Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

quired notice, and the employee continues to serve. If the employee refuses to accept compensation as the act provides, the employer may avail himself of the common law defenses. This the Supreme Court held valid in State v. Creamer.80 The Washington Supreme Court upheld the Washington Industrial Insurance Act of 1911 in State v. Clausen.81 The court referred to the Ives case in New York without criticizing it, but stated they were unable to yield their consent to the view there taken. The court expressly refrained from passing upon the constitutionality of the act so far as depriving the parties from right of jury trial was concerned, as that factor was not before the court.

The Wisconsin Act is substantially the same as that of Ohio except that after the employer's acceptance the employee has 30 days in which to file a refusal, in which case the employer is remitted to his common law defenses. The Wisconsin Workmen's Compensation Act of 1911 was upheld in Borgnis v. Falk.82 The court summarizes the act as follows:

"It creates an administrative board to carry its provisions into effect. It divides all private employers of labor into two classes: (1) those who elect to come under the law, and (2) those who do not so elect. It takes away the defenses of assumption of risk and negligence of a co-employee from the second class (except that where there are less than four co-employees the latter defense is not disturbed), but

80 97 N. E. 602 (Ohio).

81 65 Wash. 156, 117 Pac. 1101. 82 133 N. W. 209 (Wis.).

leaves both defenses intact to the first class. It prescribes the manner in which an employer may elect to come under its terms, and how an employee may make his election, and when silence on the part of the employee will be considered an election; but it does not in terms compel either employer or employee to submit to its provisions. It then provides a comprehensive scheme by which, after both parties have so elected, any substantial injury, whether the result be fatal or not, received by the employee in the course of or incidental to his employment (except those caused by willful misconduct) shall be compensated for by the employer according to certain definite rules, which rules are to be administered by the administrative board aforesaid by means of simple procedure definitely laid down, which gives to both parties fair notice and hearing, and results in findings and an award which may be filed in the circuit court and become a judgment. It further provides that the findings of fact shall be conclusive and the award subject to review only by action in the circuit court of Dane county, in which it can be set aside only (1) if the commission acted without or in excess of its powers; (2) if the award was procured by fraud; or (3) if the award is not supported by the findings of fact. It then provides that the judgment thus rendered shall be subject to appeal to the supreme court." The statute was held not to be violative of any article of the constitution of the state or the Federal Constitution.

37. Sundry acts in other states.-The New Jersey Act automatically places each employment contract

under its compensation section, but permits either party to elect not to be subject to its provisions and to have recourse to actions at law for compensation. The law has been sustained by the lower courts. The California Act is a slightly modified adaptation of the Wisconsin Act and embodies the doctrine of comparative negligence, as does also the Nevada Law. The Kansas Act is purely optional, with the same general provisions as in other states, both as to acceptance and rejection. The New Hampshire Act is an alternative between the employer's personal liability and his contributing to a state insurance fund. In Illinois acceptance is optional with the employer, but if he declines he is deprived of the common law defenses, as in Massachusetts, except that contributory negligence may be considered by the jury in reducing its award. In Michigan compensation is allowed regardless of negligence, except where willful, and the employer is denied the common law defenses. The act is compulsory as to public service, but optional as to private employers. The Rhode Island and Maryland Acts are similar to Illinois, except they omit contributory negligence. The Arizona Act closely resembles the Washington compulsory law. The Federal Employers' Liability Act of April 22, 1908, making railroads engaged in interstate commerce liable to their employees, does not authorize suits in state courts.

38. Comments on laws already adjudicated.— The opinions of the courts of Ohio and Wisconsin, in which states the statutes are optional and not compulsory, seem to disapprove of the New York de

cision in the Ives case; while the Washington Supreme Court, in order to maintain their compulsory act, discussed the police power at length and upheld the act by holding that a state might compel an employee to take less than his common law damages and compel an employer to pay compensation where he was not in any wise at fault. "The legal basis for the Ohio, Washington and Massachusetts laws is found in the taxing power of the state exercised through its police power for the protection of the health, safety and the general welfare of the public. The Compensation Acts of the nine other states mentioned are adaptations of the British Workmen's Compensation Acts and in no way depend upon the taxing power of the states. The bases of the two kinds of acts are fundamentally different under our constitutional limitations."'83

39. General provisions of the several acts.-The several acts cover various classes of employers and employees, govern the giving of notices of injury, enumerate the injuries covered, fix the compensation in the event of death, specify the persons who are beneficiaries as dependents, regulate the time when compensation begins in case of disability (partial and total), specify what medical and surgical aid is included, regulate the manner in which the compensation is to be paid, provide for the necessary examination of the injured workman, and regulate the taking of appeals from awards made.

40. Meaning of terms.-Many controversies have arisen under the British, Canadian and Australian 83 Boyd, Workmen's Compensation and Insurance, § 167.

statutes as to who are "workmen," and doubtless the same thing will occur as to the American acts, and each must be determined as it arises. The word "accident" in the British act is taken in its popular and ordinary sense, and denotes and includes any unexpected personal injury resulting to a workman in the course of his employment from any unlookedfor mishap or occurrence. What constitutes "serious or willful neglect" of either the employer or employee is considered a mixed question of law and fact. The limitation of compensation to accidents "arising out of and in the course of the employment" presents a question which is quite analogous to the common law cases and which will doubtless be governed largely by adjudications thereunder. The determination of the question as to who are "dependents" of a deceased workman seems to rest on substantially the same principles as those involved in ascertaining who are the beneficiaries under "Lord Campbell's Act." There is no uniformity in the fixing of the amount of compensation in cases resulting in death or in either total or partial disability, and on this subject the statute of the particular state must be consulted.

BIBLIOGRAPHY.

Cooley on Torts; Wood on Master and Servant; Thompson on Negligence; Moll on Independent Contractors; Labatt on Master and Servant, Volumes 3, 4, 5; Boyd on Workmen's Compensation and Insurance.

« ΠροηγούμενηΣυνέχεια »