DAMMIT DAMMIT DAMMIT DAMMIT DAMMIT DAMMIT DAMMIT DAMMIT DAMN! Okay I kind of fucked up. More than kind of.
Stupid damn dammit damn.

See I’ve been doing this research thing, on women hurt at work. Here’s the original outline about workers’ comp:

Research focus
I’m looking at women and gender in litigation around workplace injuries in Minnesota between approximately 1908 and 1922. More specifically, I am comparing the experiences of women who appeared in court as injured workers with women who appeared in court as the wives and widows of injured male workers. I chose this era because this is the period in which Minnesota’s Workmen’s Compensation laws were created and given the basic form they still have today. Minnesota’s legislature passed a workers’ compensation law in 1913, after more than twenty years of discussion and debate which intensified significantly in 1909. Research, debate and significant revision of the workers’ compensation law continued until 1921. From 1913-1922, injured workers in Minnesota accessed workers’ compensation through the courts rather than by an administrative commission. Court provision of compensation repeated many of the perceived problems from the pre-workers’ compensation era, including placing a burden on the legal system and fostering a conflictual relationship between workers and employers. This era functioned as a slow phasing in of workers’ compensation as an alternative to litigation. (Fischback and Kantor, Asher.) Litigation during this era shaped the direction of future workers’ compensation programs, since the changes toward an administrative commission were deliberately crafted to eliminate litigation.
Aside from my pre-existing interests, I chose my thematic focus for three basic reasons. The historiography on workers’ compensation has relatively little to say about women and gender. There is what feels to me like an overwhelming amount of primarily material on workers’ compensation and workplace injury cases, such that I need to narrow my scope to a manageably narrow level for the purposes of writing this research paper. This thematic focus will allow me to do so by allowing me to focus on the relatively fewer cases of injured women workers. Third, I want to try my hand at dealing with the records of individual trials in order to talk about the people who brought injury suits.

Historiography
Several historians have written articles dealing with single states as case studies: Donald Rogers on Wisconsin, Robert Wesser on New York, Robert Asher on Massachussettes and Minnesota, and Shawn Kantor and Price Fishback on Minnesota. With the exception of Rogers, the single state case studies all deal primarily with policy debates among influential groups that shaped policy (primarily employers’ associations and labor unions) and in state legislatures. Some of these historians as well as others such as Julian Go and Barbara Nelson deal in other articles with similar debates and actors at the national level. Rogers, on the other hand, deals with changing concepts of risk, liability, and whether workplace safety and injury were public or private matters. John Fabian Witt deals with similar themes across the United States in his article and book. In terms of sources, the policy centered historians focus largely on the minutes of legislative sessions, speeches and articles from members and officers in influential organizations, and reports and statistics from the public and private bodies that studied industrial accidents and workers’ compensation. The more properly legal historians deal with the above sources but to lesser degree, primarily focusing instead on court cases. In particular, the legal historians focus on judges’ arguments and decisions in order to get at changing legal doctrine.
Several of the works I looked at make no reference at all to gender. A few works make passing reference to gender. Julian Go minimizes the importance of gender, asserting that “gender construction did not seem to bear on the enactment of workers’ compensation or employers’ liability.” (430.) At the same time, Go notes that legal responses to workplace injury in the early 20th century “elided the fact that women (…) were wage earners as well as wives and mothers,” making up 30% of workers in many industrial areas. (425.) Fishback and Kantor note that the Minnesota compensation law did not cover agricultural or domestic workers, but do not comment on the gender or racial implications of this. (565.)
Witt, unlike most of the other historians dealing with workplace injuries and workers’ compensation, offers a good deal of commentary on gender and women. Three of Witt’s chapters deal with the treatment of widows and wives. He also address the gendered notions of free labor and the family wage, and implies that the notions of masculinity held by some male workers led them to be less safe in their work. (32.) Still, while Witt is an important exception for his attention to gender, he does not deal with women workers. Witt state that very few workplace injury cases involved injured women workers, and he does not take up the gendered nature of the exclusion of domestic workers from workers’ compensation. (37.) Barbara Nelson usefully discusses gender and women at some length and criticizes the partition of welfare provisioning into workers’ compensation for white men, Mother’s Aid for white women, and nothing for non-whites. Like Witt, however, she does not look at women’s claims for injury compensation or at the exclusion of domestics.

Primary Sources
I was initially overwhelmed by the quantity of material related to workplace injuries and law in Minnesota in this time period. Between Minnesota Supreme Court cases, legislative hearings, correspondence files, and newspaper articles, I began to feel I was adrift without a rudder and I was not finding that the sources were just suggesting a research question to me in the way I’d hoped. After turning to secondary literature, I developed a clearer sense of what I’m looking for, but I have only just begun to identify relevant primary sources. Sources I expect to use include:

McInerny v. St. Luke’s Hospital Association of Duluth, 122 Minn. 10; 141 N.W. 837; 1913 Minn. LEXIS 523
Mary McInerny got her hand caught in an ironing machine in the laundry at St. Luke’s Hospital where she worked as a maid. Her burns were extensive enough to require the amputation of most of her hand. The type of machine that injured Mary was a laundry mangle. During the trial, Mary’s lawyer mentions other women injured on the same kind of machine, so there must be other injury cases involving mangles. Using Lexis, I have found ten other cases involving women injured on mangles. I to look at the case records for these cases, kept with the Law Library’s records of Minnesota Supreme Court cases.

The Minneapolis Labor Review maintains an online archive of their newspaper dating back before 1900. I have printed out a number of issues dealing with debates in the state legislature on the Workingmen’s Compensation Act. I intend to sort through the archive for material relevant to women injured on the job and to wives and widows of injured men. I plan to look for similar material in local newspapers on microfilm at Wilson Library.

The Minnesota History Center has copies of the records of the Minnesota Department of Labor and Industry, including correspondence about workers’ compensation, injury statistics, and case files for injuries which occur. I have looked at these files, but I have not been back since deciding to focus on gender. The History Center also includes the records of the Minnesota Industrial Commission, a body which organized the hearings on revising workers’ compensation, and which in 1923 replaced the courts as the avenue for handling workers’ compensation claims. (Cited in Asher, 1973, page 1.)

Draft Outline:

I. Drawing on the historiography

A.Chronological Focus: Transitional period from 1909-1922
1. Background – Starting point and initial change, 1800s until 1908
a. Employers’ legal defenses against liability for workplace injury as inherited from the 19th century (fellow servant, assumption of risk, contributory negligence)
b. Increase in quantity and severity of workplace accidents
c. Increasing and increasingly successful pressure to limit employers’ legal defenses against liability, rising jury awards; lawsuits are not only expensive but unpredictable and promote industrial strife
d. Employers become favorable to workers’ compensation, more so than unions, due to the above

2. Response, 1908-1913
a. Initial disagreements over how workers’ compensation will be provided, this slows passage and implementation
b. State commissions and public hearings
c. Eventual agreement or at least sufficient compromise to pass a bill

3. Relative resolution and continued refinement, 1913-1923
a. Minnesota workers’ compensation enacted in 1913, administered by the courts with assistance by the Department of Labor and Industry
b. Continued changes in provision of compensation until 1922, workers’ compensation begins to be administered by Industrial Commission instead of the courts in 1923
c. During this era lawsuits persisted, which made workers’ comp only partially achieve some of its goals; this also means the records are reasonably good

B. Thematic focus: Women and Gender 1913-1922
1. Little attention to women and gender or to race in this era. This is an important gap because the literature largely ignores that the laws were mainly for white men: Workingmen’s Compensation program, excluded domestic and agricultural workers. Women were included in the laws in two ways
a. As attached to men who got injured
i. Wives – Men would get more money when injured if they were married; number of children affected payments as well
ii. Widows
b. As waged workers on their own when injured
i. No corresponding marriage or child-having benefit for women

II. Primary sources
A. Women as dependents
1. Wives of injured workers and widows of workers who died
a. Appeal to need to support wives, widows, and children
b. Standards/expectations of feminity?
c. Standards/expectations of masculinity?
d. Emotional responses of women depending on the injury?
e. Levels of awards and types of decisions?

B. Women as workers
1. Number of cases, types of injury
2. Standards/expectations of feminity?
a. Was physical disfigurement considered worse for women?
b. Were women permitted displays of emotion which shaped the proceedings?
c. Levels of awards and types of decisions?
i. Women’s lower wages and how these were reflected in awards; provision of board and did that count as part of wages?
ii. What were the assumptions about women’s economic needs and relative dependence/independence? (Lack of compensation for dependents or having a spouse, etc.)

Secondary sources so far –

Asher, Robert, “Radicalism and Reform: State Insurance of Workmen’s Compensation in Minnesota, 1910-1933,” Labor History, No. 14. (1973), 19-41.

Asher, Robert, “Business and Workers’ Welfare in the Progressive Era: Workers’ Compensation Reform in Massachusetts, 1880-1911,” The Business History Review, Vol. 43, No. 4, (Winter, 1969), 452-475.

Go, Julian, “Inventing Industrial Accidents and Their Insurance: Discourse and Workers’ Compensation in the United States, 1880s-1910s,” Social Science History, Vol. 20, No. 3. (Autumn, 1996), 401-438.

Howard, Christopher, “Workers’ Compensation, Federalism, and the Heavy Hand of History,” Studies in American Political Development, No. 16, (Spring, 2002), 28-47.

Kantor, Shawn Everett and Price V. Fishback, “Did Workers Pay for the Passage of Workers’ Compensation Laws?,” The Quarterly Journal of Economics, Vol. 110, No. 3. (August, 1995), 713-742.

Kantor, Shawn Everett and Price V. Fishback, “How Minnesota Adopted Workers’ Compensation,” The Independent Review, Vol. 2 No. 4. (Spring, 1998), 557-578.

Lubove, Roy, “Workmen’s Compensation and the Prerogatives of Voluntarism,” Labor History, No. 8. (Fall 1967), 254-79

Nelson, Barbara, “The Gender, Race, and Class Origins of Early Welfare Policy and the Welfare State: A Comparison of Workmen’s Compensation and Mothers’ Aid,” 413-435 in Louise Tilly and Patricia Gurin, Women, Politics and Change, New York: Russel Sage Foundation, 1990.

Rogers, Donald, “From Common Law to Factory Laws: The Transformation of Workplace Safety Law in Wisconsin before Progressivism,” The American Journal of Legal History, Vol. 39, No. 2. (April, 1995), 177-213.

Weinstein, James, “Big Business and the Origins of Workmen’s Compensation,” Labor History, VIII (Spring, 1967), 156-74.

Wesser, Robert, “Conflict and Compromise: The Workmen’s Compensation Movement in New York, 1890s-1913,” Labor History, No. 12. (Summer, 1971), 365-66.

Witt, John Fabian, The Accidental Republic, Cambridge: Harvard University Press, 2004.

Not half bad if I do say so myself, except for one GLARING ommission:

NO ARGUMENT!

Fair enough, fine, I’ll make it work, sure no problem. But there’s a second problem:
the stuff to look at is way, way too big. It’s like saying “I want to write about Shakespeare,” ie way too broad of a topic – the amount of material to read is too massive. So after poking around I find it, my winnowing device: mangles. Women hurt on mangles. In Minnesota. Prior to the implementation of the workers’ comp program. Cuz I found ten (and only ten) cases like that. Ten cases, that’s do-able. And it turns out, it’s wicked interesting I think.

Turns out ten cases isn’t sufficiently winnowed. Because here I live in Minnesota. So I have easy access to the trial transcripts for all ten cases. Nettie Blom‘s trial’s transcript is like 300 pages. So is Minnie Jensen’s. Etc. So it’s really quite a bit to read. And so I start. I haven’t got through all ten yet, of course not. So I’m replaying a similar problem: insufficient winnowing. And I get excited. I find that Steam Laundries book I quoted from in the post linked to under the word “interesting” a paragraph ago, it’s good, I find other sources, they’re interesting – for example, a three piece article published oh I don’t know in the 1920s or 1904 or whatever written by three reform oriented women writers where they went and worked in steam laundries and wrote about it muckraker style, and a reform oriented social realist (I think) novel by someone who did the same then fictionalized it and she references injured women going back to work in the laundires, and then I found report published by the US Senate in 1911 about women who work in laundries, it includes 500 some odd one paragraph summaries of women’s lives who work in laundries broken down by job class and three of them have lost a hand in the mangle one of them some years ago and she still works there while the other two were recent enough they were still convalescing but they were considering coming back to work and it’s all. So. Interesting. I take a bunch of notes… none of it’s directly on topic, it’s more about like that stuff, the lives and all that and still no argument. And I need a draft, 25 page draft I might add, by Friday – Friday morning! – and it’s not like I have no other commitments between now and then.

And then it hits me, like half an hour ago, something I hadn’t put together before. (Forest for the trees, you see.) Lookit:

Blom v. Yellowstone Park Association
MINNIE JENSEN v. WILLIAM REGAN and Others
Carlin v. Kennedy
Raasch v. Elite Laundry Co
Ludwig v. Spicer
LENA DAHLY v. W. B. AUXER
SOPHIA MORTENSON v. HOTEL NICOLLET COMPANY
MARY E. McINERNY v. ST. LUKE’S HOSPITAL ASSOCIATION OF DULUTH
HILMA MAKI v. ST. LUKE’S HOSPITAL ASSOCIATION
Graseth v. Northwestern Knitting Co.

Obvious, right?

Of course not.

But:

1902 Blom v. Yellowstone Park Association – Lost, appealed, lost. (Plaintiff lost I mean.)
1904 MINNIE JENSEN v. WILLIAM REGAN and Others – won $1500, appealed, lost. (Minnie ends up with nothing.)
1906 Carlin v. Kennedy – Won $7500, employer appeals, Kathryn Carlin wins and gets her $7500.
1906 Raasch v. Elite Laundry Co – Won $6222, appealed, won.
1907 Ludwig v. Spicer – Won $5000, appealed, won.
1909 LENA DAHLY v. W. B. AUXER – Won $1500, appealed, won.
1912 SOPHIA MORTENSON v. HOTEL NICOLLET COMPANY – Won $6000, appealed, won.
1913 MARY E. McINERNY v. ST. LUKE’S HOSPITAL ASSOCIATION OF DULUTH – Won $4000, appealed, won
1914 HILMA MAKI v. ST. LUKE’S HOSPITAL ASSOCIATION – Won $750, appealed, lost.
1915 Graseth v. Northwestern Knitting Co. – Won $12000, appealed, won.

First case, Nettie loses: assumption of risk. Second case, Minnie wins, loses on appeal: contributory negligence. (These are the father and son of the unholy trinity of employer defenses against injury suits back in the day.) Third through eight cases, they win. Hilma Maki wins then gets overturned and loses, because she had already gotten a $1000 settlement from her employer in which she said she wouldn’t sue. She still won anyway at first! Then Hogan Graseth wins 12 grand on behalf of his daughter who is a minor and gets hurt in a mangle. And this is interesting because….

well, maybe it isn’t, but it is to me – fits with the literature this way:

An argument about workers’ comp goes as follows.

A. It’s good for workers because
1. it makes for faster turnaround times because lawsuits are slow
2. it’s a guaranteed payment whereas it’s a gamble whether you get paid in a lawsuit and payouts are low in lawsuits anyway

B. It’s good for bosses because
1. it’s predictable in terms of cost, you pay insurance and the insurer (whether state or private) pays for injuries as they happen
2. lawsuits are acrimonious
3. there’s a legislative and perhaps judicial trend toward unseating the unholy trinity of employers’ legal defenses plus the awards are getting bigger

According to my sample (which is admittedly small and I have no idea at all if it’s representative or not), A1 may be true – the cases _do_ take a long time, it takes almost two years for Nettie Blom’s case to be finished – and A2 is sort of true but the odds for the injured women are good: 70 or 80% looking at all the MN Supreme Court cases, and the only two losers are earlier on. B1 is true. B2 is definitely true in the courtroom, but it’s implied that “acrimony” means industrial strife, and it’s not clear to me that that’s true. A3 appears to be playing out in these cases. Kathryn Carlin gets $7500. She made $6 a week. She got the equivalent of twenty some odd years of pay.

Here are some questions:
how long had everyone worked there?
how old was everyone at the time of their injury?
how much did everyone get paid at the time of their injury?
what was everyone’s marital status?

I know this for some of the plaintiffs, but not all. I need to tear through the trial records and find that stuff (quickly but gently as the documents are wicked fragile).

Probably less important question: what sort of mangle was used in each instance?

Harder question: why did the first case fail, the second case win then fail, and all the others do so well? What was going on?

And how did gender operate in the courtroom?

And I have to figure it out, like, tomorrow. Crap. Luckily life since september started has been relaxed and soothing and full of restorative sleep, so that I am fully charged, with all of my faculties at their peak, ready to meet this and any challenge with confidence, composure, and equanimity. 😦

Advertisements