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About Omaha daily bee. (Omaha [Neb.]) 187?-1922 | View Entire Issue (Feb. 16, 1913)
The Omaha Sunday PART TWO EDITORIAL PAGES ONE TO EIGHT PART TWO SOCIETY PAGES ONE TO EIGHT VOL. XIJI-NO. 35. OMAHA, Sl'XDAY MOKXIXU, FKMU'AKY Hi. li)i:t. NlN(h,K COPY FIVK, CUN'IX. JhSEB When aKmati 18 KillolAcciieiil. xr. , i xmrnr- 9 m im tt nr, r took to prepare a paper on the subject mCWl i 11 1 3 Ch"klll fT15TTT I I fill liKll flfff Ifll tIST of workmen's compensation, and to PfenT1-' JLyW'VV !' kJAMs (( U f f 4 WZP secure help on mooted points, such as 1 ff lllf(rUlm fflllfflllA k i T 1 HR J IK Tl -l the maximum amount recoverable for I 1 iM 1 1 I J 1 4 xnvM Hi Ifl I 1 death, wrote to a number of promi- YyMllmnri m 1 CP-Sk Ilrf'Vl'f I IT V I M HI fe nent .Omaha .lawyers asking- their rrpT I jlilJIK lliUltlA TSlB illvl jl opinion. The replies have come into I IVA HifflxH flT lH lt Vtfi E ' H-iill if possession of The Bee and are so inter- (FP ilSSara ivjin i iiiii' -aaKMfertMwMMWHM The Law of Liability and Its Consequences "Tho whole matter of a workman's compensation act Is at present In Its earliest experi mental stages. Consequently, opinions regarding such ant are necessarily theoretical. Under the law as it now stands the employer is liable where tho workman is injured through or be cause of the employer's neglect. Where an injury occurs without fault on tho part of tho em ployer, thero Is no liability. ' In this state of tho law It is not difficult to prescribe a just and correct measure of damages. Where the injuries result from the employer's negligence, or fault, then the damages recovered ought to be, in a case not resulting in death, tho full nmount of loss sustained by the workman, and in case of death, the full amount of tho loss sustained by his nest of kin. Now the object of a workman's compensation act is to mako the employer liuble whore no liability would exist under tho law as It nowis, that is, It Is pro posed to mnko the employer bear tho loss or a portion of the loss when tho injury has been In flicted without fault or negllgonce on his part. This being tho theory of this new line of legislation, it is apparent that it would be quite unjust to load the employer with tho entire bui den of a loss which occurred without any fault on his part. Consequently, tho theory of these workmen's compensation acts seems to be to share the loss between employer and em ploye. This being the theory, the laws thus far adopted in other Btatos generally provide that in case of an injury not resulting in death, and independent of any negligenco on tho part of the employer, the employer shall pay a part of the loss sustained by the workman. States that have thus far enacted such laws differ as to tho proportion of loss to be borno by each party. Some of them, as I am Informed, fix the amount of compensation at one-half tho rate of wages which tho workman "was receiving. "As I have said, the whole matter is now In its earliest experimental stage. After It has been tried out in different states for a number of years experience will furnish tho basis for many valuable amendments. In this early experimental stage, however, and in view of the circumstance that the whole theory of the legislation is to apportion a loss where no one is particularly to blamo, it would seem to me that the most just and tho most practicable method of apportionment would be to divide the loss equally between the employer and workman. In cases not resulting In death such a division can be figured out with reasonable accuracy. Wo can take the workman's average earnings for a reasonable period of time prior to tho acci dent and then allow him one-half of tho same rate during the tinio of his disability, and also one-half of tho expense occasioned by the Injury. In a death cbso tho problem is perhaps a little moro complicated. Under tho law as It now la, -whore the death of an employe Is caused by the negligenco qf the employer t,hft measure of recovery is the entire amount of pecuniary lb8B''BtlBtalnod by tho next of Uln of tho deceased. This Is not always subject to accurate meas urement, but the nearest approach to an accurate rule Is to ascertain the amount per annum which the deceased was appropriating or using for the benefit of his next of kin, then to as certain from the tables of life expectancy the probable period during which ho would have con tinued to be able to mako the same provision for his family, and thereby ascertain tho aggro gate amount of loss to tho family. Then wa take tho present worth of this aggregato amount, based upon some reasonable rate of Interest, and allow such present worth as the amount of recovery. Now It strikes me that as tho theory of a workman's compensation act Is to divido tho loss where the injury is one of the accidents of the business, but without fault on the part of the employer, that we might take the same kind of compensation as is now allowed In death cases where death is caused by the fault of the employer, and then divido tho result thus ob tained In two, making the employer liable for one-half. I think that an apportionment on this basis would be moro nearly In -accord with tho theory of these compensation acts than any which undertakes to establish either a fixed measure of recovery or a fixed maximum. "The main purpose of any workman's compensation act which undertakes to make tho employer liable where he has been guilty of no negligence Is to charge the business with tho burden of all accidents supposed to bo due to risks inherent In the business. If the compensa tion provided Is made too small, tho law will lack merit in not reasonably providing for tho workman. On the o'ther hand, if it Is placed too high, it will create burdens that can be borne only by employers of such large means and such control of the trade that they will be able to reimburse themselves by increasing the selling price of their output. Tho result of such a system would be to drivo out of business all small contractors and small manufactur ers, destroying whatever competition these smaller concerns now afford, and centralizing the whole business of employment in the hands of fewer and bigger concorns. I think that it will bo found very desirable to avoid any regulation which will tend to the destruction of the smaller employers and the building up of monopolistic power in the hands of big concerns. Ono thing Is certain, men cannot be compelled to remain in business under conditions which render tho business unprofitable, and any employer's liability act which refuses to recognize tho rights and interests of the employer will bo a failure. Tho driving out of existence of all comparatively small concerns would not only give the big fellows a monopoly In the way of fixing prices of what they have to sell, but it will also destroy competition In the prices which employers will offer for labor, and in this way workmen, as a class, will bo liable to lose much more in their wages, through any one-sided legislation than they would gain through compen sation for injuries. "T. J, MAHONEY," No Automatic Compensation "The trouble with all compensation laws which attempt to fix a limit for benefits or indemnity Is that when they do that, they are doing an injustico to tho person injured, or to his family if ho is killed. "Take, for instance, a person 32 years old,' as you say. His natural expectancy of life would bo thlrty-threp years. If ho Is earning $100 a month, tho Just compensa tion to his widow and next of kin would bo the present value of his earnings for tho thrty-three years he would live thereafter, making a reasonable reduction for reduction tn wages the latter part of his life. That can be the only Just rule. Any other rule would be arbitrary. Whatever is the present value or probable earnings of a person during tho natural expectancy of life would bo tho only Just rule. "Tho proposed compensation law takes the whole matter from the Jury and leaves it with the commission, and Instead of lessen ing the delays, it Increases them. Not only would there be hearings before the commis sion, but appeals from It to the district court, which court can remand tho case to tho com mission for further Investigation: appeals again; argument before the district Judge on the question of evidence; appeal from the district Judge to the supremo court, thus adding to tho delays between the commission and the district court. "W. W. SLABAUGH." Clings to Negligence Idea "The question asked is a very difficult one to' answer, because tho amount in any given casr should depend upon the facts of that case. "With reference to the concrete cato pre sented by you, It would seem as though tho husband, while living, out of his income could contrlbuto for tho Dupport of hla wlfo and two chlldrer. at least $50 per month, which Is $600 per year, and at 6 per cent In terest this would require $10,000 of capital in order to give her such nn income. Tills, of course, Is a largo sum and much beyond any amount specified In any of tho proposed laws, so far as I know, and then again thero remains tho point to bo considered as to whether in this particular case tho husband's death was caused by his own ncgllconco or -whether such doath was entirely tho result of negligenco of his employer. "The law of this state at one time fixed a maximum sum for tho death of an Indi vidual at $5,000, but that law was repealed some years ago, and at present thero Is no limit on tho amount which may bo recovered. "Thero la a further point to bo considered, and that is that in tho given caso mentioned, by you the two children will, If they live, In the courBo of time bo self-supporting, and therefore tho widow would not require so much for herself as she would require wlillo the children were being educated and taught to earn their own living. M. A. HALL." Stop Litigation Waste "As 1 recollect, tho American Federation of Labor and tho Civic federation, in dlscuss iug tuts matter, agreed that $5,000 would bo a fair consideration in, tho case which you put. 1 am inclined to bollevo that $5,000 Is about what Is right for a widow and two children whoro' a husband say 32 years of age 'Should loso his life in tho service of his employer. I, at least, should not mako tho amount any less than that. "I wish to say that I am very much In favor of a workmen's compensation law, and 1 think that much of tho monoy that Is wasted In tho courts could bo saved to tho employe, or In caso of hla decease, to his widow and childron, if a fair compensa tion law was passod. I beliovo it would be a great economic saving as woll as a matter of Justice. "HOWARD H. BALDRIOE." Favor Less Wage Efficiency "What I do not know about workmon's compensation acts would fill volumes. I am not an expert damago case lawyer, never having had any such cases. Nor have I made a study of laws standardizing damages for personal Injuries. "Apart from a law, which to be practical which Is to say could bo passed with tho approval of emnloyor and employe or of tuosa who represent them would probably glvo more to those of less wage efficiency and less to thoso of greater earning capacity, I would Bay that In the caso statod the actual dam ages would bo the present worth of $100 per month, figured for tho period of expectancy at tho ego of 32, with possibly some diminu tion for decreased wago efficiency In tho lat ter period of tho oxpoctancy' of life. "Probably this present worth would have to be reduced some in order to increase tho allowance to or on account of those who aro ablo to produco less, but whose families probably ought to have more than tho same method would produco in tholr cases. "CHARLES A. GOS8." Sue for More Than Expected "Prior to' 1907' tho maximum amount which might bo recovered for the death of a person causod by wrongful act or neglect of another was $5,000. This amount, in the opinion of all lawyers, consorved tho inter ests of tho defendants In caBes brought for trial, In that tho defondant, whothor railroad or not, could rest in absolute security that he or It would not havo to pay in any ovont anything in excess of $5,000, and that for that reason in tho clenrest case of liability some defendants would litigate the matter in tho hopes of gottlng a Jury to arrive at a verdict for n less sum than $5,000. "Prom nnd slnco tho year 1907, when tho legislature romovod tho $5,000 limit and also leglslatfld on tho subject of fellow servant, tho amount in caso of doath has been an open ono to bo ascertained by a jury. Tho law having removed tho limit of tho defend ants In caso of death, knowing that their , liability was not limited nnd fearing that a Jury might glvo a verdict of moro than $5,000, have in many cases settled claims , before trial by paying more than $5,000. For Instance, I settled myself ono death claim for $6,500 without trial. "In my opinion, $10,000 would not bo an excessive recovery for loss of a husband earning $100 a month, of tho ago of 32 years. If suit was brought for such death I would sue for a larger amount than $10,000. so that twelve Jurymen looking at It from a standpoint of twelvo individuals could arrive after a consideration of all tho facts at what they deem to bo a Just and proper verdict for tho particular case. "It is my opinion that tho so-called aglta tlon for workmen compensation laws havo underlying all other question a doslro to get a limit placed by law for tho deaths of em ployes and likewise for injuries of employes, . "I am not ablo to understand why work mon aro agitating at this time such laws. Had the workmen some few years ago, before tho legislatures and congress had legislated upon tho subjects of fellow servant rule and assumption of rlakn, nnd before which time tho workmen had little chauua to recover for Injuries or death as compared with his rights in that regard now, I would havo thought that they wero advancing their own Inter ests. A. W. JEFFERI8." Prompt Payment of Fixed Amount the Main Thing "I havo represented both plaintiffs and defendants in this class of lnw suits In this community for the last twenty-five- years, and tho most deflnlto conclusion I havo reached from my oxporionco Is the uttor Insufficiency of tho present systom, and tho uncertainty and in dofluttonesn of nwnrds of damages In personal Injury cases. Somotlmes tho plaintiff gets moro than ho Is entitled to, and tn other casos tho final compensation recolvod by him is piti fully Inadequate. It Is also a fact that tho fiuniB oxpended by corporations in defending and preparing tho defense of such cases, and In finally paying such Judgments bb mny bo recovered, including thoso that are erroneously excessive, would provide a sufficient fund, under a ra tional compensation law, to furnish much bettor redress to tho injured employe or his eurrlv lng family, than Is afforded under tho existing system. "Now to answor your specific question: "In determining what amount an employer should pay to an Injured employe or to hit family, thero aro many elements to be considered nnd many points of view to be used. In the first plnce, tho law should glvo compensation tn all cases of injury, without inquiring whother tho injury is duo to tho negligenco of the employer or tho employe, or both, or proceeds from a causo Independent of both of thorn. From tho standpoint of tho employer, and what ho la required to contribute, the injury to tho body of an employe should bo treated like the wear and tear on the machinery of tho employer, and constituto nu item of oxponse, to bo mot Just tho same, no matter what causo originates It; ho would roplaco machinery and charge It to cxpenso, without regard to tho causo of tho Injury to the machinery. Of course, iu savins this I do not mean to ellmlnnto tho humano oloment, nppllcablo to tho condition of tho Injured employo nnd his family, but I moan (o say that In fixing that portion of the compensation which ought to bo contributed by Uio employer, nil quostlotiB of negligence on either Bldo should bo rejectbd. "I do not bollevo that tho employer, under existing conditions of society, should bo obliged to contribute all the fund that ought to bo at tho disposal of an Injured man or hli family. Thoro should still remain upon tho employo somo part of this burden of providing beforehand for such contingencies, by savlugB, or by carrying his own Insurance, or otherwise, which, tn my Judgment, constitutes n necessary part of a wholesomo Individualism, and ought not to ho entirely eliminated from our Industrial system. "In tho next placo, thoro must still rest upon tho public, In some form, olthnr from pub lic taxation or other sources, such as charitable hospitals, sanitariums, provisions for old peo ple and orphans, somo part Of the burden of caring for the victims of mlsfortuno, "I fool that tho German system coiiTes nearer representing tho correct Ideal In this mat ter than any other that has been devised. Without being accurately informed of all Its de tails, I understand that In caso of Injury or donth, tho employer contributes a part of tho fund, the employo Is required out of his wages to accumulate a part, and th4 state, out of tho public tnxes, furnishes the balance. Hut this system Is. not readily adaptable to our condi tions. In tho first place, wo are not ready to adopt the paternalism of forcing a man to pay for Insurance out of hlfl wages. Wo prefer to leave that to his own Initiative, and tho rosult In thnt most" prudent employes do carry somo form of Insurance, and voluntarily pay for tho sumo out of tholr own wages. Wu aro not roady to contrlbuto a deflnlto allowanco out of tho public taxes. In my judgment, the ttmo will not nrrlvo for such a condition of things in Ne braska until wo havo passed out of our preseht agricultural stage, Into a moro highly organ ized Industrial condition. Theroforo tho rational compensation law at the present ttmo should provldo only for tho payment by tho employer to tho employe, In all coses of Injury, of that portion of the fund which, tested by tho foregoing standards, the employer ought to con tribute. I will say now that I am in favor of a constitutional amondmout, so that an industrial hoard will have arbitrary powor to fix and pay out of tho fund In its hands, contributed to In advance by tho employers, tho damages awarded In each caso, as soon as the injured person becomes entitled to it, and I would eliminate from thlB mnttor all tho vexatious delays of liti gation. Moreover I would require the employer to guarantee tho contribution of bis share of tho fund, by carrying Insurance, so ns to protect against insolvent employers. "Now to answor your spoctftc quostlon as to tho amount to bo allowed a widow and two children for tho death of a husband aged 32, In good health and earning $100 a month in tho building trades: "Under tho mortality tables, this man would have nn expectancy of tUJrty-threo yearn. There aro contingencies on both sides: On tho ono hand, from that ago on hi might develop business capacity, become a master builder and acquire n fortune; on the other hand, ha might develop bad habits and cease to support his family, or moot with an early accident, outside of his occupation. Hut both of these elements should, in my opinion, be rejected, and a settle ment mado on tho basis of a vast majority of tho cases. This assumes that during a largo part of tho ensuing thirty-three yenrs, ho would havo continued to bo a wngo earner. If he earned $100 a month from theage of 32 until the ago of 65, tho end of his life expectancy, the total present value of such earning power would be about $ 10,000. Rut it cannot bo said that his life, at this time, Is worth thnt much to his family. There are his own expenditures to be considered, nnd also tho fact that even In tho typical case, his earning power would naturally dccrcaBo as he approached the end of his life period, and ho might oven become, to some ex tent, a burden on the younger members of IiIb family. I would say thnt from all sources, that Is, tho employer, the Insurance which ho ought to havo provided for himself, either voluntarily or by state law, and the provisions from tho public taxes, If we ever reach that, his family should have at the time of his death tho equivalent of $10,000, cither in present money, if they aro competent to take earo of It, or In an Invested provision which will yield them annual payments during a period of say, twenty years, of tho equivalent In Talue to $10,000. "Now as I havo said, tho omployer ought not to contrlbuto all c T thnt. In my Judgment, he should mako up substantially one-third or It. taking Into account that he is doing it in all cases, whothor tho death resulted from his fault or not. Ho should bo required to pay about $3,600. This, you will seo, Is substantially threo years' wages. "As a bo to suggested. It Is my exportenco that If in nil such cases as you suppose, there was a mothod which provided for the prompt payment of that amount to tho surviving family In caso of death, it would produco much better results than the present system. Of sourse any y8tem which Is adopted now can be modified, as the result of a first trial and some years of experience. "V. A- BROGAN." Unconditional Liability "1 am Inclined to favor a law similar to the Missouri statute, which allows a fixed penalty of $5,000 to the next of kin, regard less of tho question of pecuniary loss, though, perhaps, tho amount should bo hlghor. Also believe that tho law should bo so worded that In tho ovont thero Is no pecuniary loss to next of kin, thero should still bo a recov ery, so that the person cuusing doath cannot CHoupo liability merely becauso there are no dependont next of kin. I'nluss fixed as n ponalty, thoro should bo no limit othor than the present value of prospective earnings, to bo dotormlned under niortunry and annuity tables, from $5,000 to $12,500. "JOHN A MOORE." What in your opinion should a workmon's compensation law fix as tho limit, if any, for compensation for death. To make it more concrete, what would it bo right to ask for on behalf of a widow and two children for tho loss of tho husband oarning $100 a mouth in the building trades, say thirty-two years old and other wise robust and in good health." A Few Side Steppers "Don't know enough about the matter t& glvo you nny Information worth while." "JAMES C. KINSLER," "Replying to your letter, I would be glad to talk this matter over with you If you will call at my offlco. "HARLEV G. MOORHEAD." "I havo had but little exporlenco in per sonal Injury litigation, and having made no special study of tho compensation act re cently adoptod, I do not care to express an opinion on tho quostlon you submit. "JOHN J. SULLIVAN,"