be useful to anybody; useful to the injured man, must be so framed as to induce the largest number possible to avail themselves of that compensation afforded by the act and not to resort to the common law redemy which, as I say, will increase the burden of litigation of damage cases in our State.

How are you going to accomplish it?

You cannot accomplish it by forbidding that remedy, but it can be done in this way, in my opinion, it can be done in this way; that in order to induce men to accept this compensation, the Legislature of Ohio, should wipe out every auxiliary aid that is now granted to an injured employe by statute. In other words, you should leave the injured employe as the common law leaves him and leave to the employer all the defenses that were left by the common law; the defenses of fellow servants, assumption of risk and contributory negligence. If you are going to aid the injured employe by legislation; if you are going to grant to him an assured indemnity upon a fixed and definite amount, which will be reasonable, all things considered, then you ought to make it an object to that man to accept it. Therefore if you leave him to his remedies at common law and leave to the master the defenses of co-servant, assumption of risk and contributory negligence, you thereby add an increased incentive to the injured employe to accept the benefit under the compensation act, and make the number of those who will resort to the common law remedy less and less, and, as I say, if the law is of any effect at all, it is only effectual and useful because it is generally accepted by the men. If you leave to a man two chances, one a gambling chance and the other a certainty. and he may only have one compensation, he will of course, in the first instance, pursue his gambling chance, his uncertain remedy at the common law, and if he is unable to collect at common law, he will then of course take the certainty. It seems to me that we must make this compensation law of practical operation, and that is this: it should be provided in that law that if a man elect to pursue his common law remedy he thereby forfeits all compensation under the workmen's compensation act allowed to him by law; otherwise, of course, you are going to double your litigation instead of decreasing it. A man having the election to proceed at common law, should be allowed to do so, and I do not think you can prevent him doing so, but if he elects to do it, I think he should forfeit all compensation under this act, and of course, as I have said, it matters not in case of death, the Legislature has the power to provide that under this act the compensation can be a fixed indemnity.

Now again, there is no justice in such an act as this, there is no reason why a man who brings disaster upon himself solely and purely by thrusting his head into the lion's mouth should receive from his employer a reward of merit for his recklessness and negligence. It strikes the average lawyer of training, as an absurdity, to compensate a man under such circumstances. It is not just, but it is necessary. We come to that higher law of necessity which knows no law. The necessity of making compensation to the injured man not because he is entitled to it, but because he is here and to prevent the charge on the State. Throw the burden on the industry, and increase the cost of goods, if necessary.

Now, it seems to me the sacrifice in this case is not being made by the employers of labor. It seems to me that the sacrifice is being made by the employe, who is hurt, through no fault of his own, but through the fault of some fellow servant or his master. He is the man who is making the sacrifice on behalf of his erring brother, who is hurt through no fault of his own, for you cannot enact any compensation law which will discriminate between the two men. The only basis of award in any civilized country whose statutes I have read, is upon a schedule of injuries graduated by the extent of the injury, the duration of the injury, and the duration of the temporary or permanent disability without any regard to the manner in which it was inflicted.

The engineer, driving his engine along in the night, suddenly runs into an open switch negligently left open by some brakeman, in disregard of his duty, and in violation of his master's rules; the engine is ditched and the engineer is hopelessly crippled. The man who inflicted the injury, the brakeman, is also injured by the overturning of the engine. Under this compensation act you cannot consider that the man, whose negligence brought the evil to both of these should receive less compensation than the man whom his recklessness injured. They must both be compensated, and therein lies the abstract injustice of such a law as this, and therein lies my argument that the worthy man, who at common law, would have been entitled to recover, or under statutes would have been able to recover, he must suffer and be crippled and receive only the same pro rata compensation as a man whose negligence caused the injury. That is, you must compensate him, as I take it, in accordance to the extent of his injury. So much for an arm, so much for a leg, so much for an eye, depending upon the extent of his injury. You cannot take into consideration any other element. You cannot take into consideration in case of death the necessities of his family. A man may have a competency and one wife and no family, and a man may have nothing, and a wife and a half dozen children dependent upon him, but you cannot take that into consideration because there are no scales fine enough to weigh and measure the relative amount of compensation by such considerations as that. I think that will have to be left entirely out of consideration. You have to measure it solely by the extent of the disability. Neither can you take into consideration the age of the

man.

A man is killed, you say; when he has reached the verge of his wage earning capacity. One would think that his beneficiaries had not been damaged as though you had taken away his life at the prime of life-twenty-five years. I do not think that you can go into that either. I do not know of any State on the Continent or Great Britain, where they consider those things at all. I think the only question considered in those countries is the question of the extent of the injuries, regardless how it happened, the sole question being, was he injured while in the scope of his employment?

I had the pleasure of listening to one or two of those cases, tried in Liverpool, and the compensation act works like a charm, efficient, speedy and satisfactory, and while in England, the right to sue at common law, is not taken away, the number of men who resort to it is insignificant. They nearly all take their compensation. They go into court. The court physician, appointed by the court, examines them and makes an official report upon the extent of the injury. accurately and in detail. The court consults his schedule and from that and the report of the court physician, determines the amount to be awarded, and that ends it. Now, I saw one case tried there which went against the plaintiff. It was a case of a sailor brought against one of the Atlantic steamship companies, coming in there from a foreign port, and tied up along side of the dock, and this fellow had gone ashore on leave; not on his employer's time, and he went into the city and proceeded to get as drunk as a drunken sailor, spending money with both hands, and at night he came back, and walked over the gang-plank. Before he got into the vessel he fell off of the gang-plank and was drowned. The case came up in court and the only question - it was not whether he was careless or whether his employer was careless. Those were negligible factors in the case, and did not enter into the case at all. The only question was was he working for the employer at the time he was hurt. The court held he was not; he was on his own time, taking a holiday and not serving his employer and did not come under the compensation act. Of course, that is the only case which we could imagine in which a man would not be entitled to compensation. That is, he must be injured in the course of his employment.

Now, I do not think that I have any more to offer. Some questions have been propounded here which I do not know whether I can answer or not.

MR. CHAIRMAN: Now, directing your attention, first, Mr. Wilson, to accidents which did not result fatally, what per cent, in your judgment, or in your knowledge of accidents, are the injuries due solely to the negligence of the employer?

MR. WILSON: Well, now, that is a question which goes into statistics, and the experience of no one man is of any value at all. I do not think it is of any value whatever, and not only that, we could not agree with the other side as to whose fault it was.

MR. CHAIRMAN: Assuming that the German experience from many millions of accidents, is correct, and that it does not exceed 20 per cent, then what remedy would you have for the other 80 per cent who are injured and for which the common law does not offer a remedy?

MR. WILSON: It would seem to me that, as I have said, the idea of pay ing them at all, has no abstract justice in it, and we must go back of all that question, and compensate these men from motives of public policy. We ignore the abstract injustice of rewarding a man for his own negligence.

MR. CHAIRMAN: Speaking of the unconstitutionality, you say it would be a violation of the Fifth Amendment, except in cases of death, would that be true of this 80 per cent, that is, the number where the master's negligence is not a factor?

MR. WILSON: I say, a law which contemplates depriving a man of his right to contest the question

MR. CHAIRMAN: He would not have the right to contest at law the question of the master's negligence?

MR. WILSON: Yes, he would have a right to contest the question as to the master's negligence.

MR. CHAIRMAN: He would not have the right to recover?

MR. WILSON: No, I think the point is this: That you might cut off the property right which a man has of having the question tested in the courts as to whether the master is liable or not, and that right of resorting to the law to redress an injury, real or fancied, to my mind is a property right which this law could not deprive the injured man of, in the first instance. It might transpire, if he litigated, that he would be defeated or non-suited, but he has had a chance. Now, in that 80 per cent of cases, that 80 per cent would somehow or other find out before they actually litigated or elected that they had no case, unless they could make a case in some way, and would probably be constrained in such case to accept their compensation.

MR. CHAIRMAN: In order to sharpen the discussion in that matter, we have two sets of investigations in this country, the one connected with the New York Commission report, and two other reports, one of the Wisconsin Bureau of Labor, and the other of Minnesota; they conceded that the per cent of accidents which are due to the inherent dargers of the industry; in other words, those cases in which the employers' negligence would not be a factor at all is at least 40 to 50 per cent. Now, let us add to that another factor, the efficiency of the operation of the common law remedy in the 20 per cent of cases in which the employers' negligence is a factor, that the efficiency of that is, that the workman gets perhaps more than 20 per cent and less than 25 per cent of what the employer has paid out on account of the injury. In other words, it is one-fifth; it is not a remedy at all after you do try it. Now add that factor to the fact that we have just been discussing, then it is fair to say that an act which would provide a compensation for injuries of workingmen, you might say equitable compensation, that any court in the face of that situation would

say that the act was unconstitutional on the grounds of depriving them of the right to test the question of the negligence of the employer?

MR. WILSON: Suppose a man comes in, in the night, and burns down your house. Suppose the State of Ohio enacts a law providing that in such a case as that you have no remedy against the man who burns down your house unless you were willing to accept a certain sum fixed by the statute which might be perhaps one-fourth of the value of the house.

Now, I would say that would deprive the man of his property rights. He might not know the man that did it; his remedy might be valueless; he might have difficulty in finding the miscreant, but he has his right at law to recover compensation for it. I want to say, Mr. Chairman, that the lawyers who drew this New York statute, drew it unfortunately upon that theory; they seemed to think you may deprive a man of his rights, but I would be afraid of it.

Mr. Chairman: Now, take the German act; I do not know whether you have read it or not?

MR. WILSON: I think I know what its general features are.

MR. CHAIRMAN: It provides within itself for certain insurance, but it limits the application of it to a certain class. There are 21,172,000 persons, men and women, insured against injuries and accidents. It provides within the act itself the right of appeal by the injured party from the award which goes to the board of arbitration and there the employer may appeal and the employe may appeal to the Insurance Commission, which you might say, is the Supreme Court on that class of actions. Now, there he has substantially every right which he had under the common law.

MR. WILSON: Is there a fixed compensation?

MR. CHAIRMAN: It is fixed within certain limits; there is a maximum limit, just as there is in the English act; four years average wage. One other question in regard to raising this fund for compensation, such as you refer to in your remarks, would you do that by a plan of insurance or by the English plan?

MR. WILSON: I would recommend that an employer be left at liberty to insure against the risk or against the liability imposed upon him by the compensation act.

MR. CHAIRMAN: That would be left voluntary on his part?

MR. WILSON: Yes, it would be voluntary on the part of the employer. MR. CHAIRMAN: Now, it is stated that in the State of Ohio, 25 per cent of all the employers employ less than ten men; would he be able to stand an individual damage say of $1,560 under the English act, if he must pay it personally?

MR. WILSON: Well, he can insure against it.

MR. CHAIRMAN: But it is voluntary on his part.

MR. WILSON: What do you mean by that?

MR. CHAIRMAN: It is voluntary under the English Act. But suppose he does not insure, and he only owns three or four hundred dollars worth of machinery, and a workman is injured and secures a judgment of $1,560; how is the injured workman going to collect it?

MR. WILSON: I do not think that any State should undertake to guarantee to an injured employe the payment of the award.

MR. CHAIRMAN: The German act does.

MR. WILSON: They have a system of paternal government.

reason by analogy from the German system to ours.

MR. CHAIRMAN: Have you read the Montana Act?

You cannot

MR. WILSON: No, I have not-only the Oklahoma. I do not think that any State should guarantee to any employe that he can collect. He has the

same remedy as he formerly had. The only object is to make it certain and definite in amount and not deprive him in the collection of that amount by any remedy which he has had under the statutes or at common law. The object being to minimize litigation and insure to the injured man his full judgment. MR. CHAIRMAN: Suppose the representations are correct-that there are 500,000 people wounded every year in the industrial activity in this country, and that only 20 per cent of them have a remedy at common law.

MR. WILSON: Of course, under the common law, they would get no money whatever, but under the new proposed law, the 80 per cent would receive a fixed judgment against the employer for a certain amount of money; where, under the common law, they would go penniless, they would receive that amount of money without any attorneys' fees or any incidental expenses. If you will permit me in that connection to say, that I understand that statistics are no wanting to show that in England the aggregate amount of compensation, paid by the employers under the Employers' Liability Act, which compensates everybody, worthy or unworthy, is not so large as the aggregate amount formerly paid per thousand of casualties in England, although only the worthy were paid.

MR. CHAIRMAN: Of course, there is less waste.

MR. WILSON: Yes, sir.

MR. CHAIRMAN: Now, then, speaking of this paternalistic feature which you refer to, do you believe that the method adopted in different States of taxing to support the paupers, isn't that paternalistic?

MR. WILSON: We have to maintain hospitals, alms-houses, and asylums, which comes out of the public treasury.

MR. CHAIRMAN: Have you any objection to that feature of the government?

MR. WILSON: No, I have not.

MR. CHAIRMAN: Why not step in a little earlier - before they become paupers?

MR. WILSON: That is what you are doing; you are making the master pay when he can, but it all comes off the public.

MR. CHAIRMAN: Yes, we appreciate that it comes off of the public, anyway. MR. WILSON: I have no idea that there could be any security afforded for the payment of this judgment, except such security as the good sense of the employer would in 99 cases out of a 100, always insure, viz.: That he should himself be indemnified, if he can get it.

MR. CHAIRMAN: There are twenty-one countries where the compensation is certain.

MR. WILSON: Yes, if you have a government insurance and the employer only pays the premium. That is a different method, of course. I did not know that that had been contemplated in this country.

MR. CHAIRMAN: We already have one act, in Montana, applying, however. to coal miners only, and there the employer pays one cent a ton on all coal mined. MR. WILSON: To the State?

MR. CHAIRMAN: To the State Treasurer, and he is authorized to deduct from the wages paid out for the production of the coal one per cent to the treasury. Then, on simply a certificate of a member of the board of health of the State, that A was killed in John Smith's mine, he is authorized to issue a voucher for $3,000 in settlement of that death.

MR. WILSON: I do not believe in a state-wide act, going into the hundreds of thousands of employes of Ohio, which would burden any department which the state might create to keep track of it. It would seem to me that the most the