comes before the courts the friction is increased and the enforced expenditure creates actual antagonism. The New York Commission says: "That the present law, with its uncertain and uneven chances, promotes distrust and ill-will between employers and employees to a serious extent we are convinced from the testimony of both. In our public hearings and in the replies received to our inquiries this was a very frequent complaint." 11 That this situation results in lowered efficiency cannot be doubted.

Society's Criticism.-Since the aim of organized society is to promote the best interests of all the classes composing it, any system which operates to the disadvantage of a class is to some extent opposed to the purposes of society itself. Therefore society is concerned with the criticisms of the employer and of the employee and should seek to remove the conditions which give rise to them.12 But there are other defects which do not concern these classes so intimately and which do affect society at large.

I. The cost of hearing negligence cases represents a very large share of the expense of maintaining the courts. Estimates vary in assigning anywhere from one-fifth to two-thirds of the time of the courts to this form of litigation.

2. Uncompensated or insufficiently compensated industrial accidents give rise to economic dependence

11

"Report to the Legislature of the State of New York, 1910, P. 33.

12 This is particularly true of the economic waste involved in lawyer's fees and the maintenance of claim organizations which serve no constructive purpose.

and destitution, the burden of which is transferred to society through various forms of charitable relief.

3. Other less specific evils are the bad moral effect of enforced pauperization, and the misrepresentation and perjury induced by the desire to win law-suits. Summary. The defects of the system have been ably summarized as follows:

"I. It is wasteful:

(a) The state expends a large amount in fruitless litigation.

(b) Employers spend a large amount, as the result of work-accidents, only a small part of which is actually paid in settlement of accident claims.

(c) The injured employees spend nearly half of what they get in settlements and damages to pay the costs of fighting for them.

"2. It is slow; recovery is long delayed, while the need is immediate.

"3. It fosters misunderstanding and bitterness between employer and employees.

66

‘4. It encourages both parties to dishonest methods."

" 13

Other Attempts to Solve the Accident Problem.— Three other methods of solving the economic problem of industrial accidents have been tried; the encouragement of saving by the workman, industrial accident insurance, and corporate relief and pension schemes. None of these approaches a sufficient solution. Even

13 Eastman, "Work Accidents and the Law," p. 206.

where a workman has the will to save, his earnings do not permit an adequate accumulation, and if they cease at an early age the difficulty is increased. Industrial accident insurance, sold to workingmen on the weekly or monthly payment plan is bought at an excessive cost, and rarely returns benefits commensurate with loss of income. The relief associations of certain corporations afford substantial help, but they are far from giving adequate compensation and acceptance of their benefits usually involves conditions highly disadvantageous to the employee. Besides, they are not always safe or permanent.

Conclusion. Having viewed the problem arising from industrial accidents and the failure of the present system of employers' liability as a method of solution, the next logical step is to seek a real remedy. Can this be found in an amendment of the present system of law, in the extension of present voluntary methods, or must a new scheme be devised and substituted for the old one? The history of legislative and judicial attempts to mold the common law into an adequate remedy and the testimony of experts representing all interests point to the undeniable fact that the system of employers' liability is basically wrong and that any attempt at a solution which does not remove this fundamentally unsound body of doctrine will be abortive. The same is true of the various voluntary substitutes which have been tried. Thirty-two of our states,14 appreciating these facts, have discarded the old common law doctrines and have substi

tuted the more just and practical scheme of Workmen's Compensation.

REFERENCES

Report to the Legislature of the State of New York by

the Commission . . . to inquire into the question of employers' liability and other matters. First Report, March 19, 1910.

RUBINOW, I. M. "Social Insurance," Holt, New York (1913). Chap. VI.

EASTMAN, CRYSTAL. "Work Accidents and the Law," Charities Publication Committee, New York (1910). Chap. XIII.

Report of the Employer's Liability and Workmen's Compensation Commission. Lansing, Michigan (1911). Reports of the Bureau of Labor. Madison, Wisconsin (1907-8). Vol. XIII, Part I.

CHAPTER VI

THE THEORY OF WORKMEN'S COMPENSATION

The problem of compensating workmen for loss resulting from industrial accidents is essentially social and economic; social, because it is a direct concern of organized society; economic, because the loss must be measured in terms of economic welfare and because the compensation should be proportioned to the loss so measured. It should be remembered that the legal problem is secondary although vital; it consists in expressing, in the form of legislation, the judgment of society. Such legislation lays down rules governing the method of compensation and empowers public officials to administer and interpret the law, but it is only a vehicle for the accomplishment of socio-economic purposes.

It is evident that the methods which have been used in the past and which are still in use in sixteen states have become increasingly unsatisfactory. The operation of the system of employers' liability has resulted in injustice to all classes and, with the development of industrial conditions, the injustice has been aggravated. Commencing with the Industrial Revolution in the early nineteenth century the conditions under which industry has been carried on have gradually changed and a need for some new method of compen