States. 
 
 Chapter 3/, Gen. Laws of Minn. 1902. 
 
 (e) The object of this preamble is to express some of the 
 necessities for, and the deliberation upon, this legislation. It is 
 not meant to enlarge the powers or restrict the limitations of the 
 Code. 
 
 See Jacobson v. Massachusetts, 19/ U. S. 22. 
 
 In the above case the defendant had been arrested for refusing 
 to be vaccinated pursuant to a small-pox regulation in the city 
 O'f Cambridge based on a law of Massachusetts. Among other 
 things the court held : — 
 
 1. That resort to the preamble of the Federal Constitution 
 could not be had to vitiate the State statute. 
 
 2. That a State Legislature in enacting a statute for police pro- 
 tection had a right to choose the medical theory which was most 
 prevalent and in accord with common belief as to vaccination, and 
 was not compelled to commit a matter involving public health 
 and safety to the final decision of a court or jury. 
 
54 
 
 3- With respect to the preamble it said :— 
 
 "Although that preamble indicates the general pur- 
 poses for which the people ordained and established the 
 Constitution, it has never been regarded as the source 
 of any substantive power conferred on the government 
 of the United States, or on any of its departments." 
 This preamble can, and ought to be, used by the courts as in- 
 dicating the actual necessities, general purposes, and careful 
 preparation for this legislation. 
 
 Notes on Section i. 
 
 Rights and Remedies Granted and Amended. 
 
 It is within the power of the State Legislature to modify, de- 
 clare or repeal the common law. Every legislative act touching 
 the common law has tended to> one of these results. 
 
 (a) As illustrating what has been done between employers and 
 employes with respect to personal injuries in the use of this 
 power, see the following cases : — 
 
 Snead v. Central of Georgia R. Co., 151 Fed. 608. 
 Howard v. ///. Cent. Ry. Co., 207 U. S. 461. 
 These two cases relate to the Federal act declared void because 
 it covered "intra-state" as well as "inter-state" commerce. 
 H olden v. Hardy, 169 U. S. 366. 
 Smith v. Alabama, 124 U. S. 465. 
 Martin v. Pittsburg, etc., R. Co., 203 U. S. 284. 
 In the last case the co'iirt had under consideration the statute of 
 Pennsylvania limiting the recovery of damages by other persons 
 from railroads to the same rights which employes had. It was 
 claimed that this repealed much of the common law, took away 
 vested rights, and was consequently invalid, but the court said — 
 "Such a contention in reason must rest upon the 
 proposition that the State of Pennsylvania was without 
 power to legislate on the subject — a proposition which 
 we have adversely disposed of." 
 In the Smith case, supra, the court recognized the same prin- 
 ciple in another rule, which as to' this subject is general : — 
 
55 
 
 "There is no common law of the United States in the 
 sense of a national customary law distinct from the 
 common law of England as adopted by the several 
 States each for itself, applied as its local law, and sub- 
 ject to such alteration as may be provided by its own 
 statutes." 
 In H olden v. Hardy, 169 U. S. 366, the court, after discussing 
 stock objections on constitutional questions and referring to the 
 historical fact that the common law system has been and must 
 ever continue to> be one of growth, that the Constitution of the 
 United States must be interpreted with that in view, said — 
 
 "It is impossible to suppose that they will not con- 
 tinue, and the law be forced to adapt itself to' new con- 
 ditions O'f society, and particularly, to' the new relations 
 between employers and employees, as they arise." 
 The Supreme Court of the United States having disposed o>f 
 the opposition to 1 the theory that the common law cannot be re- 
 pealed, the States having always acted on the theory that it can 
 be modified or repealed in any particular respect, and the Su- 
 preme Court being committed to the well-known doctrine that as 
 to this subject the Federal Government has no common law, but 
 administers the common law of the particular State, there is no 
 doubt of the power to repeal such law. 
 
 (b) It needs no argument to show that the Legislature may 
 repeal or modify any statute or any set of statutes within the 
 State. An illustration of how States have by general enactments 
 imposed, created, and may create, repeal, or modify, many laws 
 under the title of "Code," may be found from the cases cited 
 under "title," supra, and particularly in that from Georgia. 
 
 (c) The common law and statutes of the several States need 
 no repeal for subjects outside of employer and employe. The 
 Code, as here drawn, is intended to furnish the exclusive rule 
 governing this class of cases, and by implication repeals any other 
 law on the subject. To accomplish this form of repeal, however, 
 there must be, and we think there is, unmistakable intent to make 
 the act a substitute for the old law and to make it contain all the 
 law on this subject. This is sufficient to operate as a repeal. 
 
56 
 
 District of Columbia v. Hutton, 14s U. S. 27. 
 Brownell v. Holmes, 165 Mass. i6p, 42 N. B. 553- 
 Nickel v. City of St. Paul, 80 Minn. 415. 
 Cases cited Vol. 26 Am. & Eng. Encyc. Law (2d ed.)., 731-732. 
 
 (d) The repeal and grant being applicable to all classes of em- 
 ployment where injuries occur, directly in proportion to the 
 accidents that do occur are within the police power and reasonable 
 as to classification. 
 
 Holden v. Hardy, supra. 
 
 Louisville & Nashville R. Co. v. Melton, 218 U. S. 
 (decision May 31, 1910). 
 This section is also intended to be broad enough to dispose of 
 liabilities of a civil nature as between employer and employe for 
 actions based upon violations of penal statutes now or hereafter 
 in force. In short, it is the object to make this the exclusive 
 remedy of a civil nature for personal injuries received that come 
 within the provisions of this act, so far as the rights of the em- 
 ploye are concerned; but this would not prevent the employer 
 from having a right of action against a third party who had 
 caused him a legal wrong. 
 
 (e) As the common law rights and remedies are repealed, there 
 ought not to remain common law defences to Code proceedings. 
 We think this would be clear, but, as we have added to this 
 section for certainty, we clear the defences in Section 3. Per- 
 sonal injury self-inflicted is made an affirmative defence. 
 
 * 
 
 Notes on Section 2. 
 dangerous employment defined. 
 
 (a) The question of whether an employment is dangerous to 
 the extent that it needs control under the police power is first 
 for the Legislature. 
 
 In the case of Mayor, Alderman, et al. of New York v. Miln, 
 11 Peters 102, L. Bd. 660, 662, 664, there is an elaborate opinion 
 on the police power. In .February, 1824, the Legislature of 
 New York passed an act providing that the master of every 
 vessel arriving in New York from a foreign port or from a port 
 of any of the States other than New York was required under 
 
57 
 
 certain penalties within a certain time to report in writing, con- 
 taining the names, ages, and last local settlement of every person 
 who should have been on board the vessel during the voyage, and 
 that, if any of the passengers should have gone on board any 
 other vessel and landed at any other place with a view to pro- 
 ceed to New York, the same should be stated in the report. The 
 corporation of the city of New York instituted an action under 
 this law for debt against the master of the ship "Emily" to recover 
 the penalties imposed by this act, etc. The defendant demurred 
 to the declaration, and the judges of the Circuit Court, being 
 divided in opinion as to whether or not this act regulated trade 
 and commerce between New York and foreign ports and was 
 therefore unconstitutional and void, certified the case to the 
 Supreme Court of the United States. The Supreme Court 
 reached the conclusion that it was not a regulation of commerce, 
 but of police. 
 
 With respect to the difficulties of defining the police power 
 the court continues : 
 
 "We choose rather to plant ourselves on what we 
 consider impregnable positions. They are these: that 
 a State has \he same undeniable and unlimited juris- 
 diction over all persons and things within its territorial 
 limits as any foreign nation, where that jurisdiction is 
 not surrendered or restrained by the Constitution of the 
 United States. That, by virtue of this, it is not only 
 the right but the bounden and solemn duty of a State 
 to- advance the safety, happiness and prosperity of 
 its people, and to provide for its general welfare, by 
 any and every act of legislation which it may deem to 
 be conducive to these ends ; where the power over the 
 particular subject, or the manner of its exercise is not 
 surrendered or restrained in the manner just stated. 
 That all those powers which relate to merely municipal 
 legislation, or what may, perhaps, more properly be 
 called internal police, are not thus surrendered or re- 
 strained; , and that, consequently, in relation to these, 
 the authority of the state is complete, unqualified and 
 exclusive." 
 
58 
 
 In Holden v. Hardy, 169 U. S. 366, the court said : — 
 
 "We have no disposition to criticise the many author- 
 ities which hold that state statutes restricting the hours 
 of labor are unconstitutional. Indeed, we are not called 
 upon to express an opinion upon this subject. It is 
 sufficient to say of them that they have no application 
 to cases where the legislature had adjudged that a 
 limitation is necessary for the preservation of the health 
 of employes, and there are reasonable grounds for 
 believing that such determination is supported by the 
 facts. The question in each case is whether the legis- 
 lature has adopted the statute in exercise of a reason- 
 able discretion, or whether its action be a mere excuse 
 for an unjust discrimination, or the oppression, or 
 spoliation of a particular class." 
 In speaking of the fact that progress may be made under our 
 
 Constitution in the change of laws as well as conditions, it said : — 
 "Of course, it is impossible to forecast the character 
 or extent of these changes, but in view of the fact that, 
 from the day Magna Charta was signed to the present 
 moment, amendments to the structure of the law have 
 been made with increasing frequency, it is impossible to 
 suppose that they will not continue, and the law be 
 forced to adapt itself to new conditions of society, and 
 particularly to the new relation between employers and 
 employes, as they arise." 
 As to> the basis for legislative action within the police power, 
 
 it said : — 
 
 "These 'employments when too long pursued the 
 legislature has adjudged to be detrimental to the health 
 of the employes, and so long as there are reasonable 
 grounds for believing that this is so, its decisions upon 
 this subject cannot be reviewed by the federal courts." 
 Lochner v. New York, 198 U. S. 45, although holding the 
 
 particular statute as to the regulation of employer and employe 
 
 void because that employment was not dangerous, admits the 
 
 rule to be. as follows : — 
 
59 
 
 "If the contract be one which the state, in the legiti- 
 mate exercise of its police power, has the right to pro- 
 hibit, it is not prevented from prohibiting it by the 14th 
 Amendment. . . 
 
 This is not a question of substituting the judgment 
 of the court for that of the legislature. If the act be 
 within the power of the state, it is valid, although the 
 judgment of the court might be totally opposed to the 
 enactment of such a law. But the question would still 
 remain : Is it within the police power of the state? and 
 that question must be answered by the court." 
 In Midler v. Oregon, 208 U. S. 412., in sustaining a law of 
 
 Oregon limiting hours of labor for women as being within the 
 
 police power, it is said : — ■ 
 
 "The legislation and opinions referred to in the mar- 
 gin may not be, technically speaking, authorities, and in 
 them is little or no discussion of the constitutional ques- 
 tion presented to us for determination, yet they are 
 significant of a wide-spread belief that woman's phys- 
 ical structure, and the function she performs in conse- 
 quence thereof, justify special legislation restricting or 
 qualifying the conditions under which she should be 
 permitted to toil. Constitutional questions, it is true, 
 are not settled by even a consensus of present public 
 opinion, for it is the peculiar value of a written con- 
 stitution that it places in unchanging form limitations 
 upon legislative action, and thus gives a permanence 
 and stability to popular government which otherwise 
 would be lacking. At the same time, when a question 
 of fact is debated and debatable, and the extent to 
 which a special constitutional limitation goes is affected 
 by the truth in respect to that fact, a wide-spread and 
 long-continued belief concerning it is worthy of con- 
 sideration. We take judicial cognizance of all matters 
 of a general knowledge. 
 
 It is undoubtedly true, as more than once declared by 
 this court, that the general right to contract in relation 
 to one's business is part of the liberty of the individual, 
 
6o 
 
 protected by the 14th Amendment to the Federal Con- 
 stitution ; yet it is equally well settled that this liberty is 
 not absolute and extending to all contracts, and that a 
 state may, without conflicting with the provisions of 
 the 14th Amendment, restrict in many respects the 
 individual's power of contract." 
 And in Knox v. Lee, 12 Wallace, 457, in speaking again for 
 that great court as to the Legal Tender Cases, Mr. Justice 
 Strong said, — ■ 
 
 "It is not to be denied that acts may be adapted to the 
 
 exercise of lawful power and appropriate to it in 
 
 seasons of exigency which would, be inappropriate at 
 
 other times." 
 
 (b) In legislating against the dangers of an employment and 
 
 allowing recovery for injuries on account thereof, fault is not 
 
 necessarily the basis of the liability when the legislature provides 
 
 otherwise. 
 
 See Freund, Police Power, Sec. 634. 
 Atchison, etc., Ry. Co. v. Matthews, 114 U. S. 96. 
 C, R. I. & P. Ry. Co. v. Zemecke, 183 U. S. 582. 
 Jones v. Brim, 165 U. S. 180. 
 
 Article by John H. Wigmore, entitled "Responsibil- 
 ity for Tortious Acts," Harvard Law Review, VII. 
 Persaidt v. O'Reilly, 74 N. Y. 
 In the Zernecke case the Supreme Court said : — 
 
 "Our jurisprudence affords examples of legal liabil- 
 ity without fault, and the deprivation of property with- 
 out fault being attributable to its owner. The law of 
 deodands was such an example. The personification 
 of the ship in admiralty law is another. Other ex- 
 amples are afforded in the liability of the husband for 
 the torts of the wife — the liability of a master for the 
 acts of his servants." 
 In McLean v. Denver & Rio Grande R. Co., 203 U. S. %>, 
 with respect to certain fees fixed by the Legislature, the court 
 said : — 
 
 "The exercise of the police power may and should 
 have reference to the peculiar situation and needs of 
 
6i 
 
 the community. . . . The law being otherwise 
 valid, the amount of inspection fee is not a judicial 
 question ; it rests with the legislature to fix the amount, 
 and it can only present a valid objection when it is 
 shown that it is so unreasonable and disproportionate 
 to the services rendered as to attack the good faith of 
 the law." 
 
 In State v. Smith) 58 Minn. 35, it is said : — 
 
 "It has never been questioned that the police power 
 of the state extends to regulating the use of dangerous 
 machinery, with a view to protecting, not only others, 
 but those who are employed to use it." 
 
 For fuller discussion see article by H. V. Mercer, report of 
 Atlantic City Conference, pages 54 to 216. 
 
 (c) It is not necessary that the police power be confined to 
 public or gwwi-public institutions or persons. For relations 
 otherwise private may become public under public necessity if the 
 Legislature decides that the public needs protection. 
 
 State v. Wagener, 77 Minn. 4.83. 
 
 Harbison v. Knoxville Iron Co., 183 U. S. 13. 
 In the former of these cases it was held that a State had the 
 power to control commission merchants engaged in buying and 
 selling grain because public protection necessitated it. In the 
 Harbison case it was held that a statute of Tennessee requiring 
 lumber companies to redeem, at reasonable times, merchandise 
 time checks paid for services to their men, was justified in the 
 interests of public safety and within the police power. This 
 power must be exercised in the ordinary way, and not by putting 
 the State into business with a hope of regulating by competition. 
 
 Rippe v. Becker, 56 Minn. 100. 
 
 (d) Whether this definition be construed only as such or as a 
 classification, it is the only one of practical use, because : — 
 
 1. It classifies all employments as dangerous directly and ex- 
 actly on their injury basis. 
 
 2. It covers all employments and employees upon the basis of 
 actual as distinguished from supposed dangers. 
 
 3. It tends to prevent hazards in all employments and gives all 
 warning to protect themselves. 
 
62 
 
 4. It classifies risks in accordance with the good or bad show- 
 ing of the particular employment as well as that general industry. 
 
 (e) It is the safest because there can be no question of consti- 
 tutional inequality in either the classification of the employes of a 
 particular industry or between different industries. 
 
 C, M. & St. P- Ry. Co. v. Wesbey, 178 Fed. 619, 8 
 C. C. A. 
 
 Louisville & Nashville R. Co. v. 'Melton, U. S. Sup. 
 Co-op. Adv. Sheets, July 1, 1910, p. 626 (218 U. S.). 
 
 (/) "Arising in and growing out of the course of employ- 
 ment" comes from the British act and has received much judicial 
 comment. The injuries may arise in the course of employment 
 and not grow out of such employment, as illustrated by an Eng- 
 lish decision in a case where a boy was hurt, while at work in his 
 employment, by a piece of iron thrown by another boy not con- 
 nected with the employment. Another case where the accident 
 was caused by a fellow-workman while they were engaged in 
 "horse-play" was also held not to "arise out of" the course of 
 employment. (See Knowles, Workmen Comp., pp. 16-20.) It 
 does not arise in the course of employment either before the em- 
 ployment has commenced or after it has terminated. Id. 
 
 Notes on Section 3. 
 
 inequality oe employer and employe. 
 
 (a) The courts recognize that in dangerous employment the 
 employer and the employe do not stand upon equality as to their 
 right to contract. That is one of the fundamental grounds of 
 interference in such matters as this. 
 
 In the case of Harbison v. Knoxville Iron Co., 53 S. W . 955, 
 the Supreme Court of Tennessee said: 
 
 "The Legislature, as it thought, found the employe at 
 a disadvantage in this respect, and by this enactment 
 undertook to place him and the employer more nearly 
 upon an equality. This alone commends the act, and 
 entitled it to a place on the statute book as a valid police 
 regulation." 
 
63 
 
 The Supreme Court of the United States approved this opinion 
 in Knoxville v. Harbison, 183 U. S. 13. 
 
 In respect to the length of hours dangerous labor may be re- 
 quired, it was said by the Supreme Court of the United States in 
 Holden v. Hardy, 169 U. S. 366: 
 
 "The Legislature has also recognized the fact, which 
 the experience of Legislatures in many States has cor- 
 roborated, that the proprietors of these establishments 
 and their operatives do not stand upon an equality, but 
 • that their interests are, to a certain extent, conflicting." 
 Then in the case of Narramore v. Cleveland, &c, Ry. Co., 96 
 Fed. 298, a case involving the rights of railway employes to have 
 switches blocked, while Judge Taft was sitting on the Circuit 
 Court of Appeals, he used this language : 
 
 "The only ground for passing such a statute is found 
 in the inequality of terms upon which the railway com- 
 pany and its servants deal in regard to the dangers of 
 their employment. The manifest legislative purpose 
 was to protect the servant by positive law, because he 
 had not previously shown himself capable of protecting 
 himself by contract; and it would entirely defeat this 
 purpose thus to permit the servant 'to contract the mas- 
 ter out' of the statute." 
 An employe cannot successfully say to a railway president, 
 "Run your business carefully or I will quit." 
 
 The right to sue and the finaeiTy of amount may be con- 
 ditional AS PROVIDED IN THIS SECTION. 
 
 (b) There is no more discrimination between the rights of the 
 employer and the employe in this matter than the situation de- 
 mands, according to the rule above stated. In all actions the 
 party that is aggrieved has the burden of bringing and substan- 
 tiating his action. In cases where a right is given absolutely, the 
 remedy follows in the courts as a matter of law, but in cases 
 where the right is settled with, or conditioned upon, the remedy 
 in such way as to show that the right would not be given if it 
 were not for the remedy, the courts uphold it as a valid condition 
 
6 4 
 
 to compel parties to submit their claims to arbitration or to agree 
 that arbitration shall be a condition precedent to a cause of action. 
 An arbitration clause is contained in the Minnesota Standard 
 Fire Policy, as in many others, and has been upheld by the courts. 
 The police power allows it, even as a condition to bringing suit 
 in a regular court. But a law leaving the general question of 
 liability to be determined, and simply providing a reasonable 
 method of estimating and ascertaining the amount of the loss as 
 a condition of the liability, is unquestionably valid. 
 
 Schuffer v. Rockford Insurance Co., JJ Minn. '2<?i. 
 Viney v. Bignold, L. R. 20 Q. B. D. 172-. 
 Collins v. Locke, 4 App. Cos. 674. 
 Scott v. Avery, 5 H. L. Cos. 811. 
 Pres't, etc., D. & H. Canal Co. v. Pa. Coal Co., 50 
 N. Y. 250. 
 
 Wolff v. Liverpool L. & G. Ins. Co., 50 N: J. L. 453. 
 Hall v. Norwalk Fire Ins. Co., 57 Conn. 105. 
 Reed v. Washington Ins. Co., 138 Mass. 572. 
 Hamilton v. The Liverpool & London & Globe Ins. 
 Co., 136 U. S. 242; 34 L. Ed. 419. 
 In the Wolff case, supra, it is said : — 
 
 "It is clear, beyond all possibility of controversy, that 
 the agreement between the assured and the company, 
 that if they could not agree on the amount of the loss, 
 that the sum recoverable should, if an arbitration were 
 requested, be the amount found by the award. Such 
 an agreement is both legal and reasonable, and it is not 
 perceived that any authority exists which holds a con- 
 trary doctrine." 
 In Reed v. Washington Ins. Co., 138 Mass: 572, the court 
 said, — • 
 
 "There is no doubt that an appraisal of value, or an 
 award of the amount of damages, can be made a con- 
 dition precedent to a right of action." 
 The Supreme Court of the United States in the Hamilton case, 
 supra, said, — 
 
 "Such a stipulation, not ousting the jurisdiction of 
 the courts, but leaving the general question of -liability 
 
65 
 
 to be judicially determined, and simply providing a 
 reasonable method of estimating and ascertaining the 
 amount of the loss, is unquestionably valid, according 
 to the uniform current of authority in England and in 
 this country." 
 
 EVEN FIRE INSURANCE COMES WITHIN POLICE POWER. 
 
 (c) The State may control the sort of contracts that are made 
 for fire insurance, and, of course, may also control them for in- 
 surance of risks for men in dangerous employment, under the 
 police power. 
 
 Wild Rice L. Co. v. Royal Ins. Co., 90 Minn. 190. 
 State v. Beardsley, 88 Minn. 20. 
 Schrepfer v. Rockford Ins. Co\, 77 Minn. 291. 
 In State v. Smith, $8 Minn. 35, the cuort said, — 
 
 "It has never been questioned that the police power 
 of the State extends to regulating the use of dangerous 
 machinery with a view to protecting, not only others, 
 but those who are employed to use it." 
 In Atchison, etc., Ry. Co. v. Matthews, 174 U. S. 96, in up- 
 holding a Kansas fire statute under the police power, the court 
 said, — 
 
 "But neither the amendment — broad and comprehen- 
 sive as it is — nor any other amendment was designed 
 to interfere with the power of the State, sometimes 
 termed its police power, to prescribe regulations to pro- 
 mote the health, peace, morals, education and good 
 order of the people, and to legislate so as to increase the 
 industries of the State, develop its resources, and add 
 to its wealth and prosperity." 
 
 • LIBERTY OF CONTRACT NOT ABSOLUTE IN DANGEROUS 
 EMPLOYMENT. 
 
 (d) Liberty of contract is supposed to be a property right, as 
 construed by the courts. 
 
 In Adair v. U. S., 208 U. S. 161, Mr. Justice Harlan re-quotes 
 iromLochmer v. New York, 198 U. S. 45> as follows:— 
 5 
 
66 
 
 "The general right to make a contract in relation to 
 his business is part of the liberty of the individual pro- 
 tected by the 14th amendment of the Federal Consti- 
 tution." 
 Later on the court says : — 
 
 "Under that provision no State can deprive any per- 
 son of life, liberty or property without due process of 
 law. The right to purchase or to sell labor is part of 
 the liberty protected by this amendment, unless there 
 are circumstances which exclude the right." 
 
 Adair v. U. S., 208 U. S. 161. 
 In Gray v. Building, Trades Council, 91 Minn. 1/1 (182), our 
 court said, — 
 
 "A person's occupation or calling, by means of which 
 he earns a livelihood and endeavors to better his condi- 
 tion, and to provide for and support himself and those 
 dependent upon him, is property within the meaning of 
 the law, and entitled to protection as such ; and as con- 
 ducted by the merchant, by the capitalist, by the con- 
 tractor or laborer, is, aside from the goods, chattels, 
 money or effects employed and used in connection 
 therewith, property in every sense of the word." 
 
 BUT THE LIBERTY OF EMPLOYER AND EMPLOYE TO CONTRACT IS 
 NOT ABSOLUTE WHEN APPLIED TO DANGEROUS EMPLOYMENT. 
 
 Holden v. Hardy, 169 U. S. 366. 
 
 Atchison, etc., Ry. Co. v. Matthews, 174 U. S. 96. 
 
 Johnson v. Southern Pacific Ry. Co., 196 U. S. 1. 
 
 Knoxville Iron Co. v. Harbison, 183 U. S. 13. 
 
 Mutter v. Oregon, 208 U. S. 412 (L. Bd. 551-555). 
 
 Chicago, R. I., etc., Ry. Co. v. Zernecke, 183 U. S. 
 582. 
 In Holden v. Hardy, 169 U. S. 366, the court said, — 
 
 "This right of contract, however, is itself subject to 
 certain limitations which the State may lawfully im- 
 pose in the exercise of its police power." 
 In Atchison, etc., Ry. Co. v. Matthews, 1J4 U. S. 96, — 
 
6 7 
 
 "But neither the amendment, broad and comprehen- 
 sive as it is — nor any other amendment — was designed 
 to interfere with the power of the State, sometimes 
 termed its police power, to prescribe regulations to pro- 
 mote the health, peace, morals, education and good 
 order of the people, and to legislate so as to increase the 
 industries of the State, develop its resources, and add 
 to its wealth and prosperity." 
 In Knoxville Iron Co. v. Harbison, 183 U. S. 13, the court 
 said, — 
 
 "But it is also true that, inasmuch as the right to 
 contract is not absolute in respect to every matter, but 
 may be subjected to the restraints demanded by the 
 safety and welfare of the State and its inhabitants, the 
 police power of the State may, within defined limita- 
 tions, extend over corporations outside of and regard- 
 less of the power to* amend charters." 
 In Lovhmr v. New York, ip8 U. S. 45, it said, — 
 
 "The State, therefore, has power to prevent the in- 
 dividual fromi making certain kinds of contracts, and in 
 regard to them the Federal Constitution offers no pro- 
 tection." 
 Upon this theory the court made the holding in Muller v. 
 Oregon, as follows: — 
 
 "Yet it is equally well settled that this liberty is not 
 absolute and extending to all contracts, and that a State 
 may, without conflicting with the provisions of the 14th 
 amendment, restrict in many respects the individual's 
 power of contract." 
 
 ALL PROPERTY HELD SUBJECT TO POLICE POWER. 
 
 (e) The right of property is always held subject to the neces- 
 sities of the general welfare, and especially under our constitu- 
 tional system based on the contract theory. 
 
 See Holden v. Hardy, supra. 
 
 Indeed, in Beer Company v. Massachusetts, 97 U. S. 25, the 
 court said : — 
 
68 
 
 "If the public safety or the public morals required the 
 discontinuance of any manufacture or traffic, the hand 
 of the Legislature cannot be stayed from providing for 
 its discontinuance by any incidental inconvenience 
 which individuals or corporations may suffer. All 
 rights are held subject to the police power of the State." 
 
 INTERSTATE COMMERCE SUBJECT TO THIS POWER. 
 
 (/) To the extent that the general welfare needs protection 
 within the State, it is at liberty to act even on interstate com- 
 merce, for the State's police power as to that was not delegated 
 to Congress. 
 
 McLean v. Denver & R. G. R. R. Co., 203 U. S. 
 
 38-47- 
 
 Mayor, Alderman, et al. of New York v. Miln, 11 
 Peters, 102. 
 
 Howard v. III. Cent. R. R. Co., 20/ U. S. 463. 
 
 THE STATE MAY REGULATE EMPLOYES OE THE PUBLIC. 
 
 (g) Of course, these constitutional provisions do not prohibit 
 the State from passing a law which would allow its own servants 
 to collect from it. 
 
 Aitkin v. Kansas; ipi U. S. 206. 
 
 (h) Actual fault is not necessary to fix a basis of compensa- 
 tion. See authorities under Section 2, supra. 
 
 (i) The greatest two curses of the present jury system for 
 this class of cases are the determination of : — > 
 
 1. Fault or counter- fault. 
 
 2. Amount to be awarded, maintained, or defeated after ex- 
 pensive litigation. 
 
 This law places the duty, and, except for attempt to self -inflict 
 injuries to obtain compensation, leaves no question of fault for 
 trial. The compensation is based on disability and measured by 
 wage scale, — more simple, certain, quick remedy than a jury 
 could give. 
 
6 9 
 
 (/) The suggestion has been made that in the insurance cases 
 the provisions for award rest upon contract. The point is that 
 under the police power the State may prescribe the form of con- 
 tract and prohibit all others. 
 
 Wild Rice Lbr. Co. v. Royal Ins. Co., pp Minn. ipo. 
 
 It is well settled, at least in some States, that because of the 
 police power the State may require fire insurance companies to 
 make prescribed forms of policies containing clauses for arbitra-' 
 tion. It may prohibit any other contract than that so prescribed. 
 This covers the principle. 
 
 We apply it to dangerous employments under the police power. 
 There can be no doubt of the right of the State to employ the 
 principle by requiring such contracts. The reason for requiring 
 the contracts by fire insurance companies is the convenience of 
 all. The reason for not requiring them in the case o>f employer 
 and employe is, again, the convenience of all. 
 
 The formal execution so' required gives no consent, except to- 
 do business under the law. So -here the formal execution is un- 
 necessary. The fact that business is done places them under the 
 law and gives as much consent. 
 
 There are institutions that will be subject to this law which 
 necessarily employ and discharge enough men daily to create 
 enough expense in the formal execution of policy contracts to 
 greatly burden the employer and seriously decrease the cost 
 benefits to the employe. Without reason and against economy 
 the burden should not be imposed. See 
 
 State v. Beardsley, 88 Minn. 2,0. 
 
 Scherpfer v. Rockford Ins. Co., 77 Minn. 291. 
 
 Article by H. V. Mercer, Atlantic City Report, p. 
 
 195- 
 
 Notes on Sections 4-6. 
 
 ' 2. amounts of compensation allowed. 
 
 (a) A waiting period long enough that the employe may feel 
 its effects and the employer have opportunity to investigate has 
 proven necessary in other countries to prevent malingering. 
 
70 
 
 (b) Some have suggested that a constitutional danger might 
 follow such attempt here. We do not consider the objection 
 weighty, but it can easily be avoided by adopting this simple rule 
 of allowing compensation, as here granted. It does not go to 
 the injured for his own use, but is more liberal than a wage 
 scale for this period could ordinarily be. Besides, it protects 
 the employer, the employe, and the State by the quickest and 
 
 'best treatment. 
 
 (c) The blank in section (b) should be filled with the number 
 of years of the compensation period as fixed by Section 7. 
 
 (d) It is to the employer's interest to provide good medical 
 attendants. 
 
 Notes on Section 7. 
 compensation on death. 
 
 We do not feel that the Conference vote on this subject can 
 be safely carried out on certain points. In effect, it was as 
 follows : — 
 
 5. Amount and duration of compensation? 
 
 a. Temporary disability? 
 
 Fifty per cent, of the impairment of wages : maximum 
 of $10 per week, minimum of $5 per week; or, if wages 
 less than $5, then full wages; (or 66^ per cent, of 
 wages up to $7.50 of wages per week, then 50 per cent. 
 of balance until compensation amounts to the maximum 
 of $10 per week). Payments not to extend beyond 
 period of 3.00 weeks. 
 
 b. Permanent disability? 
 
 Same as temporary disability. 
 
 c. Partial permanent disability? 
 
 Fifty per cent, of impairment of wages. Maximum 
 of $10 per week. Payments not to extend beyond 
 period of 300 weeks. 
 
 d. Death? 
 
 ( 1 ) Total dependants. 
 
 If orphans, 50 per cent, of wages of deceased. 
 If widow alone, 25 per cent of wages. 
 
7i 
 
 If widow and one child, 40 per cent, of wages. 
 If widow and two children, 45 per cent, of wages. 
 If widow and three children, 50 per cent, of 
 wages. 
 
 If widow and four children, 55 per cent, of 
 wages. 
 
 If widow and five children or more, 60 per cent. 
 of wages. 
 
 If widow, father or mother, 50 per cent, oi 
 wages. 
 
 Children under sixteen years of age only to be 
 • included and only during period they are under six- 
 teen years of age. 
 
 Maximum, of $10 per week, minimum of $5 per 
 week, or, if full wages less than $5, their full 
 wages; (or, 66% per cent, of wages up to $7.50' oi 
 wages per week, then 50 per cent, of balance until 
 compensation amounts to $10 per week, maximum). 
 Payments not to extend beyond period of 300 
 weeks. 
 (2) Partial dependents? 
 
 Fifty per cent, of the portion of the wages con- 
 tributed by the deceased to> the partial dependents. 
 (1) In the first place we have inserted no maximum for the 
 weekly benefit receivable. It involves an inequality of treatment, 
 if the percentage o>f wages is to form the basis of compensation. 
 One motion at the Conference, which received a majority vote, 
 limited the maximum benefit to> $10 per week, thus undertaking 
 to follow some of the European laws. We have discarded this 
 limitation for safety of the law. We see no reason why this is 
 not the more equitable as well as the safer method. Inheritance 
 of a cause of action for injuries causing death is a matter of 
 State grant. If granted or prohibited to some of this class, it 
 ought to be to' others. We place this provision upon the basis 
 of the pecuniary value which the dependant had in the life of the 
 deceased, and this is common in statutes allowing death by 
 wrongful act. We have therefore named no> limitation for the 
 
72 
 
 maximum, nor have we embodied the detailed inequalities of 
 percentage based on the size of families. The omission of the 
 maximum weekly benefit may make a five-year period desirable 
 instead of a six-year period, as voted. 
 
 (2) The shortening of the period in some cases by the limit as 
 to maximum total amount is also questionable as to equality. 
 There is such a maximum in death cases now in most States, 
 it is true, but there is a distinction made by some between limita- 
 tions for death and for other claims. 
 
 The limit can be maintained under this law if uniform and fair, 
 but there is danger in first declaring that the basis is a percentage 
 of the wage and then placing a uniform amount as the limit. 
 This would mean an arbitrary cutting off at a certain amount, 
 and would only mean greater percentages in some cases than in 
 others. 
 
 We can provide perfect equality by declaring that all may have 
 an equal percentage of wages during disability, not to exceed an 
 equal number of years. This is fair to> the employe and not 
 unfair to the employer. We therefore recommend that the final 
 clause of par. b, fixing a maximum amount, be omitted. 
 
 (3) The Conference voted to exclude from the benefits of the 
 system alien dependants non-resident in the United States. The 
 members of the Cbmmittee are agreed that this is unsound both 
 in principle and in policy. Under the above draft, alien depend- 
 ants non-resident in the United States will receive their propor- 
 tion. 
 
 Notes on Section 10. 
 payment in lump sum. 
 
 Par. a. Payment in lump sum is not desired. It is ony per- 
 mitted in the interest of justice. It may be sometimes needed 
 to wind up a business to protect a mortgage on a home or to 
 meet some other emergency. 
 
 Par. b. There might be a case where property could be trans- 
 ferred to save sacrifice, and it would be equally good under the 
 circumstances as the claim-. Annuities might become desirable. 
 This section, too, was intended to meet special conditions. 
 
73 
 
 Notes on Section ii. 
 wages defined. 
 
 (a) Too much refinement of this definition would make it 
 complex and more difficult than under the present system. If the 
 wage is regular, this is simple. 
 
 (b) When the wage is not regular, the basis here prescribed 
 is equitable to all and will enable a finding with a much more 
 definite basis than we now have for damages in personal injury 
 cases. 
 
 Notes on Section 12. 
 
 conditions varying compensation. 
 
 Par. a. The matter of varying compensation so as to* prevent 
 employers from discriminating against those mentioned here has 
 been a fundamental deficiency of the European laws. Some laws 
 have undertaken to solve it by allowing such persons to contract 
 themselves out of the law in order to get employment. This is 
 unjust to them, for they of all persons need the system. Yet it 
 is unjust to compel the employer to discriminate against them 
 because of their increased dangers or to pay for injuries which 
 but for such deficiencies would not create so much disability. 
 These subsections are believed to be just and fair to all and cal- 
 culated to prevent discrimination. A man who has reached his 
 full life expectancy or a cripple would hereafter not be employed 
 without the safeguard of some such clause. 
 
 Par. b. The apprentice system is more rarely used here than 
 abroad, but this does not alter the fact that the young do receive 
 injuries. 
 
 Par. c. A right may as well vest with as without conditions if 
 the vesting is coupled with the conditions. 
 
 t 
 
 Notes on Sections 13-15. 
 
 3. mode oe claiming compensation. 
 
 It is of the essence of self -protection against fraud and against 
 the failure to give proper treatment in honest cases that reason- 
 ably prompt knowledge of the injury be had. The failure, to get 
 
74 
 
 evidence quickly is important where the time and ability of ser- 
 vice are such important factors. The want of medical attention 
 in slight injuries often causes infection which an employer's 
 foresight would prevent, but which an employe's indifference 
 might make hazardous. This has been the experience in Euro- 
 pean systems. The separate paragraphs in Section 14 are be- 
 lieved to be in the interests of justice to all. We are unable to 
 conceive a case' under theni where justice cannot be done as 
 nearly as a system: could hope to> accomplish. 
 
 Notes on Sections 16-190. 
 mode of claiming compensation. 
 
 Probably no point in the European systems has been the sub- 
 ject of greater objections or more abuse than the doctor question. 
 
 Section 16. (a) The objection is there chronic with the em- 
 ployes that the employers' or insurers' physician sometimes 
 abuses the privileges by urging a too quick ending of disability 
 and by being prejudiced in their testimony. The employer and 
 the insurer are equally emphatic that the employes' physicians 
 more often abuse the privilege of claiming disability and giving 
 evidence. These objections seem to be fairly well founded in 
 some cases, but greatly exaggerated in others by both sides. 
 
 (b) The employer can hire the physician cheaper, and his 
 financial motive is for good treatment. He is more likely to be 
 in a position to get good physicians and quick treatment. The 
 employe may prefer his own physician. Under this clause no 
 great advantage can be taken. So long as the act is administered 
 by human beings, there will be extreme cases on each side. 
 Neither ought to be placed at great disadvantage on the phy- 
 sician's evidence. 
 
 Section 19. The Board and the parties should always have 
 the testimony of a neutral physician, if needed, in the fair deter- 
 mination of the case. We hope this will secure the opportunity. 
 
 Notes on Sections 20-22. 
 
 4. legal effect of settlements. 
 
 Section 20. The prevention of overreaching settlements is 
 the justification. They are sometimes made under the old system. 
 
75 
 
 Section 21. The claim becomes fixed and determined, but is 
 not collectible in advance. If a settlement be not made, it ought 
 to have a preference over other general creditors for the same 
 reasons 'as labor claims. 
 
 Section 22. The exemption is in accord with the object of 
 exemptions and the spirit of this Code. 
 
 Notes on Sections 23-43 
 
 board oe arbitration, awards, etc. 
 Section 23. 
 
 a. See authorities under Preamble and Sections "I," "II," and 
 "III." 
 
 b. See Standard Form Fire Policies of your State. 
 
 c. This is a reasonable method of determining matters based 
 upon new rights given since the constitution. 
 
 See Board of Co. Com. v. Morrison, 22 Minn, if 8. 
 Minor v. Happersett, 21 Wall. 162. 
 Article by H. V Mercer, Atlantic City Conference 
 Report. 
 
 d. Irrespective of this, it is a reasonable method of determin- 
 ing claims. 
 
 In the case of State ex rel. Barber Asphalt Paving Co. v. 
 District Court of St. Louis County, 90 Minn. 457, Duluth had a 
 charter provision allowing appeals to be taken to the court in such 
 cases by the taxpayer. The respective quotation will show the 
 views taken by the court, p'O Minn. 461-464 : — 
 
 "We have no doubt that the provision of the charter 
 requiring the presentation of all claims to the city coun- 
 cil for adjustment and allowance was an appropriate 
 subject for charter supervision, and from that it would 
 seem to follow logically that it was also proper to con- 
 tinue the subject, and provide the manner in which the 
 determination of the city council allowing or disallow- 
 ing a claim might be removed to the district court for 
 judicial investigation and determination; and we hold 
 without further remark that it was within the power of 
 the framers to embody in the charter the provisions 
 under consideration. 
 
7 6 
 
 "It is contended that the provisions of the charter 
 are invalid, because they do not constitute due process 
 of law * * * The statute is a very serviceable 
 one, and provides an orderly method of settling claims 
 and demands against counties without the necessity of 
 the formal commencement of an action in court; and 
 the provision allowing the appeal at the instance of tax- 
 payers was intended as a safeguard, and to assist in the 
 protection of a public fund. 
 
 "Every person is entitled to a certain remedy in the 
 law for the redress of all injuries or wrongs he may 
 receive in his person, property, or character. But he 
 is not entitled to any particular remedy. Due process of 
 law means an orderly procedure adapted to the nature 
 of the case, in which the citizen has an opportunity to 
 be heard to defend, enforce, and protect his rights ; and, 
 where such opportunity is granted by law, the citizen 
 cannot complain of the procedure to which he is re- 
 quired to conform. * * * In a case like that under 
 consideration, where a claim is made against a city or 
 county, the presentation of the claim to the administra^ 
 tive officers for their action is the initiation of pro- 
 ceedings to enforce its payment. By the presentation 
 claimant adopts that method of enforcing his rights. 
 He is bound to follow up his claim, and pursue the 
 remedy pointed out by the charter or statutes for its 
 enforcement, and is afforded ample opportunity for a 
 complete investigation and hearing upon the merits of 
 his claim. And, though notice of appeal is required to 
 be served upon him, he is apprised by the law of the 
 manner of taking such appeal ; and, unless he wholly 
 abandons his claim after its allowance by the city, he 
 will have actual knowledge that it has been taken. 
 This answers every purpose, and is 'due process of 
 law.' * * * 
 
 "The administrative officers, the board of county 
 commissioners, or the city council, in passing upon and 
 allowing or disallowing the claims, act quasi judicially.'' 
 
77 
 
 In speaking of a decision of the United States Land Depart- 
 ment, in Lampson v. Coffin, 102 Minn. 493-500, our court said : 
 
 "That was the only tribunal qualified or with juris- 
 diction to determine the existence of the facts essential 
 to the alleged right, and its conclusion therein precludes 
 further inquiry by the court." 
 
 In Murray v. Hoboken, etc., Co. 18 How. 280 (L. ed. 372), 
 the Supreme Court also said: — 
 
 "It is true, also, that even in a suit between private 
 
 persons to try a question of private rights, the action 
 
 of an executive power upon a matter committed to its 
 
 determination by the constitutional laws is conclusive." 
 
 e. The authority for this may be found in the insurance cases 
 
 following as well as the foregoing cases : — 
 
 Wild Rice L. Co. v. Royal Ins. Co., 99 Minn, iqo- 
 
 J 93~i95- 
 
 State v. Beardsley, 88 Minn. 20-25. 
 Schuffer v. Rockfordlns. Co., 77 Minn. 291. 
 Viney v. Bignold, L. R. 20 Q. B. D. 172. 
 Collins v. Locke, 4 App. Cos. 6/4. 
 Scott v. Avery, 5 H. L. Cas. 811. 
 Preset, etc., D. & H. Canal Co. v. Pa, Coal Co., 50 N. 
 Y. 250. 
 
 Wolf v. Liverpool L. & G. Ins. Co., 50 N. J. L. 453. 
 
 f. We think the appointment of the arbitrators in this scheme 
 something that should be left to the court because it is in aid of 
 the work of the court and really a part of the judicial depart- 
 ment ; that the court should have the power to appoint and remove 
 at will for the interests and good of the service. This, we think, 
 is permissible. 
 
 In re Appointment of Reviser, 124 N. W. 670 
 (Wis.). 
 ■ State ex rel. v. Prill, 100 Minn. 499. 
 
 g. The appointment and salaries are like the examiner and 
 referee under the Torrens system in Minnesota. They are analo- 
 gous to referees of one kind in the Minnesota statute. 
 
 ' The effect of the award is like that of common law arbitrators. 
 Minnesota allows the Boards of Trade and Chambers of Com- 
 
78 
 
 merce to have similar boards of award with like effect as to 
 actions between members. 
 
 The entry of judgment may be as on a common law award. 
 Irrespective of all these things and of all conditions precedent, 
 the right is coupled with a reasonable remedy to adjust the 
 amount of the right and, if the injured prefers, to sue on that 
 award after establishing the amount according to the Code that 
 grants it, then he may sue in a regular court, but he gains noth- 
 ing thereby, and, consequently, is deprived of nothing if he stays 
 by the regular course. 
 
 h. The Federal Constitution does not control mere forms of 
 procedure in, or regulate the practice of, the State courts. 
 
 In Maxwell v. Dow, 176 U. S. 581 (L. ed. 597), the court 
 said : — ■ 
 
 "A state cannot deprive a person of his property 
 without due process of law, but this does not necessarily 
 imply that all trials, in the state courts, affecting the 
 property of persons must be by jury. This require- 
 ment of the constitution is met if the trial is had accord- 
 ing to the settled course of judicial proceedings. . . 
 
 Due process of law is process due according to the 
 law of the land. This process in the states is regulated 
 by the law of the state. Our power over that law is 
 only determined whether it is in conflict with the 
 supreme law of the land. . . . That is to say, with 
 the constitution and laws of the United States made in 
 pursuance thereof. ... or with any treaty made 
 under the authority of the United States." 
 
 Maxwell v. Dow, 176 U. S. 581 (L. ed. 597). 
 In a recent case, in speaking of procedure, the court said, — ' 
 "It does not follow, however, that a procedure settled 
 in English law at the time of the emigration, and 
 brought to this country and practised by our ancestors, 
 is an essential element of due process of law. If that 
 were so, the procedure of the first half of the 17th Cen- 
 tury would be fastened upon the American jurispru- 
 dence like a straight jacket, only to be unloosed by 
 constitutional amendment." 
 
79 
 And:— 
 
 Twining v. New Jersey, 211 U. S. 78. 
 " 'That (said Mr. Justice Matthews, in the same 
 case, p. 529) would be to deny every quality of the law 
 but its age, to render it incapable of progress or im- 
 provement.' " 
 The opinion then requotes from Louisville & Nashville R. R. 
 Co. v. Schmidt, if? U. S. 230 (L. ed.) : — 
 
 "It is no longer open to contention that the due pro- 
 cess, of the law clause of the 14th Amendment to the 
 constitution of the United States does not control mere 
 forms of procedure in the state courts, or regulate 
 practice therein." 
 Further on in the opinion it said : — 
 
 "Due process requires that the court which assumes 
 to determine the rights of the parties shall have juris- 
 diction and that there shall be notice and opportunity 
 for hearing given the parties . . . subject to these 
 two fundamental conditions, which seem to be univer- 
 sally prescribed in all systems of law established by 
 civilized countries, this court has, up to this time, sus- 
 tained all state laws, statutory or judicially declared 
 regulating procedure, evidence and methods of trial, 
 and held them to be consistent with due process of 
 law." 
 
 Note on Section 44. 
 
 insurance authorized. 
 
 The Conference debates show that the compensation system 
 provided in this Code was regarded as essentially a system of 
 industrial risk compensation on an insurance basis. Under this 
 Code the employer will naturally insure even if he has not done 
 so already. The Committee, therefore, were bound to recognize 
 this in drafting suitable provisions. These provisions aim, in 
 the first place, to check some of the current abuses growing out 
 of the relations of the liability insurers in the hitherto existing 
 practice in personal injury litigation, and, in the second place, to 
 
8o 
 
 facilitate and encourage in every way the proper adjustment of 
 insurance systems to the compensation provisions' of this Code. 
 The ensuing provisions make no further attempt to control the 
 methods of insurance. 
 
 Note on Section 45. 
 
 insures for profit, etc. 
 
 Under the practice hitherto existing in personal injury litiga- 
 tion the insurer, for profit, and particularly his claim agents, are 
 apt to take a purely mercenary attitude in their relation both to 
 the injured employe and to the employer. The provisions of this 
 section attempt to eliminate some of the most notable of these 
 abuses by requiring the insurance policy to conform to the gen- 
 eral purpose of this Code. The Code cannot be carried out to its 
 best intent unless the employer is relieved from the pressure of 
 an insurance contract inimical to the spirit of the Code. 
 
 Note on Section 46. 
 sele-insurance. 
 
 Par. a. The committee felt it necessary to make draft provi- 
 sions, which would make possible an easy and immediate adop- 
 tion of the Code's compensation system by those enlightened em- 
 ployers who had already organized an industrial insurance sys- 
 tem of their own. Representatives of such employments were 
 among the members of the Conference, and were hearty advo- 
 cates of the Code's compensation system. The example of such 
 employers in coming quickly, under the Code, would be a valuable 
 encouragement to others. Their existing systems should there- 
 fore be provided for as effectively as possible in this Code. The 
 definition of their systems in the first sentence of Section 47 is 
 believed by the committee to be adequate for the purpose. 
 
 Par. b. The only alteration of the Code necessary or proper 
 to enable such self-insurance systems to adjust themselves to it 
 is in the compensation schedule. Par. a provides for this. The 
 mode of making payments by private settlement can continue 
 hitherto under the respective private systems, except, however, 
 
8i 
 
 for lump-sum payments, under Section 20. That section will re- 
 quire these private systems to obtain the approval of the Board 
 of Arbitration for all lump-sum settlements, and will therefore 
 tend to compel installment payments. The committee expressly 
 desires to produce this consequence. The Conference was em- 
 phatic and unanimous in favoring the installment ' payment in 
 contrast to the lump sum. The private systems should be altered 
 accordingly. 
 
 Par. c. These self-insurance systems commonly include a con- 
 tribution by the employes. In such cases two features are needed. 
 (1 ) A proportionate increase of benefits over the Code's schedule. 
 The Conference debates, in which the plan of requiring employes 
 to contribute was voted down by a large majority (Proceedings, 
 PP- 1 45~ 1 74)> showed that most who would, in theory, have 
 favored such contribution would have favored a proportionate 
 increase of the Code's compensation rates. The committee, 
 therefore, included a provision to that effect. (2) Employe's 
 representation. In the Conference debates it was generally recog- 
 nized that one of the arguments in favor of the employes' con- 
 tribution was that it would make the employes' representation 
 in the management of the insurance system an appropriate feature 
 of it, and that this feature would be valuable as tending to create 
 a better understanding between all parties and to induce caution 
 and conservatism by the employes' representatives in the admin- 
 istration of the benefits. In view of this the committee deemed 
 it wise to include such in this section, such a provision for em- 
 ployes' representation. This feature is already found in some 
 of the self-insurance systems. 
 
 Notes on Sections 47-50. 
 transfer of liability to the insurer. 
 
 The Conference having voted, nearly unanimously, that a sys- 
 tem of compulsory State insurance would be a desirable mode of 
 covering the. industrial risk, the committee expected to insert a 
 clause to carry out this vote. But, since the constitutional ques- 
 tion is a serious one, and since at present no such State insurance 
 exists in this country (except in a partial form under the Montana 
 6 
 
82 
 
 Act of 1909), the majority of the committee preferred to leave 
 clause for optional insertion only, so that it will be in no way 
 an essential part of the section, and may remain a dead letter 
 until such system becomes an actuality in some State. In view 
 of the Conference vote and of its striking significance the com- 
 mittee recommend that the clause be put forward as an educative 
 feature. 
 
 By pars, a-e the transfer of liability to the insurer is permitted 
 in all cases where the insurer is private insurer for profit or a 
 mutual association of an employer's or a trust fund. It thus 
 includes the insurer who is a corporation doing business for 
 profit. This is perhaps questionable, because the Conference 
 recognized fully in its debates the personal and human interest 
 which the employer takes in the employe's efficiency and welfare, 
 over and above his mere liability to pay compensation, and recog- 
 nized, on the contrary, the purely commercial motives which are 
 apt to dominate the ordinary insurance company and especially 
 its claim agents. To place these claim agents in direct touch with 
 the injured employe, by permitting such a company to assume 
 primary liability, would tend to perpetuate the mercenary and , 
 unscrupulous methods now in vogue in many places and to defeat 
 the purposes of the act. The majority of the committee, how- 
 ever, decided to include such corporations in this section. The 
 mutual insurance associations of employers, however, are not 
 likely to exhibit those abuses in their practice, nor, of course, in 
 the trust fund of the employer himself. 
 
 The general purpose of this and the ensuing three sections is to 
 relieve the administration of the system from the necessity of 
 having three parties throughout every proceeding, which would 
 virtually be the case if the insurer were liable, directly, to the em- 
 ployer only, and the employer to the employe. Such complica- 
 tion seem an unnecessary burden. These provisions will tend to 
 encourage the employer to develop his insurance system. More- 
 over, a specific additional purpose is to encourage employers to 
 develop the system of mutual trades insurance, as in Germany 
 and in New England in the Mill Mutual Association. Since the 
 industrial risk will vary widely with the different industries, the 
 trades-insurance mutuals form the most scientific, practical and 
 
83 
 
 economical method of distributing the risk of a particular in- 
 dustry. This bill will help to develop those associations. 
 
 NOTES. FORM 2. (ELECTIVE 1 FORM.) 
 
 Note on Section i. 
 
 rights and remedies codified. 
 
 A disadvantage experienced under the original English acts 
 was the difficulty and confusion caused by a new statute, which 
 merely amended a few rules and left to the courts to announce 
 after a long interval the precise relations of the new law to the 
 old law. To avoid this disadvantage as far as possible, the com- 
 mittee adopted the plan of restating at the outset of this statute 
 the entire legal situation. This statute confirms and amends 
 existing rights and adds new rights, but the complete view of 
 its effect may be got by perusing the first few sections and ob- 
 serving what existing rights are confirmed by reference. The 
 first section declares therefore that the whole legal situation is 
 hereafter to be ascertainable from the ensuing sections of the 
 Code. 
 
 Note on Section 2. 
 right op compensation granted. 
 
 The first care of the statute should be to grant the new right 
 of compensation. It is a new right, because it is based on the 
 principle of industrial risk, and not on that of tortiotts fault, and 
 it is a grant because it is something given by the Legislature, 
 additionally, to existing rights. This grant is named first in 
 order to emphasize that it exists and is vested in the employe, 
 along with his other existing rights, before he is called upon to 
 make any election. In other words, he is not offered one thing 
 after he has given up another thing, but is given something 
 positively and absolutely; and only after he is in possession of 
 the new thing need he elect which one he will keep, This is 
 important from the constitutional point of view. 
 
8 4 
 
 Note on Section 3. 
 right of damages confirmed and amended. 
 
 After granting the employe the new right, the Legislature 
 expressly confirms his hitherto existing rights. He is now in 
 possession of both. But at the same time the hitherto existing 
 rights are amended. These amendments carry out the votes of 
 the Conference. After debating the constitutional questions, the 
 Conference voted that the committee, in preparing an elective 
 statute, should, nevertheless, so amend the common law damages 
 right within permissible limits as to remove some of the bur- 
 dens, intricacies and abuses of litigation, and at the same time 
 make the compensation system (Chapter II) relatively more at- 
 tractive for both employer and employe to elect for the future. 
 These three amendments were (1) the abolition of a part of 
 the employer's defences; (2 1 ) the reduction of the maximum 
 amounts recoverable by the employe; and (3.) the judicial con- 
 trol of speculative litigation in the interest of both parties. 
 
 Par. (1). The defences herein abolished by proviso (1) are 
 two, — the fellow-servant rule and the rule for assumption of 
 risk; i.e., two out of the four essential limitations to the em- 
 ploye's right. The other two are left untouched; namely, em- 
 ploye's contributory negligence as a defense and employer's fault 
 as a part of the affirmative case of the employe. The Conference 
 did not expressly instruct the committee how many or which of 
 these four should be abolished. But the committee believed that 
 two of the four would be a fair amount. And the committee 
 selected the above two for the following reasons : first, these two 
 seemed free from all constitutional objection (see Professor 
 Williston's opinion, Appendix A) ; secondly, these are the two 
 which have been most criticised as judicial legislation, creating 
 discriminations against an employe as such : in other words, with 
 these two abolished, the employe is placed in precisely the same 
 status, in personal injury litigation, as a person not employed; 
 for the remaining two elements — namely, plaintiff's contributory 
 negligence and defendant's negligence or wilfulness — are iden- 
 tical with those which apply to all personal injury litigation, and 
 
85 
 
 thus the removal of the above two defences merely puts the em- 
 ploye on the same footing as any other plaintiff. 
 
 (a) As to the wording 1 of the fellow-servant amendment, no 
 particular difficulty seems to attend the wording. 
 
 (&) As to the assumption of risk, the committee had some 
 hesitation and difference of opinion as to the wording. The 
 terms here chosen are desired to make plain that the statute does 
 not aim to abolish the element of employer's fault as the basis 
 of an employe's personal injury claim. That much he must 
 prove, as hitherto*, but, having proved it, he is not hereafter to 
 be defeated by the plea that he has been entering or continuing 
 in the employment, and assumed the risk of being injured by 
 that fault of the employer. Practically, such fault (of which 
 the risk might have been deemed to be assumed) is co-extensive 
 with a failure of the employer to provide safe and suitable prem- 
 ises or appliances. The assumption to be negatived may there- 
 fore be explicitly stated in those terms. Furthermore, of course, 
 the assumption of risks inherent in the employment (and there- 
 fore not due to employer's fault) is for safety's sake, also nega- 
 tived, although such a danger could not of itself have made the 
 employer liable. It is believed that the phrasing, as a whole, will 
 make unmistakable (so far as possible in a short statute) the 
 precise extent of the rules intended to be abolished, and will thus 
 reduce to a minimum the necessity for judicial interpretation of 
 the clause. An accurate summary of the mass of detailed de- 
 cisions applying those rules is of course impracticable in a statute. 
 
 Par. (2). The decrease in the maximum amount of damages 
 serves as the corresponding feature intended to make the com- 
 pensation system more attractive to the employe, to elect the 
 present personal injury litigation with its deplorable uncertain- 
 ties of strife. The amendment was restricted to death claims, 
 because the committee find that in one or more States it might 
 be unconstitutional to limit the maximum value recoverable by a 
 living person. Causes of action arising out of death are wholly 
 the creation of statutes within the past seventy years, and hence 
 are unquestionably within legislative control. Moreover, no 
 objection based on class legislation (i.e., different maximum for 
 an employe's death from the maximum for other deaths) need 
 
86 
 
 be apprehended, because several States have long possessed 
 statutes fixing different maxima for miners and other classes; 
 and the original statutes in some States were restricted to rail- 
 roads. 
 
 Par. (3). The judicial sanction of attorney's liens for con- 
 tingent fees (Proviso 3) is a measure universally demanded, to 
 alleviate some of the extortions practised on employers. The 
 Conference expressly voted to provide for this. 
 
 Note; on Section 4. 
 Employe's election. 
 
 The Conference voted that the committee should prepare one 
 draft giving to the employe an election of rights, and not making 
 the compensation system mandatory. This was to meet the views 
 of those who would hesitate to raise here a constitutional ques- 
 tion by mandatory substitution of the compensation system. The 
 committee point out that the election is not called for until after 
 the employe is in possession of both his old and his new rights. 
 This avoids all constitutional doubts. 
 
 The mode of making election is intended to be made as simple 
 as possible, consistently with certainty in ascertaining the parties' 
 status. The presumption in favor of an election of the com- 
 pensation system was the plain implication from the Conference 
 debates. 
 
 The time of election must be before injury received. This 
 differs from the drafts hitherto prepared by other Commissions, 
 which have proposed leaving the time of election until after 
 injury received. Such also has been the view of some repre- 
 sentatives of labor, both within and without the Conference. 
 But the committee emphatically prefer the provision as drafted; 
 and for two vital reasons, expressed in the Conference debates. 
 First, an election not made till after injury received leaves in full 
 sway the whole nauseous system of an ambulance-chasing, specu- 
 lative, litigious, gambling, and unscrupulous claim agents, merely 
 injecting another element to the gamble; and the Conference 
 unanimously reprehended that system. Secondly, the intelligent 
 and well-meaning employer, who would naturally desire to insure 
 
87 
 
 his industry against the added burdens of the new compensation 
 unless he knows beforehand the extent of that burden, cannot 
 insure intelligently and economically. He is liable to be operat- 
 ing under the new system without being relieved from the strife 
 and expense of the old system. It is fair and necessary that the 
 status of employes and employer should be capable of ascertain- 
 ment as the industry now stands on the whole at a given time, 
 without waiting until specific injuries from time to time occur 
 and numerous and casual specific elections fix the status of in- 
 dividual employes. The enlightened interests of all parties, 
 therefore, require that the election should be made before injury 
 received. 
 
 Note on Section 5. 
 
 Employer's election. 
 
 Some members of the Conference expressed the belief that an 
 election by the employer need not, as a constitutional question, 
 be provided for. By those who accept that view this section may 
 be omitted. For this reason the committee were careful to make 
 this section quite separable from the remainder of this chapter, 
 so that its omission will affect no other provision. In this re- 
 spect the committee felt obliged to avoid following one or two 
 drafts by other Commissions, in which the provisions for em- 
 ployer's and employe's election were so mingled that the omission 
 of the provision for employer's election (by those who so de- 
 sired) would have required a re-drafting, and thus might en- 
 danger the consistency of the remainder provisions. 
 
 The employer's election, like the employe's, is presumed to be 
 in favor of the compensation system, if he does not explicitly 
 elect the other system. His mode of explicit election is made as 
 simple and practical as possible. 
 
 Note on Section 6. 
 
 injuries before election rejected. 
 
 This section aims to provide for cases — probably not uncom- 
 mon on railroads — where an interval of time may elapse between 
 
88 
 
 the employe's election and the employer's receipt of it, and where 
 therefore an injury may be incurred in the interval. 
 
 Note on Section 8. 
 time oe taking eefect. 
 
 This section prevents the Code from applying to any injuries 
 and causes of action existing before the time of the Code's tak- 
 ing effect. The language is broad enough to save any other 
 possible consequences not intended by the Legislature. 
 
8 9 
 
 APPENDIX C. 
 
 "Workman's Compensation for Industrial Accidents." 
 
 Extract from address delivered before the American Iron and 
 Steel Institute, October 14th, 1910, by William B. Dickson: , 
 
 This question of workmen's compensation is receiving much 
 attention, particularly in those States where large mining and 
 manufacturing industries are located, and the party conventions 
 are bringing it to the front as a political issue by inserting in 
 their platforms planks demanding compulsory compensation laws. 
 
 New York and Ohio' have within the past year passed em- 
 ployers' liability laws, and in the States of Wisconsin, Massachu- 
 setts, Minnesota and New Jersey commissions have recently been 
 appointed by the Legislatures to consider the subject of com- 
 pensation for industrial injuries. 
 
 Under existing liability laws in the various States only a small 
 proportion of the workmen injured by accidents of their employ- 
 ment receive anything approaching adequate compensation. The 
 fact that some employers do voluntarily pay their injured work- 
 men even where no legal liability exists, only emphasizes the pres- 
 ent chaotic conditions. These conditions are bad enough, even if 
 the questions arising under them were quickly adjusted, but the 
 trouble is intensified and ill-feeling engendered between workmen 
 and employers by what is, in my judgment, the great shame of 
 the American people, namely, "The law's delay." In the majority 
 of cases the very essence of justice is the promptness with which 
 it is administered, but by delays on technicalities, by retrials and 
 appeals to higher courts, the man of limited means is placed at 
 an immense disadvantage. To our shame we must admit that 
 under such conditions the poor man and the rich man or corpo- 
 ration are not "equal before the law." 
 
 I was interested in noticing the language of the oath of office 
 which Mr. Hughes has just taken on his accession to the Su- 
 preme Bench. One clause reads : "I will * * * do equal 
 rights to the poor and to the rich." 
 
9 o 
 
 I believe that our independent legislative and judicial systems 
 are the very bulwarks of our free institutions, and I have no sym- 
 pathy whatever with the recent wanton attacks on our courts. I 
 would be the last to question the good faith and honesty of pur- 
 pose of our judges. Nevertheless, the fact remains that judicial 
 procedure in this country must be simplified before such a state- 
 ment as is contained in this oath becomes a reality in practice. 
 
 President Taft has touched on no question more vital to our 
 prosperity than this one of "the law's delay." We need an Ameri- 
 can Dickens to show forth in their true colors the workings of 
 our circumlocution offices. 
 
 The practical certainty of long-draw-out litigation and the 
 remote prospect of a favorable verdict in many cases, owing to 
 the operation of what many believe to be antiquated "fellow- 
 servant," "contributory negligence" and "assumption of risk" 
 clauses in the various statutes have helped to foster another evil, 
 namely, the so-called "ambulance chaser" who preys upon the 
 credulity of the injured person and undertakes the prosecution 
 of his suit for a contingent fee, often amounting to 50 per cent, 
 of the award. Other expenses usually reduce the net amount re- 
 ceived to about 30 per cent. 
 
 There are great difficulties in the way of framing laws to meet 
 these conditons. The statement has been made that "legislation 
 is the final agency by which the law is brought into harmony 
 with social needs." In other words, legislation, to be effective, 
 must be the crystallization of public opinion. 
 
 But even if laws are enacted which reflect public opinion and 
 meet the approval of a majority of employers and workmen, they 
 must run the gauntlet of the courts on the question of their con- 
 stitutionality. In the event of an adverse decision, legislation 
 must, of course, wait until the tide of public opinion has risen 
 sufficiently to carry amendments to the Federal and State Con- 
 stitutions^ 
 
 Personally, I believe that compensation to injured workmen is 
 a legitimate charge against the cost of manufacture, and that the 
 victim of an industrial accident or his dependents should receive 
 compensation, not as an act of grace on the part of his employer,, 
 but as a right. 
 
9i 
 
 The burden of industrial accidents now falls, in the most hap- 
 hazard and unscientific manner, on the victim himself and his 
 dependents, the benevolent employer, the sympathetic fellow- 
 workmen or the public authorities, or on all of these. 
 
 I am inclined to believe that the solution will come eventually 
 by the imposition of a fax on all employers based on the number 
 of employes and the hazards naturally inherent in each industry. 
 The proceeds of this tax should be used — first, to perfect and 
 extend the system of factory and mine inspection so as to pre- 
 vent accidents and remedy unhealthful conditions of employment, 
 and second, to provide an insurance fund from which payments 
 can be made to the injured or their dependents. 
 
 How to bring about conditions which will accomplish this on a 
 basis fair to all interests is, however, a serious problem. My 
 plea to the members of the Institute, most of whom are vitally 
 interested in all these questions, is to keep an open mind and not 
 to forfeit their influence in shaping legislation by mistaking mere 
 inertia for true conservatism. 
 

 DATE 
 
 : DUE 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 GAYLORD 
 
 
 
 PRINTED IN U.S.A. 
 
 Cornell University Library 
 HD7816.U7N5 1911 
 
 Message of the governor of New Jersey tr 
 
 3 1924 002 403 420 
 
HP 
 
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