CHAPTER XII.

THE WISCONSIN WORKMEN'S COMPENSATION ACT.

Sec.

250. Form of notice of hearing. (m)

251. Form of subpoena. (n)

252. Form of admission of service. (0)

Sec.

253. Form of notice of the entry of findings and award made by commission. (p)

§ 226. Nature and scope of Wisconsin act.-This act allows an election by the employer. Employés become subject to the provisions of the act thirty days after the employer's election to accept its provisions. By affirmative statement filed with his employer, the employé may become subject to the act immediately after his employer's election. The employé is also permitted, within thirty days after his employer's action, to file a refusal. The employer's liability to pay the compensation in lieu of other liability, occurs in cases where both employer and employé are subject to the provisions of the act and the injury is received while the employé is performing services growing out of and incidental to his employment, and the injury is proximately caused by the accident and not by wilful misconduct. Fees and costs of court proceedings on the award may be granted at the discretion of a reviewing court. The award is entitled to preference over the unsecured debts of the employer. The employer who does not elect to be bound to pay the compensation provided by the act is denied the right to the common-law defenses of assumption of risk and fellow servant1 in suits brought by employés for injuries. In cases where the employer has filed his acceptance of the act, the refusal of an employé to come under its provisions restores to the employer the defenses of assumption of risk and fellow servant's negligence as to that particular employé.1a

The employer may not obtain exemption from these provisions by contracts, rules or regulations.

1 When four or more workmen are employed, post p. 529. 1a The Industrial Commission of Wisconsin reports it as a fact that up to September 1, 1912, no employé has availed himself of this option.

A certified copy of the award may be filed by either party in the circuit court, whereupon the court shall enter judgment for the amount without notice, and this judgment shall have the effect of ordinary judgments entered on the trial of causes. The award or judgment on the award may be revived on the ground that the commission acted without or in excess of its powers, or that the award was procured through fraud, or that the finding of facts by the commission does not support the award. An appeal lies from the judgment of review in the same manner as appeals from the orders of the circuit court.

§ 227. Text of Wisconsin workmen's compensation act with construction of its provisions.-This act became effective September 1, 1911, and provides:

Section 1. Abrogation of Defenses.-There are added to the statutes thirty-two new sections to read: Section 2394-1. In any action to recover damages for a personal injury sustained within this state by an employé while engaged in the line of his duty as such, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary care of the employer, or of any officer, agent, or servant of the employer, it shall not be a defense:

1. That the employé either expressly or impliedly assumed the risk of the hazard complained of.

2. When such employer has at the time of the accident in a common employment four or more employés, that the injury or death was caused in whole or in part by the want of ordinary care of a fellow servant.

Any employer who has elected to pay compensation as hereinafter provided shall not be subject to the provisions of this section 2394-1.

Section 2394-2. No contract, rule, or regulation, shall exempt the employer from any of the provisions of the preceding section of this act.

34-BOYD W C

Note by the Committee-The object of these two sections is to destroy two of the common-law defenses now in existence in actions brought by an employé against his employer to recover damages for or on account of an injury. These two defenses are commonly known as assumption of the risk and negligence of a fellow servant. The tendency throughout the United States in the last ten years has been to destroy these defenses for the reason that they are considered unjust to employés. The following states have abrogated or modified the defense of fellow servant's negligence: Arkansas, Colorado, Florida, Georgia, Iowa, Kansas, Minnesota, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Texas, Utah, Virginia and Wisconsin. The defense of assumption of the risk has been destroyed or modified in many of the above states. The bill now recommended absolutely destroys these two defenses in all actions between employer and employé on account of negligence. The destroying of these two defenses will affect principally the large employer in industries carried on with a large amount of machinery and many employés. There will be little or no effect upon the employer who has but one employé and a small amount of machinery. If the employer or employé is acting under the provisions of that part of the bill beginning with section 2394-4 known as the optional portion of the compensation bill, these defenses will have no force or effect, because no defenses apply to that portion of the bill. Consequently this part of the bill (sections 2394-1 and 23942) applies to all persons who have not elected to accept the provisions beginning with section 2394-4.

Under this provision of the bill (sections 2394-1 and 2394—2) in case of injury to an employé, in order to recover, it would be necessary for him to prove that his employer was negligent, that is, that there was want of ordinary care on the part of his employer which directly or proximately caused the injury complained of. If the employé succeeded in so proving, then the employer, in order to defeat recovery, would be allowed to show that the em ployé was so negligent, that is, that there was want of ordinary care upon the part of the employé which directly contributed to the injury. And if this were established it would defeat the action. Also, if it were shown that there was no want of ordinary care on the part of the employer which directly caused the injury, the employé would be defeated. It would therefore be absolutely necessary to establish two facts in order for an employé to recover: (1) That there was want of ordinary care on the part of the employer which directly caused the injury; (2) That there was no want of ordinary care on the part of the employé which directly contributed to his injury.

Under this proposed law, if the employé hereafter proves that his injury was directly caused by the negligence of a fellow servant, the employer will be liable. Also if the employé establishes

that his injury was directly caused by the want of ordinary care on the part of his employer, it will not be a defense to show that the employé assumed the risk of such want of ordinary care upon the part of the employer. The committee feels that it would be harsh to the average manufacturers having many employés, to wipe out these two defenses without offering some method whereby the liability incurred by the employer might be definitely fixed.

Note by the commission-The bill as first drafted did not contain the provision limiting the taking away of the defense only to employers having four or more employés in a common employment. The reason for the limitation may probably be found in the origin of the fellow servant doctrine, i. e., that the employé, being closely associated with his fellow servants, had a better opportunity to observe the habits of his fellow laborers and to guard against their negligence than had the employer. As labor conditions became more complex and great numbers of men were engaged in a common employment, the reason for the rule ceased to exist.

Under the act as passed the defense of assumption of risk is taken away from all employers, but the defense of the negligence of a fellow servant is taken away from those employers only who have four or more employés in a common employment.

Section 2394-3. Application to Railroads.-Except as regards employés working in shops or offices of a railroad company, who are within the provisions of subsection 9 of section 1816 of the statutes as amended by chapter 254 of the laws of 1907, the term “employer" as used in the two preceding sections of this act shall not include any railroad company as defined in subsection 7 of said section 1816 as amended, said section 1816 and amendatory acts being continued in force unaffected, except as aforesaid, by the preceding sections of this act.

Note by the committee-This section exempts from the two preceding sections railroad employés, who are included under what is known as the comparative negligence act, being chapter 254 of the laws of 1907, as they are in a separate class by themselves, and have a separate provision of the statute applicable to them.

This ends that part of the bill which is of general effect and includes everybody. The remaining sections, commencing with section 4, are applicable only to those who elect to come within their provisions. To those who do elect to come within their provisions, the remedies therein specified are exclusive and no other or further remedies are allowed.

Section 2394-4. Liability for Compensation.—Lia