the making of a valid contract, the employee cannot accept the act and thereby bring his employer under it if the latter has rejected the act. Nor can the employer expect the employee to be bound by the act when the employer has rejected it.

9

Likewise where the employer alone elects to come under the act he cannot thereby bring his employees under it unless the act so provides. Nor does the employer's election to come under the act after an accident happens to an employee give such employee the right to receive compensation from the employer for such accident.10 In both cases, where either the employer or employee rejects the act the parties are remitted to their action at law, and are governed by the principles of law applicable to such actions except alone as to the matter of defenses.

11

Ann. Cas. 1915A, 241; Drtina v. Charles Tea Co., 281 Ill. 259, 118 N. E. 69, 1 W. C. L. J. 320; McRoberts v. National Zinc Co., 93 Kan. 364, 144 Pac. 247; Shade v. Grove Lime & Cement Co., 92 Kan. 146, 139 Pac. 1193; Lynch v. Pennsylvania R. R. Co., 88 N. J. L., 408, 96 Atl. 395; Anderson v. North Alaska Salmon Co., 2 Cal. I. A. C. Dec. 241; Gooding v. Ott, 77 W. Va. 487, 87 S. E 863; Rodigen v. Sanitary Dist. of Chicago, Bulletin No. 1, Ill. p. 129; Kennerson v. Thames Towboat Co., 98 Conn. 367, 94 Atl. 497; Shanahan v. Monarch Engineering Co., 219 N. Y. 469, 114 N. E. 795; Doey v. Howland Co., 224 N. Y. 30, 120 N. E. 53, 2 W. C. L. J. 669; See Martin v. Kennecott Copper Corp. (D. C.) 252 Fed. 207, 2 W. C. L. J. 867: Hagenback v. Leppert (Ind. App.) 117 N. E. 531, 1 W. C. L. J. 64; Reitmeyer v. Coxe Bros. & Co. Inc. 264 Pa. 372, 1919, 107 Atl. 739, 4 W. C. L. J. 644; Philps v. Guy Drilling Co., 143 La. 951, 79 So. 549, 17 N. C. C. A. 469; Rogers v. Rogers, App.

(1919), 122 N. E. 778, 4 W. C. L. J. 58.

Ind.

7. Favro, Admr. v. Superior Coal Co., 188 Ill. App. 203; Dietz v. Big Muddy Coal & Iron Co., 263 Ill. 480, 105 N. E. 289, 5 N. C. C. A. 419; Price v. Clover Leaf Coal Mine Co., 188 Ill. App. 27.

Mich.

161

8. Crooks v. Tazewell Coal Co. 263 Ill. 343, 105 N. E. 132, 5 N. C. C. A. 410, Ann. Cas. 1915C, 304; Bendykson v. Lyons, N. W. 945, 16 N. C. C. A. 744.

Tex. Civ. App.

9. Kampmann v. Cross, 194 S. W. 437, 17 N. C. C. A. 472; Duart v. Simmons, 231 Mass. 313, 121 N. E. 10, 3 W. C. L. J. 136; Batson Milholme Co. v. Falk,

209 S. W. 837, 3 W. C. L. J. 805.

Tex. Civ. App.

10. Shevchenko v. Detroit United Ry. Co., 189 Mich. 421, 155 N. W. 423. 11. Hughes v. Warman Steel Casting Co., 174 Cal. 44, 163 Pac. 885, 17 N. C. C. A. 517; Hodges v. Swastika Oil Co.,

Tex. Civ. App. Muddy Coal &

185 S. W. 369. 17 N. C. C. A. 519; Synkus v. Big Iron Co., 190 Ill. App. 602, 17 N. C. C. A. 514; Skelton & Wear v.

It has been held in a case where the employer induced his employee by means of fraud, duress or undue influence to elect to come under the act, such election was only voidable and was affirmed by the employee's failure to repudiate such election, after discussing the effect thereof with his co-employees, and understanding that it affected his right to compensation.12

If both accept the act, they are as a general rule held to accept all its provisions, for themselves, their representatives, heirs, next of kin, dependents, etc., and are released from and deprived of all other rights against, and liabilities to, each other13 though not as to third persons.

Wolf,

Tex. Civ. App.
Mich.

200 S. W. 901, 17 N. C. C. A. 479; Smith v. Hyne, 175 N. W. 293, 5 W. C. L. J. 407; Barnett v. Coal & Coke Ry. Co., 81 W. Va. 251, 94 S. E. 150, 17 N. C. C. A. 514; Marshall v. City of Pekin, 276, Ill. 187; Wendzinski v. Madison Coal Corporation, 282 Ill. 32, 118 N. E. 435, 17 N. C. C. A. 517; Rev'g 203 Ill. App. 1; French v. Cloverleaf Mining Co., 190 Ill. App. 400; Balen v. Colfax Consol. Coal Co., 183 Ia. 1198, 168 N. W. 246, 2 W. C. L. J. 621; Crooks v. Tazewell Coal Co., 263 Ill. 343, 105 N. E. 132. 12. O'Rourke v. Cudahy Packing Co., 1 Conn. Comp., Dec. 8; Stricklen v. Pearson Const. Co., 169 N. W. 628, 3 W. C. L. J. 291.

Ia.,

13. McRoberts v. National Zinc Co., 93 Kan. 364, 144 Pac. 247; Young v. Sterling Leather Works, 94 N. J. L. 289, 102 Atl. 395, 1 W. C. L. J. 653; State v. Carroll, 94 Wash. 531, 14 N. C. C. A. 932, 162 Pac. 593; Maloney v. Levy, etc., Co., 170 App. Div. 470, 163 N. Y. S. 505; Winter v. Dollger Brew Co., 175 App. Div. 706, 162 N. Y. S. 469; Consolidated Kansas City Smelting and Refining Co., v. Dean, (1916), Tex. Civ.

App. 189 S. W. 747; Peet v. Mills 76 Wash. 437, 136 Pac. 685, Ann. Cas. 1915 D, 154, 4 N. C. C. A. 786, L. R. A. 1916A, 358; Milwaukee v. Althoff, 156 Wis. 68, 145 N. W. 238, L. R. A. 1916A 327; White v. Fuller Co., 226 Mass. 1, 114 N. E. 829; Martin v. Kennecott Copper Corp. (D. C.) 252 Fed. 207, 2 W. C. L. J. 867. In Massachusetts it has been held that the adoption of the compensation principle by a child does not prevent a parent from recovering common law damages because of the child's death. King v. Viscolaid Co., 219 Mass. 420, 106 N. E. 988, 7 N. C. C. A. 254; In re Cripps v. Aetna Life Ins. Co., 216 Mass, 586, 104 N. E. 565; but see Hall v. Thayer & Co., 225, Mass. 151, 113 N. E. 644; Gregutis v. Waclark Wire Works, 86 N. J. L. 610, 92 Atl. 354; Rice v. Garrett (Civ. App.) 194 S. W. 667; Hartman v. Unexcelled Mfg. Co., 93 N. J. L. 418 (1919), 108 Atl. 367, 5 W. C. L. J. 422; Buonfiglis v. Neumann & Co., 93 N. J. L. 174 (1919). 107 Atl. 285, 4 W. C.

In a New York case the court said: "There does not appear to be any serious question that the claimant would be entitled to the award which has been made in this case, except for the fact that the present claimant, as administratrix of the estate of her decedent, brought an action in the Supreme Court to recover for the death of the intestate, in which action she was defeated upon the merits, and it is now urged that, having elected to sue, the claimant has made an election which operates as a bar to this proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67). The complete answer to this contention, it seems to us, is the fact that 'Clementina Balais, as administratrix of the goods, chattels, and credits of Giacomo Balais, deceased,' is in law, an entirely different person from 'Clementina Balias and minor dependents,' making a claim for compensation under the Workmen's Compensation Law. 'It has been repeatedly held,' say the court in Leonard v. Pierce, 182 N. Y. 432, 75 N. E. 313, 1 L. R. A. (N. S.) 161, 'that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued. If the judgment was for or against an executor, administrator, assignee, or trustee, it would not preclude him, in action affecting him personally, from disputing the findings or judgment, although the same questions are involved.' Not only are the parties different, but the subject

L. J., 521; State Indus. Comm. v. Brady & Gloe, 178 N. Y. S. 519 (1919), 5 W. C. L. J. 114; Ruddy v. Morse Dry Dock & Repair Co. (1919) 176 N. Y. S. 731, 4 W. C. L. J. 448; Basso v. John Clark & Son. Inc. (1919) 177 N. Y. S. 484, 4 W. C. L. J. 530; Carlson v. Minneapolis St. Ry. Co. (1919), 143 Minn. 129, 173 N. W. 405, 4 W. C. L. J. 513; Stricklen v. Pearson Const. Co., Iowa 169 N. W. 628, 3 W. C. L. J. 291; Penn's Administrator v. Bates & Rogers Const. Co., 183 Ky. 529, 209 S. W. 513, 3. W. C. L. J. 731; Nulle v. Hardman Peck & Co., 173 N. Y. S. 236, 3 W. C. L. J. 343; Boyle v. A. C. Cheney Piano Action Co., 184 N. Y. S. 374 (1920), 7 W. C. L. J. 93; Colorado v. Johnson Iron Works, 183 So. 381, 5 W. C. L. J. 392; White v. Slattery Co., (1920), 127 N. E. 597, 6 W. c. La. (1920), 84 So.

La.
Mass.

L. J. 323; Williams v. Blodgett Const. Co., 115, 6 W. C. L. J. 53; Hyett v. N. W. Hospital for Women & Children, (1920), 180 N. W. 552, 7 W. C. L. J. 337.

Minn.

matter involved is different. In the one case the statute provides a definite sum to each dependent, based upon the actual or constructive earning power of the decedent at the time of the accident, without reference to negligence, while in the other the jury are permitted only to give 'a fair and just compensation for the pecuniary injuries, resulting from the decedent's death, to the person or persons for whose benefit the action is brought' (Code of Civil Procedure, Sec. 1904), and the amount is to be distributed. as though it constituted a part of an unbequeathed estate (Code of Civil Procedure, Sec. 1903). We are of the opinion that the election of an administratrix cannot be a bar to a claim on behalf of the individuals who are given definite rights under the statute, and that the award should not be disturbed."'14

It is held under the Oklahoma Act that an award of compensation on account of an injury which later resulted in death does not preclude an action for damages by the personal representative on account of such death.15 The Utah Act was amended in this respect in 1921 to make compensation the exclusive remedy.

§ 10. Election, When Exempted by Having Less Than Stated Number of Employees. Many of the Compensation Acts provide that they shall apply only to employers and the employees of employers having a stated number or more employees. This number ranges from three in some states to sixteen in Alabama.16 Most of these acts also provide a specific method by which such exempted employers and employees may elect to come under the act, which method is usually the same as that provided for election to come under the act, where election is not presumed, i. e. notice by the employer and employees to each other and to the commission or board. After such exempted employer has elected to come under the act and his employees have also complied with the act in so far as it is required of them the em

14. In re Balias, 189 App. Div. 408, 178 N. Y. Supp. 519, 5 W. C. L. J. 114.

15. Lahoma Oil Co. v. Indus. Comm., Okla.

175 Pac. 836.

16. Alabama 11, Alaska 5, Connecticut 5, Delaware 5, Kansas 5, Kentucky 5, Maine 6, Missouri 5, New Hampshire 5, New Mexico 5, Ohio 5, Oklahoma 3, Porto Rico 5, Texas 3, Tennessee 10, Vermont 11, Virginia 11, Wisconsin 3, Wyoming 3.

ployer is then bound by the act the same as if he had not been exempted.1

There appears to be little justification for these numerical exemptions. They seem to have been prompted originally by legislative expediency in order to insure the passage of the act and thus establish the compensation principle in the respective states. They introduce complications into the administration of the acts, in that it is often difficult to determine when the employer has the required number of employees, "regularly employed," that would require him to comply with the provisions of the act and the employee is for the same reason uncertain whether or not he is entitled to the benefits of the act.

It has been held by the supreme court of the United States that these exemptions do not constitute such arbitrary discriminations as make the acts unconstitutional.18

§ 11. Election by Farmers, Employers of Domestic Servants, Casual Employees and Outworkers.-These employments are excepted from almost all the American Compensation Acts.19 Some of the Acts provide methods whereby these employments may be brought under the act when both employer and employees so desire but the employers do not suffer the penalty of being deprived of their common law defenses if they do not elect to come under the act.20

17. McMillan v. Ellis, 679.

Kan. -,

192 Pac. 744, (1920), 6 W. C. L. J.

18. Jeffery Mfg. Co. v. Blagg, 235 U. S. 571, 59 L. Ed. 364, 7 N. C. C. A. 570.

19. Agriculture expressly or impliedly exempted from all acts except New Jersey and Hawaii. Domestic servants exempted from all acts except New Jersey.

-

20. Shafer v. Parke Davis & Co., Mich. Wk. Comp. Cases (1916), 7, 192 Mich. 577, 150 N. W. 304; Texas Refining Co. v. Alexander, Tex. Civ. App., 202 S. W. 131, 17 N. C. C. A. 535; Uphoff v. Ind. Bd. of Ill., 111 N. E. 128, 271 Ill. 312; Wangler Boiler & Sheet Metal Works v. Indus. 122 N. E. 366, 3 W. C. L. J. 617; Slycord v. Horn,

Comm.,

,

Iowa -, 162 N. W. 249, A1 W. C. L. J. 589; Miller v. United Fuel Gas W. Va.

Co.,

(1921), 106 Atl. 419; Wis., 1921, § 2394-7.

W. C.-5.