Workmen's Compensation Acts in the United States THE LEGAL PHASE I THE ADOPTION AND GROWTH OF THE Systematic compensation for work injuries is now world practice. Since the adoption of the first comprehensive national scheme by Germany, in 1884, no fewer than fifty-three countries or provinces, including every European nation save Turkey, have followed suit. The legislation varies greatly in the number and character of occupations included, the rate of payment and the mode of assuring and administering it, but its fundamental principle is universal. The basis of compensation is no longer fault actually proved or imputed, but the coincident fact of injury while at work. In our own country, Maryland in 1902 first applied the principle in a limited way to certain occupations. The act was invalidated by a court of first instance, but no appeal was taken. Montana enacted a miners' compensation act in March, 1909, which also was invalidated. New York in 1909 appointed a commission whose elaborate report was followed by the invalidated enactment of 1910.2 That period really marks the beginning of systematic compensation legislation; and now one federal and over forty state commissions of inquiry, reinforced by extended private investigations at home and abroad, have examined both the economic and legal phases of 1 See Appendix, Table B, page 60. 2 Labor Laws 1910, Chap. 674. Ives v. S. Buff. R.R. Co., 201 N. Y., 271. the subject. Forty-two states,1 the territories of Alaska, Hawaii, and Porto Rico have enacted compensation laws, the United States adopting a like principle for the relief of its civilian employees under date of September 7, 1916. The majority of our industrial workers no longer labor under the common-law principles of employer's liability. Workmen's compensation laws have been enacted in every state in the union except Arkansas, Florida, Georgia, North Carolina, South Carolina, and Mississippi. During the 1919 legislative sessions Tennessee, North Dakota, Alabama, and Missouri, enacted compensation laws, and several other states passed amendatory acts. Bills were introduced but not acted upon in Arkansas and North Carolina. The form of our legislation has been strongly influenced by that of the British compensation acts of 1897 and 1906. The substantial features, however, reflect a persisting endeavor to naturalize and apply the economic theories underlying the accident relief features of the German system of social insurance. That system provides scheme of mutual compulsory insurance jointly administered by its contributors. Here, however, compulsory industrial accident funds are universally administered by public officers and not by the contributors. a While fundamentally affected by foreign examples, our state enactments are sharply modified by local traditions, phraseology, and various political and social influences, as well as by constitutional limitations, which, in adapting the parent pattern to its environment, have produced many dissimilarities in detail and phraseology and in the consequent judicial and administrative construction. The resultant obligation of the employer to assure limited compensation for work injuries, and the reciprocal duty and right of the employee to accept it, vary greatly, therefore, in different states. There is not only a decided lack of uniformity in statutory language, but a decided legislative intent to produce varying degrees of liability, with some decided differences of judicial opinion as a consequence. 1 Ala., Ariz., Cal., Colo., Conn., Del., Idaho, Ill., Ind., Iowa, Kans., Ky., La. Me., Md., Mass., Mich., Minn., Mo., Mont., Neb., Nev., N. H., N. J., New Mexico, N. Y., North Dakota, Ohio, Okla, Ore., Pa., R. I., South Dakota, Tenn., Texas, Utah, Va., Vt., Wash., W. Va., Wis., Wyo. A similar statute for the Philippine Islands is excluded from consideration on account of its very limited application. (See Appendix, Table A, page 59.) PURPOSE OF SURVEY The purpose of this brief survey is to epitomize the legal status of the employer in the light of the present operation, and administrative and judicial interpretation of compensation legislation in its more important aspects. The inquiry, while not exhaustive, covers most of the essentials and is primarily for laymen. Two difficulties worthy of note confront the investigator at the threshold of his task. One is the fundamental difference of judicial opinion respecting the essential nature of compensation legislation; the other is the comparative lack of systematic information respecting the operation of the legislation of the various states. JUDICIAL THEORIES OF COMPENSATION Judicial decisions relating to the subject are numerous, uncompiled, in separate form, and divided by two contradictory conceptions of the nature of the legal relation established by this prevailing substitute for employer's liability. One school still regards the new system as providing a novel but limited remedy in tort. That is, it assumes that the injured worker, under a simplified procedure, is to be indemnified in a limited amount for a new form of misconduct imputed by law to his employer. Compensation in that view of the matter is intended, like the old liability statutes, to afford redress for a private wrong and is therefore a new regulation of private rights. The other school regards workmen's compensation as the writing by the State of a limited insurance policy, against work injury, into the labor contract. It vindicates this contractual regulation upon the generally recognized fact that under the conditions of modern industry, generally speaking, the circumstances out of which work injuries arise are only to a limited extent within the control of the parties and have therefore but a restricted relation to their conduct. The risk of injury is held to inhere in the manner in which the work of the world is now done. Accident originates, broadly speaking, in the environment of production rather than in the conduct of the persons involved. Thus responsibility for occupational injury becomes social rather than individual. Recognizing this fact, compensation acts sound in contract and not in tort. They are intended to meet a public necessity, not a private wrong. Relief is afforded in terms of wage loss, substituting for the former uncertain recovery of damages commensurate with established wrong the assurance of substantial protection from the economic consequence of work injury. To secure this end the State in the interest of the public and the worker thrusts a new term into his contract of service, by virtue of which, in return for the certainty of limited relief, he loses former equivocal rights of action; the employer in turn is divested of his ancient rights of defense to become a limited insurer for work injuries occurring in the industry which he controls and operates. These differing judicial conceptions of the relations established by workmen's compensation as a substitute for employer's liability, color legislative as well as judicial opinion and affect almost every phase of enactment, amendment, construction, and administration. The decisions of the various boards, commissions, or temporary arbitrators, who administer the provisions of most of the existing acts, are incompletely reported or are unpublished. But the operation of these bodies is of the most practical importance in contracting or expanding the application of a statute, increasing or decreasing the cost of its administration, the expense to the litigants and the efficiency of relief. The reports of their operation are, generally speaking, so often lacking in adequate data as to defy legal analysis of their decisions, or deny definite comparisons between statutes or accurate economic appraisals of the old system and the new. COMMISSION REPORTS Many of these administrative commissions present interesting and instructive reports, but the lack of uniform or scientific compilation of information makes difficult any practical comparison of their experience, while continuous amendment and frequent changes of administration and method often make it equally difficult to compare the older reports of the same state with the new. A reasonable uniformity in regulation, administration, and construction of our various acts, an obvious desideratum, can never be approximated or even intelligently recommended until the various states have adopted rational scientific |