appease the mob. The fact is there is a situation confronting us which we as lawyers, with all our conservatism, must meet. We should show our ability to meet it in a sane sort of a way. This proposal is not as broad as has been suggested in other States. It relates to procedural reform. It is not an attempt to minimize any function of the jury, but rather to magnify them. Let us have the verdict of the jury, but let us not set it aside unless there be an error that in some manner affects the substantial rights of the parties.

JUDGE W. G. CLEMENTS: Why is it stated here, "misdirection of the jury"?

JUSTICE DEEMER: You, Judge, have written instructions perhaps which you might have wished to remodel.

JUDGE CLEMENTS: Suppose the judge instructs the jury in such a way that it is not the law?

JUSTICE DEEMER: Procedural matters are the matters here referred to. They are not matters of substance. Whenever they affect substantive law vitally, then there isn't any question about substantial rights. Very often in the hurry of the moment judges do not express themselves as they should and use the wrong word. You as a judge knew when you made that mistake that it affected the verdict not a particle, yet, under our rule, prejudice is presumed and the case must be reversed. Is this the idol to which you gentlemen of the bar are wedded?

THE PRESIDENT: The question now recurs on the adoption of the first recommendation of the committee. All in favor of the recommendation will stand up and be counted by the Secretary.

THE SECRETARY: The vote stands twenty-five in favor of its adoption, and thirty-two opposed to it.

THE PRESIDENT: The recommendation is lost.

MR. CROSBY: It is evident that there will not be time to give this subject of the collateral inheritance tax a fair discussion. I therefore move that it be deferred until next year, to be the special order immediately after the President's Address, on the afternoon of the first day.

The motion was duly seconded and carried.

FRIDAY AFTERNOON SESSION

THE PRESIDENT: Will the Association be in order. We have this afternoon on our program the Annual Address.

I take great pleasure in introducing to you Governor John Burke, of North Dakota. The subject of his Address is "Employers' Liability and Workingmen's Compensation Acts".

GOVERNOR BURKE: Mr. Chairmen and Gentlemen: in the preparation of this address, I felt at times that it was somewhat elementary for the lawyers of the great State of Iowa, but I called to mind the story they tell about the Supreme Court of Illinois. A lawyer was presenting a case to that court, and he went back to the very beginning of the practice in his argument, when a member of the court stopped him and told him that he need not quote such elementary propositions, that he ought to presume the court knew some law. The reply of the lawyer was: "That is the very mistake I made in the lower court." So I thought I would take no chance, and would follow out my original intention.

EMPLOYERS' LIABILITY AND WORKING MEN'S

COMPENSATION ACTS

The marvelous development in the industrial world in the last quarter of a century has made the Employers' Liability and Workingmen's Compensation for industrial accidents one of the most important and interesting legal and economic problems now awaiting solution in the United States.

Only a little while ago we had no great industrial institutions. Every little village, town and hamlet was supplied with small manufactories. The song of the spinning wheel and the loom was heard in every country home. Our homespun clothes were made by our mothers or by the village or country tailor, and our shoes by the village or country shoemaker. In almost every home there was one handy man, who mended the harness and the shoes, set broken limbs, cut hair, and pulled teeth. Even in the larger cities manufactories were small and the employes few in number. The owner of the institution gave it his personal supervision, often working side by side with his employes as a co-worker and friend. The machinery was simple and accidents were few. On

account of the personal contact between employer and employe there was a bond of sympathy existing between them that brought forth the employe's best efforts for the success of his employer; and the employer in return naturally exercised the same care for the protection and life of his servant that he did for himself. If there was an accident resulting in an injury to an employe it was usually one that was unavoidable, and any liability was easily settled through the mutual sympathy and friendship existing between employer and employe. If death resulted from an accident the sorrow of the relatives of the deceased was shared by the employer and employe alike, for all were friends.

But the development in the industrial world has changed all this; the corporation has taken the place of the individual, and finally the trust the place of the corporation. The concentration of wealth has made some of our cities the greatest manufacturing centers of the world, and it binds ocean to ocean with rails of steel. The little manufactories have been purchased or driven out of business by the large industrial institutions, to which the owners no longer give their personal supervision. They are now managed by foremen and superintendents whose business it is to make the institution pay dividends. The capital is owned by stockholders in the corporation or a combination of corporations known as a trust; they know little about the management of the great institution in which they are stockholders; they are interested in its economic management and in the dividends which it pays. The institution with employes few in number has been replaced by the institution which employs thousands upon thousands. The simple machinery of the old-fashioned factory has been replaced with new, modern, complex machinery, which cheapens the cost of production and correspondingly increases the hazard to human life. The bond of sympathy between employer and employe is severed. They do not know each other. They have no interest in each other as individuals. The one invests his money in the institution for the dividends it will earn, and the other enters into the employment for his daily wage. The conditions of each have changed so that it must be very apparent that the rule of liability under the former conditions is not adequate nor just under present conditions.

While modern inventions and improvements in machinery have facilitated manufacturing and cheapened the cost of production, human ingenuity has not been able to construct machinery that will run without human agency. Ingenious as it is it must be set in motion and operated by man. If this development is credited with the decrease in the cost of production should it not be charged with the increased waste of human life and limb? It is responsible for both. This is an age of conservation and should not every industrial institution conserve its own waste, not only in material and machinery but in the agency that operates the machinery; and should not this waste in human life and limb be charged up to the cost of production and the industry made to bear the burden, the same as it must bear the burden of replacing machinery and other wastes connected with the institution? If this can be accomplished it ought to result in the invention of safety appliances for the protection of life and limb and the decrease in waste along this line, in the same way that there has been a decrease in waste in other lines.

Every practitioner knows that the laws governing the right of recovery for industrial accidents under the old conditions are grossly inadequate under present conditions, for, while the employe may recover on proof of negligence on the part of the employer, it is often very difficult if not impossible to prove negligence; and there are any number of accidents for which no recovery can be had because unavoidable or incidental to the operation of the industry. In many cases the employers are insured against liability in casualty companies, and in case of an accident resulting in litigation the right to recover is strenuously resisted by trained men in the employ of the casualty companies, to avoid payment of the insurance. If not insured against liability for accident the employer has his own claim agents who, immediately upon the happening of an accident, proceed to procure a signed statement from the injured, if living, and if dead from the relatives, which is usually colored in favor of the employer and signed at a time when the injured is suffering from pain or the relative overwhelmed with grief. The employer is practically compelled to have his claim agents, or insure in a casualty company against industrial accidents, to protect himself from false

and fictitious claims presented or instituted by claim attorneys, sometimes called "ambulance chasers", who often in the race to the injured workingman beat the claim agent or the representative of the casualty company, and sometimes recover upon a manufactured case. One is just as reprehensible as the other, but while the employer is sometimes held liable in damages in large amounts when there is no real liability, it much more frequently happens that there is no recovery when there should be and that in only a small percentage of the cases is the compensation adequate. The law governing the right to recover has not kept pace with our industrial development.

Take for instance, the fellow-servant law which was established in England in 1837 in the case of Priestley v. Fowler, 3 Meeson & Welsby 1. In this case the defendant, Fowler, who was a butcher, directed his helper, Priestley, to take certain goods belonging to the defendant in a certain van also belonging to the defendant, used by him and conducted by another of his servants in carrying goods for hire. The van was loaded by the other servant and Priestley, the plaintiff, and upon the journey the van broke down and the plaintiff was thrown with such violence to the ground that his thigh was fractured. The evidence at the trial showed that the defendant had knowledge of the load that was placed upon the van; it further showed that the van was overloaded. In delivering the opinion of the court Lord Abinger said:

"In most of the cases in which danger may be incurred, if not in all, he (the servant) is just as likely to be acquainted with the probability and extent of it as the master. In that sort of employment, especially, which is described in the declaration in this case, the plaintiff must have known as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely. In fact, to allow this sort of actions to prevail would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse against his master for damages could possibly afford."

How vastly different are the conditions surrounding the butch