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U. S. DEPARTMENT OF LABOR
W. B. WILSON, Secretary

BUREAU OF LABOR STATISTICS
ETHELBERT STEWART, Commissioner

BULLETIN OF THE UNITED STATES \
0 7 0
BUREAU OF LABOR STATISTICS / ............... \ I l U . L I L
WORKMEN'S

INSURANCE

AND

COMPENSATION

SERIES

WORKMEN’S COMPENSATION LEGISLATION
OF THE UNITED STATES AND CANADA

LINDLEY D. CLARK and MARTIN C. FRINCKE, Jr.

JANUARY, 1921

WASHINGTON
GOVERNMENT PRINTING OFFICE
1921

CONTENTS.

Workmen’ s compensation laws of the United States and Canada:
Introduction........................................................................................................
Workmen’ s compensation laws of the United States—Review..............................
Introduction........................................................................................................
Progress of legislation.........................................................................................
Types of laws.......................................................................................................
Analysis of principal features of the laws........................................................
Alabama.......................................................................................................
Alaska...........................................................................................................
Arizona.........................................................................................................
California......................................................................................................
Colorado........................................................................................................
Connecticut..................................................................................................
Delaware......................................................................................................
District of Columbia...................................................................................
Hawaii..........................................................................................................
Idaho.............................................................................................................
Illinois..........................................................................................................
Indiana.........................................................................................................
Iowa..............................................................................................................
Kansas..........................................................................................................
Kentucky.....................................................................................................
Louisiana.....................................................................................................
Maine.......................................................................................................... .
Maryland......................................................................................................
Massachusetts...............................................................................................
Michigan.......................................................................................................
Minnesota.....................................................................................................
Missouri.........................................................................................................
Montana........................................................................................................
Nebraska.......................................................................................................
Nevada..........................................................................................................
New Hampshire...........................................................................................
New Jersey...................................................................................................
New Mexico.................................................................................................
New York.....................................................................................................
North Dakota...............................................................................................
Ohio...............................................................................................................
Oklahoma......................................................................................................
Oregon...........................................................................................................
Pennsylvania................................................................................................
Porto R ico....................................................................................................
Rhode Island...............................................................................................
South Dakota................................................................................................

Page.
7,8
9-256
9,10
10-14
14-20
21-68
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57

CONTENTS.

Workmen's compensation laws of the United States—Concluded.
Analysis of principal features of the laws—Concluded.
Page.
Tennessee.....................................................................................................
58
Texas.............................................................................................................
59
Utah..............................................................................................................
60
Vermont......................................................................... ..............................
61
Virginia.........................................................................................................
62
63
Washington..................................................................................................
West Virginia...............................................................................................
64
Wisconsin......................................................................................................
65
Wyoming.................................................................................... » ................
66
United States—civil employees.................................................................
67
United States—war risk..............................................................................
68
Constitutionality and construction of statutes............................................... 69-256
Due process of law....................................................................................... 72-79
Equal protection of the laws................................. ...................................79-83
Jury trial.......................................................................................................83-86
Liability without fault................................................................................ 86-90
Abrogation of employers’ defenses............................................................. 90,91
Exercise of judicial powers......................................................................... 91-94
Freedom of contract.................................................................................... 95-99
Status of benefit funds....................... ...................................................... 99-102
Police p ow er............................................................................................ 102-105
Particular provisions of the laws............................................................ 106-256
Injuries compensated....................................................................... 106-135
Accidents................................................................................... 107-118
Occupational diseases............................................................... 118-125
Disfigurement............................................................................ 125-128
Accidental injury as proximate cause..................................... 128-135
Coverage............................................................................................. 135-170
Domestic and farm labor.......................................................... 135-137
Hazardous employments.......................................................... 137-140
Casual employment................................................................... 140-146
Other exclusions........................................................................ 146-149
Public employees...................................................................... 149-153
Children unlawfully employed................................................ 153-155
Extraterritoriality..................................................................... 155-160
Admiralty................................................................................... 160-164
Interstate commerce................................................................. 164-169
Alien beneficiaries..................................................................... 169,170
Arising out of and in course of employment................................. 170-188
Willful misconduct........................................................................... 188-193
Liability of third parties.................................................................. 193-199
Temporary disability....................................................................... 199-201
Partial disability.............................................................................. 201-210
Total disability................................................................................. 210-214
Dependence...................................................................................... 214-222
Basis of awards.................................................................................. 223-226
Settlements............................................................... ’...................... 226-231
Medical treatment............................................................................ 232-240
Election.............................................................................................
241
Exclusiveness of remedy................................................................. 242-244
Notice and claim.............................................................................. 244r-248
Disputes............................................................................................. 248,249
Evidence........................................................................................... 249-251
Appeals.............................................................................................. 251,252
Insurance.......................................................................................... 252-256

CONTENTS.

5
Page.

Workmen’ s compensation laws of Canada—Review.......................................... 257-266
Progress of legislation..................................................................................... 257-258
Analysis of principal features of the laws..................................................... 259-266
Alberta..........................................................................................................
259
British Columbia.........................................................................................
260
Manitoba.......................................................................................................
261
New Brunswick...........................................................................................
262
Nova Scotia..................................................................................................
263
Ontario..........................................................................................................
264
Quebec..........................................................................................................
265
Yukon Territory....................................................... ..................................
266
Appendix.—Text of workmen’ s compensation laws of the United States and
Canada............................................................................................................... 267-1178
UNITED STATES.

Alabama.................................................................................................................. 267-288
Alaska...................................................................................................................... 289-300
Arizona.................................................................................................................... 301-306
California................................................................................................................. 307-342
Colorado................................................................................................................... 343-370
Connecticut............................................................................................................. 371-387
Delaware.................................................................................................................. 388-401
District of Columbia..................................................................................................
402
Hawaii..................................................................................................................... 403-414
Idaho........................................................................................................................ 415-433
Illinois..................................................................................................................... 434-452
Indiana.................................................................................................................... 453-467
Iowa......................................................................................................................... 468-486
Kansas..................................................................................................................... 487-499
Kentucky................................................................................................................ 500-521
Louisiana................................................................................................................. 522-534
Maine....................................................................................................................... 535-548
Maryland................................................................................................................. 549-569
Massachusetts.......................................................................................................... 570-587
Michigan.................................................................................................................. 588-605
Minnesota................................................................................................................ 606-621
Missouri................................................................................................................... 622-638
Montana................................................................................................................... 639-668
Nebraska.................................................................................................................. 669-685
Nevada..................................................................................................................... 686-703
New Hampshire...................................................................................................... 704-707
New Jersey.............................................................................................................. 708-726
New Mexico............................................................................................................ 727-739
New York................................................................................................................ 740-765
North Dakota.......................................................................................................... 766-776
Ohio......................................................................................................................... 777-795
Oklahoma................................................................................................................ 796-809
Oregon..................................................................................................................... 810-827
Pennsylvania.......................................................................................................... 828-854
Philippine Islands....................................................................................................
855
Porto R ico............................................................................................................... 856-864
Rhode Island.......................................................................................................... 865-879
South Dakota.......................................................................................................... 880-892
Tennessee................................................................................................................ 893-906
Texas........................................................................................................................ 907-924
Utah......................................................................................................................... 925-941

CONTENTS.
Page.

Vermont........................................................................................................ . ......... 942-956
Virginia.................................................................................................................... 957-972
Washington.............................................................................................................. 973-996
West Virginia......................................................................................................... 997-1014
Wisconsin.......................... .................................................................................. 1015-1031
Wyoming.............................................................................................................. 1032-1042
United States—civil employees........................................................................ 1043-1050
CANADA.

Alberta................................................................................................................. 1051-1066
British Columbia................................................................................................. 1067-1086
Manitoba.............................................................................................................. 1087-1108
New Brunswick................................................................................................... 1109-1122
Nova Scotia......................................................................................................... 1123-1141
Ontario................................................................................................................. 1142-1167
Quebec................................................................................................................. 1168-1171
Yukon Territory.................................................................................................. 1172-1177
Dominion of Canada.................................................................................................. 1178 .

BULLETIN OF THE

U. S. BUREAU OF LABOR STATISTICS.
no.

272.

WASHINGTON.

Ja n u a r y , 1921.

WORKMEN’S COMPENSATION LEGISLATION OF THE
UNITED STATES AND CANADA, 1919.
INTRODUCTION.

The Fourth Special Report of the Commissioner of Labor, issued
in 1893 under the title of “ Compulsory Insurance in Germany,” was
the first report published in this country devoted to the subject' of
workmen’s insurance.1 At that time compensation for industrial
accidents had been established by law in two countries only, Germany
in 1884, and Austria in 1887; the third country—Norway—not fol
lowing until 1894. In the other countries discussed in the appendix
of this early report the workmen’s compensation movement had not
passed beyond the stage of Government commissions and legislative
discussion.
Since the publication of this first report, the development of the leg
islation providing for workmen’s compensation for industrial accidents
in Europe and throughout the world has been extremely rapid; in
fact, it may be doubted whether any other subject of labor legisla
tion has ever made such progress or gained such general accept
ance for its principles in so brief a period. At the present time at
least 50 foreign countries and provinces have introduced some form
of workmen’s compensation for industrial accidents, which, while
showing great variations in the industries covered, the amount of
compensation provided, and the methods by which compensation
payments are secured, recognize the principles of compensation as
distinguished from the older idea of employer’s liability previously
accepted in the civil law of continental Europe, as well as in English
and American law.
In the United States what might be called the period of investi
gation and education began somewhat late as compared with Euro
1 A list of the publications of the Bureau of Labor Statistics relating to the general subject of workmen’s
Insurance and compensation may be found on the second and third pages of cover.

w o r k m e n ’s

COMPENSATION LEGISLATION.

pean countries. But since that beginning, investigation and study
have been followed with great rapidity by legislative action. The
first American State commissions that led to the enactment of laws
were appointed in New York, Wisconsin, and Minnesota in 1909,
legislation following in New York in 1910, in Wisconsin in 1911, and
in Minnesota in 1913. Beginning with the year 1909, 36 commissions,
either appointed or voluntary, not including the Federal commission,
have considered the subject of compensation, and compensation
legislation has been enacted in 42 States and the District of Columbia
(public employees only), as well as in the Territories of Alaska and
Hawaii, and Porto Rico and the Philippine Islands. There are also
to be noted the orders applicable to the Canal Zone and the Alaskan
railway, and the Federal laws of 1908 to 1914, these orders and laws
being now repealed and superseded by the United States Employees7
Compensation Act of September 7, 1916.
f Foreign countries, too, have been progressive in the same field,
some of the laws noted in earlier reports being superseded, while in
new and comparatively undeveloped industrial countries this type of
law has been adopted, so that annual revisions are a practical neces
sity if current conditions are to be accurately presented. By reason
of the bulk of the legislation enacted, and the volume of material
afforded by any analysis of the laws, and also because of the closer
community of interests, the present volume is limited to a presenta
tion of the laws of the United States and Canada.
c The lapse of time has diminished the value of the accounts of the
work done by the investigative commissions; and moreover their ends
have been accomplished for the most part, so that the summary of
their reports which has been presented in earlier bulletins on the
subject is omitted. Therefore the present volume will set forth in
analytic form the main provisions of the laws, some account of
their judicial construction and administrative methods, and the
latest text, giving identical treatment to the laws of Canada and the
United States so far as the conditions permit.

WORKMEN’S COMPENSATION LAWS OF THE UNITED STATES.
INTRODUCTION.

The first account of the action of the States of the Union and of
agencies interested in compensation legislation appeared as an
article of 40 pages in Bulletin No. 90,2September 1, 1910. Legislation
bills, etc., of 1911 received attention in an article appearing in Bulletin
No. 92.3 Subsequent accounts have been given in separate bulletins,4
besides special analytical studies.5
Investigative commissions began to be provided for as early as 1903
(Massachusetts) and 1905 (Illinois), but no legislative results followed.
Later commissions in both these States, and two and even three
commissions in others, indicate the degree of caution with which
the approach was made to the subject of compensation legislation.
The following tables show the progress of action, both in the appoint
ment of commissions and in the enactment of laws:
STATES, ETC., IN WHICH COMMISSIONS W E R E APPOINTED A N D IN W HICH COMPENSATION L A W S W E R E ENACTED , B Y Y E A R S , TO THE EN D OF 1919.

State, etc.

Alabama......................
Alaska...........................
Arizona.........................
.Arkansas......................
California......................
Colorado........................
Connecticut.................
Delaware......................
District of Columbia «.
Hawaii..........................
Idaho.............................
Illinois..........................
Indiana.........................
Iowa..............................
Kansas..........................
Kentucky........
Louisiana.........
Maine...............
Maryland.........
Massachusetts.
Michigan..........
Minnesota........
Missouri...........
Montana...........
Nebraska.........

Year
com
mission
was ap
pointed.

Year
compen
sation
law was
enacted.

1915

1919
1915
1912

1919
1911
1907
1911

1905
1913
1911
ft 1915
1912
1913
1903
1911
d 1909
1910
cl910
1911

Public employees only.
&Voluntary.
c Law declared unconstitutional.

*‘ i9 ii* ‘
1915
1913
1917
1919
1915
1917
1911
1915
1913
1911
2 1914
1916
1914
1915
1912
1911
1912
1913
1913
*1909
1915
1913

State, etc.

Nevada................ .
New Hampshire..
New Jersey......... .
New Mexico.........
New York.............
North Dakota.........
Ohio..........................
Oklahoma.................
Oregon......................
Pennsylvania..........
Philippine Islands..
Porto Rico...............
Rhode Island...........
South Dakota........ .
Tennessee............... .
Texas........................
Utah..........................
Vermont...................
Virginia....................
Washington........... .
West Virginia.........
Wisconsin............... .
Wyoming............... .
United States........ .

Year
com
mission
was ap
pointed.

Year
compen*
sation
law was
enacted.
1911
1911
1911
1917

1909
1911
1910
d 1911

1911
1913
1913
1911
1915
1913
1916
<H910
<*1911
1909
1910

<51910

1913
1919
1911
1915
1913
1915
1905
1916
1912
1917
1919
1913
1917
1915
1918
1911
1913
1911
1915
/1 908
\1916

Appointed by the governor.
« Two laws, one (compulsory) declared unconstitutional,

2 Recent action relating to employers’ liability and workmen’s compensation, September, 1910.

* Workmen’s compensation and insurance: Laws and bills, 1911. January, 1911.
Workmen’s compensation laws of the United States and foreign countries. Bui. 126. December, 1913.
477 pp.
Compensation legislation of 1914,1915. Bui. No. 185. October, 1915. 408 pp.
Workmen’s compensation laws of the United States and foreign countries. Bui. 203. January, 1917.
961 pp.
Workmen’s compensation legislation of the United States and foreign countries, 1917,1918. Bui. No. 243.
September, 1918. 477 pp.
&Comparison of workmen’s compensation laws. Bui. No. 240. May, 1918. 106 pp. Bui. No. 275,
1920. 140 pp.
*

WORKMENS COMPENSATION LAWS OF THE UNITED STATES.

NU M BER OF W O R K M E N ’ S COMPENSATION COMMISSIONS AND
1908 TO 1919.

Year.

Commis States,
etc., en
sions
formed or acting
provided original
law.
|
for.

1903...............
1905...............
1907...............
1908
1909.............
1910...............

1
1
2
i

3
8

i
1
1

Commis States,
etc., en
sions
formed or acting
provided original
for.
law.

Year.

1911...............
1912...............
1913...............
1914 . .
1915...............
1916...............

12
1
7
3
1

L AW S, B Y

Year.

10 1917...............
4 1918...............
7 1919...............
2
9 !
Total....
1

YEARS

Commis States,
sions
etc., en
formed or acting
provided original
for.
law.

5
I

1 United States.

The 40 commissions above accounted for operated in 32 jurisdic
tions, while laws have been enacted in 42 States, the Territories of
Alaska and Hawaii, the Philippine Islands, and Porto Rico, for the
civil employees of the Federal Government, and for the employees of
the government of the District of Columbia. Not every law has been
preceded by a commission, therefore; but every commission except
that of Arkansas, appointed in 1919, has been followed by the enact
ment of a law, though in some cases so remotely as to suggest a lack
of any real connection between the two events. The year 1911 was
marked by the creation of the largest number of commissions as well
as by the enactment of the largest number of laws. But one inves
tigative commission has been appointed since 1916—that of Arkan
sas, said to be to remove constitutional objections in a pending bill;
only four have been created since 1913, and it is obvious that the day
of their usefulness is ended, either as an aid in determining the
desirability of compensation legislation or of working out deviations
from accepted standards so as to meet supposed local peculiarities.
PROGRESS OF LEGISLATION,

The status of the employees of the United States, which precludes
suits for damages against their employer, the Government, led to a
comparatively early enactment of provisions in their behalf which
partook, to a considerable extent, of the nature of compensation
laws, though not fully representing them either in principle or opera
tion. Thus as early as 1882 (22 Stat., p. 57) provision was made for
certain employees of the Life-Saving Service who might suffer from
accidental injuries and from disease contracted in the service.
Beginning with 1900, the Post Office Department was given the
authority to employ “ acting clerks in place of clerks injured while
on duty” in the Railway Service, the salaries of the injured clerks
being continued for not more than one year. Death benefits were
added by later enactments, half pay during the second year of dis
ability being provided, and the scope of the provisions increased so
as to cover many other employees of the department.

PROGRESS OE LEGISLATION.

In 1908 a more general law for Federal employees was enacted to
be administered by the Secretary of Commerce and Labor, but lack
ing much of complete coverage and falling far short of adequacy in
its provisions. It remained practically unchanged, however, until in
1916 a law of general application to civil employees of the United
States was passed, and an administrative commission provided for.
This act extends to employees of the Isthmian Canal and the Panama
Railroad, and of the Alaskan railways under Federal construction
and control, but administration for these groups of employees rests with
the officials in charge of the respective localities and undertakings.
The latest extension (1919) of the provisions of this act brings
employees of the government of the District of Columbia within their
scope, the law being administered in this regard by the same com
mission that has charge of the act as it affects civil employees of the
United States generally.
The first State legislation enacted in the United States, providing
for stated benefits without suit and without proof of negligence, was
a cooperative insurance law of the State of Maryland, enacted* in
1902. This law was of restricted application, affecting only mining,
quarrying, steam and street railways, and work by municipalities in
constructing any sewer, excavation, or other physical structure.
This law was to be administered by the State insurance commissioner,
and made payment an absolute requirement in case of death. It
was declared unconstitutional after about two years’ operation.6
An act of the same legislature made quite similar provisions for coal
and clay miners in Alleghany and Garret counties.
The next law within the territorial jurisdiction of the United States
was an enactment by the United States Philippine Commission in
1905, authorizing the continuance of wages for a period during
disability, but not exceeding 90 days, in case of injury received by
employees of the insular government in line of duty.7
Next in order of time was the Montana statute of March 4, 1909, in
effect October 1, 1910, providing for the maintenance of a. State
cooperative insurance fund for miners and laborers in and about the
coal mines of the State. Contribution to the fund was compulsory,
employers to pay on the basis of the tonnage of coal mined and em
ployees on the basis of their monthly gross earnings. State officials
were to administer the fund, and payments for death and disability
were provided for. While compulsory, the act was not exclusive
as against injured workmen, who were permitted to sue under the
employers’ liability law, though bringing suit forfeited benefits
under this act. The double obligation imposed upon the employer
by the act was held by the supreme court of the State to invalidate it,
« For an account of the operation of this law and the opinion declaring it unconstitutional, see Bui. No.
57, pp. 645-648,689,690. The law itself is given in Bui. No. 45, pp. 406-408.
^ Act No. 1416: see Bui. No. 71, p. 394.

w o r k m e n ’s COMPENSATION LAWS OF THE UNITED STATES.

though in its essential features it was held to be a* valid exercise of
the law making power.8
The next law enacted in this field, and the last before the effect of
investigations by commissions came to be influential, was a law of 1910
of Maryland, superseding and repealing the act of 1902, affecting the
coal and clay miners of Allegany and Garrett counties. This act was
itself repealed by the compensation law of 1914. It provided for
equal contributions by employers and workmen to a fund to be col
lected and disbursed by the treasurers of the respective counties.
Administration rested with the county commissioners. Suit could
be brought, but this barred compensation rights, and conversely
the acceptance of benefits barred the right to sue. The fault of
double liability which was held to invalidate the Montana statute
was avoided in this law by a provision which authorized an employer
who had defended a suit, and against whom judgment had been
rendered, to deduct, on compliance with certain conditions, the
amount of such judgment and costs from the payments thereafter
to be made by him to the county fund.9
It is to be observed of the foregoing legislation, antedating what
may be called the commission period, that it is of limited application,
either as to the locality or classes of employees affected; also that
there appears to have been little regard to compensation principles
as at present understood. The remaining laws to be noticed may be
said to be of general application, and have either followed the in
vestigations of commissions or have been enacted under conditions
making the results of such commissions available to those interested.
The first of the laws of this class is the elective compensation law
of New York, 1910, followed at the same session by a compulsory
law for hazardous occupations. The latter law was declared uncon
stitutional after a very brief term of existence, but after an amend
ment to the constitution, a new law was passed, which has been sus
tained by both the State and the Federal courts.
Of the 10 laws enacted in 1911, 7 provided for simple com
pensation, 3 containing also provisions for insurance; while in
1912, three States enacted compensation laws and one an insurance
law; in 1913 seven States were added to the list, in five of which com
pensation only was provided for, while in two there is also a system
of insurance. In 1914 compensation laws were enacted in two States,
though in one (Kentucky) the law was declared unconstitutional
before the time for it to take effect. Of the 10 new laws enacted in
1915 (one taking the place of the unconstitutional statute of Mon
tana), 9 provided for compensation merely, while 1 established an
insurance system. A new compensation law was passed in Kentucky
in 1916, in lieu of the earlier law declared unconstitutional; this,
b For the law in full see Bui. No. §5, pp. 658-661. •
9 This act is given in Bui. No. 91, pp. 1066-1070: amendments enacted in 1912 appear in Bui. No.

Ill,

PROGRESS OF LEGISLATION.

with a law of Porto Rico which requires the insurance of the lia
bilities fixed by it are the only new laws of the year, though impor
tant amendments were made in Louisiana and New York. Indeed,
practically every year is marked by amendments whose tendency is in
general to strengthen the laws and enlarge their scope.
The extension of compensation legislation to five States in 1917,
one in 1918, and four in 1919, besides the inclusion of public employees
of the District of Columbia, marks the present bounds of compensa
tion legislation. Of these, two of the laws of 1918 and one in 1919
provide for a State insurance system, though in only one of them'is
this system exclusive.
The following table shows in chronological order the States, etc.,
that have enacted compensation laws:
STATES, ETC., HAV IN G COMPENSATION L AW S, W IT H TH E D AT E OF T H E IR EN ACT
M ENT AN D COMING INTO EFFECT.

State.
United £
Washington.........
Kansas...................
Nevada..................
New Jersey...........
California..............
New Hampshire..
Wisconsin.............
Illinois...................
Ohio.......................
Massachusetts___
Michigan...............
Rhode Island.......
Arizona................ .
West Virginia___
Texas............
Iowa..............
Nebraska___
Minnesota...
Connecticut.
New York
Maryland___
Louisiana___

Approved.

Effective.

May 30,1908 Aug. 1,1908
Mar. 14,1911 Oct. 1.1911
1.1912
____do............. Jan.
Mar. 24,1911 July 1.1911
Apr. 4,1911 July 4.1911
Apr. 8,1911 Sept. 1.1911
Apr. 15,1911 Jan. 1.1912
May
3,1911 May 3.1911
June 10,1911 May 1.1912
1.1912
June 15,1911 Jan.
July 28,1911 July 1.1912
Mar. 20,1912 Sept. 1.1912
Apr. 29,1912 Oct. 1.1912
June 8,1912 Sept. 1.1912
Feb. 22,1913 Oct. 1.1913
Feb. 25,1913 July 1.1914
Apr. 16,1913 Sept. 1.1913
Apr. 18,1913 July 1.1914
Apr. 21,1913 July 17,1913
Apr. 24,1913 Oct. 1.1913
May 29,1913 Jan.
1.1914
Dec. 16,1913 July 1.1914
Apr. 16,1914 Nov. 1.1914
June 18,1914 Jan.
1.1915

State.

Approved.

Effective.

Wyoming................... Feb. 27,1915 Apr. 1.1915
Indiana........................ Mar. 8,1915 Sept. 1.1915
Montana *................... ....... do............. July 1.1915
Oklahoma................... Mar. 22,1915 Sept. 1.1915
Vermont..................... Apr. 1,1915 July 1.1915
Maine.......................... ....... do............. Jan. 1.1916
Colorado...................... Apr. 10,1915 Aug. 1.1915
Hawaii........................ Apr. 28,1915 July 1.1915
Alaska......................... Apr. 29,1915 July 28,1915
Pennsylvania............. June 2,1915 Jan. \ 1,1916
Kentucky *................. Mar. 23,1916 Aug. 1,1916
Porto Rico................. Apr. 13,1916 July { 1,1916
South Dakota............ Mar. 10,1917 June 1,1917
New Mexico............... Mar. 13,1917 June 8,1917
Utah............................ Mar. 15,1917 July 1,1917
Idaho........................... Mar. 16,1917 Jan. 1,1918
Delaware..................... -Apr. 2,1917
Do..
Virginia....................... Mar. 21.1918 Jan. 1,1919
North Dakota............ Mar. 5,1919 July 1,1919
Tennessee................... Apr. 15.1919
Do.
Missouri a.................... Apr. 28,1919 Nov. 1,1919
District of Columbia 1 July 11,1919 July 1,1919
Aug. 23,1919 Jan. 1,1920
Alabama...............

1 Public employees only.
* Earlierlaws of Montana (1909), New York (1910), and Kentucky (1914) were declared unconstitutional.
* The law of Missouri is suspended awaiting the results of a referendum.

The dates given-above are the dates of the actual inception of com
pensation methods in the various jurisdictions. As indicated by the
footnotes, earlier laws were enacted in a few States, but were never
really operative. The existing laws of a number of jurisdictions,
widely differing in some instances from those enacted at the dates
given above, are of more recent enactment; but the operation of a
compensation law has been continuous since the original act became
effective. There are therefore but six States in the southeastern
portion of the Union that are without compensation laws, unless the
referendum in Missouri should prove adverse to the act of that State.
It also rests with Congress to provide for private employments in
the District of Columbia and for interstate employees in transporta
tion and for maritime workers.

WORKMEN ?S COMPENSATION LAWS OF THE UNITED STATES.

Besides the statutory enactments noted above, there have been
constitutional provisions made in a number of States, adopted with
a view to the removal or forestalling of objections to compensation
legislation on grounds of constitutionality. Thus the constitution
of ^Arizona, adopted on the admission of that State into the Union
in 1910, provides specifically for the enactment of a compensation
law. Amendments in favor of such legislation were adopted in 1911
in (California, in 1912 in Ohio, 1913 in New York and Vermont, 1914
in\Wyoming, and in 1915 in Pennsylvania. In Oklahoma alone, of
all (the States where the question has been submitted to the people,
was such an amendmqnt rejected. This took place on August 1,1916,
the amendment failing along with eight others submitted at the time.
Of -this.it has been said that the questions passed upon were rejected
as a whole on account of other facts than the attitude of the public
toward this particular subject*
The importance of such amendments to the constitution as pre
liminary to the enactment of compulsory laws has been greatly dis
counted by reason of decisions of the Supreme Court of the United
States, upholding compensation laws of various types and form, as
not in conflict with constitutional provisions; so that, in the absence
of specific limitations which may be found by way of exception in
some State constitutions, no bar appears to the enactment of a com
pensation law compulsory in form, and of general application.
However, in but two States (California and Illinois) thus far has an
original elective law been supplanted by a compulsory one.
TYPES OF LAWS.10

The rapid growth of compensation legislation, involving, as it has,
the almost simultaneous enactment of laws in a number of States,
has operated to prevent the adoption of any one form of law as a
type,, so that, although a single fundamental principle underlies the
entire group of laws of this class, its expression and application pre
sent great diversity of details in the different States. This extends
not only to the primary factors of the scope of the laws and the
amount of compensation payable under them, but the matter of
making the laws compulsory or voluntary in their acceptance, the
securing or not securing the payments of the benefits, the mode of
securing where it is required, methods of administration, of election
or rejection, etc.
No fixed form of analysis or summary presentation can give in
complete detail the provisions of the laws under consideration. They
relate not only to the compensation of accidents, but to accident re
porting, safety provisions, the enforcement of safety laws, the estab
10A detailed comparison of the provisions of existing laws appears as Bulletin No. 275.

TYPES OP LAWS.

lishment of insurance systems, premium rates, investments, the scaling
of payments in cases of certain forms of negligence or their increase
under certain conditions, procedure in arbitration, forms of appeal,
and a great variety of subjects on which it would be impossible to
generalize, and which can be discovered only by a reading of the
individual statutes, though the use of the index to the laws will aid
in this. The adoption by a few States of laws generally similar can
be clearly recognized, but it is obvious that at the present time it can
not be said that any one type of law is predominantly approved.
However, it seems none the less certain that the welfare of both
employer and employee, as well as the public interest generally,
would be served by the general adoption of uniform laws, just and
certain in their operations, and not dependent for their acceptance
on the personal views or interests of individuals or groups of
individuals.
It is encouraging to note in this connection that, though there is
such diversity, and a manifest disposition on the part of some admin
istrative and legislative bodies to regard variations as warranted by
local conditions, if not absolutely desirable, there are certain discov
erable tendencies to move in a common direction, and thus approach
a common end.
Thus a comparison of the new and amendatory enactments from
year to year discloses a movement toward an increase in the rate of
compensation. Until the year 1919, a majority of the laws used a
50 per cent basis for compensation awards, while at present a larger
number pay from 60 to 66§ per cent of the wages as benefits. Wait
ing time has been reduced from a general standard of two weeks to
a predominant limitation of one week or less, eight States shortening
the waiting time in 1919, and 9 or 10 others by earlier amendments.
Perhaps in no aspect have the laws been more generally liberalized
than in regard to medical and surgical aid, important changes taking
place each year, though there is yet room for improvement. Admin
istration by a commission instead of by courts is increasingly recog- j
nized as necessary, three States having provided for them after
experience, without them, leaving but 10 which are at present without
such an agency.
j
Compensation laws may be classified first as compulsory or elective. ]
A compulsory law is one which requires every employer within its|
scope to accept the act and pay the compensations specified. Usually,
but not always, the employee must also accept the provisions of the]
act. In Arizona, for example, the law is compulsory as applied to
the employer, but the employee, after an injury, has the option of
accepting compensation or suing for damages.

w o r k m e n ’ s c o m p e n s a t io n l a w s of t h e u n it e d st a t e s .

An elective act is one in which the employer lias the option of
either accepting or rejecting the act, but, in case he rejects, the cus
tomary common-law defenses are abrogated. In other words, the
employer is subjected to a higher degree of liability if he does not
elect. In most States the employee also has the right to accept or
reject the act, although in Texas he has no option and must accept
if his employer elects.
^
None of the compensation laws covers all employments. Usually
agriculture, domestic service, employments casual in nature or not
conducted for the purpose of the employer’s business, and in some
laws nonhazardous employments, are exempted from the provisions
of the act. It may be provided, however, that such employments
may come under the provisions of the law through the voluntary
acceptance of the employer or the joint election of employer and
employee in these exempted classes, but the employer loses no rights
or defenses if he does not accept, and to this extent the compensation
law is a voluntary one. Thus a law may be either compulsory or
elective as to the employments covered and voluntary as to other
employments.
Furthermore, an act may be elective as to private but compulsory
as to public employments. Classification, however, is based exclu
sively upon private employments.
Besides the distinction as to the compulsory or elective application
of the law, it may require the employer coming under it, whether
voluntarily or by compulsion, to insure his liability to make payments,
or it may leave the matter of insurance to his own choice. On the
basis of these two facts the following classification of State laws
appears:11
n The term State is used in this discussion to include the Territories of Alaska and Hawaii, and the Island
of Porto Rico.' Since the Federal law applies only to public employees, it is not, as a rule, considered.

TYPES OF LAWS.

Compensation compulsory, 14.

Insurance required, 13.

California.
Hawaii.
Idaho.
Illinois.
Maryland.
New York.
North Dakota.
Ohio.
Oklahoma.
Porto Rico.
Utah.
Washington.
Wyoming.

Insurance not
required, 1.

Arizona.

Compensation elective, 31.

Insurance required, 26.

Colorado.
Connecticut.
Delaware.
Indiana.
Iowa.
Kentucky.
Maine.
Massachusetts.
Michigan.
Missouri.
Montana.
Nebraska.
Nevada.
New Hampshire.
New Jersey.
New Mexico.
Oregon.
Pennsylvania.
Rhode Island.
South Dakota.
Tennessee. #
Texas.
Vermont.
Virginia.
West Virginia.
Wisconsin.

Insurance not
required, 5.

Alabama.
Alaska.
Kansas.
Louisiana.
Minnesota.

Very considerable differences appear in the methods provided by
the laws of *the 39 States in which insurance is obligatory. Thus
the State may make provision for the carrying of such insurance,
and require all employers coming under the act to avail themselves
of such provision; or the State fund may simply offer one of alter
native methods. Again, the State may refrain entirely from such
action, but require insurance in private companies, stock or mutual;
and lastly, self-insurance may be permitted—i. e., the carrying of the
risk by the individual, subject to such safeguards as the law may
prescribe.
177982°— 21— Bull. 272------ 2

W o r k m e n ’s com peinsation l a w s o f t h e u n it e d s t a t e s .

The following table shows the groupings on the bases indicated:
COMPULSORY

INSURANCE

STATES,

CLASSIFIED
ALLOW ED.

KINDS

INSURANCE

State fund (17).
Private insurance (31).
Exclusive (8).

Self-insurance (31).

Competitive (9).
California..
Colorado..

Idaho-

Maryland.
Michigan..
Montana..

California........ .
Colorado...........
Connecticut. . .
Delaware..........
Hawaii..............
Idaho............... .
Illinois___ ■____
Indiana........... .
Iowa..................
Kentucky....... .
Maine................
Maryland.........
Massachusetts..
Michigan......... .
Missouri.......... .
Montana...........
Nebraska........ .

California.
Colorado.
Connecticut.
Delaware.
#
Hawaii.
Idaho.
Illinois.
Indiana.
Iowa.
Kentucky.
Maine.
Maryland.

New Hampshire1
New Jersey..........
New Mexico.........

New Hampshire.1
New Jersey.
New Mexico.

New York.
Oklahoma.

New York.
Ohio.3
Oklahoma.

Pennsylvania.

Rhode Island.
South Dakota.
Tennessee........
Texas...............
Utah.................
Vermont.........
Virginia...........

Rhode Island.
South Dakota.
Tennessee.
tltali.
Vermont.
Virginia.

Wisconsin.

West Virginia.3
Wisconsin.

Nevada.

Michigan.
Missouri.
Montana.
Nebraska.

North Dakota.
New York.
Ohio2.........
Oregon.......
Pennsylvania..
Porto Rico.

Utah.,
Washington. . .
West Virginia 3
Wyoming.

1 The New Hampshire law requires employers accepting the act to furnish proof of solvency or give
bond, but makes no other provisions for insurance.
2 Ohio permits self-insurance, but all employers are required to contribute their proportionate share to
the State insurance fund surplus.
*
* West Virginia permits self-insurance, but employers desiring to carry their own risk must contribute
their proportionate share of the administrative expenses of the law.

It is to be observed that the terms “ exclusive” and “ competitive”
as used in the foregoing table relate to the competition of other insur
ance carriers; self-insurance being permitted in some States from
which competing companies are barred.
Besides the 17 States here noted as having State funds, the law of
Virginia mentions the State fund as one of the insurance carriers
for employers coming under the act, but makes no provision for the
creation of such fund. It will be noted that three12 of the seven
States which are classed in the foregoing table as having exclusive
State funds are shown by the table next above to ha\e an elective
system of compensation. However, should employers in these States
accept the compensation system, insurance in the State fund is

i2 Nevada., Oregon, and West Virginia.

TYPES OF LiAWS.

obligatory, except that in West Virginia approved employers may
carry their own liabilities.
The law of Idaho affords some difficulty as to classification of the
Insurance system. Payments under the act are to be secured by
insuring in the State fund, or by a deposit of satisfactory security.
*‘ Such security may consist of a surety bond or guaranty contract
with any company authorized to do surety or guaranty business in
Idaho.” This has been construed by the attorney general of the
State to permit both surety bonds and insurance contracts to be
received as security.
The compensation laws of three States13provide for a State mutual,
association, though, except in Kentucky, the management is entirely
in the hands of directors chosen by insuring subscribers. In Ken
tucky the governor appoints 3 of the 15 directors. Massa
chusetts was the first State to provide for this type of insurance.
The original purpose was to create an insurance monopoly conducted
by an employers’ mutual company and supervised by the State.
Before the law was finally enacted, however, private companies
were given practically the same privileges as the so-called State
company, which at present is a regular competing private company.
The other two States practically copied the provisions of the Massa
chusetts law. Massachusetts and Texas do not permit self-insurance,
while Kentucky does.
The accompanying map shows the extent of existing legislation
and the nature of the laws (L e., elective or compulsory), and whether
or not insurance is required; also the States having a State insurance
fund and its type. An analysis of the law of each State, in compar
able form, is presented on the following pages.

is Kentucky, Massachusetts, and Texas.

20
WORKMEN ’s COMPENSATION
LAWS OF THE

LAW

FUND

in su ra n c e |

E le c tiv e
q

ul RE d mriTn

E X C LU SIV E
.C O M P E T IT IV E

C O M P E N S A T IO N

COMPULSORY

__JREQU/RED

INSURANCE | n o ^

frfr'til

RFQUiRED E Z S 3

O
O

STATES.

co m p e n sa tio n

UNITED

STATE

----- — --------- ^----------------

NO COMPENSATION

ANALYSIS OF THE PRINCIPAL FEATURES OF THE LAWS.
ALABAMA.
Date of enactment.—August 23, 1919. Effective January 1, 1920.
Injuries compensated.—Injuries caused by accident arising out of and in the course
of the employment, causing disability for more than two weeks, or death, not caused
by employee’s willful misconduct, intoxication, or willful failure to observe rules
or statutory duties.
Industries covered.—All except those employing less than 16 persons, common
carriers while engaged in interstate commerce and domestic and agricultural service.
Municipalities and employers of less than 16 employees (except farm laborers), may
elect to come under the act.
Persons compensated.—Private employment: All persons in the industries covered,
including minors, but excepting casual employees. Public employment: Not
covered unless employer elects.
Burden of payment.—Entire cost rests upon the employer.
Compensation for death:
(a) Burial expenses not to exceed $100.
(b) Total dependents: To widow, 30 per cent of wages; to dependent husband,
25 per cent; to widow or widower and one child, 40 per cent; to widow or
widower and two or three children, 50 per cent; to widow or widower and
four or more children, 60 per cent; to dependent orphan, 30 per cent; for
each additional orphan, 10 per cent, maximum 60 per cent; to one parent,
25 per cent, both 35 per cent; to grandparent, brother, sister, mother-in-law,
father-in-law, if one, 20 per cent, if more than one 25 per cent.
Compensation payable in the order named and ceases on death or remarriage,
and upon arrival of children at age of 18.
(c) To partial dependents: A proportion of the above corresponding to the relation
the contribution of the deceased to their support bore to his wages.
Maximum weekly payment, $12; minimum, $5. Total period, 300 weeks; total
maximum $5,000.
Compensation for disability:
(a) Reasonable medical, etc., treatment for the first 60 days, not exceeding $100.
(b) For temporary total disability, 50 per cent of wages for not over 300 weeks.
(c) For partial disability, 50 per cent of wage loss for not over 300 weeks.
For certain specific injuries (mutilations, etc.)? 50 per cent of wages for fixed
periods (10 to 400 weeks).
(d) For permanent total disability, 50 per cent of wages for 550 weeks, not over
$5 weekly after 400 weeks.
Maximum weekly payments, $12; with one wholly dependent child, $13; with
two children, $14; with three or more children, $15; minimum, $5.
No compensation payable for first two weeks. Compensation may be commuted
to lump-sum payments by agreement or by the court.
Revision of benefits.—Awards payable for more than six months may be revised by
agreement or by court.
Insurance.—Employers may insure whole or part of compensation. Insurance not
required.
Security for payments.—Compensation is not assignable, nor subject to garnishment,
and is entitled to the same preferences as unpaid wages.
Settlement of disputes.— Settlements not made by agreement are determined by
the courts.
21

w o r k m e n ’s c o m p e n s a tio n la w s

of th e

u n ite d s t a t e s ,

ALASKA.
Date of enactment—April 29, 1915; in effect July 28, 1915; amended, chapter 44,
acts of 1917Injuries compensated.—Personal injury causing disability for more than two weeks,
or death, arising out of and in course of employment, not due to the employee’s willful
intention to injure himself or another, or to his intoxication.
Industries covered.—Mining operations in which five or more persons are employed,
unless election to the contrary is made (includes development and construction work,
stamp and roller mills, reduction work and processes, coke ovens, etc.).
Persons compensated.—Private employment: All employees in industries covered,
contractors and subcontractors excluded. Public employment not included.
Burden o f payment.—All on employer.
Compensation for death;
(a) If married, $3,000 to widow, 1000 additional for each child under 16 years of
age, or child wholly dependent by reason of mental or physical incompeteney, or unborn or posthumous child, and to dependent parent or parents
if any; if no widow, $3,000 to any minor orphan, and $600 additional for
each child under 16; no total to exceed $6,000.
lb) If unmarried, and dependent parent or parents, $1,200 to each.
(c) If no dependents, funeral expenses not to exceed $150, and other expenses,
if any, to same amount.
Compensation for disability:
(a) Permanent total: $3,600 to workman alone; $1,200 additional if wife is living;
$600 additional for each -child under 16, posthumous child, or child over 16,
dependent by reason of physical or mental incompetency; total not to
exceed $6,000. If no wife or children, $600 to each dependent parent.
(b) Temporary total disability: 50 per cent of weekly wages for not over six
months.
■(c) Permanent partial disability: Fixed sums for specified injuries in lieu of
other payments, varying with conjugal condition and number of children.
Revision o f benefits.—Readjustment must be made if within two years an injury
develops or proves to be such as to warrant a different award from any previously
made.
Insumnce.—No provision.
Security of payments.—Attachment may be had pendingxesult of action, or employer
may deposit cash or bond with court. Payments are exempt from execution.
Settlement o f disputes.—By courts, either with or without jury trial.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

ARIZONA.
Date of enactment.—June 8, 1912; in effect September 1, 1912; amended, chapter 7,
acts of 1913.
Injuries compensated.—All accidental injuries causing disability of at least two
weeks, or death, arising out of and in the course of the employment, caused in whole
or in part, or contributed to, by a necessary risk or danger of, or inherent in the nature
of the employment, or by failure of the employer or his agents to exercise due care
or to comply with any law affecting the employment.
Industries covered.—All especially dangerous employments (enumerated list), includ
ing the construction, operation, and maintenance of steam and street railroads; work
with or near explosives; building work using iron or steel frames or hoists, derricks, or
ladders or scaffolds 20 or more feet above ground; telegraph, telephone, or other elec
trical work; work in mines, quarries, tunnels, subways, etc.; work in mills, shops, and
factories using power machinery. Elective as to other industries.*
Persons compensated.—Private employment: All employees in industries covered.
Public employment: No provision.
Burden of 'payment.—Entire cost rests upon the employer.
Compensation for death:
(а) To persons wholly dependent, a lump sum equal to 2,400 times one-half the
daily wages or earnings of the deceased employee, but not to exceed $4,000.
Payments to children cease on reaching the age of 18 years.
(б) If no dependents, the reasonable expenses of medical attendance and burial
of deceased employee.
Compensation for disability:
(а) For total disability, 50 per cent of the employee’s semimonthly earnings dur
ing the time he is unable to work at any gainful occupation.
(б) For partial disability, a semimonthly payment equal to one-half the wage
decrease.
(c) The total amount of payments for total or partial disability caused by a single
injury not to exceed $4,000.
Revision of benefits.—Examinations as to the nature of injury and degree of inca
pacity, etc., may be required by either party at intervals of not less than three months.
Insurance.—The employer may insure provided the liability for compensation is
not less than the compensation fixed by law.
Security of payments.—A judgment for compensation issued by a court is collectible
without relief from valuation or appraisement laws and has the same preferential
claim as is allowed by law for unpaid wages or personal services.
Settlement of disputes.—Disputes may be settled by (a) written agreement between
the parties, (b) arbitration, or (c) reference to the attorney general of the State. In
case of failure or refusal to agree by any of the modes above provided, then by a civil
action at law.

w o r k m e n ’s COMPENSATION LAWS OF THE UNITED STATES.

CALIFORNIA.
Date o f enactment.—April 8, 1911; in effect September 1, 1911; new act, chapter 176,
acts of 1913, in effect January 1, 1914; new act, chapter 586, acts of 1917, in effect
January 1, 1918; amended chapter 471, acts of 1919.
Injuries compensated.— Injuries or disease arising out of and in the course of employ
ment, including injuries to artificial members, causing disability for more than 7 days,
or death, not intentionally self-inflicted and not the result of the intoxication of the
injured employee.
Industries covered.—All except agriculture and domestic service, which services may
come under the act by joint election.
Persons compensated.—Private employment: All employees, including apprentices
and aliens, excepting casual employees not in the course of the employer’s trade or
business. Public employment: Persons employed by the State and its political
subdivisions and all public corporations, including officers and enlisted men of the
National Guard.
Burden of payment.—Entire cost rests upon the employer.
Compensation for death:
(a) The reasonable expense of burial, not exceeding $100.
(b) To persons wholly dependent, three times the annual earnings of the deceased
employee; not less than $1,000 nor more than $5,000, payable at least
semimonthly in installments equal to 65 per cent of the wages. Payments
to children cease on their reaching the age of 18 years, unless mentally or
physically incapacitated for earning a living.
(c) If only partial dependents survive, three times the annual contribution of
the deceased to their support, subject to the same limitations as above.
(d) If no dependents, burial expenses, and $350 to be paid to rehabilitation fund.
Any disability payments made and burial expenses paid are to be considered
as parts of the foregoing totals.
Compensation for disability:
(a) Such medical, surgical, and hospital treatment as may reasonably be required
to cure and relieve from effects of injury.
(b) For temporary total disability, 65 per cent o average weekly earnings during
such disability.
(c) For temporary partial disability, 65 per cent of weekly loss of wages during
such disability.
(d) For permanent disability, 65 per cent of average weekly earnings for periods
varying from 4 to 240 weeks, according to the degree of disability. After
the expiration of 240 weeks a further benefit varying from 10 to 40 per
cent of the weekly earnings is payable during the remainder of life, when
the degree of disability reaches or exceeds 70 per cent.
The aggregate amount of benefits for a single injury causing temporary disa
bility is limited to three times the annual earnings of the injured person,
with a maximum benefit period of 240 weeks.
In case of permanent incapacity or death, a lump sum may be substituted for
benefits, such lump sum to equal the present value of the benefits computed
at 6 per cent.
Average weekly earnings shall be considered as not less than $6.41 nor more
than $32.05.
Revision of benefits.—Decisions and awards may be reviewed at any time during the
first 245 weeks, after legal notice received.
Insurance.—Insurance is required in the State insurance fund or in an authorized
insurance company, unless the employer furnishes proof of ability to carry M b own
insurance. Municipalities are required to insure in the State fund unless the risk is
refused.
Security of payments.—A claim for injury or death of an employee or any award
shall have the same preference over other unsecured debts as is given b y law to claims
for wages, but not so as to impair a lien of a previous award. Policies inure directly
to the benefit of employees, who also have a first lien on any amount due the employer
from the insurance company. Self-insurers may be required to give bond or deposit
securities.
Settlement of disputes.—Disputes are settled by the State industrial accident com
mission, subject to a limited review by the courts.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

COLORADO.
Date of enactment.—April 10, 1915; in effect August 1,1915. Reenacted, chapter
210, acts of 1919.
Injuries compensated.—-Injuries caused by accident arising out of and in course of
employment, not intentionally self-inflicted, and causing death within two years or
disability for more than ten days.
Industries covered.—All, except interstate commerce and domestic and agricultural
labor, irr which four or more persons are employed, if employers elect to come
under the act; others may elect, but lose no defenses if they do not.
Persons compensated.—Private employment: All employees, including aliens and
minors, whether lawfully or unlawfully employed, but excluding employees whose
work is but casual and not in the usual course of the employer’s business. Public
employees: All under any appointment or contract of hire; elective officials and
officers and enlisted men of the National Guard excluded.
Burden of payment.—All on employer.
Compensation for death:
(a) To persons wholly dependent, including acknowledged illegitimate children,
50 per cent of the weekly wages for six y ears, $10 maximum, $5 minimum,
total not to exceed $3,125 nor to be less than $1,560. If death occurs from
any cause during receipt of disability benefits, any unaccrued and unpaid
remainder goes to dependents.
(b) If only partial dependents survive, 50 per cent of the weekly wages, $10
maximum, $5 minimum, for such part of six years as the commission may
determine, total not to exceed $3,125. If death occurs from any cause
during the receipt of disability benefits, partial dependents shall receive
not more than four times the amount contributed by the deceased during
his last year of employment, the aggregate of disability and death benefits
not to exceed $3,125.
(c) If no dependents, medical services and $75 funeral expenses.
(d) Payments to any beneficiary cease on death; to widow or dependent widower
on remarriage, but a lump sum equal to one-half the unpaid balance shall be
paid to the spouse if there are no children; if there are dependent children,
the unpaid balance is payable to them; to children, on reaching the age of
18, unless physically or mentally incapacitated from earning.
Payments lapsing for any reason go to surviving dependents, if any.
Benefits to aliens are one-third the amounts payable to citizens, and may not
exceed $1,041.66 in all.
Compensation for disability:
(a) Medical and surgical assistance for first 60 days, not more than $200 in value
and $100 for dental services.
(b) For temporary total disability, 50 per cent of weekly wages during continu
ance, $5 minimum, $10 maximum; full wages if less than $5.
(c) For permanent total disability, 50 per cent of average weekly wages, maxi
mum $10, minimum $5, for life.
(d) For permanent partial disability, 50 per cent of the weekly wage decrease, $10
maximum; total not to exceed $2,600. Special schedule for specified
injuries, 50 per cent of weekly wages for periods ranging from 4 to 208 weeks,
in addition to other payments. Facial disfigurements may also be com
pensated for in an amount not exceeding $500.
(e) For temporary partial disability, 50 per cent of wage loss during disability;
maximum $10, minimum $5 weekly, aggregate maximum $1,300.
Payments may be commuted to a lump sum after six months.
Revision of benefits.—Awards may be reviewed after making, and may be appealed
from within 20 days.
Insurance.—Insurance in State fund, stock, or mutual company, or proof of financial
ability to make payments, is required. Public employees must be insured in the
State fund.
Security of payments.—Insurers are primarily liable to a workman or his beneficiaries
entitled to benefits; notice to employer is notice to insurer; insolvency of employer
does not release insurer. Claims are not assignable, and payments are exempt from
attachment or execution. Claims to have same preference as to lien as wages, but
not limited as to amount.
Settlement of disputes.—Disputes are determined by the industrial commission, with
limited appeal to courts.

w o r k m e n ’s c o m p e n s a tio n l a w s o f t h e u n it e d s t a t e s ,

CONNECTICUT.
Date o f enactment.—May 29, 1913; in effect January 1, 1914; amended, chapter 228,
acts of 1915; chapter 368, acts of 1917; chapter 284, acts of 1918; chapter 142, a»ts of 1919.
Injuries compensated.—All injuries arising out of and in the course of employment,
disability of more than 7 days, or death, except when injury is caused by willful and
serious misconduct of the injured employee, or by his intoxication. Occupational
diseases are included.
Industries covered.—All industries in which five or more persons are employed, in
absence of contrary election by employer.
Persons compensated.—Private employment: All employees of an employer accept
ing the act, in absence of contrary election, outworkers"and casual employees who
are employed otherwise than for the purposes of the employer’s business excepted.
Public employment: Employees of the State and any public corporation within the
State using the services of another for pay.
Burden of payment.—Entire cost rests upon the employer.
Compensation for death:
(а) $100 for burial expenses.
(б) To persons wholly dependent, a weekly compensation equal to one-half
the earnings of the deceased employee.
(c) If only partial dependents survive, a weekly compensation, determined
according to the measure of dependence, not exceeding one-half the earn
ings of the deceased employee.
(d) Compensation shall in no case be more than $18 or less than $5 weekly, and
shall not continue longer than 312 weeks.
A widow’s or widower’s dependence ceases with remarriage, and a child’s
upon reaching 18 years of age, unless physically or mentally incapacitated.
If a widow or dependent widower remarries or dies during the term of benefit
payments, subsequent payments go to other dependents, if any.
Aliens receive only one-half of above compensation.
Compensation for disability:
(a) Reasonable medical and surgical aid and hospital service.
(b) For total disability, a weekly compensation equal to one-half the employee’s
earnings, not more than $14 or less than $5 weekly, or for longer than 520
' weeks.^
(c) For partial disability, a weekly compensation equal to one-half the wage
loss, but not more than $18 per week, or for longer than 520 weeks. For
specified injuries causing permanent partial disability, one-half the average
weekly earnings for fixed periods in lieu of all other payments.
Lump-sum payments may be approved by the commissioner, ’provided th^y
equal the value of the compensations.
Revision o f benefits.—Review may be. had upon request of either party, when
ever it shall appear to the compensation commissioner that the incapacity or the
measure of dependence has changed. The commissioner retains control over awards
during their whole period, with power to take proper action thereon at any time.
Insurance.—Approved schemes may be substituted, provided^ the benefits are
equivalent to those provided by law. Insurance may be taken in approved stock
or mutual companies or associations.
Security o f payments.—Employer must furnish the insurance commissioner satis
factory proof of his solvency and financial ability to pay awards, file satisfactory security
with the insurance commissioner, or insure in approved stock or mutual companies
or associations. Payments are not assignable, are exempt from execution, and are
entitled to the same preference as wage debts.
Settlement o f disputes.—Disputes are to be settled by the compensation commis
sioners. Appeals from findings and awards of any commissioner may be made to the
superior court of the county without cost to either party.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

DELAWARE.
Date of enactment.—April 2, 1917; in effect January 1, 1918; amended, chapter 203,
acts of 1919.
Injuries compensated.—Injuries by accident arising out of^ and in course of
employment, causing disability for more than 14 days, or death within one year, and
not due to the employee’s intoxication or willful negligence or intent to injure him
self or another.
Industries covered.—All,' except agriculture and domestic service, in which five
or more persons are employed, unless contrary election is made.
Persons compensated.—Private employment: All persons under contract for hire
for a valuable consideration except casual employees not in the regular course of the
trade or business of the employer, and outworkers. Public employment: Not
included.
Burden of payment.—All on the employer.
Compensation in case of death:
(a) Funeral expenses, not exceeding $100.
(b) To the widow or widower alone, 25 per cent of the wages of the deceased
employee; if ore child, 40 per cent, and 5 per cent for each additional
child; not over 60 per cent m all. If one or two orphan children, 25 per
cent, and 10 per cent for each additional child, the total not to exceed
60 per cent. If none of the foregoing, and a dependent parent or
parents survive, 20 per cent; if no parents, to dependent brothers or
sisters, 15 per cent for one, with 5 per cent for each additional, the total
not to exceed 25 per cent. Aliens (v/idows and children only) receive
one-half the above amounts.
Payments are for a period of 285 weeks, nrinusany disability benefits paid
the injured person prior to his death, but cease on the death of a bene
ficiary, the remarriage of a widow or widower, or on a child attaining the
age of 16 years.; but orphan children or those abandoned by the surviv
ing parent continue to receive benefits until the age of 16, regardless osf
the limitation of 285 weeks. Shares lapsing are redistributed.
Wages used in computing death benefits shall be reckoned as not less than
$10 nor more than $30 per w^eek.
Compensationfor disability*:
(а) Medical and surgical aid as may be reasonably required during the first
14 days, unless refused by the employee, but not to exceed $75.
(б) For total disability, for the first 475 weeks, 50 per cent of the injured
person’s wages, not more than $15 nor less than $5 per week, unless the
wages were less than $5, when full wages shall be paid, the total not to
exceed $4,000.
(c) For partial disability, 50 per cent of the wage loss, not more than $15 per
week, for not more than 285 weeks; for specified injuries, 50 per cent
of the wages for fixed periods, in lieu of all other payments, the amount
to be not more than $15 nor less than $5, per week, unless the wages
were less than $5, when the full wages shall be paid.
Periodical payments may be commuted to lump sums on the application
of either party, with due notice to the other.
Revision of benefits.—On application of any party in interest, but not oftener
than once in six months, a review of awards may be had and changes made as the
condition of the injured person or the status of beneficiaries may warrant.
Insurance.—Insurance is required in an approved organization, unless adequate
proof of the employer’s financial ability to meet obligations is furnished.
Self-insurers may be required to give bond or make a deposit to secure the payment
of liabilities.
Security of payments.—Policies must inure directly to the benefit of the person
entitled to compensation. Payments have the same priority as wage debts, and are
not subject to assignment or execution.
Settlement of disputes.—Disputes are settled by the State industrial accident board,
subject to appeal to the courts, to be tried without the aid of a jury.

w o r k m e n ’ s COMPENSATION LAWS OF THE UNITED STATES.

DISTRICT OF COLUMBIA.
Date of enactment.—July 11, 1919; in effect July 1, 1919.
This act extends the provisions of the act compensating civil employees of the
United States to “ employees of the government of the District of Columbia so far
as they may be applicable,’ ’ except pensionable members of the police and fire
departments. For analysis, see page 67.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

HAWAII.
Date of enactment.—April 28, 1915; in effect July 1, 1915; amended, act No. 227,
acts of 1917.
Injuries compensated.—Personalinjury by accident arising out of and in course of
employment, including #occupational diseases, causing disability for more than
seven days or death within six months, and not due to the employee’s intention to in
jure himself or another or to his intoxication.
Industries covered.—All public and all industrial employment for pecuniary gain.
Persons compensated.—Private employment: All persons under contract of employ
ment or apprenticeship, other than casual employees, whose pay does not exceed
$36 per week. Public employment: All except elective officials and employees who
receive salaries in excess of $1,800 per year.
Burden o f payment—All on employer.
Compensation for death:
(a) $100 funeral expenses.
(b) 40 per cent of the average weekly wages to widow or dependent widower
alone, 50 per cent if one or two dependent children, 60 per cent if three or
more;#30 per cent to one or two orphans, 10 per cent additional for each
child in excess of two* total not to exceed 50 per cent. If ro consort or
child, but other dependents, 25 to 40 per cent.
(c) Payments to widow cease on death or remarriage, and to widower on ter
mination of disability or remarriage; to child on reaching age of 16,
unless incapable of self-support, when they may continue to 18; to
other beneficiaries, on termination of disability; no payments except
to children to continue longer than 312 weeks. Basic wages not less than
$5 nor more than $36 weekly.
Compensationfor disability:
(а) Reasonable surgical, medical, and hospital services during disability,
not exceeding $150 in amount.
(б) For total disability, 60 per cent of weekly wages, $3 minimum, $18 maxi
mum, for not longer than 312 weeks; total not to exceed $5,000. If
wages are less than $3, full wages will be paid unless disability is per
manent, when $3, will be paid.
(c) For partial uisability, 50 per cent of wage decrease, $12 maximum, not
over 312 weeks, total not to exceed $5,000. Fixed awards are made
in lieu of all other payments for specified injuries.
Payments may be commuted to ore or more lump sums in any case.
Revision of benefits.—Agreements or awards may be reviewed at any time, but
not oftener than once in six months.
Insurance.—Privrte employers must carry insurance, secure guaranty insurance,
deposit security, or furnish proof of financial ability to make payments.
Security oj payments.—Payments%are preferred claims, the same as wage debts.
Employees have direct recourse to insuring company; insolvency of employer does
not release insurer.
Settlement o f disputes.—Industrial accident boards for each county with aid of a
committee of arbitration, if desired by either party; appeals to courts.

WORKMEN’S COMPENSATION LAWS OF THE UNITED STATES.

IDAHO.
Date of enactment.—March 16, 1917; in effect January 1, 1918.
Injuries compensated.—Injury by accident arising out of and in course of employmentj not due to the employee’s willful intention to injure himself or another or to his
intoxication, causing death within two years, or disability for more than seven days.
Industries covered.—Compulsorily, all public employment and all private employ
ment carried on by the employer for pecuniary gain, except agricultural and domestic
service and employment by charitable organizations. Exempted industries may
come under the act by written agreement of both parties.
Bersons jcompensated. Private employment: All employees except casual, out
workers, persons earning more than $2,400 per annum, and members of the’employer’s
family dwelling in his house. Public employment:^ All except those receiving
salaries in excess of $2,400 per annum and elected officials.
Burden o f payment.—All on employer; but provision may be made for employees to
contribute to a hospital fund.
Compensationfo r death:
(a) Burial expenses not to exceed $100.
(b) To a dependent widow or widower alone, 45 per cent of the employee’ s av
erage weekly wages; if a child or children, 55 per cent. Orphan children
receive 25 per cent if one, and 10 per cent additional for each child more
than one, the total not to exceed 55 per cent. To a dependent parent or
parents, any sum not paid to the foregoing, the total not to exceed 55 per
cent of the weekly wages; or if none of the foregoing dependents, 25 per
cent to one dependent parent or 20 per cent to each if both are dependent .
Also other dependents may receive benefits within the 55 per cent limits,
if any sum remains.
(c) If there are no dependents, the employer shall pay $1,000 into the industrial
administration fund.
(d) No payment shall extend beyond 400 weeks, and shall terminate on the death
or remarriage -of a widow or widower, on a child reaching the age of 18
unless incapable of self-support, or on a parent or grandparent ceasing to
be dependent. Benefits terminating before the end of 400 weeks may be
reapportioned.
Death benefits may not exceed $12 per week nor be less than $6, or the
actual weekly earnings if less than $6. Alien dependents receive only 50
per cent of the above compensation.
Compensation for disability:
(a) Seasonable medical, surgical, and hospital service, and crutches and appa
ratus as may be required or requested at the time of the injury and for a
reasonable period thereafter.
(b) For total disability, 55 per cent of the injured person’s wages, not less than $6
nor more than $12 for400weeks, and $6 per week thereafter. For temporary
disability the benefits shall not exceed wages, but for permanent dis
ability they shall not fee less than $6.
(c) For partial disability, 55 per cent of the wage loss for not more than 150 weeks;
schedule for designated permanent partial disabilities, ranging from 3 to
200 weeks, in lieu of other payments.
Lump-sum settlements may be approved for part or all the benefits, for
either disability or death.
Revision o f benefits.—Agreements or awards m$y be reviewed on the application of
either party, but not oftener than once in six months.
Insurance.—Employers must insure in the State insurance fund or deposit satis
factory security or surety bond to guarantee payments.
Security o f payments.—Policies of insurance in the State fund and all guaranty con
tracts must provide that the employee may have direct recourse thereto, and the
insolvency of the employer is no release of his surety. Benefits have the same priority
as wage payments, and are exempt from assignment, attachment, etc.
Settlement o f disputes.—The act is administered by an industrial accident board.
Agreements between employers and employees must be approved by this board. On
failure to agree, a committee of arbitration must be formed, whose award is valid unless
a review by the board is requested within 30 days. A limited appeal from the findings
of the board may be taken to the courts.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAY/S.

ILLINOIS.
Date of enactment.—June 10, 1911; in effect May 1, 1912. New act, June 28, 1913;
in effect July 1, 19lS; amended June 28,1915, May 31, June 25, 1917, June 28, 1919.
Injuries compensated.—Accidental injuries arising out of and in the course of employ
ment causing permanent disfigurement, disability of over six working days, or death.
Industries covered.—Public employment; private employments (enumerated list),
and all enterprises in which the law requires safety devices. Other employers may
elect, but forfeit no defenses if they do not.
Persons compensated.—Private employment: All employees except those not
engaged in the usual trade, etc., of the employer. Public employment: All persons
employed by the State, county, municipality, etc., except officials.
Burden o f payment.—Entire cost rests on the employer.
Compensation for death:
( a) To persons wholly dependent, a sum equal to four years’ earnings, not less than
$1,650 (to a widow with one child under 16, $1,750, and if two or more
children, $1,850), nor more than $3,500 (to a widow with one child under
16, $3,750, and if two or more children, $4,000).
(b) If only dependent collateral heirs survive, such percentage of the above sum
as the support rendered during the last two years was of the earnings of
the deceased.
(c) If no dependents, a burial benefit not exceeding $150.
Compensation for disability:
(а) Medical and surgical aid for not over eight weeks, and not over $200 in value;
also necessary hospital, medical and surgical aid during the period for
which compensation may be payable.
(б) For total disability beginning with eighth day second day if permanent), a
weekly sum equal to 50 per cent of the employee’s earnings, $7 minimum,
$12 maximum, during disability or until payments equal a death benefit ;
thereafter, if the disability is permanent, a sum annually equal to 8 per
cent of a death benefit, but not less than $10 per month.
(c) For permanent partial disability, 50 per cent of the loss of earning capacity,
but not more than $12 per week.
(d) For certain specified injuries (mutilations, etc.), a benefit of 50 per cent of
weekly wages for fixed periods, in addition to temporarv total disability
payments.
(e) The basis of 50 per cent shall be increased 5 per cent for each child under 16
years of age, the maximum to be 65 per cent. The minimum sum of $7
per week is to be increased $1 for each such child, the total not to exceed
$10. The maximum weekly payment of $12 is to be increased $1 per
week for each such child, the total not to exceed $15. ^
(/) For serious and permanent disfigurement, not causing incapacity and not
otherwise compensated, a sum not exceeding one-fourth the death benefits.
No payments are to extend beyond eight years, except in case of permanent
total incapacity.
Lump-sum payments for either death or disability may be substituted by
the industrial board for periodic payments.
Revision of benefits.—Medical examination may be had not oftener than every four
weeks. The industrial board may, on request, review installment payments within
18 months after the award or agreement thereon.
Insurance.—The employer must insure, furnish proof of ability to pay, or make other
provision for security of payment; or he may maintain a benefit system, but may not
reduce his liability under the act.
Security of payments.—In case of insolvency, awards constitute liens upon all
property of the employer within the county, paramount to all other claims, except
wages, taxes, mortgages, or trust deeds. Exempt from garnishment, attachment, or
execution.
The rights of an insolvent employer to insurance indemnities are subrogated to
injured employees.
Settlement of disputes.—Disputes are determined by the industrial commission
through an arbitrator or arbitration committee, subject to review by the board.
Questions of law may be reviewed by the courts.

w o r k m e n ’s c o m p e n s a tio n la w s o f t h e u n it e d s t a t e s .

INDIANA.
Date o f enactment.—March 8, 1915; in effect September 1, 1915; amended, chapters
63, 81, 165, acts of 1917, chapters 57, 71, acts of 1919.
Injuries compensated.—Personal injury causing disability for more than seven days,
or death within 300 weeks by accident arising out of and in course of employment,
not due to willful misconduct, intention to injure self, intoxication, or willful failure
or refusal to use safety appliance or perform duty required by statute.
*
Industries covered.—All except interstate and foreign commerce, for which Federal
laws make provision, railroad employees engaged in train service, and domestic and
agricultural labor, unless employer makes contrary election; compulsory as to State
and its municipalities, and corporations engaged in mining coal.
Persons compensated.—Private employment: All employees and contractors’
employees engaged upon the subject matter of the contract; employees whose work
is casual and not in the usual course of the employer’s business are excepted. Public
employment: All employees.
Burden o f payment.—All on employer.
Compensation for death:
(а) $100 for funeral expenses, if death from the injury occurs within 300 weeks.
(б) 50 per cent of weekly wages to persons wholly dependent; to those partially
dependent, amounts proportionate to decedent’s contributions to their
support. The term of payment is limited to 300 weeks from the receipt
of the injury.
(c) Payments cease on remarriage of widow or dependent widower, or on children
attaining the age of 18 years, unless mentally or physically disabled for
earning. Wages are to be considered as not above $24 nor less than* $10
weekly, no total to exceed $5,000.
Compensation for disability:
(a) Medical and hospital services for first 30 days, and longer at option of employer;
industrial board may extend period 30 days; employees must accept unless
otherwise ordered by industrial board.
(b) For total disability, 55 per cent of wages for not more than 500 weeks.
(c) For partial disability, 55 per cent of wage loss for not more than 300 weeks.
(d) For certain specified injuries, 55 per cent of wages for designated periods
ranging from 10 to 250 weeks in lieu of all other payments; for permanent
disfigurement impairing opportunity or usefulness, benefits for not over
200 weeks.
Wage basis and total amounts are limited as for death benefits.
In unusual cases payments may be commuted to a lump sum after 26 weeks.
Revision o f benefits.—Awards may be reviewed at any time by industrial board on *
its own motion or the request of either party, but without retroactive effect.
Insurance.—Required unless satisfactory proof of financial ability to meet payments
is furnished.
Security o f payments.—Contracts of insurance must inure directly to the benefit of
the person entitled to payments under an award. Payments have same preference
and priority as unpaid wages, and are exempt from claims of creditors.
Settlement o f disputes.—Disputes are determined by the industrial board, with
appeal to courts on questions of law.

ANALYSIS OF PRINCIPAL FEATURES OP THE LAWS.

IOWA.
Date of enactment.—April 18, 1913; in effect July 1, 1914. Amended, chapters 188,
270, 336, 409, 418, acts of 1917; chapter 220, acts of 1919.
Injuries compensated.—All personal injuries arising out of and in the course of the
employment causing disability for more than two weeks, or death, except when
caused by the injured employee’s willful intention to injure himself or another, or
by the intoxication of the employee.
Industries covered.—All industries, except agriculture and domestic service, in
absence of contrary election by employer. Compulsory as to the State and its
municipal ities.
Persons compensated.—Private employment: All employees in industries covered in
absence of contrary election, except clerks not subjected to the hazards of the industry
and casual employees, or those not employed for the purpose of the employer’s trade
or business. Public employment: All except policemen and firemen entitled to
benefits from pension funds.
Burden of payment.—Entire burden is on employer.
Compensation for death:
(а) Reasonable expenses of the employee’s last sickness and burial,'not to exceed
$100.

(б) To persons wholly dependent, a weekly payment equal to 60 per cent of the
wages of the deceased employee, but not more than $15 nor less than $6
per week, for 300 "weeks.
(c) If only partial dependents survive, such a proportion of the above as the
amounts contributed by the employee to such paitial dependents bear to
his annual earnings.
(d) If the employee was a minor whose earnings were received by the parent, a
sum to the parent equal to two-thirds of the amount provided for persons
wholly dependent.
If the spouse dies during the compensation period, the unpaid balance goes
to other dependents, if any; if she remarries, and there are no dependent
children, payments cease.
Compensation for disability:
(а) Reasonable surgieai, medical, and hospital services and supplies for first four
weeks, not exceeding $100 and $100 additional in exceptional cases.
(б) For temporary total disability, 60 per cent of waees, not more than $15 nor
less than $6 (unless wages are less than $6, tl en full wages), for not more
than 300 weeks.
(c) For permanent total disability, the same compensation as for temporary
disability, to be paid for a period of not more**than 400 weeks.
(d) For permanent partial disability (specified maimings), 60 per cent of average
weekly wages for fixed periods, beginning with the date of injury. Pay
ments under (b) and (c) for the fifth, sixth, and seventh weeks are 100
per cent of the weekly earnings, if the disability continues during these
periods, respectively.
Lump-sum payments may be substituted in any case where the term can be
determined, on approval of the industrial commissioner and an order by the
court.
Revision of benefits.—Payments may be reviewed by the industrial commissioner at
the request of either party.
Insurance.—Employers must insure in approved companies or mutual associations,
or furnish satisfactory proof of financial ability to make payments, or deposit security
with the State insurance department; or they may maintain approved substitute
schemes, provided there is no diminution of benefits.
Security of payments.—In case of insolvency of the insurer a claim for compensation
becomes a first lien, and in case of legal incapacity of insured to receive the amount
due, the insured must settle directly with the beneficiary.
Settlement of disputes.—Disputes may be settled by committees of arbitration, with
the industrial commissioner as chairman; limited appeal to courts.
177982°— 21—Bull. 272------3

WOBKMB.N’S COMPJBHSAXIO# I*A.WS OS' THE UNITED STATES.

KANSAS.
Date of enactment.—March 14,1911; in effect January 1,1912; amended, chapter 21 6.
acts of 1913; chapter 226. acts of 1917; chapter 222, acts of 1918.
Injuries compensated.^Injuries by accident arising out of and in the course of em
ployment, not due to intoxication or deliberate intention of injured employee, or
caused by his willful failure to use safeguards provided by statute or furnished by
employer, causing incapacity to earn full wages for at least one week, or death.
Industries covered.—Railways, factories, quarries, electrical, building or engineering
work, laundries, natural-gas plants, county and municipal work, employments requir
ing the use of dangerous, explosive, or inflammable materials, if employing five or
more persons; and mines, without reference to the number of employees, all in absence
of contrary election; employers in other industries and those employing less than five
persons may also elect.
Persons compensated.—Private employment: All employees, including apprentices,
but excluding those employed otherwise than for the purpose of the employer’s
business. Public employment: Workmen on county and municipal work.
Burden of payment.—Entire cost rests upon the employer.
Compensation for death:
(a) To persons wholly dependent, a sum equal to three years’ earnings of
the deceased employee, not less than $1,400 nor more than $3,800. For
nonresident alien beneficiaries (except in Canada) the maximum is $750.
(b) If only partial dependents survive, a sum proportionate to the injury to
such dependents.
(c) If no dependents are left, a reasonable expense for burial, not exceeding $150.
7 Compensation ceases upon the marriage of any dependent, or when a minor,
not physically or mentally incapable of wage earning, shall become 18
years of age.
Compensation for disability:
(a) On demand, medical, surgical, and hospital treatment, not over $150 in
value, for not more than 50 days.
(b) For total incapacity, payments during incapacity after the first week, equal
to 60 per cent of earnings, but not less than $6 nor more than $15 per
week.
(c) For partial incapacity, 60 per cent of wage loss during incapacity, after the
first week. Lump sums equal to 50 per cent of the wages for specified
periods are to be paid for designated injuries, in lieu of all other compen
sation.
No payments for total or partial disability shall extend over more than eight
years.
After six months, lump-sum payments may be substituted at the employer’s
option, the sum to be agreed upon or determined by the court; or the
workman may apply for a lump-sum settlement at any time.
Revision of benefits.—Any award may be modified at any time Tby agreement, or
either party may demand a revision.
Insurance.—The employer may insure in any approved insurance scheme which
provides compensation not less favorable than is provided in this act.
Security of payments.—Lump sums awarded by the court may be secured by order
of the court by a good and sufficient bond when there is doubt of security of payment.
If the employer was insured the insurer shall be subrogated to the rights and duties
of the employer. Claims,and awards are not assignable or subject to execution, etc.
Settlement of disputes.—Disputes not settled by agreement may be Teferred to arbi
trators subject to an appeal to courts.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

KENTUCKY.
Date of enactment.—March 23,1916; in effect August 1,1916; amended, ch. 176,1918.
Injuries compensated.—Personal injuries by accident arising out of and in course
of employment, causing incapacity for more than seven days, or death within two
years, not self-inflicted, or due to intoxication or willful misconduct. Results of pre
existing diseases are not included.
Industries covered.—All except domestic service and farm labor where three or more
persons are employed; excepted industries may become subject to the act by joint
application by employers and employees.
Persons compensated.—Private employment: All employees in establishments com
ing under the act, if the employees elect. Public employment: All employees of
municipalities coming under the act, if the employees elect.
Burden of payment.—All on the employer.
Compensation for death:
(a) Reasonable burial expenses, not to exceed $75.
(b) To persons wholly dependent, 65 per cent of the average weekly earnings,
not more than $12 nor less than $5 per week, for 335 weeks, the total not
to exceed $4,000.
If only partial dependents survive, a proportion of the amount for total de
pendency, determined by the degree or dependence.
(d) If no dependents, $100, payable to the personal representative.
Payments to a widow or widower cease on remarriage and to a child on reach
ing the age of 16, unless incapacitated for wa^e earning.
Payments thus terminated go to other beneficiaries, if any.
Compensation for disability:
(а) Medical, surgical, and hospital aid for 90 days, unless another period is fixed
by the board, the cost not to exceed $100.
(б) For total disability, 65 per cent of average weekly wages, not more than $12
nor less than $5, for eight years, total not to exceed $5,000.
(c) For-partial disability, 65 per cent of the weekly wage loss, not to exceed $12,
for not more than 335 weeks, total not to exceed $4,000.
Compensation periods are fixed for special injuries, in lieu of other payments.
Lump-sum awards may be made after six months if approved by the board.
Revision of benefits.—Review may be had on the request of either party or on the
motion of the board, changing or revoking any previous order.
Insurance.—Employers accepting the act must insure in a stock or mutual company
or the State Employees’ Insurance Association, or give proof of financial ability to
pay compensation direct.
Security of payments.—Insurance policies must provide for direct liability to the
beneficiaries. Self-insurers must furnish bond or other security. Benefits have the
same priority as wage debts and are not subject to assignment or attachment.
jSettlement of disputes.—Disputes are settled by the workmen’s compensation board,
or a member thereof, or a referee appointed by it; limited appeal to courts.

w o r k m e n ’ s c o m p e n s a t io n l a w s of t h e u n it e d st ate s .

LOUISIANA.
Date of enactment.—June 18, 1914; in effect January 1, 1915; amended, Nos. 38,
39, 1918.
Injuries compensated.—Personal injury by accident arising out of and in course of
employment causing disability for more than 2 weeks, or death within 1 year, and
not due to willful intention to injure, to intoxication, to deliberate failure to use
safeguards, or to deliberate breach of safety laws.
Industries covered.—Hazardous trades, businesses, or occupations in absence of con
trary election; extensive list, and others may be so adjudged or brought within the
act by voluntary agreement. Compulsory as to employees of the State and its munici
palities and public boards.
Persons compensated.—Private employment: Every person performing services
arising out of and incidental to his employer’s trade, business, or occupation, if the
same is within the act. Public employment: Every person in the service of the
State, etc., except officials.
Burden of payment.—All on employer.
Compensation for death:
(a) $100 expenses of burial.
(b) To widow or dependent widower alone, 25 per cent of weekly wages, 40 per
cent if 1 child, and 55 per cent if 2 or more. If 1 child alone, 25 per cent,
40 per cent for 2, and 55 per cent for 3 or more. For 1 dependent jftrent,
25 per cent; for 2, 55 per cent; if 1 brother or sister, 25 per cent and 10 per
cent additional for each other. The total in no case may exceed 55 per
cent of the weekly wages, $3 minimum payment, $16 maximum, for not
over 300 weeks. Payment to any beneficiary ceases on death or marriage,
to children on reaching the age of 18, unless mentally or physically
incapacitated.
Compensation for disability:
(a) Reasonable medical, surgical, and hospital services, not to exceed $150 in
value.
( b) For total disability, 55 per cent of the weekly wages, $16 maximum, $3 mini
mum, unless the wages are less than $3, then full wages, for not more than
400 weeks.
(c) For partial disability, 55 per cent of the wage loss, for not more than 300
weeks.
(d) Fixed schedule for specified injuries, for periods from 10 to 200 weeks, in lieu
of other payments. Payments in any case may be commuted to a lump
sum on agreement of the parties and approval by the courts.
Revision of benefits.—Judgments may be modified at any time by agreement of the
parties and approval by the courts; or after 1 year, they may be reviewed by the
court on application of either party.
Insurance.—Not required.
Security of payments.—Policy of insurance must give claimants right to direct
payment regardless of the default or bankruptcy of the employer. Compensation
payments have the same preference as wage debts.
Settlement of disputes.—Disputes are settled by judges of the courts in simple,
summary procedure.

ANALYSIS OF PRINCIPAL FEATURES OF. THE LAWS.

MAINE.
Date of enactment.—April 1,1915; in effect January 1, 1916; reenacted April 4, 1919.
Injuries compensated.—Injury sustained in course of employment, causing disability
for more than 10 days, or death, not due to willful intention to injure himself or another,
and not due to intoxication unless fact or habit of intoxication was known or cogni
zable to employer.
Industries covered.—All except agricultural and domestic labor, logging, and seamen
in interstate or foreign commerce, in which more than five persons are employed, if
employer elects. Abrogation of defenses does not affect cutting, hauling, driving, or
rafting of logs.
Persons compensated.—Private employment: All persons in industries covered,
employees whose work is casual or not in the usual course of the employer’s business ex
cepted. Public employment: Employees of the State, cities, and counties, and of
towns accepting the provisions of the act, other than officials; but cities and towns
may continue injured firemen on the pay roll at full pay, in lieu of compensation.
Burden of payment.—All on employer. If employees contribute to substitute
scheme, additional proportionate benefits must be paid.
Compensation for death:
(а) To persons wholly dependent, 60 per cent of weekly wages for 300 weeks, $6
minimum, $15 maximum, not over $3,500 in all.
(б) If only partial dependents survive, amounts proportionate to the relation of
the contribution paid by deceased, and his average wage, for 300 weeks.
(c) If no dependents, not above $200 expenses of last sickness and burial.
Payments to children cease at age of 18 unless mentally or physically inca
pacitated for earning a living.
Compensation for disability:
(a) Reasonable medical and hospital service during first 30 days of disability,
not over $100 in value, unless by agreement or order of commission a longer
period or larger amount is provided for.
(b) For total disability, 60 per cent of the wages for not more than 500 weeks, $6
minimum, $15 maximum, total not to exceed $4,200.
(c) For partial disability, 60 per cent of the weekly wage loss, not over $15, for
not more than 300 weeks. For specified injuries causing permanent
partial disability, 60 per cent of the wages for various fixed periods, then
compensation on basis of wage loss, if any, for not more than 300 weeks in all.
Lump-sum payments may be approved by the commission after weekly pay
ments for not less than six months.
Revision of benefits.—Agreements or awards may be reviewed at the instance of
either party at any time within two years.
Insurance.—Insurance in approved companies is required unless the employer gives
satisfactory proof of solvency and makes deposit or bond to secure payments.
Security of payments.—Claims have same preference over unsecured debts as do
wages for labor.
Settlement of disputes.—Disjmtes are to be settled by the industrial accident com
mission, with appeal to courts on question of law.

WORKM EN’s COMFBKSAIiOJJ LAWS OF THE CNlTliJ) STATES.

MARYLAND.
Date o f enactment.—April 16, 1914; in effect November 1, 1914; amended, special
session, chapter 6, ,1917, chapters 86, 368, 379, 597, 713, acts of 1916.
Injuries compensated.—Accidental personal injury arising out of and in course of
employment, not due to willful intention or intoxication, and causing disability for
more than two weeks or death within two years.
Industries covered.—Extrahazardous (enumerated list); others by joint election of
employers and employees. Farm and domestic labor, country blacksmiths and wheel
wrights are excluded.
Persons compensated.—Private employment: All industries covered, except casual
employees and those receiving more than $2,000 annually. Public employment:
Workmen employed for wages in extrahazardous work, unless the municipality makes
other equal or better provision.
Burden o f payment.—All on employer.
Compensation for death:
(a) Funeral expenses, not over $75.
(b) To persons wholly dependent, 50 per cent of the weekly wages for eight years;
not more than $4,250 nor less than $1,000.
(c) To persons partly dependent, 50 per cent of the weekly wages for such portion
of eight years as the commission may fix, the amount not to exceed $3,000.
(d) If no dependents, funeral expenses only.
(e) Payments to widow cease on remarriage, and to children on reaching the age
of 16 years, unless mentally or physically incapacitated.
Compensation for disability:
(a) Medical, surgical, etc., expenses, not-above $150 in value.
Ib) For total disability, 50 per cent of weekly wages, $5 minimum, $12 maximum,
during its continuance, total not to exceed $5,000. If wages are less than
$5, full wages will be paid.
(c) For partial disability, 50 per cent of weekly wage loss, $12 maximum, total
not over $3,000; specific periods for specified maimings, in lieu of other
payments.
Where the injured employee is a learner, with prospect of increase of wages,
this fact may be considered in fixing awards. *
Payments may, in the discretion of tne commission, be made in part or in
whole in lump sums.
Revision o f benefits.—??he commission may modify its findings and orders at any
time for justifiable cause.
Insurance.—Insurance in State fund, stock or mutual company, or proof of finan
cial ability, is required.
Security of payments.—Policies must permit action by commission to secure pay
ments to any person entitled. Payments may not be assigned, nor are they subject
to execution or attachment.
Settlement of disputes.—Disputes are to be settled by the industrial accident com
mission with appeal to courts.

ANALYSE OF PRINCIPAL FEATURES OF THE LAWS.

MASSACHUSETTS.
Date o f enactment.—July 28, 1911; in effect, July 1, 1912; amended, chapters 571,
acts of 1912; 48, 448, 568, 696, 746, acts of 1913; 338, 708, acts of 1914; 123, 275, 314,
acts of 1915; 72, 90, acts of 1916; 198, 249, 269, acts of 1917; 113,119, acts of 1918; chap
ters 197, 198, 204, 205, 226, 272, 299, acts of 1919.
Injuries compensated.—-Injuries arising oat of and in the course of employment
causing incapacity for 10 days, or death, unless the injury is due to the serious and
willful misconduct of the injured employee.
Industries covered.—All industries except farm labor and domestic service. Ex
empted employments may come under the act if the employer so elects.
Persons compensated.—Private employment: All employees, except masters of ves
sels and seamen engaged in interstate or foreign commerce and employees whose work
is not in the usual course of the employer’s business, where the employer is an insurer
under this act. Public employment: The State shall, and any county, city, town, or
district having power of taxation and accepting the act may, compensate its laborers,
workmen, and mechanics.
Burden of payment.—Entire cost rests upon the employer.
Compensation for death:
(a) The reasonable expense of burial, not exceeding $100. If dependents survive,
this sum shall be deducted from the compensation payable.
(b) To persons wholly dependent, a .weekly payment equal to two-thirds the
average weekly wages of the deceased employee, but not less than $4 nor
more than $10, for a period of 500 weeks, the total not to exceed $4,000.
(c) If only partial dependents survive, a sum proportionate to Hie portion of
earnings contributed to their support by the deceased employee. Children
cease to be dependents at 18 (16 if living apart from parent legally bound
to render support), unless mentally or physically incapacitated from earning
a living.
Compensation for disability:
(a) Reasonable medical and hospital services, and medicines as needed, for the
first two weeks after injury, and in unusual cases for a longer period, in the
discretion of the board.
(b) For total disability, a sum equal to two-thirds the average weekly wages,
but not less than $7 nor more than $16 per week, not exceeding 500 weeks,
nor $4,000 in amount.
(c) For partial disability, two-thirds the wage loss, but not to exceed $16 per
week, nor $4,000 in amount.
(d) In specified injuries (mutilations, etc.), two-thirds the weekly wages, not
exceeding $10 nor less than $4 per week, for fixed periods, in addition to
other compensation.
Lump-sum payments may be substituted in whole or part, after pay
ments ior injury or deatn have been made for not less than six months.
Revision o f benefits.—Either party may demand a revision of payment-at any time.
Insurance—Employers under the act must subscribe to the State employees’ insur
ance association or insure in some authorized company,
Security o f payments.—Payments are not subject to assignment, attachment, or
execution.
Settlement o f disputes.—Disputes are decided primarily by a member of the indus
trial accident board, whose decision is subject lo review by the board, with limited
appeal to the courts.

w o rk m e n ’ s; co m p en sa tio n la w s o f t h e u n ite d s t a t e s .

MICHIGAN.
Date of enactment.—March 20,1912; in effect September 1,1912; amended, Nos. 50,
79, 156, 259, acts of 1913; Nos. 104, 153, 170, 171, acts of 1915; Nos 41, 206, 235, 249,
acts of 1917; Nos. 64, 110, acts of 1919.
Injuries compensated.—Injuries causing incapacity to earn full wages for a period of
one week, or death, arising out of and in the course of employment, unless such injuries
resulted from intentional and willful misconduct of the injured person.
Industries covered.—Compulsory as to the State and its municipalities, and each
incorporated public board and commission authorized to hold property and to sue
and be sued. All industries having one or more persons in service under contract of
hire if the employer elects.
Persons compensated.—Private employment: All employees, including aliens and
minors legally permitted to work. Public employment: All employees except
officials of the State or of a municipality.
Burden of payment.—Entire cost rests upon the employer.
Compensation for death:
(а) To persons wholly dependent, a weekly payment equal to 60 per cent of the
deceased workman’s average weekly wages, but not less than $7 nor more
than $14 per week for a period of 300 weeks.
(б) If only partial dependents survive, such proportion of the above as the amount
of previous contributions bears to such earnings.
(c) If no dependents, the reasonable expense of the last sickness and burial, not
exceeding $200 in addition to any medical services.
Payments to children cease at 16, unless mentally or physically incapacitated
from earning.
Compensation for disability:
(a) Reasonable medical and hospital services for the first 90 days after injury.
(b) For total incapacity, a weekly payment equal to 60 per cent of the earnings,
but not less than $7 nor more than $14 per week, nor for a period longer than
500 weeks from the date of the injury, and not exceeding $6,000.
(c) For partial incapacity, a weekly payment equal to 60 per cent of the wage loss,
but not more than $14 per week, and for not longer than 500 weeks.
(d) For certain specified injuries (mutilations, etc.), 60 per cent of the average
weekly earnings for fixed periods, in lieu of other payments.
Payments begin with the eighth day after the injury, but if the disability
continues for six weeks or longer, compensation is computed from the date
of injury.
After six months lump sums may be substituted for weekly payments.
Revision of benefits.—Weekly payments may be reviewed by the industrial accident
board at the request of either party.
Insurance.—Employer must furnish proof of financial ability to pay the required
compensation, or insure in an authorized employers’ liability company, or in an em
ployers’ insurance association organized under State laws, or become a member of a
State insurance fund administered by the State commissioner of insurance.
Security of payments.—In case of insolvency, claims constitute a first lien upon alt
property of the employer. Employers must furnish proof of financial ability to pay
compensation, or insure in approved companies or with the State.
Settlement of disputes.—Either party may request the industrial accident board to
appoint a committee of arbitration, whose decisions are subject to review by the board
The supreme court may review questions of law.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

MINNESOTA.
Date o f enactment.—April 24, 1913; in effect October 1, 1913; amended, chapters
193, 209, acts of 1915; chapters 302, 351, acts of 1917; chapters 176, 185, 354, 356,358,
363, 367, 416, 439, 442, 508, acts of 1919, and chapter 44, special session, 1919.
Injuries compensated— Injury by accident arising out of and in the course of em
ployment causing disability for more than one week, or death, unless intentionally
caused, or due to the intoxication of the injured person.
Industries covered.—All excepting common carriers by steam railroad and farm and
domestic service, in the absence of contrary election by employers.
Persons compensated.—Private employment: All employees, including aliens and
minors lawfully employed, in the absence of contrary election, employees whose work
is casual and not in the usual course of the employer 's business excepted. Public
employment: Included, except employees of State, those elected or appointed for
regular terms, and employees of cities whose charters provide for compensation.
Burden of payment.—Cost rests upon the employer, except that upon agreement
with employee contributions may be required.
Compensation for death:
(a) $100 funeral expenses.
(b) To a widow alone, 40 per cent of monthly wages of deceased, increasing to 66J
per cent if four or more children; to a dependent husband alone, 30 per cent;
to a dependent orphan, 45 per cent, with 10 per cent additional for each
additional orphan, with a maximum of 66§ per cent; if none of the above,
35 per cent to one parent and 45 per cent if both survive; if none of the
foregoing, to other relatives wholly dependent, if but one, 30 per cent, or if
more than one, 35 per cent, divided equally.
Widows, on remarriage, receive in lump sum one-half the unpaid compensa
tion.
(c) If only partial dependents survive, that proportion of benefits provided for
actual dependents which contributions bore to wages earned.
(d) When no dependents are left, expense of last sickness and burial.
Maximum weekly compensation $15, minimum $6.50.
Payments continue for not over 300 weeks, and cease when a child reaches the
age of 18, unless physically or mentally incapacitated, and upon the death or
marriage of other dependents unless otherwise specified.
Compensation for disability:
(a) Reasonable medical and surgical treatment, not exceeding 90 days nor $100
in value, unless ordered in exceptional cases, when $200 is the limit.
(b) For temporary total disability, 66f per cent of wages for not over 300 weeks.
(c) For permanent total disability, 66$ per cent of the wages for 550 weeks, but
not more than $6.50 per week after 400 weeks.
(d) For temporary partial disability, 66f per cent of wage loss, not over 300 weeks.
(e) For specified permanent partial disability (mutilations, etc.), 66J per cent of
the earnings for fixed periods, in lieu of other payments, maximum of 400
weeks; for other permanent partial disabilities, not over 300 weeks.
Payments for disability may not be more than $15; nor may they be less than
$6.50, unless the wages were less than $6.50, then full wages.
Lump sums must be substituted for periodical payments, but in case of death,
permanent total disability, or certain maimings, the consent of the court
must be obtained.
Revision of benefits.—After six months from the date of an award either party may
apply to the court for revision.
Insurance.—Employers may insure in any authorized company, stock or mutual,
or maintain cooperative schemes, assuming other and greater risks.
Security and payments.—Insured workmen have an equitable lien upon any policy
becoming due, and in case of the employer’s incapacity the insurer shall make pay
ment directly to them. Claims have same preference as unpaid wages.
Settlement of disputes.—15y judge of district court, in a summary manner, subject to
review by the supreme court as to questions of law.

WOEKMfK ’s CO M fS g§A T IO-g LAWS OF THE VittXED STATES.

MISSOURI.
Date of enactment.—April 28,1919. Effective: [Deferred by referendum.^
Injuries compensated.—Injuries by accident arising out of and in course of employ
ment causing disability for more than seven days, or death within 350 weeks, unless
due to employee’s or another’s willful misconduct, including intentional self-inflicted
injury, intoxication, or willful failure or refusal to use a safety appliance or perform a
duty required by statute or failure to obey reasonable safety rule.
Industries covei'ed.—All where employer has five or more employees, except farm
labor and domestic servants provided employer fails to reject; compulsory as to the
State and its municipalities except where the employee has rejected the act.
Employers not included may elect to accept act.
Persons compensated.—Private employment: All employees in industries covered,
including minors but excluding casual employees not engaged in the usual business
of the employer, and outworkers. Public employment: All employees except
officials of political subdivisions and those who reject act.
Burden of payment.—Entire cost rests upon the employer.
Compensationfor death:
(a) Burial expenses not to exceed $100 and if not otherwise covered, $200 for
expenses of last sickness.
(b) To total dependents, two-thirds of average annual earnings for not to exceed
300 weeks. Payments for more than one dependent child to be divided in
the discretion of the commission. If more than one person is dependent
the compensation is to be divided equally.
(c) To partial dependents according to the facts but only when there are no total
dependents.
The maximum weekly payment is to be $15 and minimum $6.
Payments to children cease at 17, unless physically or mentally incapacitated.
Compensation for disability:
(a) Such medical, surgical and hospital, etc., treatment as may be reasonably
required for first eight weeks, not exceeding $200 in value.
(b) For temporary total disability, two-thirds of wages for not over 400 weeks.
(c) For temporary partial disability, two-thirds of wage loss, for not over 200
weeks, not in excess of $12 per week.
(d) For permanent partial disability, two-thirds of wages for periods fixed by
commission, but not in excess of 400 weeks; for certain specific injuries
(mutilations, etc.), two-thirds of wages for fixed periods, in addition to
all other compensation; for disfigurement in an amount not to exceed $750.
(e) For permanent total disability, two-thirds of wages for 240 weeks, and there
after for life on basis of 40 per cent of wages.
Except where otherwise limited the maximum weekly payment is $15 per
week and the minimum $6.
No compensation is payable for the first seven days after the injury unless
disability continues for more than six weeks.
The commission may commute the compensation by the payment of a lump
sum.
Revision of benefits.—Readjustment of compensation may be made by the com
mission on its own motion or on application.
Insurance—An employer under the act must insure his liability for compensation
in an authorized insurance company ot furnish proof of ability to carry own liability.
Security of payments.—Compensation is not assignable, and is exempt from attach
ment, garnishment, and execution, and from set-off or counter claim, or any liability
for any debt, and is entitled to the same preference as claims for wages without limit
as to time or amount.
Settlement of disputes.—Disputes are decided primarily by the Missouri Workmen’s
Compensation Commission, with right of appeal to the circuit court on questions of
law\

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

.43

MONTANA.
Date of enactment.—March 8, 1915; in effect July 1, 1915. Amended, chapters 95,
100, acts of 1919.
Injuries compensated.—Injuries arising out of and in course of employment, resulting
from some fortuitous event, causing death, or disability for more than two weeks.
Industries covered.—“ All inherently hazardous works and occupations,’ ’ in which
employers elect, including manufactures, construction work, transportation, and repair
of the means thereof, but not including agricultural or domestic labor; compulsory
as to public employment.
Persons compensated.—Private employment: All persons other than independent
contractors, employed in the industries covered, whether as manual laborers or other
wise, except casual employees whose work is not in the usual course of the employer’s
business. Public employment: All employees in the industries covered.
Burden of payment.—AM on employer; employees may contribute to hospital fund.
Compensation for death:
(а) $75 for funeral expenses if death occurs within six months of injury.
(б) To beneficiaries (widow, widower, child, or children under 16, or invalid
child above 16), 50 per cent of wages of the deceased if residents of the
United States; if not, 25 per cent, unless otherwise required by treaty.
To major dependents (father or mother), in case there are no beneficiaries,
40 per cent. To minor dependents (brothers or sisters actually dependent),
if no beneficiary or major dependent, 30 per cent. Nonresident alien
dependents receive nothing unless required by treaty, nor do beneficiaries
if citizens of a Government excluding citizens of the United States from
equal benefits under compensation laws; not over 50 per cent of above rates
in any case. Term of payments may not exceed 400 weeks, $12.50 maxi
mum, $6 minimum; if wages less than $6, then full wages. Payments cease
on remarriage of widow or widower, or when child, brother, or sister reaches
the age of 16, unless an invalid.
Compensation for disability:
(a) Medical and hospital services during first two weeks after happening of
injury, not over $50 in value, unless there is a hospital contract.
(b) For temporary total disability, 50 per cent of wages during disability, $12.50
maximum, $6 minimum, unless wages are less than $6, when full wages
will be paid, for not more than 300 weeks.
(c) For permanent tetal disability, same scale as above for 400 weeks, then $5
per week while disability continues.
(d) For partial disability, 50 per.cent of the wage loss, not over $6.25 per week,
nor 75 per cent of the compensation provided for loss of the injured member;
payments to continue not more than 150 weeks for permanent cases, and
50 weeks if temporary.
(e) For specified maimings, 50 per cent of wages but not more than $12.50 per
week nor less than $6 per week unless wages are less, then full wages.
Periodical payments may be converted in whole or in part to lump sums.
jRevision of benefits.—Decisions and awards may be rescinded or amended at any
time by the industrial accident board for good cause.
Insurance.—The employer may carry his own risk on a showing of financial ability;
security may be required for probable liabilities and must be given when a continuing
payment is ascertained. Insurance may be carried in any company authorized to
do business in the State, or the employer may contribute to a State fund.
Security of payments.—In case of bankruptcy, etc., liabilities under this act are a
first lien upon any deposit made by an employer, and if this is not sufficient, then
on any property of the employer or insurer within the State, and shall be prorated
with other lienable claims.
Settlement of disputes.—By industrial accident board, with limited appeal to courts.

4 4 * w o r k m e n ’ s c o m p e n s a t io n l a w s op t h e u n it e d st a te s .

NEBRASKA.
Date of enactment.—April 21, 1913; in effect December 1, 1914. [Deferred by ref
erendum.] Amended, chapter 85, acts of 1917; chapter 91, acts of 1919.
Injuries compensated.—Injury causing disability for more than seven days, or death,
caused by accident arising out of and in the course of employment, except accident
caused by or resulting in any degree from willful negligence or intoxication.
Industries covered.—All industries where one or more persons are employed by the
employer in the regular trade, business, or occupation of the employer, except do
mestic service, agriculture, and interstate or foreign commerce, in the absence of
contrary election. Exempt employers may make an affirmative election.
Persons compensated.—Private employment: All employees, including aliens and
minors, but excluding employees whose work is but casual or not for the purpose of
gain or profit of the employer or not in the usual course of the employer’s business,
and home workers. Public employment: All persons employed by the State, or any
Government agency created by it, not elected or appointed for a regular term.
Burden of payment.—The entire cost rests upon the employer.
Compensation for death:
(a) In addition to any other benefits, a reasonable amount not exceeding $150 to
cover expenses of last sickness and burial.
(b) To persons wholly dependent, 66f per cent of the employee’s wages, but not
less than $6 nor more than $15 per week, during dependency, but not ex-,
ceeding 350 weeks; if the wages of the deceased were less than $6 per week
then full wages are to be paid as compensation.
(c) If only partial dependents survive, a proportion of the above corresponding
to the relation the contribution of the deceased to their support bore to his
wages.
Compensation to children ceases when they reach the age of 16 years, unless
they are physically or mentally incapacitated from earning.
Compensation for disability:
(a) Medical and hospital services not exceeding $200 in value.
(b) For total disability, 66| per cent of the weekly wages, but not more than $15
nor less than $6 per week for 300 weeks; thereafter, for life or while dis
ability lasts 45 per cent of such wages, but not more than $12 nor less than
$4.50 per week unless wages are less, then full wages.
(c) For partial disability, 66f per cent of loss of earning capacity, but not exceed
ing $15 p ^ week nor exceeding 300 weeks.
(d) For certain specified injuries (mutilations, etc.), 66f per cent of wages for
fixed periods in lieu of other benefits, $15 maximum, $6 minimum, unless
wages are less, then wages.
Payments begin with the eighth day, but if disability continues six weeks or
longer, compensation is computed from the date of injury.
Lump sums may be substituted for periodic payments, but if for death or
permanent disability, the approval of the court must be obtained.
Revision of benefits.—Benefits running for a period of six months or longer may be
revised at any time by agreement of the parties, with the approval of the compensa
tion commissioner, or after six months by application of either party to a court.
Insurance.—An employer under the act must insure his liability for compensation
in an authorized stock or mutual insurance company, or furnish proof of financial
ability to make payments.
Security of payments.—Insurance policies must inure directly to the benefit of bene
ficiaries and be enforceable in an action by them.
Compensation rights and awards have the same preference against the assets of the
employer as unpaid wages for labor.
Settlement of disputes.—All disputed claims must be submitted to the compensa
tion commissioner, from whose award either party may appeal to the district court of
the county, the case to be heard and determined as a cause in equity, with the right
of further appeal to the supreme court.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

NEVADA.
Date of enactment.—March 15, 1913; in effect July 1, 1913; amended, chapter 190,
acts of 1915; chapter 233, acts of 1917; chapter 176, acts of 1919.
Injuries compensated.—Injuries arising out of and in the course of employment,
causing incapacity to earn full wages for more than seven days or death, except when
caused by the employee’s willful intent or intoxication.
Industries covered.—All except domestic and farm labor, provided the employer
elects; compulsory as to the State and its municipalities.
Persons compensated.—Private employment; All employees in the industries covered,
including aliens and minors, whether lawfully or unlawfully employed, but excluding
employees whose work is both casual and not in the usual course of the employer’s
business. Public employment: All employees.
Burden of payment.—.The entire cost rests on the employer, except that he may
deduct one-half the cost of an “ accident benefit fund,” not more than $1 per month,
from each employee’s wages for medical, etc., expenses.
Compensation for death:
(a) Burial expenses not to exceed $125.
(b) To widow or dependent widower, 30 per celit of the average monthly wages,
with 10 per cent additional for each child under 18 years of age. " If only
children survive, 15 per cent for each child; the total in either case not to
exceed 66§ per cent. If there are none of the foregoing, one dependent
parent may receive 25 per cent, and two 35 per cent; if dependent brothers
or sisters under 18, 20 per cent for one, and 30 per cent if more than one.
Other cases of dependency are to be dealt with according to the facts.
Payments to a widow or dependent widower cease on remarriage; widow
receives two years’ benefits in a lump sum. Payments to children cease
at 18, unless incapable of self-support.
Payments to nonresident alien beneficiaries are 60 per cent of the above.
No excess of wages above $120 per month shall be considered in awarding
benefits.
,
No lump-sum settlements are allowed in case the widow, dependent children,
or other persons are wholly dependent.
Compensation for disability:
(а) Reasonable medical, surgical, and hospital aid for not more than 90 days, but
may be extended to 1 year by the industrial commission.
(б) For temporary total disability, an amount equal to 60 per cent of the average
monthly wages, but not less than $30 nor more than $72 for not over 100
months, with $10 per month additional if injured person had dependents,
total amount not to exceed $7,200.
(c) For permanent total disability, 60 per cent of the average monthly wage,
not less than $30 nor more than $60, payable during life.
(d) For temporary partial disability, 60 per cent of the loss of earning capacity,
but not more than $40 per month for not more than 60 months, wages in
excess of $120 per month not to be considered.
(e) For certain specific injuries (mutilations, etc.), a monthly payment equal to
one-half the monthly wages, not less than $30 nor more than $60, for fixed
periods, in addition to the payments for temporary total disability.
No compensation is payable for the first week of disability, but if it continues
one week beyond the first seven days or longer compensation is paid from
the date of the injury.
The industrial commission may permit the substitution of lump sums for
monthly payments in an amount not exceeding $5,000.
Revision of benefits.—Readjustment of compensation may be made by the com
mission on application therefor.
Insurance.—Employers coming under this act must insure in the State insurance
fund.
Security of payments.—State management of the insurance fund and collection of
premiums by the State. Payments are not assignable and are exempt from attach
ment, etc.
Settlement of disputes.—All matters relating to the amount of compensation to bo
paid are determined by the industrial commission.

WORKMENS COMPENSATION LAWS OF XHE UNITED STATES.

NEW HAMPSHIRE.
Date o f enactment.—April 15, 1911; in effect January 1,1912, ch. 163.
Injuries compensated.—Any injury to an employee arising out of and in the course
of employment causing disability of over two weeks, or death, unless due to willful
misconduct, intoxication, or violation of law.
Industries covered.—Industries dangerous to life or limb (enumerated list), includ
ing the operation and maintenance of steam and electric railroads, work in shops,
mills, factories, etc., employing five or more persons; work about lines or cables
charged with electricity; operations dangerously near explosives used in the industry,
or to a steam boiler owned and operated by the employer; and work in or about any
quarry, mine, or foundry (enumerated list); provided the employer elects.
Persons compensated.—Private employment: All workmen engaged in any of the
employments covered by this law. tu b lie employment: Government employees are
not mentioned.
Burden o f payment.—Entire cost rests upon the employer.
Compensation for death:
(a) To persons wholly dependent, a sum equal to 150 times the average weekly
earnings of the deceased, not to exceed $3,000.
(b) If only partial dependents survive, such proportion of the above compensation
as corresponds to the portion of wages contributed to their support.
(c) If nor dependents are left, expenses of medical care and burial to a reasonable
amount, not in excess of $100.
Compensation for disability:
(a) For total disability, a sum beginning with the fifteenth day, not exceeding 50
per cent of average weekly earnings.
(b) For partial disability, a sum not in excess of 50 per cent of the loss of earning
capacity.
In no case is compensation to exceed $10 a week nor run for a longer period
than 300 weeks.
The court may determine the amount of lump sums payable as a substitute
for weekly payments.
Revision o f benefits.—The injured person, when requested by the employer, must
submit to medical examination not oftener than once a week.
Insurance.—No provision.
Security o f payments. The employer must satisfy the commissioner of labor of his
ability to pay the required compensation or file a bond conditioned on the discharge
of all liability incurred under the act.
Weekly payments have the same preferential claims against the assets of the em
ployer as is allowed for unpaid wages or personal services.
Settlement of disputes—All questions not settled by agreement are determined by
an action in equity.

ANALYSIS OF PRINCIPAL. FEATURES OF XIZ& 1AWS.

NEW JERSEY.
Bate of enactment.—April 4, 1911; in effect July 1, 1911; amended by chapter 174,
acts of 1913; chapter 244, acts of 1914; chapter 149, acts of 1918; and chapter 9$, acts
of 1919.
Injuries compensated.—Injury by accident arising out of and in the course of em
ployment causing disability of over 10 days, or death, unless intentionally self-inflicted
or due to intoxication.
Industries covered.—All employments in the absence of contrary election.
Persons compensated.—Private employment: All employees except casual. Non
resident aliens receive no benefits. Public employment: Every employee of the
State, municipality, etc., except persons receiving a salary greater than $1,200 per
year, and those holding an elective office.
Burden o f payment.—The entire cost rests upon the employer.
Compensation for death:
(а) The expense of the last sickness not exceeding $200, and not exceeding $100
for burial.
(б) To one dependent, 35 per cent of the wages of the deceased person, and for each
additional dependent 5 per cent additional, the total not to exceed 60 per
cent, payable for not more than 300 weeks. Compensation not to be less
than $6 nor more than $12 per week, unless the earnings were less than $6
when full wages are paid.
(c) If no dependents, chapter 203, acts of 1918, requires the sum of f 400 to be paid
to the commissioner of labor.
No compensation is allowed to nonresident alien dependents.
Payments to all dependents cease at death, to widows on remarriage, and to
- orphans on reaching the age of 18, unless physically or mentally deficient.
A lump-sum payment may be substituted at the discretion of die court of
common pleas.
Compensation for disability:
(a) Reasonable medical and hospital services for 27 consecutive days following
the day of the accident, not exceeding $50 in value, which may be extended
to 17 weeks and $200 in value in exceptional cases.
(b) For temporary disability 66f per cent of wages, payable during disability, but
.not beyond 300 weeks.
(c) For permanent total disability, 66f per cent of wages during such disability,
not beyond 400 weeks.
(d) For certain specific injuries (mutilations, etc.) producing partial but perma
nent disabilities, 66| per cent of wages during fixed periods, in addition to
payments for any period of total disability.
All weekly payments are subject to a minimum of $6 per week and a maximum
of $12 per week unless earnings were less than $6 when full wages are paid.
A lump-sum payment may be substituted at the discretion of the workmen’s
compensation bureau.
Revision o f benefits.—At any time after one year from the time an award becomes
operative, either party may demand a revision of benefits.
Insurance.—'No provision in the principal act. Supplemental acts (ch. 178 and ch.
262, acts of 1917) require every employer, whether accepting the compensation act or
not, to furnish proof of ability to carry nis own insurance, or to be insured in an author
ized company; the insurance* provisions do not apply to farm laborers or domestic
service.
Security o f payments.—Insurance policies must be for the benefit of the employees,
and be directly available on suits by them for their enforcement. The right of com
pensation has the same preference against the assets of the employer as is now or may
hereafter be allowed by law for a claim for unpaid wages.
Settlements o f disputes.—A workmen’s compensation bureau created by chapter
149. acts of 1918, is charged with the duty of hearing and determining disputes, subject
to an appeal to the courts.

WORKMEN’S COMPENSATION LAWS OP THE UNITED. STATES.

NEW MEXICO.
Date of enactment.—March 13, 1917; in effect June 8, 1917; amended, chapter 44,
nets of 1919.
Injuries compensated.—Injury by accident arising out of and in course of employ
ment, causing disability for more than 14 days, or death within one year, not due to
the intoxication of the injured man or willfully suffered by him or intentionally
inflicted by himself or another. Failure to observe statutory safety regulations or to
use safety devices will cause the compensation to be reduced 50 per cent.
Industries covered.—Extrahazardous occupations (enumerated list) in which
four or more persons are employed, unless contrary election is made. If the injury
is received while at work on a derrick, scaffold, etc., 10 or more feet above ground,
the act applies without regard to the number of employees. Other occupations may
be included by joint written agreement.
Persons compensated.—Private employment: All employees in the industries
covered, except those purely casual and not for the purpose of the employer’s trade
or business. Public employment: Not mentioned.
Burden of payment.—All on employer.
Compensation for death:
(а) $75 for funeral expenses if death occurs as a proximate result.
(б) 40 per cent of earnings to dependent widow or widower alone, with 5 per cent
additional for each child; 25 per cent to one or two orphans, 10 per cent
additional for each additional child, totals in either case not to exceed 60
per cent. If no spouse or child survives, .a parent or parents in any degree
dependent receives 20 per cent; if none of the foregoing survive and there
are brothers or sisters in any degree dependent, 15 per cent shall be paid
for one, and 5 per cent for each additional one, the total not to exceed 25
per cent.
(c) No payment shall extend beyond 300 weeks, nor shall amounts paid partial
dependents exceed the actual contributions made by the deceased to
their support. Payments cease on the remarriage of a widow or widower,
on a child, brother, or sister attaining the age of 18, unless mentally or
physically incapacitated for earning, on the death of any dependent, the
adoption of an infant, or his becoming self-supporting .before reaching 18
years of age.
The earnings upon which death benefits are computed shall be taken as
not above $30 per week, nor less than $12 per week except where the
earnings are less than $12 per week, then the amount of the earnings.
Compensation for disability:
(а) Medical, surgical, and hospital services ft* the first 14 days, not over $50 in
value, unless an adequate scheme of hospital service has been provided
for, in which case such scheme shall be followed out.
(б) For total disability, 50 per cent of the workman’s earnings, for a term not to
exceed 520 weeks.
Weekly benefits shall be not more than $12 nor less than $6 per week, un
less the earnings are less than $6, when the full amount shall be paid.
(c) For permanent pirtial disability, 50 per cent of earnings for specified injuries,
for various periods ranging from 3 to 150 weeks, in addition to payments
for any period of total disability; other cases to be compensated propor
tionately; disfigurement of head or face, not over $500.
Weekly benefits shall be not more than $12 nor less than $6 per week, unles3
the earnings are less than $6, when the full amount shall be paid.
Lump-sum settlements may be approved foi* part or all the benefits, for
either disability o* death.
Revision of benefits.—The employer may at any time require a medical examina
tion of a beneficiary, and the court may adjust awards accordingly.
Insurance.—Employers under the act must file with the district court of the county
insurance or security for the payment of benefits provided by this act, unless a cer
tificate of financial ability is obtained.
Security of payments.—Policies of insurance must inure directly to the benefit
of claimants. Benefits are exempt from attachment, garnishment, or execution, and
can not be assigned.
Settlement of disputes.—Act is administered by courts. Proceedings are to be sum
mary as far as possible. Appeals lie to the supreme court.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

NEW YORK.
[Compulsory law.]

Date, of enactment.—December 16, 1913; in effect July 1, 1914; amended, chapters
41, 316; acts of 1914; chapters 167, 168, 615, 674, acts of 1915; chapter 622, acts of
1916; chapter 705, acts of 1917; chapters 249, 633, 634, 635, acts of 1918; chapters 45S,
498, 629, acts of 1919.
Injuries compensated.—Accidental injuries arising out of and in course of employ
ment, and disease or infection naturally and unavoidably resulting therefrom, caus
ing disability for more than two weeks, or death, unless caused by the willful in
tention of the injured employee to bring about the injury or death of himself or an
other, or by his intoxication while on dyty.
Industries covered.—“ Hazardous employments,” including extensive classified
list; also all othei^employments not so enumerated, in which four or more workmen
or operatives are regularly employed, domestic and farm labor excepted.
Persons compensated.—Private employment: All employees in industries covered.
Public employment: Included.
Burden of payment.—Entire cost rests on employer.
Compensation for death:
(a) $100 for funeral expenses.
(b) To a widow or dependent widower alone, 30 per cent of wages of deceased,
10 per cent additional for each child under 18; dependent orphans under
18 receive 15 per cent each, and dependent parents, brothers, or sisters
receive 15 per cent each; aggregate payments in no case to exceed 66§ per
cent.
(c) Payments to widow or widower cease on death or remarriage or when de
pendence of widower ceases, with two years’ compensation on remarriage;
payments to children, brothers, and sisters cease at 18, and to parents
when dependence ceases.
In computing the above benefits no wages in excess of $100 monthly are
considered.
Compensation for disability:
(a) Medical and surgical treatment and hospital services for 60 days, or longer
where the conditions require, costs to be approved by the commission.
(b) For total disability, 66| per cent of wages during continuance.
(c) For partial disability, 66§ per cent of wrage loss; for specified permanent
partial disabilities (mutilations, etc.), 66f per cent of wages for fixed periods,
in lieu of other payments; separate provision for disfigurements.
The foregoing payments may not be less than $5 nor more than $15 per week,
except for certain maimings the maximum may be $20.
Payments begin on the fifteenth day, but if the disability continues for
more than 49 days, compensation is allowed from the beginning.
Revision of benefits.—Awards may be reviewed at any time, and ended or increased
or decreased within the limits fixed.
Insurance.—Employer must give proof of financial ability to make payments (de
posit of securities may be required), or must insure in State fund or mutual or stock
company.
Security of payments.—Insurance may be made to inure directly to the benefit
of claimants; insolvency of employer does not release insurance company. Pay
ments have same preference as unpaid wages for labor without limit as to amount.
. Settlement of disputes.—Disputes are settled by the State industrial commission,
with limited appeal to courts.
177982°— 21—Bull. 272------4

WORKMEN'S COMPENSATION LAWS OP THE UNITED STATES.

NORTH DAKOTA.
Date of enactment.-—Approved March 5,1919; effective July 1,1919, ch. 162; amended
by chapter 73, special session of 1919.
Injuries compensated.—Injuries arising in the course of the employment causing
disability for more than seven days or death within 6 years, not caused by employee’s
willful intention to injure himself or to injure another.
Industries covered.— ‘ *Hazardous employments, ’ ’including any employment in which
one or more employees are regularly employed in the same business or establishment,
except agricultural or domestic service and common carriers by steam railroad. Em
ployments not classed as hazardous may elect to come under act.
Persons compensated.—Private employment: All persons engaged in hazardous
occupations, including minors, apprentices, and aliens, but excluding casual employ
ees whose work is both casual and not in the course of the employer’s business. Public
employment: All employees of the State or any political subdivision thereof.
Burden o f payment.—All on employer.
Compensation for death:
(a) Burial expenses not to exceed $100.
•
(b) To widow or wholly dependent widower without children, 35 per cent of the
average weekly wages until death or remarriage; 10 per cent additional for
each child under the age of 18, but not to exceed 66§ per cent of the
average weekly wages. Upon remarriage of widow she shall receive 156
weeks’ compensation in a lump sum.
To orphans under 18, 25 per cent for one and 10 per cent for each addi
tional not to exceed 66f per cent of the average weekly wages. Payments
cease at 18 unless incapable of self-support.
To one dependent parent, 25 per cent, and to two, 20 per cent each when there
is no widow, dependent widower, or child; if there are, then such amount
as may remain after the widow, widower, or child are provided for, the
total not to exceed 66f per cent of the average weekly wages, to continue
until death.
To wholly dependent sister, brother, grandparent or grandchild, if no widow,
widower, or child survives, if one, 20 per cent, if two, 30 per cent to be
equally divided, to continue for eight years or until death, marriage, or
termination of dependency.
(c) To partly dependent parents, brothers, sisters, grandparents, or grandchildren
such percentages as may be allowed by board.
Payments are to be computed on the basis of a minimum wage of $18 and a
maximum of $30 per week.
Compensationfor disability:
(a) Such medical, etc., service and supplies as the injury may require.
b) For total disability,66§ per cent of the average weekly wages during disability.
(c) For temporary partial disability, 66§ per cent of the loss of earning capacity.
(d) For permanent partial disability, 66§ per cent of weekly wages for fixed peri
ods determined by percentages of total disability.
Compensation is paid from date of the injury if disability continues beyond
seven days.
The maximum weekly compensation is $20 per week, and the minimum $6.
Lump-sum payments may be made instead of weekly payments when bureau
thinks it to be to the best interest of the beneficiary.
Revision o f benefits.—Bureau may review at any time, on its own motion or on appli
cation.
Insurance.—Insurance in the State fund is required of all employers in hazardous
work.
Security o f payments.—Fund is administered by workmen’s compensation bureau.
Agreements to waive rights to compensation are invalid, and all assignments of com
pensation are void. Compensation is exempt from claims of creditors.
Settlements of disputes.—All disputes are settled by the workmen’s compensation
bureau, with limited appeal to the district courts.

ANALYSIS OP PRINCIPAL FEATURES OF THE LAWS.

OHIO.
Date o f enactment.—June 15, 1911;'in effect January 1, 1912; amended pages 72,
396, acts of 1913; 193, acts of 1914; 508, acts of 1915; 6, 157, 450, 528, acts of 1917; 277,
313, 555, acts of 1919.
Injuries compensated.—All injuries, not self-inflicted, received in the course of em
ployment, causing disability beyond one week, or death.
industries covered.—All industries employing five or more persons regularly in the
same business; also establishments with less than five workmen, if the employer elects
to pay the premiums provided by this act.
Persons compensated.—Private employment: All employees excluding persons
whose employment is but casual and not in usual course of trade or business of employer
but including aliens and minors. Public employment: Persons in the service of the
State, or its political subdivisions, excepting the officials of the State or municipal
governments, and policemen and firemen m cities where pension funds are estab
lished and maintained by municipal authority.
Burden of payment.—Entire cost rests upon the employer.
Compensation for death:
(а) Burial expenses not to exceed $150.
(б) To persons wholly dependent, 66$ per cent of the average weekly earnings of
the deceased workman, not to exceed $15 weekly, for eight years after the
date of the injury, not less than $2,000 nor more than $5,000.
(c) If only partial dependents survive, a proportionate sum, not to exceed $15
weekly, to continue for all or such portion of the period of eight years as the
industrial commission may determine in each case, not exceeding a maxi
mum of $5,000.
(d) If no dependents, medical and hospital services not exceeding $200 in value
and burial expenses as above,
Dependence of children not presumed after 16 unless physically or mentally
incapacitated.
Compensation for disability:
(а) Medical, hospital, etc., services, not to exceed $200, but more may be allowed
in cases of actual necessity.
(б) For temporary total disability, a weekly payment of 66§ per cent of average
weekly wages, during disability, not less than $5 nor more than $15 per
week, but not for longer than six years, nor exceeding $3,750.
(c) For permanent total disability, a weekly payment as above, continuing until
death.
(d) For partial disability, 66J per cent of loss of earning capacity, during the con
tinuance thereof, but not exceeding $12 per week, or a total of $3,750.
(e) In certain specified injuries (mutilations, etc.), compensation of 66§ per cent
of wages, for fixed periods, with the same maximum and minimum limita
tions as noted above.
Payments under (d) and (e) are in addition to payments during temporary
total disability.
In all cases, if wages are less than prescribed minimum, then total wages are
paid as compensation; an expected increase in wages may be given con
sideration.
Revision o f benefits.—The industrial commission may from time to time make such
modification or change in its former findings of fact as it deems necessary.
Insurance.—The law creates a State insurance fund, under control of an industrial
commission, in which employers under the act must insure, or give proof of ability to
provide benefits equal to those provided by the State insurance fund. Noninsuring
employers may be required to give security or bond to guarantee the payment of ben
efits falling due.
Security of payments.—Insurance is under State control. Claims for compensation
under this law have the same preference against the assets of the employer as is or
may be allowed by law on judgments rendered for claims for taxes.
Settlement of disputes.—The commission hears and determines all cases within its
jurisdiction, limited right of appeal to the civil courts being reserved to the claimant.

w o r k m e n ’s c o m p e n s a t i o n l a w s o f t h e u n i t e d s t a t e s

OKLAHOMA.
Date of enactment.—March 22, 1915; in effect September 1, 1915. Amended, chap
ter 14, acts of 1919
Injuries compensated.—Personal injuries causing disability for more than seven
days arising out of and in course of employment, not due to the willful intention of
the injured employee to injure himself or another, intoxication, or willful failure to
use statutory safeguard. If disability continues for 21 days compensation is paid
from date of injury. Fatal injuries not covered.
Industries covered.— “ Hazardous ” (enumerated list and general clause), in which
more than two persons are employed, including work by State or municipalities;
agriculture, horticulture, stock raising, retail stores, and interstate railways not
included.
Persons compensated.—Private employment: Persons engaged in manual or mechan
ical work or labor in industries covered. Public employment: Workmen employed
for wages in any hazardous work within meaning of this act.
Burden of payment.—All on employer. Schemes requiring contribution from em
ployees may be approved by commission if they provide greater benefits.
Compensation for death.—Fatal injuries not covered.
Compensation for disability:
(a) Necessary medical, surgical, or other treatment for first 60 days not to exceed
$100 in value unless in the judgment of the commission a greater period or
amount is required.
(b) For temporary total disability, 50 per cent of average weekly wages for not
more than 300 weeks.
(c) For permanent total disability, 50 per cent of average weekly wages for not
more than 500 weeks.
(d) For partial disability, 50 per cent of wage loss for not more than 300 weeks;
for specified permanent injuries, 50 per cent of weekly wages for fixed
periods in lieu of other compensation.
*
Payments may not exceed $18 per week nor be less than $8 unless wages were
less than $8, when full wages will be paid. Periodical payments may
be commuted to lump sums, and aliens who are nonresidents may have
payments commuted to lump sums equal to one-half the value of the
present worth.
Revision of benefits.—Awards may be reviewed at any time on application of any
party in interest.
Insurance.—Employer must insure with a stock or mutual company or association
of the State or companies out of the State issuing approved policies, or maintain a
benefit fund, or provide satisfactory proof of ability to make compensation payments.
Security of 'payments— Insurance companies or fund systems must be approved
by the commission. Claims can not be assigned, and payments are exempt from levy,
execution, etc. Deposits with the commission to secure payments may be required
of employers or insurers.
Settlement of disputes.—Disputes are to be settled by the industrial commission,
subject to appeal to the supreme court.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

OREGON.
Date of enactment.—February 25, 1913; in effect June 30, 1914. [Deferred by
referendum.] Amended, chapters 271, 334, acts of 1915; chapter 288, acts of 1917;
chapters 55, 288, 397, acts of 1919.
Injuries compensated.—Injuries or death by accident arising out of and in the
course of employment, except those brought about intentionally.
Industries covered.—All hazardous occupations, including factories, mills, and
workshops employing machinery, etc. (enumerated list); all in absence of contrary
election. Other employers may accept the law by affirmative election.
Persons compensated.—Private employment: Any workman employed in enumer
ated hazardous employments in absence of contrary election, except farm laborers, who
may be brought under the law by election. Nonresident alien beneficiaries other
than parent, spouse, or child are not included unless otherwise provided by treaty.
Public employment: State and municipalities, irrigation districts, etc., may elect
to come under the act.
Burden of payment.—The employer deducts 1 cent from employee’s daily earnings,
and himself contributes this sum and a percentage of his monthly pay roll, fixed
according to industry. The State gives a subsidy.
Compensation for death:
(a) Burial expenses not to exceed $100.
(b) To widow or invalid widower, a monthly payment of $30, and to each child
under 16 (daughters 18) $8 a month, the total monthly payments not to
exceed $50.
(c) To orphans under 16 years of age (daughters 18), a monthly payment of $15
each; the total monthly payments not to exceed $50.
(d) To other dependents, there being none of the foregoing, a monthly payment
to each of 50 per cent of the average support received during the preceding
year, but not to exceed $30 a month in all.
(e) To parents of an unmarried minor, a monthly payment of $25, until such
time as he would have been 21, after which time compensation shall be
paid according to (d) above.
Payments to widow or widower continue until death or remarriage. On
remarriage of widow she receives a lump sum of $300. Payments to a
male child cease at 16 and to a female at 18, unless the child is an invalid.
Compensation for disability:
(a) Medical, surgical, and hospital expenses not exceeding $250 in value.
(b) For permanent total disability, monthly payments as follows: (1) If un
married at the time of the injury, $30; (2) if with wife or invalid husband,
but no child under 16 years, $35; if the husband is not an invalid, the sum
is $30; (3) if married or a widow or widower with a child or children under
16 years, $8 additional to the provision under (2) above for each child until
16 years of age; the total monthly payments not to exceed $50.
(c) For temporary total disability, the above payments apply during disability,
increased 50 per cent for first six months, but in no case to exceed 60 per
cent of monthly wages.
(d) For temporary partial disability, a proportionate amount, corresponding to
loss of earning power for not exceeding two years.
(e) For certain specified injuries (mutilations, etc.), monthly payment of $25
per month payable for fixed periods, less the time during which any pay
ments were made on account of total disability. A lump sum at the option
of the injured person is provided in some cases.
Partial lump-sum payments to any beneficiary may be substituted at the
discretion of the commission, but not to exceed $4,000.
Revision of benefits.—The rate of compensation may be readjusted either upon the
application of the beneficiary or by the State industrial accident commission upon its
own initiative.
Insurance.—Insurance is effected through the State industrial accident fund,
under supervision of the State industrial accident commission.
Security of payments.—Insurance under State control.
Settlement of disputes.—Any decision of the commission is subject to review by the
circuit court, and appeals lie from the circuit court as in other civil cases.

WORKMEN’S COMPENSATION LAWS OS' THE UNITED STATES.

PENNSYLVANIA.
Date of enactment.—June 2, 1915; in effect January 1, 1916; amended, acts No. 57,
359, 395, acts of 1917; acts No. 277, 306, 310, 441, 455, acts of 1919.
Injuries compensated.—Personal injury by accident in the course of employ
ment, causing disability for more than 10 days or death in 300 weeks, not intention
ally self-inflicted or due to the intentional act of a third person for reasons not con
nected with the employment.
Industries covered.—All, unless employer makes election to the contrary. A sup
plemental act (No. 359, acts of 1917) requires all contracts with the State or any
municipality to contain a provision that the contractor shall accept the provisions of
the compensation law. (Agricultural and domestic employees are excluded by a
separate act.)
Persons compensated.—Private employment: All persons rendering service to
another for a valuable consideration, casual employees whose work is not in the regu
lar course of the employer’s business, and outworkers excepted. Public employment:
All employees.
Burden of payment.—All on employer.
Compensation for death:
(а) $100 funeral expenses.
(б) 40 per cent of weekly wages to widow or dependent widower, 10 per cent
additional for each child, total not to exceed 60 per cent; if no parent,
30 per cent if one or two children, 10 per cent additional for each child
in excess of two, total not to exceed 60 per cent; if no consort or child under
16, but dependent parent, brothers, or sisters, 15 to 25 per cent of wages.
(c) Payments cease on death, remarriage of widow or widower, cessation of depend
ence of widower, or when a child, brother, or sister attains the age of 16;
not to continue beyond 300 weeks, unless for children under 16, when 15
per cent of wages will be paid for one and 10 per cent additional for each
additional child, total not to exceed 50 per cent. Basic wages are not
less than $10 nor more than $20 weekly.
Upon remarriage a widow is to receive the then value of the compensation
for one-third of the unpaid period.
Compensation for disability:
(а) Reasonable medical and surgical expenses for first 30 days after disability
begins, cost not to exceed $100; in addition, hospital treatment for 30 days
at prevailing costs.
(б) For total disability, 60 per cent of weekly wages for 500 weeks, $6 minimum,
$12 maximum, total not to exceed $5,000, if wages less than $6 full wages
will be paid.
(c) For partial disability, 60 per cent of weekly wage loss, $12 maximum, for
not over 300 weeks; fixed periods for specified injuries, in lieu of other
payments, $6 minimum, $12 maximum, full wages if less than $6.
Payments may be commuted to a lump sum.
Revision of benefits.—Agreements and awards may be reviewed by the board at
any time for proper cause.
insurance.—Employers must insure in the State fund, a stock or mutual com
pany, or give proof of financial ability.
Security of payments.—Agreements or claims may be filed with a prothonotary,
who enters them as a judgment, and if approved by the board they become a lien
on the property of the employer. A separate act provides for direct payments from
insurance companies to the beneficiaries, in case of the employer’s failure to make
payments of benefits.
Settlement of disputes.—Disputes are settled by a workmen’s compensation board,
with appeal to courts.

ANALYSIS 03? PRINCIPAL FEATURES OF THE LAWS.

PORTO RICO.
Date of enactment.—April 13, 1916; in effect July 1, 1916; amended, act No. 9, acts
of 1917. New act, February 25, 1918; in effect July 1, 1918.
Injuries compensated.—All personal injuries by accident occurring to a laborer
in the course of his employment and due thereto, causing death within one year or
disability, excepting injuries due to an attempt to commit crime or to injure himself,
his employer, or another person; intoxication, or gross negligence, or the criminal act
of a third person.
Industries covered.—All industries employing three or more persons except domestic
service and agricultural work without mechanically driven machinery.
Persons compensated.—Private employment: All employees of employers covered
by the act, clerical employees in offices and commercial establishments where ma
chinery is not used excepted; also excepting employees whose earnings exceed $1,500
per year. Public employment: Included.
Burden of payment.—All on employer.
Compensation for death.—A compensation of three to four thousand dollars as a
maximum to persons wholly dependent, the amount to be graded according to the
earning capacity of the deceased, and the number of beneficiaries. Benefits may be
apportioned among the dependent legal heirs by the will of the decedent if not in
conflict with this act or the code.
Compensation for disability:
(a) Medical attendance, medicines, also hospital services when necessary, and
sustenance, as the workman’ s relief commission may prescribe; but the
allowance for medicine and food supplies shall be deducted from the com
pensation granted, and none allowed after the award.
(b) For temporary disability an amount equal to one-half the weekly wages, not
less than $3 nor more than $7, for not more than 104 weeks.
(c) For permanent total disability not less than $2,000 nor more than $4,000, in
proportion to the rate of wages earned at the time of injury.
(d) For permanent partial disability not more than $2,500, m proportion to the
rate of wages earned at the time of injury. The time and manner of pay
ments are to be determined by the workman’s relief commission.
Revision of benefits.—No provision.
Insurance.—All payments are made from the workman’s relief trust fund established
by the act, to which all employers covered by the act contribute.
Security of payment.—Fund is administered by the treasurer of the island. Rights
and actions not assignable nor subject to attachment.
Settlement of disputes.—Claims are passed upon by the workman’s relief commis
sion, with limited appeal to the courts.

w o r k m e n ’s

COMPENSATION LAWS OF THE tTNITED STATES.

RHODE ISLAND.
Date of enactment.—April 29, 1912; in effect October 1, 1912; amended, chapter
937, acts of 1913; chapter 1268, acts of 1915; chapter 1534, acts of 1917; chapter 1795,
acts of 1919.
Injuries compensated.—Personal injuries by accidents arising out of and in the course
of employment causing incapacity for earning full wages for a period of more than
two weeks, or death, except where the injury resulted from the willful intention of
the injured person to injure himself or another, or from intoxication.
Industries covered.—All industries except domestic service and agriculture, if the
employer elects. Defenses in suits for damages are not abrogated unless more than
five persons are employed.
Persons compensated.—Private employment: All employees in establishments
covered by this act in absence of contrary election, employees whose work is of a casual
nature and who are employed otherwise than for the purpose of the employer’s busi
ness, and those earning above $1,800 a year excepted. Public employment: Employ
ees of the State, and such classes of employees of cities and towns electing to accept
the act as are designated in the act of acceptance, but not including members of
regularly organized fire and police departments.
Burden of payment.—Entire cost rests upon the employer.
Compensation for death:
(a) To persons wholly dependent, a weekly payment equal to one-half the average
weekly earnings of the deceased employee, but not less than $4 nor more
than $10 per week, for a period of 300 weeks.
(b) If only partial dependents survive, a sum proportionate to the amount which
the annual contributions bore to the annual earnings of the deceased, for not
exceeding 300 weeks.
(c) If no dependents, the expense of the last sickness and burial of the deceased
employee, not exceeding $200.
Payments to children cease on their reaching the age of 18 years unless they
are physically or mentally incapacitated.
Compensation for disability:
(a) The necessary medical and hospital services for the first four weeks after the
injury.
(b) For total incapacity, a weekly payment equal to one-half the wages, but not
less than $7 nor more than $14 per week, during such incapacity, but not
for a longer period than 500 weeks, nor more than $5,000.
(c) For partial incapacity, a weekly payment equal to one-half the loss of earning
power, but not exceeding $10 per week, during such incapacity, and not
for a longer period than 300 weeks.
(d) For certain specified injuries (mutilations, etc.), in addition to the above,
one-half the wage3, weekly payments to be not less than $4 nor more than
$10 per week, for fixed periods.
Payments begin on the fifteenth day, but if the incapacity extends beyond
four weeks, they revert to the date of the injury.
Lump-sum payments may be substituted by order of the superior court after
compensation has been paid for six months for either death or injury.
Revision of benefits.—Amounts payable may be reviewed and modified by the
superior court at any time within two years, if the time for payments has not expired.
Insurance.—Employers must insure, give proof of financial ability to make direct
payments, or furnish security or bond. If employees contribute to any approved
scheme or insurance plan, proportionate added benefits must be provided.
Security of payments.—Insurers are directly liable to claimants; beneficiaries have
a first lien on any sum due from insurers to the employer on any policy.
Settlement of disputes.—Disputes are settled by the superior court on a petition in
the nature of a petition in equity, filed by any party in interest. Appeals may be
carried to the supreme court by any aggrieved person.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

SOUTH DAKOTA.
Date of enactment.—March 10, 1917; in effect June 1, 1917; amended, chapters 363,
314, acts of 1919.
Injuries compensated.—Injuries by accident arising out of and in course of employ
ment, causing disability for more than 10 days or death, not due to intoxication or
willful misconduct.
Industries covered.—All except agriculture and domestic service, in the absence of
contrary election. Exempt occupations may come in by voluntary election.
Persons compensated.—Private employment: All persons in service under a con
tract of hire or apprenticeship, except those whose'employment is both casual and
not in the usual course of the business or trade of the employer. Public employees:
Employees of the State and its municipalities are included.
Burden of payment.—All on the emplover, except that one-half of the fees of arbi
trators may be charged to the compensation allowed in any case.
Compensation in case of death:
(a) To a dependent widow, child, or children, a sum equal to four times the
average annual earnings of the deceased person, not less than $1,650 nor
more than $3,000; if none of these, similar amounts may be paid to a de
pendent parent, grandparent, brother, or sister. If there are none of the
foregoing, collateral dependent heirs may receive such a percentage of the
same amount as the deceased workman’s contributions to their support
during the preceding two years are of his earnings during such period.
(b) If there are no dependents, the employer shall pay burial expenses in an
amount not exceeding $150.
Payments are to be made in installments equal to one-half the wages, as the
wages were paid, or weekly, if that is not feasible. Payments cease on the
death of a beneficiary or the remarriage of a widow; but if there are de
pendent children, amounts otherwise due her go to the children. *
Compensation for disability:
(a) Necessary medical, surgical, and hospital services for not more than 12 weeks
nor in an amount above $150.
(b) For total disability, 55 per cent of the weekly earnings, not more than $12
nor less than $6.50, unless earnings are less, then full wages, until four years’
earnings are paid, not to exceed $3,000.
(c) For partial disability, 55 per cent of the wage loss, not over $12 weekly, for
not longer than six years; for specified injuries payments are to be made
for fixed periods, in addition to the amount paid during any period of total
disability.
(d) For serious and permanent disfigurement of the hand, head, or foot not giv
ing rise to other awards, an agreed or arbitrated award of not more than
one year’s earnings.
No payment is made for disability of not more than 10 days’ duration, but
if it continues for 6 weeks or more, compensation is payable from the date
of the injury. Commutation to lump sums may be arranged for on a proper
showing.
Revision of benefits.—Awards may be reviewed by the industrial commissioner
at the request of either party, and modified according to the findings.
Insurance.—Insurance in an approved company or association is required, unless
satisfactory proof of financial ability to make payments is furnished, or sufficient
security is deposited with the State insurance department to guarantee payments.
Security of payments.—Insurance policies are to be valid regardless of the employer’s
solvency, and must provide that the workman shall have a first lien upon any amount
becoming due him thereunder. Claims are unassignable, and payments are exempt
from execution. .
Settlement of disputes.—Arbitrators are to be chosen, one by each party, the indus
trial commissioner acting as chairman. If review is claimed, the commissioner may
revise the decision or refer it back to the arbitration board. Appeal lies to the courts
only on questions of law.

WORKMEN’S COMPENSATION LAWS OF THE UNITED STATES.

TENNESSEE.
Date of enactment.—April 15, 1919; effective July 1, 1919.
Injuries compensated.—Injury by accident arising out of and in course of the employ
ment, causing disability for more than 14 days, or death, not due to employee’s intoxi
cation, willful, misconduct, or intentional self-inflicted injury, or refusal to use a
safety appliance or perform a duty required by law.
Industries covered.—All employing 10 or more persons, except common carriers while
engaged in interstate commerce, domestic and agricultural service, and coal mining.
Those employing less than 10 persons, coal mines, and public employers may elect to
come under the act.
Versons compensated.—Private employment: All employed in the industries covered
except employees whose work is casual and not in the usual course of the employer’s
business. Public employment: Employees are not covered unless the employer
elects to come under the act.
Burden of payment.—Entire cost rests upon the employer.
Compensation for death:
(a) Burial expenses not to exceed $100.
(b) To widow, 30 per cent; with one child, 40 per cent; two or more children,
50 per cent. One orphan child, 30 per cent; each additional orphan, 10 per
cent; total not to exceed 50 per cent. Dependent widower, 20 per cent.
One dependent parent, 25 per cent; two dependent parents, 35 per cent.
One grandparent, sister, brother, mother, or father-in-law, 20 per cent; two
or more, 25 per cent, of the average weekly wages, in the order named, until
death or marriage.
(c) If only partial dependents survive, a proportion of the above corresponding to
the relation of the contribution of the deceased to the total income of such
dependents.
Payments to children cease upon their reaching the age of 18 years, unless
incapable of self-support.
The maximum weekly compensation is $11 per week and the minimum $5,
unless wages are less than $5, when full wages are paid, for not over 400
weeks.
Compensation for disability:
(a) Reasonable medical and surgical treatment for 30 days after notice of accident,
not to exceed $100.
(b) For temporary total disability, 50 per cent of average weekly wages, for not
over 300 weeks.
(c) For temporary partial disability, 50 per cent of wage loss for not over 100
weeks.
(d) For permanent partial disability, 50 per cent of wage loss for not over 300
weeks; for certain specific injuries (mutilations, etc.) producing permanent
partial disabilities, 50 per cent of wages during fixed periods.
(e) For permanent total disability, 50 per cent of wages for not to exceed 550
weeks reduced to $5 per week after 400 weeks, with maximum total of
$5,000.
Payments are to begin on the fifteenth day unless disability continues for
more than six weeks, when they date from the injury.
Payments may not exceed $11 per week nor be less than $5, unless wages are
less than $5, when full wages are paid, and may be commuted to a lump
sum.
Revision of benefits.—Revision of payments for more than six months may be made
by the court on agreement of parties; or, in case of disagreement, on application of
one party.
Insurance.—Insurance is required in an authorized insurance company or associa
tion, or bond or proof of financial ability to make payments.
Security of payments.—Insurance policies must inure directly to the benefit of the
beneficiaries and be enforceable in an action by them.
Settlement of disputes.—Disputes are settled by the judge or chairman of the county
court, with right of appeal to the courts.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

TEXAS.
Date of enactment.—April 16, 1913; in effect September 1, 1913; amended, chapter
103, acts of 1917.
Injuries compensated.—Personal injury sustained in the course of employment
causing incapacity to earn full wages for at least one week, or death, not due to the
act of God, unless the employment is specially exposing, nor to the intentional act of
a third person committed for personal reasons not connected with the employment,
nor to the injured man’s willful intent to injure himself or another, nor received
while intoxicated.
Industries covered.—All in which three or more persons are employed, if the employer
elects, except domestic and farm labor, railways (steam or electric) operated as com
mon carriers, and vessels in interstate and foreign commerce.
Persons compensated.—Private employment: All employees in industries included,
except those not in the usual course of the employer’s trade or business. Public
employment: No provision.
Burden of payment.—The entire cost rests upon the employer.
Compensation for death:
(а) To the legal beneficiaries of the deceased employee, a weekly payment equal
to 60 per cent of his wages, not less than $5 nor more than $15, for a period
of 360 weeks, distributed according to law governing property distribution.
(б) If no beneficiaries are left, the expenses of the last sickness and in addition a
funeral benefit not to exceed $100.
Compensation for disability:
(a) Medical and hospital care for the first two weeks; hospital care for two weeks
additional if necessary.
(b) For total incapacity, a compensation equal to 60 per cent of the average
weekly wages of the injured person, but not less than $5 nor more than $15
per week, during such disability, but not exceeding a period of 401 weeks.
(c) For partial incapacity, a compensation equal to 60 per cent of the loss of
earning power during such disability, in no case to exceed $15 per week,
but not exceeding 300 weeks, or for both partial and total disability, 401
weeks.
(d) For certain specified injuries (mutilations, etc.), compensation equal to 60
per cent of the average weekly wages of the injured person, for fixed periods,
not less than $5 nor more than $15 per week, in lieu of all other compensation.
A lump-sum payment may be substituted for weekly payments in cases of
death or permanent total disability, subject to the approval of the industrial
accident board.
Revision of benefits.—On its own motion or on application of an interested party,
the industrial accident board may at any time review an award.
Insurance.—Employers come under the law only by taking insurance, which may
be effected through the Texas Employers’ Insurance Association, or in any company
admitted to do business in the State.
Security of payments.—Compensation is payable directly by the insurance associa
tion. Policies in other companies are subject to the provisions of the act. All bene
fits are nonassignable, and exempt from garnishment, attachment, etc.
Settlement of disputes.—Disputes are referable to the industrial accident board,
whose decisions are subject to appeal to any court of competent jurisdiction.

WORKMEN’S COMPENSATION LAWS OF THE UNITED STATES.

UTAH.
Date of enactment.—March 15, 1917; in effect July 1, 1917; amended chapter 63,
acts of 1919.
Injuries compensated.—-Injuries by accident arising out of and in course of employ
ment, causing disability for more than three days, or death within 3 years.
Industries covered.—Compulsorily, all except agriculture and domestic service, in
which three or more persons are employed; elective as to all exceptions.
Persons compensated.—Private employment: All persons regularly employed under
any contract of hire, including aliens and minors legally permitted to work, but not
including persons whose employment is but casual and not in the usual course of the
employer’s business. Public employment: Every person in the service of the State
or a municipality, including regular members of the police and fire departments of
cities and towns, excepting elective officials and officials receiving more than $2,400
per year salary.
Burden of payment.—All on employer, but employees may contribute to benefit
schemes for benefits additional to those provided by the act.
Compensation for death:
(a) Funeral expenses, not exceeding $150.
(b) To parsons wholly dependent, 60 per cent of the average weekly earnings of
the deceased employees, not to exceed $16, for not over six years, $2,000
minimum, $5,000 maximum.
(c) To persons partly dependent, the same amount, subject to the same limit3
as to maximum, for all or such part of the pariod of six years as the com
mission may in each case determine.
Payments to beneficiaries cease on their death or remarriage; to female children
on their attaining the age of 18, and to males on reaching the age of 16,
unless mentally or physically incapacitated from earning.
(d) When there are no dependents the employer or his insurer must pay, in
addition to medical and funeral expenses, the sum of $750 into the State
treasury for a second-injury fund, unless the employer is insured in the
State fund.
Compensation for disability:
(a) Such medical, n*irse, and hospital services and medicines as the employer
or insurer may deem proper, not over $500 in value.
(b) For permanent total disability, 60 per cent of average weekly wages for five
years, and 45 per cent thereafter until death, $16 maximum, $7 minimum.
(c) For temporary total disability 60 per cent of weekly wages for 6 years, hot to
exceed $5,000; $16 maximum, $7 minimum.
(id) For partial disability, 60 per cent of the weekly wage loss, not over $16 per
week, for not more than six years. For specified injuries causing permanent
partial disability, 60 per cent, not over $16 weekly, is to be paid for fixed
periods, in addition to payment for temporary total disability; proportionate
awards for disfigurement or injuries not enumerated.
Any periodical payment under special circumstances may be commuted to a
lump sum by the commission.
Revision of benefits.—Revision may be made from time to time as in the opinion
of the commission may be justified.
Insurance.—Employers must insure in the State fund, in a stock or mutual insurance
company, or give proof of ability to meet their own compensation payments; but
approved benefit schemes may be maintained.
Security of payments.—Policies in private insurance companies are binding without
regard to the solvency of the employer, and are enforceable by the employee directly.
Self-insurers may be required to deposit security or give a bond.
Settlement of disputes.—Disputes are settled by the State industrial commission, with
limited appeal to the courts.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

VERMONT.
Date of enactment.-^-April 1, 1915; in "effect July 1, 1915; amended, Nos. 171, 173,
174, 175, acts of 1917; Nos. 158, 159, acts of 1919.
Injuries compensated.—Personal injury causing disability for more than seven days
(14 days until July 1, 1918), or death within two years, arising out of and in course of
employment, not due to the employee’s willful intention to injure himself or another,
his intoxication, or failure to use a safety appliance.
Industries covered.—All industrial establishments in which more than 10 persons are
employed, and commerce as far as permissible under Federal laws, domestic labor
excepted, unless election to the contrary is made.. Public service under municipali
ties which elect compensation system.
Persons compensated.—Private employment: All under contract with or in service
of an employer, domestic and casual employees, those not in the usual course of the
employer’s business, and those receiving more than $2,000 excepted. Public employ
ees; All except those elected by popular vote or receiving in excess of $2*000 annually.
Burden of payment.—All on employer.
Compensation for death:
(a) $100 for funeral expenses if death occurs within two years.
(b) 331 per cent of weekly wages to dependent widow or widower, 40 per cent if
there be one or two children, and 45 per cent if more than two; if no parent,
25 per cent to one or two children, 10 per cent additional for each child in
excess of two, total not to exceed 40 per cent; if no consort or child under 18,
and dependent parent, grandparent, or grandchild, 15 to 25 per cent of wages.
(c) Payments to widow cease on death or remarriage; to widower on remarriage or
cessation of dependency; to children on reaching age of 18 unless incapable
of self-support, in no case to exceed 260 weeks or $3,500 in amount; payments
to other classes of beneficiaries end in 208 weeks at most. Basic wages are
not less than $5 weekly.
Compensation for disability:
(a) Medical and hospital services for first 14 days,, not to exceed $100.
(b) For total disability 50 per cent of weekly wages for not more than 260 weeks,
$3 minimum, $12.50 maximum, total not to exceed $4,000. If wages are less
than $3, full wages will be paid.
(c) For partial disability, 50 per cent of wage decrease, maximum $10, for not
more than 260 weeks.
(d) For certain specified injuries, 50 per cent of weekly wages, but not more than
$12.50 nor less than $3, for designated periods ranging from four to 170 weeks,
following the period of total disability, the total not to exceed 260 weeks.
Payments may be commuted to one or more lump sums in any case.
Revision of benefits.—Awards may be reviewed on application at any time, but not
oftener than, once in six months.
Insurance.—Required unless deposit of security is made, or satisfactory proof of
financial responsibility.
Security of payments.—Employees may have direct recourse to insuring company;
insolvency of employer does not release insurer; compensation rights are preferred
claims.
Settlement of disputes.—Disputes are determined by a commissioner of industries,
with appeal to courts.

WORKMEN’S COMPENSATION LAWS OF THE UNITED STATES.

VIRGINIA.
Date of enactment.—March 21, 1918; in effect January 1,1919, ch. 400.
Injuries compensated.—Injuries caused by accident arising out of and^ in course o!
employment, not due to the injured person’s willful misconduct, intoxication,
intention to injure himself or another, or failure to use a safety appliance or to per
form some duty required by law or to obey a rule of the employer, and causing disa
bility for more than 14 days or death within 6 years.
Industries covered.—All employing regularly more than 10 persons, in absence of
contrary election, domestic and farm labor and interstate commerce and intrastate
common carriers using steam excepted.
Persons compensated.—Private employment: All employees of employers under the
act who do not themselves make a contrary election, including minors and appren
tices, except employees whose employment is not in the usual course of the employer’s
business. Public employment: All employees.
Burden of payment.—All on employer.
Com
dy payment equal to one-half the aver
age weekly wages of the deceased; $10 maximum, $5 minimum.
(c) If only partial dependents survive, such proportion of the above as the
amount contributed bears to the annual earnings of the deceased em
ployee.
(d) Payments may not extend beyond a period of 300 weeks, nor to children
after they attain the age of 18 years, unless physically or mentally inca
pacitated. Payments to a widow or widower are, on remarriage, to be
divided among other dependents, if any.
Compensation to alien dependents (Canada excepted) may not exceed
$1,000.

The total compensation may not exceed $4,000.
Compensation for disability:
{a) Necessary medical attention for the first 30 days; additional services, includ
ing surgical and hospital services and supplies, may be furnished at the
employer’s option, and must be accepted unless the industrial commis
sion orders otherwise.
(b) For total disability, one-half the weekly wages, not more than $10 nor less
than $5 per week, for not more than 500 weeks, the total not to exceed
$4,000.
(c) For partial disability, one-half the wage loss, not more than $10 per week, for
not more than 300 weeks; for specified injuries (loss of member or mem
bers) 50 per cent of the wages for fixed periods.
Lump sums may be substituted for periodic payments in any case after 26
weeks on agreement of the parties and the approval of the industrial com
mission.
Revision of benefits.^-The industrial commission may review an award on its own
motion before a judicial determination, or at any time on the application of a party in
interest on the ground of a change in condition.
Insurance—Every employer coming under the act must insure in a stock or mutual
company, or in a State fund, or furnish satisfactory proof of financial ability to make
direct payment.
Security of payments.—Claims are not assignable, and are exempt from claims of
creditors; payments have the same preference for full amount as wage debts. Notice
to the employer is notice to the insurer, and policies must inure directly to the benefit
of the person entitled to compensation.
Settlement of disputes.—Disputes are settled by the industrial commission, subject
to limited appeal to courts.

ANALYSIS OF PRINCIPAL FEATURES 03T THE LAWS,

WASHINGTON.

—

Date of enactment. March 14, 1911; in effect October 1 1911; amended, chapter
138, acts of 1913; chapter 188, acts of 1915; chapters 28, 120, acts of 1917; chapters
67, 129, 130, 131, acts of 1919...............................
Injuries compensated.—Injuries causing disability for more than eight days, or death,
except injuries brought about intentionally.
Industries covered.—All extrahazardous employment (enumerated list and covering
clause), but not including railway employees engaged in interstate commerce; public
utilities; State, county, and municipal undertakings involving extrahazardous work.
Persons compensated.—Private employment: All employees in industries covered
by the act; including employees on the pay roll at a rate not less than the average
named in such pay roll. Public employment: All employees in industries covered
by the act.
Burden of payment.—The entire burden rests upon the employer, except as to the
medical aid fund, to which the employee contributes one-half; or an approved relief
fund may be maintained by joint action.
Compensation for death:
(a) Expenses of burial not to exceed $75 if unmarried, $100 if widow or child.
survives.
(b) To widow or invalid widower, a monthly payment of $30; to each child under
16; $5 per month, the total not to exceed $50 per month.
A widow receives in addition to monthly payments a lump sum of $250
where the burial expenses do not exceed the amount allowed.
(c) If no parent survives, a monthly payment of $10 to each child under 16
years of age, the total not to exceed $40 per month.
(d) To other dependents, if none of the above survive, a monthly payment to
each, during dependency, equal to 50 per cent of the average amount
previously contributed to the dependent, the total not to exceed $20 per
month.
(c) To the parent or parents of an unmarried minor a monthly payment of $20
until the time he would have been 21. In case of dependence, payments
to parents of minors are governed by (d).
Payments to a widow or widower cease on death or remarriage, and
to a child on reaching the age of 16 years, or 18 years if invalid. If a
widow remarries, she receives a lump sum of $240.
Compensation for disability:
(a) Proper medical, etc., services and care during the period of disability, if
temporary; if permanent, until awards are made.
(b) For permanent total disability: (1) If unmarried, $30 per month; (2) if wife
or invalid husband, but no child, $30 a month; if husband is not an in
valid, $15; (3) if married, or a widow or widower with child or children
under 16 years, $5 a month additional for each child, the total not to ex
ceed $50; if constant attendance is required, $20 per month additional.
In case of death from whatever cause, while totally disabled, death benegp fits acrue as above.
(cj For temporary total disability, payments as for permanent total disability
during disability with specified rates for first six months, according to
number of dependents.
(d) For temporary partial disability, the payment as for total disability con
tinues m proportion to the loss of earning power, if over 5 per cent.
(e) For specified permanent partial disabilities, lump sums ranging from $500 to
$2,000, in lieu of other payments, other disabilities to be compensated
proportionately; parents of an injured minor receive in addition 10 per
cent of the award to such minor.
No benefits are to be paid for the first 8 days unless the disability continues
for more than 30 days.
Monthly payments may be converted into a lump-sum payment, not over
$4,000, in case of death or permanent total disability.
Revision of benefits.—Revision may be had upon application of the beneficiary or
upon the motion of the department.
Insurance.—Insurance is required in a State accident fund.
Security of payments.—Accident fund under State control.
Settlement of disputes.—By industrial insurance department, whose decisions are
subject to review by the superior court, from which appeal lies as in other civil cases.

w o r k m e n ’s c o m p e n s a t io n l a w s

of t h e

u n it e d s t a t e s .

WEST VIRGINIA.
Date o f enactment.—February 22, 1913; in effect October 1, 1913; amended, Febru
ary 20 and March 13, 1915; ch. 131, February 13, 1919.
Injuries compensated.—All personal injuries not the result of willful misconduct
or intoxication of the injured employee, disobedience to rules of employer, failure
to use a safety device, or self-inflicted, causing incapacity for more than one week,
or death within one year.
Industries covered.—All except domestic or agricultural labor, including the State
and all government agencies.
Persons compensated.—Private employment: All employees in industries covered,
including aliens, except members of firms, traveling salesmen, persons not legally
employed, and the officers, managers, etc., of corporations. Public employment:
Included, except elective officials.
* Burden o f payment.—Employer, 90 per cent; employees, 10 per cent.
Compensation for death:
(а) Reasonable funeral expenses, not to exceed $150.
(б) To the widow or invalid widower, $20 per month, and $5 per month additional
for each child under the age of 15 years.
(c) To other persons wholly dependent, if no widow, invalid widower, or child
under the age of 15 years is left, 50 per cent of the average monthly support
received from the deceased during the preceding year, not exceeding $20
per month, for six years.
(d) If the deceased was a single minor, to a dependent parent, 50 per cent of the
earnings, not to exceed $6 per week for 6 years unless parents were only
partially dependent or deceased was under 15 years of age, then until the
time when he would have become 21.
(e) If only partial dependents survive, a compensation computed as in (c), with
the same maximum.
Payments to a widow or widower cease on remarriage, and to children on
reaching the age of 15 years unless child is an invalid. If widow or invalid
widower remarry within two years of death of employee, he or she is to be
paid 20 per cent of balance of 10 years’ benefits.
Compensation for disability:
(a) Medical, nurse, and hospital services, not exceeding $150 ($300 in special
cases, which may be increased to $600 by1!he commissioner).
(b) For temporary disability, during such disability, 50 per cent of the average
weekly earnings for not exceeding 52 weeks, except that for certain un
united fractures, etc., the period may be 78 weeks.
(c) For permanent disability, 50 per cent of wages for periods varying with degree
of disability (from 5 to 85 per cent, with special schedule for maimings),
periods ranging from 20 to 340 weeks; above 85 to 100 per cent disability,
50 per cent of wages for life.
Lump-sum payments may be substituted for periodic payments in case of
either injury or death.
Payments for all disabilities $5 minimum, $12 maximum.
Revision o f benefits.—Awards may be modified at any time.
Insurance.-*-Insurance is effected through a State fund under the control of the
compensation commissioner, or employers of approved ability may carry own risks,
giving bond for performance of requirements not less than those of the law, without
contributions from their employees.
Security o f payments.—Payments may be made only to beneficiaries, and are exempt
from claims of creditors or attachment or execution.
Settlement of disputes.—Disputes are settled by the commissioner; limited appeal
to the supreme court of appeals.

ANALYSIS OF PRINCIPAL FEATURES OF THE LAWS.

WISCONSIN.
• Date of enactment—May 3, 1911; in effect same date; amended, chapters 599, 707,
772, acts of 1913; 121, 241, 316, 369, 378, 462, acts of 1915; 624, 637, acts of 1917; 136,
457, 568, 577, 668, 680, 692, acts of 1919.
Injuries compensated.—Personal injury by accident causing disability of at least
one week, or death, while performing service growing out of and incidental to the
employment, not intentionally self-inflicted; occupational diseases included.
Industries covered.—All, if the employer elects; election presumed where there are
three or more employees, except as to agriculture and railroads. Compulsory as to
the State and its municipalities. .
Persons compensated.—Private employment: All employees except those not
employed in the usual trade, business, or occupation of the employer, including
aliens, in the absence of contrary election. Public employment: All employees of
the State or its political subdivisions, officials excepted.
Burden of payment.—Entire cost rests upon the Employer.
Compensation for death:
(а) The reasonable expense of burial, not exceeding $100.
(б) To persons wholly dependent, a sum equal to four years’ earnings, but which
when added to any prior compensation for permanent total disability shall
not exceed six years’ earnings.
(c) If only partial dependents survive, a sum not to exceed four times the amount
provided for their support during the preceding year.
All payments are to be made in weekly installments equal to 65 per cent of
the average weekly earnings. Benefits for death resulting from intoxica
tion are reduced 15 per cent.
Dependence of children ceases at 18, unless physically or mentally incapaci
tated.
Compensation for disability:
(a) Medical, surgical, and hospital treatment for 90 days, and for such additional
time as will in the judgment of the industrial commission lessen the period
of compensation; artificial members are also to be supplied. Employee
may have Christian Science treatment unless employer elects to the
contrary.
(b) For total disability, 65 per cent of the average weekly earnings during such
disability.
(c) For partial disability, 65 per cent of loss of earning power.
(d) For certain specified injuries (mutilations, etc.), a sum equal to 65 per cent
of average weekly wages for fixed periods, ranging from 6 to 320 weeks, in
lieu of other payments.
(e) For serious permanent disfigurement, a lump sum may be allowed, not exceed
ing $750.
Payments begin with the eighth day, but if disability continues for more
than 28 days, payment is to be made for the first 7 days.
In case of temporary or partial disability the aggregate compensation for a
single injury shall not exceed four years’ earnings; for permanent disability
payments are limited to periods of from 9 to 15 years, according to the age
of the injured person. Compensation is reduced 15 per cent if injury was
due to intoxication.
Lump-sum payments may be substituted at any time after six months from
the date of injury.
Revision o f benefits.—The commission may modify or change its order or award
within 10 days if a mistake is discovered; or a review by the court may be had on
appeal within 20 days.
Insurance.—Insurance in approved companies is required unless the employer
gives proof of financial ability; but the liability of the employer may not be reduced
by such insurance.
Security o f payments.—Claims for compensation are given the same preference as
claims for labor, and are nonassignable and exempt from attachment or execution.
The industrial commission may require security for payments of awards running six
months or more.
Settlement o f disputes.—Disputes are settled by the industrial commission, subject
to a limited review by the courts.
177982°—21—Bull. 272----- 5

WORKMEN !S OOMPEJNSATION LAWS OF TH E UNITED STATES.

WYOMING.
Date of enactment.—Chapter 124, February 27,1915; in effect April 1,1915; amended,
chapter 69, acts of 1917, chapter 117, acts of 1919.
Injuries compensated.—Personal injury causing disability for more than 10 days,
or death, as a result of employment and not due to the culpable negligence of the
injured employee or to the willful act of a third person due to reasons personal to such
employee or because of his employment.
Industries covered.—Extra hazardous (enumerated list), in which three or more
workmen are employed, interstate railroads, and persons whose employment is purely
casual and not for the purpose of the employer’ s business excepted; public employ
ments and use of explosives and work 10 or more feet above ground included, without
reference to number of employees.
Persons compensated.—Private employment: All employees in industries covered.
Public employment: All employees in classes of employment designated.
Burden of payment.—All on employer.
Compensation for death:
(a) $50 for funeral expenses, unless other arrangements exist under agreement.
(b) Lump-sum payments of $2,000 to widow or invalid widower, and additional
sum, equal to $100 per year, until the age of 16 is reached for each child
under the age of 16, the total for children not to exceed $3,000. If there
are dependent parents and no spouse and no child under 16, a sum calcu
lated on a basis of 50 per cent of the monthly support of the last year’s
contribution, for the period of probable support, not exceeding $1,000.
Payments to nonresident alien beneficiaries are limited to 33J per cent of the
amounts above provided, and only the widow and children under 16 years
of age are considered.
Compensation for disability:
(a) In cases of total disability and permanent partial disability, medical attention
and care in a hospital, maximum $100.
(b) For permanent total disability, lump sum of $2,500 if single or with wife or
invalid husband, and a sum equal to $100 per year for each child under 16,
until the age of 16 is reached, the total for children not to exceed $5,500.
(c) For temporary total disability, $35 per month if single, $40 if married, and $6
monthly for each child under 16, the total monthly payment not to exceed
$60, ana the aggregate not to exceed the amount payable if the disability
were permanent.
(d) For permanent partial disability, fixed lump sums, from $225 to $1,500, for
specified injuries in lieu of other payments; others in proportion.
No payments are made for the first 10 days unless disability continues for more
than 30 days, when they date from the injury.
All payments are lump sums, except for temporary total disability.
Revision of benefits.—No provision.
Insurance.—Insurance in State fund required.
Security of payments.—Insurance under State control; payments not assignable or
subject to execution, attachment, etc.
Settlement of disputes.—Disputes are settled by the district courts of the counties,
with appeal to the supreme court of the State.

AV& jm 0$

PRINCIPAL

IA W S .

UNITED STATES—CIVIL EMPLOYEES.
Date o f enactment.—Public No. 267, September 7, 1916; in effect same date.
Injuries compensated.—Personal injuries sustained while in the performance of duty,
not due to intoxication, willful misconduct, or intention to bring about injury, causing
death within 6 years, or disability for more than three days.
Industries covered.—All civilian employments of the United States Government
and the Panama Railroad Co.
Persons compensated.—All civil employees of the United States and of the Panama
Railroad Co.
Burden of payment.—All on the employer.
Compensation for death:
(a) $100 burial expenses, and transportation of body of resident of the United
States dying away from home, if relatives desire it.
(b) To widow or dependent widower alone, 35 per cent of the monthly wages
of the deceased, with 10 per cent additional for each child, the total not to
exceed 66$ per cent.
(c) If no parent survives, 25 per cent to one child, and 10 per cent additional for
each additional child, the total not to exceed 66$ per cent.
(d) To dependent parents of deceased, 25 per cent if one, 40 per cent if both are
dependent; if there is a widow, widower, or child, the parents’ rights are
subordinate, and the total awards may not exceed 66$ per cent.
(c) Other dependent relatives receive benefits in smaller amounts subject to the
claims of the foregoing relatives.
Payments to a widow or dependent widower terminate on their death or
remarriage; to a child on marriage, reaching the age of 18, or if over 18 and
incapable of self-support, on becoming capable' <3 self-support; payments
to other beneficiaries are subject to the above limitations, but may in no
case continue beyond eight years.
All payments are subject to a maximum of $66.67 per month, and to a minimum
ox $33.33, unless the actual earnings are less than that amount, when the
compensation shall equal the earnings.
Compensation for disability:
(a) Reasonable medical, surgical, and hospital services and supplies.
(b) For total disability, 66$ per cent of the monthly pay during the continuance
of such disability.
(c) For partial disability , 66$ per cent of the difference in wage-earning capacity
due to such disability.
Payments are subject to the same maximum and minimum amounts as in case
of death.
Payments on account of death or permanent disability may be commuted
to lump sum.
Revision of benefits.—Awards may be reviewed at any time, either on request or by
the commission on its own motion.
Insurance.—No provision.
Security of payments.—Compensation is paid from special compensation fund.
Settlement of disputes.—The United States Employees’ Compensation Commission
decides all questions arising under the act.

W O RK M E N ’ s COMPENSATION LAWS OF THE' UNITED STATES.

UNITED STATES—WAR RISK.
Date of enactment.—September 2, 19]4; in effect same date; amended, June 12,
1917; October 6, 1917.
Injuries compensated: (1) In the case of masters, officers, and crews of merchant
vessels, death or personal injury (including disease) by the risks of war, and detention
following capture by the enemy.
(2) In the case of officers and enlisted men in the Arm / and Navy, and members
of the Army Nurse Corps (female) and Navy Nurse Corps (female), death or disability
from personal injury or disease contracted in the line of duty, but not for injury or
disease due to the willful misconduct of the victim.
Industries covered.— (1) Employment on American merchant vessels. (2) Military
and naval service, including nursing by the Army Nurse Corps (female) and Navy
Nurse Corps (female).
Persons compensated.—(1) Masters, officers, and crews of merchant vessels. (2)
Officers, enlisted men, and members of services named.
Burden of payment.—(1) On owners of vessels. (2) On Government.
Compensation for death:
(1) In merchant marine, one year’s earnings, $1,500 minimum, $5,000 maximum.
(2) In Army and Navy:
(a) Burial expenses, not exceeding $100.
(b) For widow alone, $25 per month; $10 additional for one child, $12.50
for two, and $5 each for third and fourth.
(c) For child alone, $20; for 2 children, $30; for 3, $40; and $5 each for
fourth and fifth.
(d) For a widowed mother, $20, or such part thereof as will not exceed an
aggregate of $75 taken with (6) or (c).
Payments to a widow or widowed mother continue until death or remar
riage, and to a child until the age of 18, or, if incapable of self-support,
during such incapacity.
Compensation for disability:
(1) In merchant marine, for permanent total disability, same as for death; various
percentages of the same in cases of permanent partial disability. Other
losses and disabilities may also be provided for by the Bureau of War-Risk
Insurance.
(2) In Army and Navy:
(a) Reasonable medical and surgical aid, hospital services, and artificial
limbs and other appliances as may be needed.
(b) For total disability, if single, $30 monthly; if wife alone, $45; $10 addi
tional for each child, the maximum not to exceed $75. If no wife,
but one child, $40, with $10 additional for the second child and $10
for the third. If a dependent widowed mother, $10 in addition to
the above amounts. If constant attendance is required, an addi
tional sum, not over $20 per month, may be allowed; or if perma
nently helpless and bedridden, $100 is to be paid in lieu of all other
compensation.
(c) For partial disability, if not less than 10 per cent, a proportionate per
centage of the amounts payable for total disability. A schedule of
ratings is to be formulated by the bureau.
Rehabilitation, reeducation, and vocational training are to be provided;
refusal to accept causes suspension of benefits.
In the merchant marine, (arnings continue during detention fol
lowing capture by the enemy, to be determined substantially as
provided for in case of death.
Revision of benefits.—In Army and Navy, awards reviewable at any time.
Insurance.—In the merchant marine, owners are to insure, and in default the Secre
tary of the Treasury is to act at their expense.
Security of payments.— (1) In the merchant marine, insurance is to be with the
Bureau of War-Risk Insurance, or on terms satisfactory to the Secretary of the Treasury.
(2) In Army and Navy, payments from special fund.
Settlement of disputes.—Act is administered by the Bureau oi War-Risk Insurance,
under the Secretary of the Treasury.

W O EK M E N ’ s COMPENSATION LAWS OF THE UNITED STATES. 6 9

CONSTITUTIONALITY AND CONSTRUCTION OF STATUTES.

Especially in the early commission reports was great stress laid on
the question of constitutionality, as the laws under consideration
were obviously wide departures from the principles that had been
applied theretofore. Until the decisions of the courts of several
States passing upon the constitutionality of the laws of such States
were available, there was nothing of controlling authority to which
reference could be made as directly supporting laws of this class.
There were, however, carefully worked out arguments presented in
the report of the New York commission, as well as in those of Minne
sota and Ohio, others devoting less space to this subject. In all these
it was necessary to proceed on the basis of analogies, and.it was not
until the compulsory statute of New York (ch. 674, Acts of 1910)
was considered by the courts of that State that there was any direct
judicial ruling on the points involved in compensation statutes.
This, ofcourse, is excluding from consideration the Maryland statute
of 1902, which, as already pointed out, was a cooperative insurance
law applicable only to a very limited class of employments. This
law was held unconstitutional by the court of first instance on the
ground that it deprived the parties of their right to trial by jury,
and as conferring judicial or at least quasi-judicial functions on an
executive officer. The case was not carried up, so that no opinion of
a higher court was ever secured.
However, at the present time, there is such a wealth of favorable
judicial decisions, including several by the Supreme Court of the
United States, that one can but wonder on what grounds or with
what hopes the constitutionality of such legislation can now be
challenged. Entitled to first rank as authority are the decisions of
the Supreme Court handed down March 6, 1917, upholding as con
stitutional the laws of Iowa,14 New York,15 and Washington;10 that
on the Texas statute handed down March 3, 1919,17 and one on the
Arizona law, rendered June 9, 1919.18
The Iowa statute is elective, requiring insurance, but with no
provision for a State fund; that of New York is compulsory, and
offering a State fund as an optional means of carrying the required
insurance; while that of Washington is compulsory, insurance in

m Hawkins v. Bleakly, 243 U. S. 210, 37 Sup. Ct. 255.
13 New York Central R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247.
i®Mountain Timber Co. v. Washington, 243 U. S. 219, 37 Sup. Ct. 260.
17 Middleton v. Texas Power & Light Co., 249 U. S. 152, 39 Sup. Ct. 227.
18Arizona Copper Co. t\ Hammer, 250 U. S. 400, 39 Sup. Ct. 553.

W O RK M E N ’S COMPENSATION LAWS OF THJ^UNITED STATES.

the State fund being likewise obligatory. In the Texas case a stat
ute elective as to the employer, but compulsory on the employee
when the employer elects, was held not to violate constitutional
rights, thereby controverting the position taken on this point by the
Court of Appeals of Kentucky in declaring the law of 1914 of the
State unconstitutional,19 chiefly by reason of the alleged inequity of
such a provision.
The Arizona statute presents differences from any previously
considered by the Supreme Court, and especially in the provision
that gives the injured worker an election to accept compensation
under the act or to sue in damages. The same legislature that
enacted the compensation law enacted also a liability law giving
damages in cases in which the employee is free from negligence.
The contention was made that this option of the employee is inequi
table, the employer being deprived of property without due process
of law, and denied the equal protection of the laws, since liability is
imposed without fault, and, it is claimed, without an equivalent
protection. This contention was rejected, four justices dissent
ing.20 The majority held that no new burden of cost is added to
industry by these laws, if justly administered, but that an existing
burden is merely brought to recognition and placed upon the em
ployer as a cost of production, instead of being left upon the em
ployee, to be borne without the power of distribution.
The dissenting apinions held the view that the acts violate the
employer’s right guaranteed to him by the fourteenth amendment,
while the employee’s rights are also vitiated, inasmuch as recovery
thereunder is uncertain, delayed, and indefinite.
The form of law thus validated closely approaches, if it is not
identical in principle with, the double liability law of Montana,
which was declared unconstitutional by the supreme court of the
State in 1911 (Cunningham v. Northwestern Improvement Co., 44
Mont. 180, 119 Pac. 562); and in spite of the status thus given such
legislation by the majority opinion, it can not be regarded as con
forming to the generally approved ends of compensation legislation,
which include certainty of adjustment, the avoidance of litigation,
and such uniformity of procedure as will enable each p'arty to rea
sonably anticipate the course of events incident to the employment
relation.
In view of these decisions, it may be said that every essential fea
ture of every compensation law has been approved by this highest
authority. Moreover, this has been done without reference to au
thorizations contained in the constitution of the State of enactment.
In other words, while the court of appeals of New York found itself
19 State Journal Co. v. Workmen's Compensation Board, 161 Ky. 562, 170 S. W . 437.
*° The same justices dissented in the case, Mountain Timber Co. v. Washington, supra.

CONSTITUTIONALITY AND CONSTRUCTION OF STATUTES.

able in 1915 to sustain the compulsory law of that State,21 in con
trast to its position in 1911 as to the law of 1910,22 because an amend
ment to the State constitution authorizing such a law had been
adopted in the interval between the two acts, the Supreme Court
found it possible to sustain the law as within the fundamental
police power of the State, with reference to the amendment.
A striking illustration of the diversity of attitudes taken on the
subject is afforded by comparing the opinion of the Supreme Court
in the White case and that of the New York Court of Appeals in the
Ives case. Diametrically opposite opinions are set forth on the sub
jects of the police power, the doctrine of liability without fault, due
process of law, and the destruction of property interests. The one
regarded the theory of compensation as “ not merely new in our sys
tem of jurisprudence, but plainly antagonistic to its basic idea,” the
court being unanimous. The other likewise unanimously recognized
“ that the legislation under review does measurably limit the free
dom of employer and employee to agree respecting the terms of
employment, and that it can not be supported except on the ground
that it is a reasonable exercise of the police power of the State,” but
added: “ In our opinion it is fairly supportable on that ground.”
The present status is indicated by a summary statement citing
many cases made by Mr. Justice Pitney in the decision on the Texas
statute:
In recent years many of the States have passed elective workmen’s
compensation laws not differing essentially from the one here in ques
tion, and they have been sustained by well-considered opinions of the
State courts of last resort against attacks based upon all kinds of
constitutional objections.
And the attack and support are, if possible, even more vigorous in
regard to the compulsory laws.
In the face of this series of opinions, it would seem that the consti
tutionality of such laws would be regarded as established. However,
the law of North Dakota (1919) was attacked on the ground that it
violates the rules as to classification, in that it classed clerical em
ployments as hazardous, and so within the law, and that it interferes
with the freedom of contract guaranteed by the Constitution, as well
as with the equal privileges and immunities of citizens. All these con
tentions were overruled, both on principle and on authority (State v.
Hagan (Oct. 25, 1919), 175 N. W. 372). On the other hand, a circuit
court judge of Davidson County, Tenn., found the law of that State
objectionable to the constitution of the State, holding that the deci
sions of the Supreme Court and the courts of last resort of the States
upholding the various laws were not precedents, in view of the pecu

» Jensen t>. Southern Pacific Co., 215 N. Y . 514,109 N. E. 600;
a Ives v . South Buffalo R. Co; ;201 N. Y . 271,94 N . E. 431.

W O R K M E N ^ COMPENSATION LAWS OF THE UNITED STATES.

liar provisions of the State constitution; however, the court did cite
with approval the Kentucky and New York decisions against the
earlier laws of these States, though they have been in effect entirely
overthrown by specific rulings of the Supreme Court. When this
case came to the supreme court of the State, however, the position
taken by the lower court was rejected, and the act was declared to
be constitutional.
Under the peculiar system in vogue in Massachusetts, the question
of the constitutionality of its statute was determined in advance of
its enactment, the State senate having submitted the bill to the su
preme judicial court of the State for its opinion on this point. In
Ohio the State treasurer refused to pay a bill for supplies for the State
board of awards on the ground that the act was unconstitutional, thus
enforcing an early decision; in Washington also practically the same
method of securing prompt court review was adopted. Tn the other
States, as a general rule, interested parties raised questions attacking
the general principles of the laws, thus securing adjudication in the
customary order. The principal points will be considered in the light
of the discussions of the various courts.
DUE PROCESS OF LAW.

Naturally, in the case of such wide departure from established pro
cedure, doing away with trial by jury, questions of negligence, con
tributory negligence, and the old methods of legal process generally, and
establishing a system contemplating practically automatic compensa
tion and placing the burden of industrial accidents on the industry
rather than on any particular member of it, the question arose as to
whether or not there was a deprivation of “ liberty or property without
due process of law,” in violation of the fourteenth amendment. As to
what constitutes due process of law the Ohio Supreme Court said
(State v. Creamer, 85 Ohio St. 349, 97 N. E. 602):
Perhaps no exact definition of due process of law has been agreed
on. Judge Story defines it in his work on the Constitution, section
1935: ‘ ‘The right to be protected in life and liberty, and in the acqui
sition of property under equal and impartial laws, which govern the
whole community. This puts the State upon its true foundation for
the establishment and administration of general justice, justice of
law, equal and fixed, recognizing individual rights and not impairing
them.”
c
n Cooley on Constitutional Limitations, section 356, it is said:
“ Due process of law in each particular case means such an exercise of
the government as the settled maxims of the law permit and sanc
tion, and under such safeguards for the protection of individual
rights as those maxims prescribe for the classes of cases to which the
one in question belongs.”
The Ohio statute under consideration was an elective one, and the
court found that there was in it “ no resemblance to waiver” of any

DUE PROCESS OF LAW.

constitutional right, and in the light of the foregoing definitions
concluded:
We think that in a case such as is presented here, in which the
State itself has undertaken a great enterprise in the interest of the
general good, and in th8 exercise of its police power, and presents to
its citizens the option to join in the undertaking and receive its pro
tection and benefit on a right of action being withdrawn by the
legislature which experience has shown to be difficult of practical
enforcement, while preserving the valuable and substantial kindred
rights of action, it can not be said that in such withdrawal there is
a violation of the constitution in the respects claimed.
The elective laws of Massachusetts and Wisconsin were likewise
upheld by the supreme courts of the respective States as against the
charges that they had violated this principle, the Massachusetts court
(In re Opinion of Justices, 209 Mass. 607, 96 N. E. 308) laying par
ticular stress on the voluntary or noncompulsory features of the pro
posed law, and holding that there was nothing unconstitutional in its
proposals and requirements; while the Wisconsin court (Borgnis v.
Falk Co., 147 Wis. 327, 133 N. W. 221) considered the nature of the
administration of the law by a board and not by a court, and the
limitations of the powers of such board, as contributing to keep the
law within constitutional limits. In the principal opinion in this case
it was pointed out that the law in question was enacted in response
to an urgent public opinion in an attempt “ to solve certain very
pressing problems which have arisen out of the changing industrial
conditions of our time.” While declaring that constitutional com
mands and prohibitions must be implicitly obeyed so long as they
exist, it was held that, in the absence of an express provision, condi
tions prevailing at the time of the adoption of the constitution and
subsequent changes in social and economic affairs should be compared
and weighed, and that no attempt should be made to hold back the
legislation needed for present conditions by reason of earlier construc
tions and interpretations; and in general it may be said that statutes
of optional acceptance are not open to the charge that they deprive
one of property without due process of law, since it is of his own
choice that he becomes subject to their provisions. (Evanhoff v.
Industrial Commission, 78 Oreg. 503, 154 Pac. 106; Deibeikis v. LinkBelt Co., 261 111. 454, 104 N. E. 211.) It is sufficient to add that
statutes which have been regarded as elective have been uniformly
held not to violate due process of law. (Hunter v. Colfax Coal Co.,
175 Iowa, 245, 154 N. W. 1037; Shade v. Ash Grove Lime etc. Co.,
93 Kans. 257, 144 Pac. 249; Greene v. Caldwell, 170 Ky. 571, 186
S. W. 648; Mathison v. Minneapolis St. Ry. Co., 126 Minn. 286, 148
N. W. 71; Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 Atl.
451; Borgnis v. Falk, 147 Wis. 327, 133 N. W. 221; Mailman v.
Record Foundry & Mach. Co. (Me.), 106 Atl. 606; Shea v. North
Butte Mining Co. (Mont.), 179 Pac. 499.)

w o r k m e n ’s c o m p e n s a t io n l a w s of t h e

UNITED STATES.

*' The Supreme Court of Washington had a different problem to
meet, in that the law under consideration was one which proposed
an exclusive remedy, the question of acceptance being determined
by the statute and not left to the option of the employer. Under
this act every employer to whom it applies is required to contribute
to a fund from which payment is to be made for the injuries of
employees of persons engaged in similar industries, such payments
to be made without reference to the fault of the employer or the
negligence of the employee, and also without reference to the fact
that no workman in a contributing employer’s establishment may be
injured during the entire period for which the contributions are made.
The court (State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156,
117 Pac. 1106) conceded that on first impression the objections con
tained in these facts constituted a persuasive argument against the
validity of the act, but added that these conditions do not furnish
an absolute test of such validity.
The test of the validity of such a law is not found in the inquiry,
Does it do objectionable things? but is found rather in the inquiry,
Is there no reasonable ground to believe that the public safety, health,
or general welfare is promoted thereby ? * * * It is not meant
here to be asserted that this [police] power is above the constitution,
or that* everything done in the name of the police power is lawfully
done. It is meant only to be asserted that a law which interferes
with personal and property rights is valid only when it tends reason
ably to correct some existing evil or promote some interest of the
State, and is not in violation of any direct and positive mandate of
the constitution. The clause of the constitution now under consid
eration was intended to prevent the arbitrary exercise of power or
undue, unjust, and capricious interference with personal rights; not
to prevent those reasonable regulations that all must submit to as a
condition of remaining a member of society.
The court then cited a number of authorities as supporting the
principles above laid down, many of the cases being those mentioned
in the earlier discussions presented in the reports of investigating
commissions of Minnesota, New York, and Ohio.
The first Montana statute was also a compulsory one, and the court
in considering it (Cunningham v. Northwestern Improvement Co.,
44 Mont. 180, 119 Pac. 562) cited and followed the Washington
opinion and reached the conclusion that the general scheme of the
act under consideration was well within the police power of the State:
If the people, represented by their legislature, are of opinion that
the public interests demand that industrial insurance ought to be
substituted in whole or in part for actions in wrongs, this court cer
tainly can not say that they are in error.
With the exception of the Court of Appeals of New York, there
fore, all the courts of last resort which passed upon the constitu
tionality of these earlier enactments held that they did not violate

DUE PBOCESS OF IA W .

the constitutional rule as to due process of law. The same view was
held by the Supreme Court of New York in its opinion in the Ives
case, quoting from the opinion of the Supreme Court of the United
States in the case of Holden v. Hardy (169 U. S. 366, 18 Sup. Ct. 383):
While the cardinal principles of justice are immutable, the methods
by which justice is administered are subject to constant fluctuation;
and the Constitution of the United States, which is necessarily and to
a large extent inflexible and exceedingly difficult of amendment,
should not be so construed as to deprive the States of the power to so
amend their laws as to make them conform to the wishes of the citi
zens as they may deem best for the public welfare without bringing
them into conflict with the supreme law of the land.
On appeal, however, the foregoing opinion wa£ rejected by the
court of appeals. As to the liability fixed by the New York com
pulsory statute, it was said that it plainly constitutes a deprivation
of liberty and property under the Federal and State constitutions
which would not be valid unless justifiable under the police power.
The economic argument was considered and the defects of the present
system were recognized.
We have already admitted the strength of this appeal to a recog
nized and widely prevalent sentiment; but we think it is an appeal
which must be to the people and not to the courts. The right of
property rests not upon philosophical or scientific speculations, nor
upon the commendable impulses of benevolence or charity, nor yet
upon the dictates of natural justice. The right has its foundation in
the fundamental law. That can be changed by the people, but not
by legislatures. * * * If such economic and sociological argu
ments as are here advanced in support of this statute can be allowed
to subvert the fundamental idea of property, then there is no private
right entirely safe, because there is no limitation upon the absolute
discretion of legislatures, and the guaranties of the constitution are
a mere waste of words.
It was further said that—
The argument that the risk to an employee should be borne by the
employer because it is inherent in the employment may be econom
ically sound, but it is at war with the legal principle that no employer
can be compelled to assume a risk which is inseparable from the work
of the employee and which may exist in spite of a degree of care
by the employer far greater than may be exacted by the most drastic
law. * * * In its final and simple analysis that is taking the
property of A and giving it to B, and that can not be done under our
constitutions.
The cases cited in the New York State investigating commission’s
report and later in the Washington and other decisions, were referred
to and distinguished as not supporting the claims made for them.
The opinion, therefore, of the New York Court of Appeals and that
given out by the Washington Supreme Court are in direct conflict.
In referring to the New York opinion the Washington court said:

w o r k m e n ’s c o m p e n s a t io n l a w s o f t h e u n it e d s t a t e s .

The act the [New York] court there had in review is dissimilar in
many respects to the act before us and is perhaps less easily defended
on economic grounds. The principle embodied in the statutes is,
however, the same, and it must be conceded that the case is direct
authority against the position we have here taken. We shall offer
no criticism of the opinion. We will only say that, notwithstanding
the decision comes from the highest court of the first State of the
Union and is supported by a most persuasive argument, we have not
been able to yield our consent to the view there taken.
In a later case (Stertz v. Industrial Insurance Commission, 158
Pac. 256) the Supreme Court of Washington had before it a case
where the injury was due to the wrongful act of a third party. It
was said that the State law “ positively ends the ‘ jurisdiction of the
courts’ on ‘ all phases’ of master and servant liability,” and that
“ liability for a stranger’s acts on the premises is one of those
phases * * *. It is but a slight extension of the eommon-law
assurance of a safe place .to work. Neither would it be a violation of
the due process guaranty to make the master an insurer of the work
man at the shop.1’
Before any case under a workmen’s compensation law had reached
the Supreme Court of the United States it was called upon to consider
the validity of a sort of compulsory insurance of bank deposits pro
vided for by a statute of Oklahoma. This was to be achieved by
means" of a fund maintained by contributions by banks within the
State, very much as employers are called upon to secure the payment
of awards due their injured employees by insuring in a State fund.
This law was upheld (Noble State Bank v. Haskell, 219 U. S. 104,
31 Sup. Ct. 186), and the courts of Washington, Iowa, and other
States were quick to claim the value of this judicial support of the
principle in controversy. The New York Court of Appeals, on the
other hand, when announcing its decision in the Ives case, refused
to recognize this decision “ as controlling of our construction of our
own constitution.” However, when the new compulsory law of New
York was before this court in 1915, subsequent to the amendment to
the State constitution, it was said:
Surely it is competent for the State in the provision of the general
welfare to require both employer and employee to yield something
toward the establishment of a principle and plan of compensation for
their mutual protection and advantage. The act now before us seems
to be fundamentally fair to both employer and employee. It is
plainly justified by the amendment to our own State constitution;
and the decisions of the United States Supreme Court, notably in the
Noble State Bank case, make it reasonably certain that it will be found
by that court not to be violative of the Constitution of the United
States (Jensen v. Southern Pacific Co., 215 N. Y. 513, 109 N. E. 600).
Of greatest interest, by reason of the rank of the court and the fact
that the decision was the first to be made by it on the subject, is the
opinion of the Supreme Court of the United States on the compul

DUE PROCESS OF LAW.

sory statute of New York (New York Central R. R. Co. v. White (1917)
243 U. S. 188, 37 Sup. Ct. 247). The question of due process is here
disposed of by pointing out that the common-law doctrine of the em
ployer’s liability for negligence, with its defenses of contributory neg
ligence, fellow service, and assumption of risks, “ is based upon fic
tions, and is inapplicable to modern conditions of employment,” its
application resulting in litigation that “ is unduly costly and tedious,
encouraging corrupt practices, and arousing antagonisms between
employers and employees.”
The close relation of the rules governing liability for injuries to the
fundamental rights of liberty and property is recognized; “ but these
rules, as guides of conduct, are not beyond alteration by legislation in
the public interest. No person has a vested interest in any rule of law
entitling him to insist that it shall remain unchanged for his benefit.”
Negligence is said to be “ merely the disregard of some duty imposed
by law; and the nature and extent of the duty may be modified by
legislation, with corresponding change in the test of negligence.”
The fellow-servant doctrine is characterized by “ material differ
ences in different jurisdictions,” and “ it needs no argument to show
that such a rule is subject to modification or abrogation by a State
upon proper occasion.”
The same conclusion is reached as to the subjects of assumption of
risks and contributory negligence; and it is further pointed out “ that
the entire matter of liability for death caused by wrongful act, both
within and without the relation of employer and employee, is a
modern statutory innovation, in which the States differ as to who
may sue, for whose benefit, and the measure of damages.” Depart
ures from the common-law rules have repeatedly been made by State
legislatures and by Congress as well, and these acts have been upheld
by the court.
It is true that in the case of the statutes thus sustained there were
reasons rendering the particular departures appropriate. Nor is it
necessary, for the purposes of the present case, to say that a State
might, without violence to the constitutional guaranty of “ due pro
cess of law,” suddenly set aside all common-law rules respecting lia
bility as between employer and employee, without providing a rea
sonably just substitute * * *. No such question is here presented,
and we intimate no opinion upon it. The statute under consideration
sets aside one body of rules only to establish another system in its
place. * * * The act evidently is intended as a just settlement
of a difficult problem, affecting one of the most important of social
relations, and it is to be judged in its entirety. We have said enough
to demonstrate that, in such an adjustment, the particular rules of
the common law affecting the subject matter are not placed by the
fourteenth amendment beyond the reach of the law-making power
of the State.
The decision in the Washington case (Mountain Timber Co. v.
Washington, 243 U. S. 219, 37 Sup. Ct. 260) involved another factor—

W O RK M E N ’ S COMPENSATION LAW S OF TH E UNITED STATES.

i. e., the imposition of a universal tax on employers for the mainte
nance of an insurance fund, and the question was raised whether this
tax was so excessive as to constitute deprivation of liberty or prop
erty without due process of law. The court held that unless there
was undue compensation paid there could not be an excessive burden
on the industry—this on the assumption that a reasonable compen
sation for industrial accidents was a proper burden on the industry.
Since the industry as a whole is subject to hazards, it was held not
unreasonable that the industry as a whole, and not merely such es
tablishments as might furnish the occasion for individual accidents,
should bear the burden; and, further, that it lies within the power
of the State to declare that every employer engaging in business should
make stated and fairly apportioned contributions for the maintenance
of a public fund for compensating injuries irrespective of the plant in
which the injury might be received. This power was said to go so far
as to make it proper for the State, in the interest of the safety and
welfare of its people, to prohibit any industry found to involve so
great a human wastage as to leave no fair profit beyond it.
The question of due process was raised in the discussion of the
Kentucky statute (Kentucky State Journal Co. v. Workmen’s Compen
sation Board (1914), 161 Ky. 562, 170 S. W. 1166). The State con
stitution forbids any limitation by law on the amount to be recovered
for injuries resulting in death, or for injuries to person or property.
This was held to guarantee rights which the law in question violated
by reason of the limitation of amounts, and also by the provision
that a workman might make a contract of waiver which would be
binding both upon himself and upon all persons claiming under or
through him. On rehearing, however, it was suggested that the
mere fact of waiver would not be objectionable if free choice in
making the same was secured, the court having held in the first
instance that though the act was elective in form it was in fact com
pulsory. A further objection to the act was found in the fact that
where the employer accepted the statute, the employee was auto
matically drawn into the contract and made subject to the provisions
of the law on pain of being deprived of all his causes of action.
Another provision of the statute was held to violate the employer’s
rights in that where a fatally injured workman left no dependents a
fixed amount was to be paid to the State compensation board for its
own use, barring the estate or personal representatives from any
claim. This was held to violate another provision of the constitu
tion (sec. 241), which gives a right to sue for damages in case of
injuries causing death* and the court ruled that a law to be valid
mast not thus restrict the rights of personal representatives* nor
compel contributions to the State fund. The legislature of 1916,
in the enactment of a new law, undertook to avoid the defects indi
cated*

DUE PROCESS OF LAW .

The new law was before the court of appeals of the State in June of
the year of enactment, a test case having been made to secure an
early decision as to its constitutionality (Greene v. Caldwell, 170 Ky.
571, 186 S. W. 648). It was upheld in all points, the elective pro
visions being extended to employer and employee alike. The restric
tion of the amount of recovery was held not to conflict with the
clause of the constitution forbidding the limitation of the amount of
recovery, since it was optional with the claimant to accept the com
pensation law in the first instance. Having accepted it he was not
in a position to complain of the limits set by the new law, and in
the absence of constitutional objections, the wisdom and propriety
of the law were held to be for the legislature to determine without
interference by the courts.
In connection particularly with the holding of the Kentucky court
that the provision of the law making the act binding on employees
when accepted by the employer was unconstitutional, the opinion of
the Supreme Court of the United States on this exact point is of
interest. The case involved the Texas statute (Jliddleton v. Texas
Power & Light Co., 249 U. S. 152, 39 Sup. Ct. 227), which contained
this identical provision. The contention was made that the employee
was thereby deprived of liberty and property without due process of
law, but the Supreme Court held that the employee had no vested
right to have the rules of law remain unchanged for his benefit, and
that his only loss was a part of his liberty to make a contract under
rules of law that had previously obtained. These rules being sub
ject to change in the public interest, the employee had no greater
right to object to a compulsory compensation system (made so by
the election of the employer) than has the employer when the system
is made compulsory by an act of the legislature, as in New York and
Washington.
The position of the Kentucky court as to the validity of the pro
vision requiring contributions to the expense fund is also contro
verted by the ruling of the New York Court of Appeals (Industrial
Com. v. Newman, 118 N. E. 794), upholding a provision of law
requiring contributions to a special fund where no beneficiary
survives the death of an injured workman.
EQUAL PROTECTION OF THE LAWS.

The same amendment that guarantees due process of law likewise
guarantees equal protection of the laws. The statutes of a number
of States are applicable only to designated hazardous industries, or
those that may be so classed by an administrative authority, and
their validity has been attacked on the grounds of an alleged
inequality. This form of attack has uniformly failed, even the New
York Court of Appeals, that held the first compulsory statute of that
State unconstitutional, sustaining the validity of the classification of

w o r k m e n ’s

COMPENSATION LAWS OF THE UNITED STATES.

certain employments as hazardous, as therein proposed. Another
limitation makes the law applicable only to employers of a desig
nated number of persons, as more than four or five, or some greater
number. This also was held to be a valid restriction, as the danger
from fellow servants is less in smaller establishments (Jeffrey Mfg.
Co. v. Blagg, 235 U. S. 571, 35 Sup. Ct. 167).
The Washington statute resembles that of New York in the matter
of its declared scope, using, however, the term “ extrahazardous,”
but permits joint election of employers and employees in under
takings not so classed. Classifications of the included industries are
also provided for on the basis of the hazard of the occupation, for
the purpose of distributing the burden of compensation in proportion
to relative hazard. The Supreme Court of the United States, in
passing upon the Washington statute, cited its opinion in the New
York case as presenting grounds sufficient to support the view
that such laws are not to be regarded as arbitrary and unreasonable
from the standpoint of natural justice, and that the State of Wash
ington was warranted “ in concluding that the matter of compen
sation for accidental injuries with resulting loss of life or earning
capacity of men employed in hazardous occupations is of sufficient
public moment to justify making the entire matter of compen
sation a public concern, to be administered through State agencies.”
Industrial occupations that frequently and inevitably produce per
sonal injuries may be regulated by the State and the human losses
charged against the industry either directly, as under the New York
law, or by publicly administering the compensation through a rea
sonable system of occupational taxes as in the Washington law;
and the act can not be deemed oppressive to any class of occupation
so long as the scale of compensation is reasonable.
In the hearing on the constitutionality of the Hawaiian law (Andersoji v. Hawaii Dredging Co., 24 Hawaii Sup. Ct. 97), it was ob
jected that the rulings of the Supreme Court of the United States
could not be taken as precedents, inasmuch as the law of the Terri
tory is neither limited to hazardous employments, as in New York,
nor are benefits payable from a common fund, as in Washington.
The court held, however, that laws making classifications of indus
tries are sustainable, not on account of such classifications, but in
spite of them; and that the constitutionality of the statute was not
dependent upon the system adopted for the payment of benefits.
Not unlike the foregoing were the principal objections raised to
the constitutionality of the law of Alaska (Johnston v. Kennecott
Copper Corporation, C. C. A., 1918, 248 Fed. 407), in which it was
claimed that an improper classification had been attempted in the
enactment *of a law applicable only to mining and related opera
tions, and, further, only to establishments employing five or more
persons. The act was held to apply in a uniform manner to all

EQUAL PROTECTION OF THE LAWS.

persons similarly situated, and to be a proper exercise of the legisla
tive discretion. Another objection was that the act provides no
system of insurance and no provision for the payment of compensa
tion. The court pointed out that there were certain regulations for
the security of payments, amounting to the substitution of a
system or set of rules for the one set aside by the act, and quoted
from the decision of the Supreme Court in its consideration of the
New York law; and following this and other decisions of the Su
preme Court sustaining compensation legislation, the Alaska statute
was upheld throughout.
The exclusion of farm laborers and domestic servants is held
proper by the Supreme Court on the ground that the legislature
reasonably might consider that the risks inherent*>in these occupa
tions were exceptionally patent, simple, and familiar (White case).
Similar reasoning was applied by the Supreme Court of Texas to
the work of cotton-gin laborers, who were excluded from the original
law of that State. This was approved by the Supreme Court of the
United States (Middleton case), but there must be a feeling of satis
faction that this obviously hazardous employment is now included
under the law.
The law of Maine excludes “ the work of cutting, hauling, rafting,
or driving logs,” and the act has been held constitutional (Mailman
v. Record Foundry & Machine Co. 106 Atl. 606), though with no
particular discussion of this point. The same exemption appears
in the liability law of the State, and this was held by the supreme
court to be a valid classification on the ground that the appliances
and power used in logging “ are well known and their dangers obvi
ous. The lumber business is as old as our Government, and many
of its features are familiar to employees before entering them.”
(Dirken v. Great Northern Paper Co., 86 Atl. 320.) Unconvincing
as this reasoning doubtless appears to a layman, it has seemed thus
far to suffice to retain this provision in both the liability law and
the compensation law of the State. Perhaps the exemption of
coal mines in the Tennessee statute will be similarly defended in
®ase of a challenge on this point, but the more customary classifica
tion of employments would certainly place both these occupations
in the group designated as hazardous.
The exclusion of railroad employees engaged in interstate commerce
is rather a superfluous provision, in view of the paramount and exclu
sive authority of Federal legislation in this field (Michigan Central
R. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192); but such an
exemption has been upheld (Mathison v* Minneapolis St. Ry. Co., 126
Minn. 286, 148 N. W. 71). And the exclusion of all employees of
common carriers by rail is justified by the Supreme Court in passing
on the Texas statute, in view of the Federal law covering interstate
177982°— 21— Bull. 272------6

w o r k m e n ’s

COMPENSATION LAWS OF THE UNITED STATES.

employees, and of c‘the difficulty that so often arises in determining in
particular instances whether the employee was employed in interstate
commerce at the time of the injury,” so that railroad employees
generally “ might better be left to common-law actions with statutory
modifications already in force, and such others as experience might
show to be called for” (Middleton case).
An objection .that was found fatal to the Montana statute was its
failure to provide equal protection, not as between different classes of
employers or of employees, but as between the employers and work
men to whom the act applied. The law in question was a compulsory
cooperative insurance statute, requiring the payment of contribu
tions to a State fund by the employer in his own behalf and in behalf
of his employees, and permitting him to recoup himself in part by with
holding from the employees’ wages fixed amounts as their contribu
tion to the fund. Designated amounts were provided as benefits for
injured workmen to be paid from this fund, but the workmen were
given the option of suing the employer in an action to recover dam
ages for injuries received. This resulted in the compulsory mainte
nance of a fund by the employers' contribution and also liability
to an action in damages after having made such contribution. This
provision of the statute, not essential to its general scheme (which had
been declared constitutional by the court), was held to be inequitable
and unjust so as clearly to invalidate the law as charging the employer
with a double liability and not affording equal protection (Cunning
ham case). It may be noted that in the local law of Maryland apply
ing to Allegany and Garrett Counties (now repealed), the option was
permitted employees of accepting benefits from the funds maintained
by contributions or to sue the employer for damages. The difficulty
which invalidated the Montana law was avoided, however, by per
mitting the employers to reimburse themselves by withholding from
subsequent contributions such an amount as would equal the judg
ment and costs incurred in the action.
Attention has already been called to the decision of the Supreme
Court upholding the Arizona statute (Arizona Copper Co. v. Hammer,
250 U. S. 400, 39 Sup. Ct. 553), although that law permits options
to the injured worker of a common-law action, suit under the liability
law if the worker is without negligence, or a claim under the com
pensation law, which is compulsory on the employer regardless of all
questions of fault or negligence on his part. (See Arizona S. Co. v.
Ujack, 15 Ariz. 382, 139 Pac. 465.) It is evident that the employer
may be insured against the liabilities imposed by the compensation
law, to which he is subject without option, and may yet be called
upon to defend a suit for damages, with the defense of fellow serv
ice abrogated, and the defenses of contributory negligence and

EQUAL PROTECTION OF THE LAWS.

assumption of risks uat all times left to the jury.” (Const., art, 18,
secs. 4 and 5.)
Objections to this situation are disposed of in the majority opinion,
four justices earnestly dissenting, with the remark that—
It is thoroughly settled by our previous decisions that a State may
abolish contributory negligence as a defense, and election of remedies
is an option very frequently given by the law to a person entitled to
an action; an option normally exercised to his own advantage, as a
matter of course.
However, the dissent finds that—
Here, without fault, the statute in question imposes liability in
some aspects more onerous than either the New York or Washington
law prescribed; and the grounds upon wrhich we sustained those
statutes are wholly lacking. The employer is not exempted from any
liability formerly imposed; he is given no quid pro c^uo for his new
burden; the common-law rules have been set aside without a reason
ably just substitute; the employee is relieved from consequences of
ordinary risks of the occupation, and these are imposed upon the
employer without defined limit to possible recovery which may
ultimately go to nondependents, distant relatives, or, by escheat,
to the State; “ the act bears no fair indication of a just settlement of
a difficult problem affecting one of the most important of social
relations ” —on the contrary, it will probably intensify the difficulties.
JURY TRIAL.

A contention made in connection with the question of due process
of law, but as a specific point, was that the system of awards pro
posed was an abrogation of the right of trial by jury, in violation
of constitutional rights. The Supreme Court of New Jersey (Sexton
case) in speaking of this point said:
This contention totally misconceives the proper construction and
effect of the constitutional provision in question. The language with
respect to this mode of trial is that it shall remain inviolable, not
that it shall be unalterable. It is therefore a privilege which may
be waived by either party and not an absolute right which is not
the subject of such a waiver.
It was pointed out that there had been for a number of years pro
visions for the waiver of the right of jury trials, and that pro
visions of this sort had been uniformly held to be constitutional.
In the foregoing case it is obvious that the matter of election or
option was of the essence of the opinion; but in Washington (Clausen
case) the subject of a fixed rule was before the court, and it was ob
jected that “ the legislature can not fix a procrustean rule for the
admeasurement of damages arising from injuries received by one in
the employment of another, ” as both parties were entitled to have the
question of right and amount submitted to a jury. The court hav
ing held, however, that for the privilege of engaging in business

WORKMEN *S COMPENSATION LAWS OF THE UNITED STATES.

of certain sorts the State might properly require contributions to
a benefit fund, it concluded that it might also require employees
entering into contract relations with employers of the foregoing
class to receive a given sum for such injuries as they might incur
during employment. In this view the legislature would be author
ized to provide that if a workman was injured while so engaged he
should receive a “ sure award in a limited sum as compensation for
his injury and in lieu thereof shall forego his common-law action
in damages therefor. * * * The desirability of this substitution
is unquestioned, and we believe that the legislature had the power to
make it without violating any principle of the fundamental law.'’
A similar conclusion was reached by another line of argument,
the court saying that “ the right of trial by jury accorded by the
constitution, as applicable to civil cases, is incident only to causes
of action recognized by law.” If, therefore, the legislature is able
to take away the cause of action on the one hand and the ground
of defense on the other and merge both into a statutory indemnity,
the right to sue has fallen and with it, of necessity, the right of
jury trial. The United States Circuit Court of Appeals, while dis
cussing the Washington statute (Raymond v, Chicago, Milwaukee
& St. Paul Railway Co., 233 Fed. 239), pointed out that the guar
anty of the Federal Constitution as to trial by jury does not pre
vent the establishment of a process of law in which trial by jury
is omitted.
In the Cunningham case (Montana) also it was pointed out that
the Constitution of the United States does not guarantee a trial by
jury in a civil action in a State court, citing a decision by the Su
preme Court of the United States. It was said, further, that the pro
vision of the State constitution that the right of trial by jury shall
be secured to all and remain inviolate had been construed by the
court as applying only to those cases wherein a right of trial by
jury existed at the date of the adoption of the constitution.
It was held, therefore, that such guaranty would have no refer
ence to claims against an hfdemnity fund such as are provided for
by the act in question, since the adjustment of claims under the
act is administrative and not judicial, nor does due process of law
necessarily require a jury trial, citing Montana Co. v. St. Louis
Min. Co. (152 U. S. 160, 14 Sup. Ct. 506).
The Supreme Court of Massachusetts pointed out that under the
law of that State an employee retained the right to jury trial as to
the facts as to whether the employer had insurance and whether the
employee had given the statutory notice not to be bound by the act;
but failure to give such notice was a waiver of the right to trial by
jury, which was not a compulsory deprivation, but optional with the
employee. (Young v. Duncan, 106 N. E. 1.) The elective character

JU RY TRIAL.

of the Illinois statute was also pointed out by the supreme court of
that State, as relieving the law of the charge of depriving parties of the
right of trial by jury (Deibeikis v. Link-Belt Co., 261 111. 454, 104 N.
E. 211); of the Iowa law, by the Supreme Court of Iowa (Hunter v.
Colfax Consol. Coal Co., 175. Iowa 245, 154 N. W. 1037); of the
Pennsylvania law, by the Supreme Court of Pennsylvania (Anderson
v. Carnegie Steel Co., 99 Atl. 215); of the Rhode Island law, by the
Supreme Court of Rhode Island in sustaining its constitutionality
(Sayles v. Foley, 38 R. I. 484, 96 Atl. 340), and, more recently, of
the Montana law, by the Supreme Court of Montana (Shea v. North
Butte Mining Co., 179 Pac. 499).
Somewhat broader in its form was the charge made against the
New York statute that it deprives plaintiffs of their right to recover
for torts, in reply to which the court of appeals declared that there
is no deprivation, but a substitution, which, if restricted, is yet a
remedy, and this restriction may be viewed as the employee’s contri
bution to the insurance fund, the employer discharging his obliga
tion by the payment of premiums. (Jensen v. Southern Pacific Co.,
supra.)
The matter was disposed of by the Supreme Court of Texas by
saying that the right of trial by jury can not be claimed in an in
quiry that is nonjudicial in its character or with respect to proceed
ings before an administrative board, such as the accident board pro
vided for by the act (Middleton v. Texas Power & Light Co., 185 S.
W. 556), while a district court of the United States emphasized the
elective nature of the Iowa statute, saying that the constitutional
guaranty of the right of trial by jury, as well as of liberty to contract
and of due process of law, could be waived, either expressly or by
common consent or acquiescence (Hawkins v. Bleakly, 220 Fed.
378).
The mode of determining disputes by a board of arbitrators, or by
reference to the State commission, thus doing away with trial by
jury, was offered as an objection to the constitutionality of the law
of Maryland (Solvuca v. Ryan & Reilly Co., 101 Atl. 710). The court
held that the constitution of the State was not violated in allowing
awards without jury trial, since the award may be reviewed “ by a
proceeding in the nature of an appeal,” initiated in the court having
jurisdiction in the locality, and since, upon the hearing of such an
appeal, any question of fact involved may be submitted to a jury.
The Supreme Court, in passing upon a similar contention in the case
of New York Central R. R. Co. v. White, stated that “ the denial of
a trial by jury is not inconsistent with ‘ due process’
no question
was made but that the procedural provisions of the act are amply
adequate to afford the notice and opportunity to be heard required
by the fourteenth amendment. The Washington law entirely with

w o r k m e n ’s c o m p e n s a t io n l a w s of t h e u n it e d s t a t e s .

draws from private controversy the question of relief for accidental
injuries in industrial employments, substituting therefor a remedy
by compensation to the exclusion of every other remedy, except as
otherwise provided in the act itself. As to this provision the seventh
amendment to the Constitution of the United States, preserving the
right of trial by jury, was invoked by the plaintiffs. On this point
the court said:
It is conceded that this has no reference to proceedings in
the State courts (citing Minneapolis & St. Louis K. Co. v. Bombolis, 241 U. S. 211, 36 Sup. Ct. 595); but it is urged that the
question is material for the reason that if the act be constitutional it
may be followed in the Federal courts .in cases that are within its
provisions. So far as private rights of action are preserved, this is
no doubt true; but with respect to those we find nothing in the act
that excludes a trial by jury. As between employee and employer
the act abolishes all right of recovery in ordinary cases, and there
fore leaves nothing to be tried by jury.
The Iowa statute is elective, instead of compulsory, and the Su
preme Court, in addition to saying that jury trial is not one of the
rights secured by the fourteenth amendment, held election to be a
waiver of the right, though the State was at liberty either to abolish
or limit such right if it saw fit so to do. (Hawkins v. Bleakly, 243
U. S. 210, 37 Sup. Ct. 255.)
Superseding the earlier elective law of Ohio is a compulsory one,
which provides that an employer failing to contribute to the State
fund must pay his injured workmen such sums as the State commis
sion may award, if the employee makes claim through the commis
sion. Failure of the employer to pay the award subjects him to a
penalty of 50 per cent. This was held constitutional, since the State
constitution authorizes a compulsory law, which would include
reasonable provisions to make the law effective. The State will
enforce the payment, in a*proceeding that involves a jury trial, with
the one question removed as to the amount of the recovery, which
is fixed pursuant to statute; so that there is no denial of right of trial
by jury as to any issue which the employer is entitled to raise. The
acts of the commission are administrative and not judicial, so that
there is no unlawful transfer of powers. There is therefore no denial
of due process or of equal protection of the law (Fassig v. State, 95
Ohio St. 232, 116 N. E. 104).
LIABILITY WITHOUT FAULT.

Perhaps the ground on which the New York Court of Appeals most
strongly condemned the first compulsory law of that State was that
it charged the employer with a liability without fault. The point
was argued at considerable length, and the cases offered in support
of such liability were examined and held to be inapplicable to the

LIABILITY WITHOUT FAULT.

questions under consideration by the court, and the conclusion was
therefore reached that the law in question contained no justifying
provision that would warrant the imposition of such liability.
It contains not a single provision which can be said to provide for
the safety, health, or morals of the employees therein specified, nor
to impose upon the enumerated employers any duty or obligation de
signed to have that effect. It does not affect the status of employ
ment at all, but reads into the. contract between the employer and
employee without the consent of the former a liability on his part
which never existed before and to which he is permitted to interpose
practically no defense, for he can only escape liability when the em
ployee is injured through his own willful misconduct (Ives case).
The Supreme Court of Washington (Clausen case) held with
equal vigor that the valuable ends in view and the reasonable pro
visions of the law for the securing of those ends warranted the impo
sition of such liabilities as were enforced by the law of that State, so
that in the exercise of the police power for the promotion of the wel
fare of the State, a sufficient warrant existed for the fixing of the lia
bility in question, citing in this connection an extended list of cases,
some of which the New York court had noted and distinguished.
In a case decided by the Supreme Court of Wisconsin (City of Mil
waukee v. Miller, 144 N. W. 188), in discussing the nature of com
pensation laws, the court referred to the old rule of liability as being
based on “ the common-law principle that he who tortiously injures
another in his person or his property incurs a legal liability to make
good to that other all the loss which is directly and naturally caused
thereby, regardless of any element of reasonable anticipation of
consequences.” The court then said:
This extreme and rather harsh rule is characterized by a penal
element, grounded on the moral turpitude of the wrongful act.
Under the statutory system for dealing with personal injury losses
incident to performance of the duties of an employer they are re
garded as mutual misfortunes to be charged up, as directly as prac
ticable, to the cost of production. The right to have the employer
regarded as an agency to make payment to the employee and absorb
the same as an expense of the industry, regardless of whether the
loss is attributable to any human fault, is a legislative ereati on
within the constitutional exercise of the police power to legislate for
the public welfare.
The Supreme Court of California took up the question in very
much the same manner as that of Washington, assuming the power
of the legislature to declare a liability without fault as a matter of
public policy. It pointed out that it was generally admitted that the
common-law defenses of the employer can be abrogated, and declared
that the rule of fault was neither more sacred nor more necessary.
At common law, in the absence of fault, the burden of the accident

w o r k m e n ’s c o m p e n s a t io n l a w s of t h e u n it e d s t a t e s .

fell on the employee; and by declaring the liability of the employer
in such cases, the legislature was simply exercising its right to shift
the burden to the employer, and through him to the industry. It was
held that no vested right was disturbed, the statute not being retro
active, and that what was effected was simply a readjustment of the
employment status, not forbidden by the fourteenth amendment
(Western Indemnity Co. v. Pillsbury, 151 Pac. 398). It may be
mentioned in this connection that the Arizona compensation law
specifically abrogates “ the common-law doctrine of no liability with
out fault,” in so.far as it might be pleaded with reference to the classes
of accidents covered by the act; and the courts uniformly rule that
the negligence of the employer need not be proved in proceedings
under the compensation laws, the question being not one of the right
to recover damages for a tort, but one of the grant of a different right
based on the status of the employee as such.
The establishment of this principle was 'strongly criticized by the
appellant railroad company in the New York case before the Supreme
Court (New York Central R. Co. v. White), due, presumably, to the
fact that the earlier New York statute had been declared unconstitu
tional by the court of appeals of the State largely, and perhaps
chiefly, on the ground that it charged the employer with liability
without fault.
The Supreme Court held that the establishment of a compulsory
system relating to hazardous employments was not an unreasonable
or arbitrary application of legal principles, since the undertaking is
one in which the workman is engaged by mutual consent of employer
and employee in an operation intended to be advantageous to both.
Considering the probability of physical injury or loss of life through
industrial accident, entailing the loss of self-support, and in fatal
cases depriving widows and orphans of their natural protection, it
was held to be but reasonable on grounds of natural justice that
there should be a contribution in reasonable amount, according to
a reasonable and definite scale, by way of compensation for the loss
of earning power—“ that which stands to the employee as capital in
trade” —incurred in the common enterprise, and that without
regard to the question of negligence or fault. As an offset to this
responsibility, it is pointed out that the employer is relieved from a
liability for damages rated by common-law standards, and payable
only in cases where fault is proved.
Nor can it be deemed arbitrary and unreasonable, from the stand
point of the employee’s interest, to supplant a system under which
he assumed the entire risk of injury in ordinary cases, and in others
had a right to recover an amount more or less speculative upon
proving facts of negligence that often were difficult to prove, and
substitute a system under which, in all ordinary cases of accidental

LIABILITY WITHOUT FAULT.

injury, he is sure of a definite and easily ascertained compensation,
not being obliged to assume the entire loss in any case, out in all
cases assuming any loss beyond a prescribed scale.
While the loss is primarily laid upon the employer, it “ is a loss
arising out of the business/ and, however it may be charged up, is a
expense of the operation, as truly as the cost of repairing broker
machinery or any other expense that ordinarily is paid by th<
employer.”
It was added “ that liability without fault was not a novelty v
the law. -The common-law liability of the carrier, of the innkeeper
of him who employed fire or other dangerous agency or harbored a
mischievous animal, was not dependent altogether upon questions
of fault or negligence. Statutes imposing liability without fault
have been sustained.” (Cases cited.)
While the question was apparently not raised in this specific form
in the consideration of the Washington statute, the point was clearly
covered in the ruling that the levying of a tax on all employers in an
industry, regardless of the occurrence or nonoccurrence of accidents
in their particular establishments during any given period, was
neither arbitrary nor unreasonable.
A quite recent (1918) decision by the New York Court of Ap
peals says:
An award under the workmen’s compensation law is not made
on the theory that a tort has been committed; on the contrary, it
is upon the theory that the statute giving the commission power to
make an award is read into and becomes a part of the contract.
* * * These payments are made irrespective of whether or not
the employer was guilty of wrongdoing. It is a part of the com
pensation agreed to be paid for services rendered in the course of
the employment (Doey v. Howland Co., 120 N. E. 53).
In passing upon this point in the Arizona case the Supreme
Court said:
We are unable to say that the employers’ liability law of Arizona,
in requiring the employer in hazardous industries to assume—so far
as pecuniary consequences go—the entire risk of injury to the
employee attributable to accidents arising in the course of the
employment and due to its inherent conditions, exceeds the bounds
of permissible legislation or interferes with the constitutional rights
of the employer. The answer that the common law makes to the
hardship of requiring the employee to assume all consequences, both
personal and pecuniary, of injuries arising out of the ordinary dan
gers of the occupation, is that the parties enter into the contract
of employment with these risks in view, and that the consequences
ought to be and presumably are, taken into consideration in fixing
the rate of wages. In like manner the employer, if required—as he
is by this statute in some occupations—to assume the pecuniary loss
arising from such injury to the employee, may take this into con

WORKMEN ?S COMPENSATION LAWS OF THE UNITED STATES.

sideration in fixing the rate of wages; besides which he has an
opportunity, which the employee has not, to charge the loss as a
part of the cost of the product of the industry.
There is no question here of punishing one who is without fault.
That, we may concede, would be contrary to natural justice. The
statute requires that compensation shall be paid to the injured
workman or his dependents, because it is upon them that the first
brunt of the loss falls; and that it shall be paid by the employer,
because he takes the gross receipts of the common enterprise, and
by reason of his position of control can make such adjustments as
ought to be and practically can be made, in the way of reducing
wages and increasing the selling price of the product, in*order to
allow for the statutory liability. There could be no more rational
basis for a discrimination; and it is clear that in this there is no
denial of the “ equal protection of the law.”
ABROGATION OF EMPLOYERS’ DEFENSES.

• In a number of cases the question was raised as to the power of
the legislature to abolish the defenses of fellow service, contributory
negligence, and assumption of risks, as was done in most of the laws
providing for compensation. There was, however, little disagree
ment by the courts on this point, the New York Court of Appeals
saying that the power of the State to make changes in methods of
procedure and the rules of law was clearly recognized.
We have said enough to show that the statutory modifications of
the “ fellow-servant” rule and the law of “ contributory negligence”
are clearly within the legislative power. These doctrines—for they
are nothing more—may be regulated or even abolished. This is
true to a limited extent as to the assumption of risk by the em
ployee (Ives v. South Buffalo Ry. Co., supra).
The Massachusetts court (opinion of justices) said that the rules
of law relating to these three defenses were established by the courts,
not by the constitution, and that the legislature may change them or
do away with them altogether as defenses. The courts of Wisconsin,
New Jersey, and Ohio agree with the opinion of the Massachusetts
court, the Ohio court (Creamer case) saying that as to the right to
abolish the defense of assumption of risks the great weight of author
ity is against the New York court, holding that it is subject to the
same complete legislative control as the other defenses made. The
Supreme Court of Appeals of West Virginia, speaking on this point,
says that “ the defenses inhibited or barred are such as the legisla
ture had a clear right to eliminate for reasons of public policy ”
(De Francesco v. Piney Mining Co., 86 S. E. 777).
See also Deibeikis v. Link-Belt Co., 261 111. 454, 104 N. E. 211;
Mathison v. Street Ry. Co., 126 Minn. 286, 148 N. W. 71; Wheeler
v. Contoocook Mills, 77 N. H. 551, 94 Atl. 265; State v. Creamer,
85 Ohio St., 349, 97 N. E. 602; Middleton v. Texas Power & Light
Co., 108 Tex. 96, 185 S. W. 556, etc.

ABROGATION OF EMPLOYERS ’ DEFENSES.

Despite the uniform attitude of the State courts on this question*
the point was raised in the cases before the Supreme Court already
cited. In discussing the New York case, the defenses of fellow service,
assumption of risks, and contributory negligence were taken up sepa
rately and briefly discussed, the conclusion being that “ it is not neces
sary to extend the discussion. This court has repeatedly upheld the
authority of the States to establish by legislation departures from
the fellow-servant rule and other common-law rules affecting the
employers’ liability for personal injuries to their employees.” (Cases
cited.) This position is not to be interpreted as warranting a sudden
setting aside of all common-law rules respecting the employer’s
liability without providing a reasonably just substitute:
The statute under consideration sets aside one body of rules only
to establish another system in its place. * * * The act evidently
is intended as a just settlement of a difficult problem, affecting one
of the most important of social relations, and it is to be judged in its
entirety.
The Washington law, of course, eliminates the entire subject of
defenses by eliminating the right of action for damages; while in the
Iowa law a qualified right remains, dependent upon the attitude of
employer and employee, respectively, as accepting or rejecting the
act. When the employer rejects, under the Iowa statute, he is
deprived of these defenses whether the employee has accepted or
rejected, whereas if he accepts the law, and the employee alone
rejects, all defenses are retained by the employer in any suit brought.
We can not say that there is here an arbitrary classification within
the inhibition of the “ equal protection” clause of the fourteenth
amendment. All employers are treated alike, and so are all em
ployees, and if there be some difference between employer and em
ployee respecting the inducements that are held out for accepting
the compensation features of the act, it goes no further than to say
that, if neither party is willing to accept them, the employer’s lia
bility shall not be subject to either of the several defenses referred
to. As already shown, the' abolition of such defenses is within the
power of the State, and the legislation can not be condemned when
that power has been qualifiedly exercised, without .unreasonable
discrimination.
EXERCISE OF JUDICIAL POWERS.

Most of the laws in question provide for their administration
and the settlement of disputes by boards or commissions, and these
provisions were made the grounds of attack on their constitution
ality as conferring judicial powers upon nonjudicial officers. In no
case was the contention of unconstitutionality admitted, though the
courts fouAd different grounds for sustaining the various laws, and
indeed the laws themselves differ somewhat in regard to the powers
and prerogatives of the administrative bodies.

w o r k m e n ’s c o m p e n s a tio n la w s o r t h e u n it e d s t a t e s ;

The Montana law conferred certain duties upon the State auditor,
which were held by the supreme court of that State to be adminis
trative and not judicial, while the suggestion that he might in cer
tain cases be called upon to exercise judicial power was said to be
of no persuasive force, since such procedure would be altogether
voluntary on his part and he might resort to the courts if he so
desired (Cunningham v. Northwestern Improvement Co., supra). Its
present law is administered by a commission or board, of which it is
said that “ it is true that many of the functions exercised by the
board are judicial in character,” but it is, nevertheless, not vested
with judicial power within the constitutional meaning of that term,
being “ a purely administrative body,” without power to render an
enforceable judgment (Shea v. North Butte Mining Co., supra).
The industrial commission provided for in the Wisconsin statute
was said by the court of that State not to be a court, and the act
was construed as not vesting in this commission judicial powers
within the meaning of the constitution. “ It is an administrative
body or arm of the Government, which in the course of its admin
istration of the law is empowered to ascertain some questions of fact
and apply existing law thereto, and in so doing acts quasi-judicially;
but it is not thereby vested with judicial power in the constitutional
sense.” It was held that the act made no attempt to confer on the
board power to consider and determine its own jurisdictional author
ity, but that courts were open for appeals from its findings on any
one of three grounds: First, that the board acted without or in excess
of its powers; second, that the award was procured by fraud; and,
third, that the findings of fact did not support the award. In view
of these provisions the court held that there was no violation of the
constitution in conferring such powers on the commission as it was
authorized to exercise. (Borgnis v. Falk, 147 Wis. 327, 133 N. W.
221; see also Menominee Bay Shore Lumber Co. v. Industrial Com
mission, 156 N. W. 151, where the ruling that the commission is not a
court was incidental to a decision that a minor needs no guardian in
order to appear before it.)
Similar considerations were involved in the discussion of the Ohio
statute, and like conclusions were reached by the court in this case
(State v. Creamer, supra). It was said that the board t)f awards
created by the act was purely an administrative agency with duties
relating to the creation and administration of the insurance fund,
and the fact that it is empowered to classify persons to come under
the law and to ascertain facts as to the application of the fund does
not invest it with judicial power within the constitutional sense; so
also of the Texas statute (Middleton v. Texas Power & Light Co.),
and that of Kentucky (Greene v. Caldwell); and of Maryland (Solvuca
v. Ryan & Reilly Co., 101 Atl. 710).

EXERCISE OF JUDICIAL POWERS.

The law authorizing the industrial accident board of Michigan
was held not to be unconstitutional, on the ground that it is merely
an administrative agency available at the option of the parties inter
ested (Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W.
49). In Iowa also it was held that though the right of appeal from
the decisions of the commission was more restricted than under the
laws of a number of other States, there was no excessive delegation of
judicial powers, since the conditions and amounts of awards are
fixed by statute, and further, an acceptance of the act must precede
its application (Hunter v. Colfax Consol. Coal Co.; Hawkins v. Bleakly,
220 Fed. 378). The elective nature of the law was held by the
Supreme Court of Illinois to obviate any difficulty that might other
wise arise on the ground of the exercise of judicial powers by tho
commission of that State (Deibeikis v. Link-Belt Co.).
In all the foregoing cases the nonjudicial character of the boards
and commissions was affirmed, but the courts of several States adopt
another view for identical agencies. therein. Thus it was said by
the Supreme Judicial Court of Massachusetts that for certain pur
poses and in certain respects the commission on arbitration and the
industrial accident board, provided for by the compensation law of
the State, should be classed as courts, though the members are not
judicial officers within the constitution. However, as they have power
to summon witnesses, administer oaths, make rulings, and render
decisions they are in a sense courts, in which proceedings may be had
which correspond to actions (Pigeon v. Employers’ Liab. Assurance
Corp., 102 N. E. 932). But in a later case this court defined the
industrial accident board of the State as being not a court of general
or limited common-law jurisdiction, but solely an administrative
tribunal, created to administer the compensation law in aid and with
the assistance of the superior courts. The essential prerequisites of
the act as prescribed by itself must be observed, and the authority of
the board can not be enlarged or diminished by express consent or
waived by acts of estoppel (In re Levangie, 117 N. E. 200).
The Supreme Court of California found the powers of the accident
commission of that State to be those of a court, the law giving to it
“ full power, authority, and jurisdiction to try and finally determine”
all proceedings for the recovery of compensation, which are “ pre
cisely the same functions that are performed by any court in passing
upon questions brought before it.” Power thus to act is held to be
given by the amendment to the constitution of the State authorizing
the enactment of the law.and the creation of the board with authority
to settle disputes (Western Metal Supply Co. v. Pillsbury, 156 Pac.
491; Carstens v. Pillsbury, 158 Pac. 218). The fact that the com
mission is held to have such a status entails the necessity of a pro
cedure in conformity to the standing of a court, in compliance with

w o r k m e n ’s c o m p e n s a t io n l a w s o f t h e u n it e d s t a t e s .

constitutional requirements as to due process of law. This was held
to restrict somewhat the power of the commission to proceed infor
mally, to waive the customary rules as to evidence, etc. (Carstens
case).
In discussing its law the Supreme Court of Oregon held that the
constitution of the State gave the legislature authority to set up new
courts if the three departments of the government, legislative, exec
utive, and judicial, are kept properly separate (Evanhoff v. In
dustrial Accident Commission, 78 Oreg. 503, 154 Pac. 106). Evi
dently, the peculiar limitations of the State constitutions afford
ground for diverse rulings on the power to establish courts, while
the functions of the commissions also vary; but, on one ground or
another, the authority of these bodies has been unanimously upheld.
Somewhat different was the point raised against the statute of
Rhode Island, the contention being made that the provision of the
act which authorizes employers to maintain benefit schemes as a sub
stitute for the provisions of the act amounted to a delegation of
legislative powers. This was overruled by the supreme court on the
ground that the establishment and acceptance of such schemes was
optional, and not binding as a law would be (Sayles v. Foley, 38
R. I. 484, 96 Atl. 340).
The status of the administrative bodies provided for by the laws
under consideration was not considered, except in a general way, by
the Supreme Court in the case noted above, though their authority
was, of course, assumed in so far as the validity of awards made with
out jury trial was upheld. In the White case, the New York com
mission was said to have Cladministrative and judicial functions,
including authority to pass upon claims to compensation on notice
to the parties interested. * * * No question is made but that
the procedural provisions of the act are amply adequate to afford
the notice and opportunity to be heard, required by the fourteenth
amendment.”
The Iowa statute calls for an arbitration committee appointed for
the case in hand, with power of review lodged in an industrial com
missioner. This results in what the Supreme Court characterized
as an “ administrative tribunal,” powers of judicial review remaining
in the courts (Hawkins v. Bleakly, citing the decision of the Supreme
Court of Iowa in the case; Hunter v. Colfax Consolidated Coal Co.,
supra).
Whatever may be lacking in uniformity of reasoning in the citations
on this point, there is complete agreement that in the establishment
and authorization of the various administrative commissions no new
courts have been created or judicial power delegated in such wise as
to offend the provisions of the Federal or State constitutions.

W O R K M E N S COMPENSATION LAWS OF THE UNITED STATES.

FREEDOM OF CONTRACT.

The compulsory laws of New York and Washington were, because
of their nature, subjected to scrutiny on the ground that they inter
fered unconstitutionally with the freedom of contract, and in the
Ives case (New York) it was held that this was unwarrantably done,
reading into the contract between the employer and employee, and
without the employer’s consent, a new liability to which he can inter
pose practically no defense. In the Clausen case (Washington) it
was said that personal rights, such as that of contract, are not absolute.
“ On the contrary, it has been many times said that there is no ab
solute right to do as one will, to assume any calling one desires, or
contract as one chooses; that the term ‘liberty’ means absence of
arbitrary restraint, not immunity from reasonable regulations and
prohibitions imposed in the interests of the community,” citing
Frisbie v. United States (157 U. S. 160, 15 Sup. Ct. 586). Other
opinions cited were Holden v. Hardy (169 U. S. 366, 18 Sup. Ct. 383),
in which the Supreme Court, speaking of the power to limit the hours
of labor a workman may be employed in underground mines, said:
“ This right of contract, however, is itself subject to certain limitations
which the State may lawfully impose in the exercise of its police
powers' , and State v. Buchanan (29 Wash. 602, 70 Pac. 52), in which
a law limiting the number of hours of labor that women might be
employed in a day was held constitutional, although requiring the
yielding of individual rights.
The Supreme Court of Massachusetts (opinion of justices) found
no difficulty in disposing of the question of freedom of contract
because of the elective or optional feature of the State law, by reason
of which employers and employees were alike at liberty to choose
whether or not they would accept the provisions of the statute.
As to the Wisconsin law it was contended that while -it in form
presented to employers and their workmen a free choice as to ac
ceptance or rejection of its terms, it was in fact coercive, since the
employer is constrained by the abolition of his defenses to accept
the act, while the employee will feel himself obliged to come within
its provisions for fear of discharge if he does not accept. The court
assumed that certain employers would feel themselves able ade
quately to safeguard their workmen and carry their own risks under
the liability laws of the State, even with the defenses abrogated,
since under the circumstances of their establishments they would
consider that preferable to assuming the burdens of the compensa
tion law. So also it was argued that in all probability a great body
of workmen, especially the unskilled classes, would be glad to secure
a certain compensation in case of injury instead of accepting the
uncertainties of a lawsuit. This phase of the subject was dismissed
as being speculative and conjectural, since no one could say what

WORKMEN *S COMPENSATION LAWS OF THE UNITED STATES.

the practical operation of the law would be. “ ‘ It is enough for*our
present purpose that no one can say with certainty that it would
operate to coerce either employer or employee” (Borgnis case).
The same situation was developed in the Ohio opinion on the
earlier (elective) law, in which it was said that “ it is urgently in
sisted that while the law is apparently permissive and leaves its
operation to the election of the employer and employees, it is really
coercive.” The law in question deprived the employer of certain
defenses if he failed to elect, election by the employee being pre
sumed if he continued in service, but he might sue in certain cases
of the employer’s negligence. The system thus provided was held
by the court not to be coercive on account of the common-law and
statutory rights still preserved to the parties. “ As was said in the
Wisconsin case, ‘ Laws can not be set aside upon mere conjecture or
speculation. The court must be able to say with certainty that an
unlawful result will follow.’ We do not see how such a thing could
be said here” (Creamer case).
The New Jersey Supreme Court took the same view, holding that
no coercion was exercised upon either party to the contract of hire.
There are two principal parts of the law—one a stringent liability
law, and the other a compensation statute—and both parties are
free to choose under which of them the employment is to stand. It
is provided that in the absence of notice of rejection acceptance of
the compensation system is presumed. It was said that it would
have been quite as competent for the legislature to have adopted
other alternatives, but in its wisdom the particular choice made was
the one adopted.
Really, the matter comes down to a question of presumption or
burden of proof, which it is entirely within the control of the legis
lature to regulate so long as the parties are left entirely free to make
whatever contract they choose, as they are in this case. We are
therefore of the opinion that, as against the objections taken, section
2 is constitutional. [Sexton case.]
To the general charge that the laws interfered with freedom of
contract, the supreme courts of Illinois and Iowa in the cases already
cited (p. 173) give the answer that the statutes are elective, and that
if the parties elect they can not complain of the consequences; so also
of the right of the parties to waive remedies otherwise provided and
subject themselves to such inquiries as to violate the provisions of
law as to unreasonable search and seizure, their acceptance of the act
being voluntary.
More specifically the point of the restriction of freedom is raised
against the presumptions as to election. The Supreme Court of Min
nesota held that the law of that State was not vitiated as a voluntary
and optional one, because express disavowal of its provisions was re

FREEDOM OF CONTRACT.

quired (Mathison v. Minneapolis St. Ry. Co.); while the Massachu
setts court declared that a requirement which provides that the law
must be rejected at the time of hiring if the employee does not wish
to come under it is reasonable (Young v. Duncan). Of this provi
sion the Michigan Supreme Court, speaking of the presumption that
the employee will accept where the employer elects, said that the
former has a knowledge of the law and a presumptive notice of his
employer’s action, there being merely an establishment by the legis
lature of a presumption which can be overcome, the purpose being to
avoid uncertainty (Mackin v. Detroit-Timkin Axle Co.).
Considerable stress was laid by the appellants in the White case,
when it was before the Supreme Court, upon the effect of the New
York law in depriving the parties to the labor contract of their con
stitutional rights of freedom in the making of contracts to render
service or to employ labor, citing declarations made by the court
in recent cases (Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240;
Truax v. Raich, 239 U. S. 233, 36 Sup. Ct. 7) in which certain laws
were held unconstitutional as interfering with the right of personal
liberty involved in the making of contracts for employment. As to
this the court said:
It is not our purpose to qualify or weaken either of these declara
tions in the least, and we recognize that the legislation under review
does measurably limit the freedom of employer and employee to
agree respecting the terms of employment, and that it can not be
supported except on the ground that it is a reasonable exercise of the
police power of the State. In our opinion it is fairly supportable on
that ground. And for this reason: The subject matter in respect of
which freedom of contract is restricted is the matter of compensa
tion for human life or limb lost or disability incurred in the course
of hazardous employment, and the public has a direct interest in
this as affecting the common welfare.
The authority of the State to prohibit contracts made in deroga
tion of a lawfully established policy respecting compensation for
accidental death or disabling personal injury was said to be clear.
It was pointed out that no safety provisions, nor regulations directly
tending to protect life and health, appear in the New York statute.
But the interest of the public is not confined to these. One of the
grounds of its concern with the continued life and earning power of
the individual is its interest in the prevention of pauperism, with its
concomitants of vice and crime, and, in our opinion, laws regulating
the responsibility of employers for the injury or death of employees
arising out of the employment bear so close a relation to the pro
tection of the lives and safety of those concerned that they properly
may be regarded as coming within the category of police regulations.
Objections were also raised to the Washington statute as coming
between the employer and the employee in the matter of the labor
contract. The court held, however, that the police power of the
177982°—21—Bull. 272----- 7

w o r k m e n ’s c o m p e n s a t io n l a w s o f t h e u n it e d s t a t e s .

State carries with it a wide range of judgment and discretion as to
the matters that are of sufficiently general importance to be brought
under State control and administration. The public welfare is suf
ficient warrant for the exercise of such powers as are made use of
in the compensation law to regulate the conditions of contract, no
less with reference to those who are disabled or who are dependents
of those fatally injnred in the industrial occupations necessary to
the development of the resources of the State than for the support
by a system of pensions of disabled soldiers and the widows and
dependents of those killed in war. The fact that the compensation
system is not confined to those who are left without means of sup
port is not an objection to its validity, since to make such limitations
would be to discriminate against the thrifty in favor of the improvi
dent.
We are unable to discern any ground in natural justice or funda
mental right that prevents the State from imposing the entire burden
upon the industries that occasion the losses.
In passing upon the law of Texas, which makes acceptance of the
law binding on employees remaining in the service of an employer
who accepts the act, the Supreme Court said:
A moment’s reflection will show the impossibility of giving an
option both to the employer and to the employee and enabling them
to exercise it in diverse ways. * * * What plaintiff [employee]
has lost, therefore, is only a part of his liberty to make such contract
as he pleased with a particular employer and to pursue his employ
ment under the rules of law that previously had obtained. But, as
has been held so often, the liberty of the citizen does not include
among its incidents any vested right to have the rules of law remain
unchanged for his benefit. [Middleton case.]
A provision of the law of Pennsylvania forbidding contracts of
waiver or agreements for releases prior to the happening of an acci
dent was attacked in a case (Anderson v. Carnegie Steel Co., 99 Atl.
215) which was before the supreme court of that State. The court
held that this was in accordance with the declared policy of the
State as set forth in an earlier law, the present provision being but
an extension of the same, and not an invalid interference with the
freedom of contract.
The law of Arizona, as already pointed out, goes to the other ex
treme in regard to the granting of options, the injured workman
being given a choice, even after the injury, between the compensa
tion law and a suit for damages, which accords with existing pro
visions of the constitution. The legislature went further, however,
and undertook to give to the personal representative of an employee
whose injuries were fatal the same option. This the supreme
court of the State declared was beyond the power of the legislature,
since the representative had only the right to sue, and could be given

STATUS OF BENEFIT FUNDS.

no right under the compensation act in case the injured man had
failed to make the election before death (Behringer v. Copper Co.,
149 Pac. 1065).
STATUS OF BENEFIT FUNDS.

An objection was urged against the constitutionality of the statute
of Washington in its provision for the maintenance of a fund to be
formed of premiums or contributions by employers, on the ground
that this was a violation of the provisions of the constitution requir
ing equal and uniform taxation of property for public purposes. It
was held that while the fund was a charge laid on persons engaged
in the industries named, imposed by public authority as are taxes,
it was not in the meaning of the constitution a tax, as “ no acquisi
tion to the public revenue, general or local, is authorized or aimed at.
It is to be used, not to meet the current expenses of government, but
to recompense employees of the industries on whom the burden is
imposed for injuries received by them while engaged in the pursuit
of their employment. It is the consideration which owners of the
industries pay for the privilege of carrying them on. It is therefore
in the nature of a license tax, and can be justified on the principle of
law that justifies the imposition and collection of license taxes gen
erally.” Cases were then cited showing the power of the legislature
to levy such taxes in the State, the conclusion being reached that
the sums might be considered as partaking of the nature of a license
for both revenues and regulation, but in neither aspect was there any
thing inimical to either the State or Federal constitution (State v.
Clausen, 65 Wash. 156, 117 Pac. 1106). Considering another phase
of the subject, the supreme court of the State said that when the em
ployer had contributed to the fund, his obligations were discharged,
and an injured employee would look not to the employer but to the
fund, and if the claim were rejected no suit would lie against the em
ployer but against the commission (Stertz v. Industrial Insurance
Commission, 158 Pac. 256).
When these provisions of the Washington law came before the
Supreme Court of the United States (Mountain Timber Co. v. Wash
ington), it was pointed out that while the State court relied princi
pally on the police power of the State, the levying of contributions
on employers in the specified industries was also justified “ as possess
ing the character of a license tax upon the occupation, partaking of
the dual nature of a tax for revenue and a tax for purposes of regu
lation.” The court then said:
We are not here concerned with any mere question of construc
tion, nor with any distinction between the police and the taxing
powers. The question whether a State law deprives a party of rights
secured by the Federal Constitution depends not upon how it is
characterized, but upon its practical operation and effect. And the
Federal Constitution does not require a separate exercise by the
States of their powers of regulation and of taxation.

100

w o r k m e n ’s c o m p e n s a t io n l a w s o f t h e u n i t e d s t a t e s .

it seems to us that the considerations to which we have adverted
in New York Central R. R. Co. v. White, supra, as showing that the
workmen’s compensation law of New York is not to be deemed arbi
trary and unreasonable from the standpoint of natural justice, are
sufficient to support the State of Washington in concluding that the
matter of compensation for accidental injuries with resulting loss of
life or earning capacity of men employed in hazardous occupations
is of sufficient public moment to justify making the entire matter of
compensation a public concern, to be administered through State
agencies.
Taking the law, therefore, to be justified by the public nature of
the object, whether as a tax or as a regulation, the question whether
the charges are excessive remains. Upon this point no particular
contention is made that the compensation allowed is unduly large;
and it is evident that unless it be so, the corresponding burden upon
the industry can not be regarded as excessive if the State is at liberty
to impose the entire burden upon the industry.
As we have seen, its fourth section prescribes the schedule of
contribution, dividing the various occupations into groups, and im
posing various percentages evidently intended to be proportioned
to the hazard of the occupations in the respective groups. Certainly
the application of a proper percentage to the pay roll of the industry
can not be deemed an arbitrary adjustment, in view of the legisla
tive declaration that it is “ deemed the most accurate method of
equitable distribution of fyurden in proportion to relative hazard.”
As further rebutting the suggestion that the imposition is exorbitant
or arbitrary, we should accept the declaration of intent that the fund
shall ultimately become neither more nor less than self-supporting,,
and that the rates are subject to future adjustment by the legislature
and the classifications to rearrangement according to experience, as
plain evidence of an effort to limit the burden to the requirements of
each industry.
*
Like the Washington statute, the earlier Montana law was com
pulsory in the matter of contributions to the general fund. It was
held by the supreme court of the State that as the act in question
was a scheme calculated to result to the public welfare, it was a
proper corollary conclusion that the contributions to the fund were
of the nature of a tax imposed for a public purpose; or the procedure
might be justified, if the act abolished suits at law for personal
injuries and death, on the theory that the State had given a quid pro
quo to the employer. The court concluded, however, that it was
not required to accept either of these arguments, but that it was
within the police power of the State to levy such an impost as an
employment tax upon the occupation covered by the act.
It is not at all necessary to justify the imposition of such a tax
that the business itself should particularly require police super
vision, although, as we have seen, extrahazardous enterprises may
demand restraint and regulation. Such a tax may be imposed,
either for regulation or revenue, or for both. Property and occupa
tion are alike legitimate objects of taxation. [Cunningham case.]

STATUS OF BENEFIT FUNDS.

101

A somewhat different aspect of this question is involved in the
Wisconsin statute, since, while no general fund is maintained, com
pensation is compulsory as to the State and its municipalities. It
follows, therefore, that public funds raised by taxation are used for
the payment of the benefits contemplated by the act, and on this
ground the constitutionality of the law was challenged as compelling
municipalities to levy taxes for other than public purposes. As to
this point the supreme court of the State (Borgnis v. Falk) said:
We have not been quit'e able to perceive the force of this point,
and we find no argument upon it in the brief. We shall only say that
the manner in which the State or the public shall treat its workmen
is peculiarly a matter for the legislature to determine. No one is
compelled to work for the public, and, if he does, he takes the situa
tion on the terms which the public gives. We know of no reason why
the public, acting by its lawmaking power, may not provide that its
employees shall have as part of their compensation certain indemni
ties in case of accidental injury in the public service. When the law
does so provide, the raising of the funds to discharge those indem
nities becomes plainly a proper public purpose.
It is evident that the principles here enunciated are the same as
those set forth by the supreme courts of Michigan and Ohio in sus
taining the laws of the respective States against contentions that the
compulsory application of the statute to municipalities and the di
version of taxes were unconstitutional.
The Ohio Supreme Court had before it in an earlier case (State v.
Creamer, 85 Ohio St. 349, 69 N. E. 602) the question of the legality
of the State fund, which, under the law as it then stood, was made up
of contributions from both employers and employees, while the State
assumed the expense of administration. It was charged against this
system' that the law directed the State to use public funds for private
purposes, to which the court replied that the ends in view were of a
nature to justify the action of the State in its power to secure peace,
safety, and the best interests of the Commonwealth, and quoted from
the opinion of the Supreme Court in the case of Noble State Bank v.
Haskell (219 U. S. 104, 31 Sup. Ct. 186), in which the constitu
tionality of a statute of Oklahoma, authorizing the establishment of
a guaranty fund for deposits by a levy on the banks of the State,
was under consideration. The quotation is as follows:
The substance of the plaintiff’s argument is that the assessment
takes private property for private use without compensation. * * *
Nevertheless, notwithstanding the logical form of the objection, there
are more powerful considerations on the other side. In the first place
it is established by a series of cases that an ulterior public advantage
may justify a comparatively insignificant taking of private property
for what, in its immediate purpose, is a private use. * * *
It may be said in a general way that the poUce power extends to all
the great public needs. It may be put forth in aid of what is sane-

102

w o r k m e n ’s c o m p e n s a t i o n l a w s o f t h e u n i t e d s t a t e s .

tioned by usage or held by the prevailing morality or strong and pre
ponderant opinion to be greatly and immediately necessary to the
public welfare.
The objection on this ground was therefore overruled.
The same views were expressed by the Supreme Court of Iowa and
the Court of Appeals of New York in meeting the contention that
the insurance systems established by the laws of these States effected
a taking of property without due process of law.
The Employees’ Insurance Association of Texas was attacked on
the ground that it was a private corporation formed otherwise than
by a general law, contrary to the provisions of the constitution of the
State. This .contention was rejected, the supreme court saying that
the association was only an agency for the proper administration of the
law and not properly a corporation, even though so designated in the
act (Middleton v. Texas Power & Light Co., 185 S. W. 556).
A special fund is provided under a section of the New York law that
looks to the protection of employers of workmen who have suffered a
partially disabling injury (sec. 15, subd. 7, added by ch. 622, 1916).
This fund is to be maintained by levying a contribution of $100 on the
insurance carrier in each case in which there is a death of an insured
person with no survivor entitled to compensation. The proceeds are
to be used as special benefits in “ second injury” cases, when a par
tially disabled person becomes totally disabled through an injury that
would only partially disable a normal person. This arrangement was
held by the court of appeals to be within the power of the legislature
to provide, conforming to the spirit of the act, and of uniform appli
cation to all persons coming within the conditions prescribed by the
act (State Industrial Commission v. Newman, 118 N. E. 794).
POLICE POWER.

As to whether or not the acts under consideration properly fall
within the police power of the State is a question to be answered
according to the views taken as to the scope and purpose of the laws
themselves. With the exception of the New York court, the laws
were regarded as tending to meet existing needs in a legitimate man
ner and as being within the police power of the State. The Supreme
Court of Ohio (Creamer case) quoted with approval from the discus
sion of Prof. Freund in his work on the subject, as follows:
The term “ police power” has never been circumscribed. It means
at the same time a power and function of Government, a system of
rules, and an administrative organization and force,
Prof. Freund is further quoted as saying that a consideration of the
subject “ will reveal the police power not as a fixed quantity, but as
the expression of social, economic, and political conditions. As long
as these conditions vary, the police power must continue to be elastic—
i. e., capable of development,”

POUCE POWER*

10 3

This court regarded the law in question as a proper exercise of the
police power of the State in view of the objects to be gained by its
enforcement. So also the Washington court, which said: “ In fine,
when reduced to its ultimate and final analysis, the police power is the
power to govern.” The insurance law of the State having, as this
court held, “ a reasonable relation to the protection of the public health
morals, safety, or welfare, it is not to be set aside because it may inci
dentally deprive some person of his property without fault or take the
property of one person to pay the obligation of another” (Clausen
case).
The Montana statute was opposed on the ground that it was not
designed to prevent the evils growing out of and incident to the
present system of actions for fault, because it does not abolish such
actions. In passing the court remarked that if the act has a reason
able tendency to accomplish the desired result it ought to be upheld
as within the police power. Aside from the humanitarian features
of the law which provided prompt and certain relief for injured work
men, which might be regarded as a* matter of private benefit, this
opinion considered the view that the act might be fairly construed
as an attempt to prevent persons injured in coal mines and their
dependents from becoming public charges.
Any measure which tends to minimize indigency of necessity raises
the general standard of the people; any statute which has a tendency
to reduce the present enormous expense of operating our courts
would seem to be presumptively a proper exercise of the police power.
* * * * * In our judgment the general scheme of this act is
well within the police power of the State. If the people, represented
by their legislature, are of opinion that the public interests demand
that industrial insurance ought to be substituted, in whole or in part,
for actions for wrongs, this court certainly can not say that they are
in error (Cunningham case).
Other opinions reached the same conclusions by practically the
same arguments, the laws being regarded as calculated to serve the
public welfare. The New York court, however, says:
We have tried to make it clear that in our judgment this statute
is not a law of regulation. It contains not a single provision which
can be said to make for the safety, health, or morals of the employees
therein specified, nor to impose upon the enumerated employers any
duty or obligation designed to have that effect.
The recent decisions by the Supreme Court relied upon in other
opinions as supporting the views adopted as to the police power
(Noble State Bank v. Haskell, 219 U. S. 104, 31 Sup. Ct. 186; Assaria
State Bank v. Dolley, 219 U. S. 121, 31 Sup. Ct. 189) were referred to,
but of them it was said:
We can not recognize them as controlling of our construction of
our own constitution. [Ives case.]

104

WORKMEN ?S COMPENSATION LAWS OF THE UNITED STATES.

The Supreme Court of Washington (State v. Mountain Timber Co.,
135 Pac. 645), called upon to consider its earlier decision on the con
stitutionality of the industrial insurance law of that State, had before
it objections on the ground that the act violated article 4, section 4,
of the Constitution of the United States, which guarantees for the
State a republican form of government; that it violated the fourth
amendment to the Constitution, which secures all persons against
unreasonable searches and seizures of their persons and effects; that
it violated the fifth and seventh amendments in depriving the plain
tiff of property without due process of law, and for a public use with
out just compensation, and also without the right of trial by jury;
and, lastly, that it violated the fourteenth amendment in granting
privileges and immunities and depriving the plaintiff of property
without due process of law, and also depriving him of equal protection
of the laws.
The court recognized that not all these points had been considered
in detail in the case State ex rel. Davis-Smith Co. v. Clausen, but said:
When we say that we sustain*a law by reference to the police power
that might otherwise be in conflict with some provision of the Con
stitution it would seem that every incident to that law, as well as all
methods necessary to make it effective, are likewise exempted from
the prescriptions and limitations of the Constitution. The legis
lature has adopted the idea of industrial insurance and seen fit to
make that idea a workable one by putting its execution, as well as
its administrative features, in the hands of a commission.
The court then cited a number of cases on the subject of the police
power, quoting therefrom to show its development and application
under the conditions:
Having in mind the sovereignty of the State, it would be folly to
define the term. To define is to limit that which in the nature of
things can not be limited and which is rather to be adjusted to con
ditions touching the common welfare when covered by legislative
enactment. The police power is to the public what the law of neces
sity is to the individual. It is comprehended in the maxim, Salus
populi suprema lex. It is not a rule; it is an evolution.
It was further said that “ to hold the idea of industrial insurance
to be constitutional, and to hold its incidents .and machinery when
molded into law to be inoperative because of some constitutional
limitation, would lead to absurd results.” The court then unani
mously upheld the judgment from which the appeal w^as taken,
declaring that the power to provide for the execution and adminis
tration of the law had been sustained in a previous decision (Davison
v. Walla Walla, 52 Wash. 453, 100 Pac. 981, and cases cited); that
the constitutional provision as to the right to a trial by jury has no
application in the State courts or to prosecutions for the violation of
State laws, citing State v. McDowell (61 Wash. 398, 112 Pac. 521),
and that the contention that the industrial insurance law is in viola

POLICE POWER.

105

tion of a republican form of government needs no discussion, citing
Pacific States Telephone & Telegraph Co. v. Oregon (223 U. S. 118,
32 Sup. Ct. 224) and Kiernan v. Portland (223 U. S. 151, 32 Sup. Ct.
231). In the concluding paragraph the court said: “ We recognize
that this case is appealed to this court in order to bring it to the
future attention of the Supreme Court of the United States
and
concluded with citations of the decisions of the various courts sus
taining compensation laws and other decisions bearing on points of
law of like nature.
The Supreme Court of Illinois avoided the issue by declaring that
the compensation law of that State was not an exercise of police
power, but simply offered the parties concerned a method of settle
ment of cases falling within its purview (Deibeikis v. Link-Belt Co.).
The Supreme Court of Rhode Island, on the other hand (Sayles v.
Foley), declared that the law of that State was a warranted exerciso
of the police power, taking modern industrial conditions into con
sideration.
As forecast by the Washington court, the Mountain Timber Co.
appealed its case, and the Supreme Court, in passing on this point,
said :
We are clearly of the opinion that a State, in the exercise of its
power to pass such legislation as reasonably is deemed to be necessary
•to promote the health, safety, and general welfare of its people, may.
regulate the carrying on of industrial occupations that frequently
and inevitably produce personal injuries and disability with conse
quent loss of earning power among the men and women employed,
and, occasionally, loss of life of those who have wives and children
or other relations dependent upon them for support, and may require
that these human losses shall be charged against the industry, either
directly, as is done in the case of the act sustained in New York
Central R. R. Co. v. White, supra, or by publicly administering the
compensation and distributing the cost among the industries affected
by means of a reasonable system of occupation taxes. If any
industry involves so great a human wastage as to leave no fair
profit beyond it, the State is at liberty, in the interest of the safety
and welfare of its people, to prohibit such an industry altogether.
Much that has been said in the discussion under the various head
ings above is in fact determinations of the propriety of the various
provisions as an exercise of the police power; and the frequent
appeal to modern industrial conditions can not escape notice. Indeed,
the New York Court of Appeals acknowledged the cogency of the
economic and equitable reasons for the enactment of a compensa
tion law, while declaring such a statute unconstitutional (Ives v.
South Buffalo Ry Co.). This fact is pointed out by the Supreme
Court of New Hampshire in its statement that the opinion in the
Ives case supports all the provisions of such a law as that enacted
by the New Hampshire Legislature (Wheeler v. Contoocook Mills).

106

W O RK M EN ’ S COMPENSATION LAWS OF THE UNITED STATES.

PARTICULAR PROVISIONS OF THE LAWS.

Besides questions of a more general nature, as the foregoing,
numerous decisions have been made by the courts construing par
ticular phrases and features of the laws, and determining their ap
plication to particular cases. Where industrial commissions and
administrative boards exist, charged with the duty of deciding con
troversies under the acts, rulings, and opinions are formulated, and
these also are available as setting forth the scope and method of the
laws in their practical working. It would be both undesirable and
impractical to attempt a complete survey of this field in the present
bulletin, but inasmuch as the construction of a statute is of no less
vital importance than its terms, some account will here be given of
the action taken by the various courts and administrative bodies
with reference to a number of the specified provisions of the laws.
INJURIES COMPENSATED.

As to the class of injuries compensated, the natural conclusion
from the fact of the enactment of compensation laws to supersede
those governing the employer’s liability would be that only injuries
due to accident are covered by the acts. Indeed, in most of the laws
this is specifically stated, and carefully chosen language is used in
several with the obvious intent of excluding what are commonly
known as occupational diseases and the results of cumulative processes
as distinguished from the immediate results of single accidental
occurrences. In a few jurisdictions, however, only the word f ‘injury ’ ’
or the phrase “ personal injury’ ’ occurs, and in such cases the field
would seem to lie open for the inclusion of any physical disability
occasioned by the nature and conditions of the employment, thus
permitting awards for occupational diseases. The qualifying term
“ accidental” does not appear in the laws of California (as amended,
1915), Connecticut, Massachusetts, Ohio, the Philippine Islands,
Texas, West Virginia, and the Federal statutes of 1908 and 1916. In
Wyoming the definition is obscure, the words “ injury and personal
injury” being declared not to include “ a disease except as it shall
directly result from an injury incurred in the employment.” This
is obviously a definition in the terms of the thing defined, but it
seems probable that the intent was to exclude other than accidental
injuries. This construction is supported by the reports required
when “ an accident occurs causing injury;” also in some degree by
the title of the State fund for insurance, i. e., “ industrial accident
fund.”
Inasmuch, however, as the spirit of the laws undoubtedly suggests
relief for industrial incapacity due to employment, it is difficult to
support the narrower view of sudden and violent injury as a necessary
basis, as against the more inclusive idea of injury due to the working

PARTICULAR PROVISIONS OF THE LAWS.

107

conditions, whether of sudden or gradual development. A few
States have recognized this in their laws, amendments to those of
California, Connecticut, Hawaii, and Wisconsin specifically provid
ing for the compensation of occupational diseases, as do the new
(1916) Federal law and the original (1919) North Dakota law; while
the courts of Massachusetts have construed the law of that State as
including them (but see p. 119).
Accidents.—The term “ accident” can hardly be said to have
any peculiar meaning in laws of this class, but for statistical purposes
the compensation commission of New York defines an industrial
accident as one which causes loss of time from work or which requires
medical aid, and orders that all such accidents be reported. The
laws of some other States make specific limitations by defining the
term as implying that the e^ent is unexpected, unforeseen, happening
suddenly or violently, and producing at the time objective symptoms
of the injury. This strictness has not been uniformly observed by
the courts, however, as regards either violence or objective symptoms.
Whether sunstroke should be classed as an accidental injury has
been considered by the administrative authorities of several States,
the California industrial commission saying that as a general rule
injuries suffered from so-called acts of God, such as sunstroke,
freezing, lightning, wind, etc., are not compensable, since they are
risks which the whole citizenry takes. Circumstances in the instant
cases were held to warrant an award for sunstroke, the workman
having been engaged in removing cement from a warehouse with an
iron roof and no windows, the thermometer standing at 105°.
The Illinois board gave compensation to a laborer digging in a
trench and overcome by heat, stating that a rational and reasonable
conclusion is that the prostration would not have occurred had he
not been so employed. This board took the same view of the case of
a stationary engineer, whose death was reported due to heat prostra
tion, he having worked in a poorly ventilated room, with a tempera
ture of about 120°. The Iowa board ruled in one case that heat
prostration was not an injury within the act, there being no extra
ordinary hazard or exposure to heat on account of the laborer’s
employment; but ruled in another case that “ where the employee
sustains such injury when put to work at a task which peculiarly
exposes him to such injury, he should be paid the compensation
provided for in the act.” The commissioner of labor of Minnesota,
in passing upon this question, reached the conclusion that where heat
stroke or sunstroke is due to the conditions of employment rather
than to physical weakness on the part of the injured person, it is an
accident within the provisions of the compensation law. The indus
trial commission of Ohio awarded compensation for heafprostration
of a roller in an iron-mill, holding that it was an injury within the

108

WORKMEN *S COMPENSATION LAWS OF THE UNITED STATES.

meaning of the act, though it was held that sunstroke, in the absence
of special conditions artificially produced, would not support an
award.
The Pennsylvania board ruled that the physical changes pro
duced in the tissue of the body by an injury of this nature were such
as properly to be classed as violence to its structure; and this view
was sustained by the supreme court of the State (Lane v. Horn &
Hardart Baking Co., 104 Atl. 615). The Supreme Court of Minne
sota likewise (State ex rel. Rau v. District Court of Ramsey County,
164 N. W. 916) awarded compensation in a case of death due to sun
stroke as for “ a violent injury produced by an external power/’
where a workman was employed at street labor, exposed to the
direct rays of the sun, in an atmosphere rendered excessively humid
on account of the sand in the street being wet. The Supreme Court
of Nebraska also allowed compensation where death followed a heat
stroke, the employee in question being engaged in cleaning and oiling
motors in a building of sheet iron with tarred roofing and insufficient
ventilation, while the air was heavy with dust and particles of matter
produced in the manufacture of mattresses, etc. “ A stronger man
might have lived, but it is enough that the industry brought about
this man’s death.” The matter of violence was disregarded, the
unexpected quality of the event being held sufficient to classify it as
an accident within the meaning of the act (Young v. Western Furniture
& Mfg. Co., 164 N. W. 712).
The Supreme Court of Rhode Island affirmed an award for death
from heat exhaustion, against the contention of the employer that
death in such a case was due to disease and not to accident (Walsh
v. River Spinning Co., 103 Atl. 1025). As to the nature of the injury
the court said:
It appears to us that the unusual and excessive heat in the boiler
room, producing the sudden inability of the physical system to
longer resist its debilitating effects, constituted a chain of circum
stances which may fairly be regarded as an unlooked-for mishap not
designed and undoubtedly unexpected.
Against this practically uniform allowance of benefits for an in
jury unquestionably arising out of and in course of employment,
stands the opinion of the Supreme Court of Michigan, which denied
compensation for death from heat prostration on the ground that
there was.no accident. The case was one of a bricklayer who was
prostrated at 4 p. m. of the fourth day of his employment in a boiler
room, dying in less than three hours. The temperature in the room
was said to have been 136°. The State board had made an award
but the court reversed it, saying:
The recofd is absolutely barren of any evidence that anything
untoward or unusual happened in the course of his employment
during any of the three days or that he exerted himself in any un

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109

usual manner or to an unusual degree. He was doing the work
which he and his associates were employed to do exactly in the
manner they expected to do it. To permit recovery in this case
would make it impossible to deny recovery in any case where a
fireman of a stationary or marine boiler in the performance of his
ordinary and accustomed labor succumbs to heat prostration [Roach
v. Kelsey Wheel Co., 167 N. W. 33].
It is a pleasure to record that here, as in theBischoff case (p. 183),
decided by the same court, there was a vigorous, even if futile (so far
as immediate results are concerned), dissent by two judges. In this
it was pointed out that the workman was in the course of his em
ployment, was robust and temperate, and that he fell instantly
upon excessive exertion in moving a heavy load after working in
the extreme heat in which he had been employed.
The minority further insisted that in denying compensation in this
case the court was rejecting its own precedent in a case decided in 1916
(La Veck v. Parke, Davis & Co., 190 Mich. 604, 157 N. W. 72). Jn this
case a workman affected by arterio-sclerosis had suffered a rupture of
a blood vessel in his brain, caused by overexert ion and exposure to
extreme temperature. An award in his favor was affirmed on the
ground that there was an accident, since, though the workman “ in
tended to do the prolonged work which the situation demanded/ ’ the
rupture “ was an unexpected consequence from the continued work
in the excessively warm room.” The majority met this citation with
a bare statement of opinion that the case was riot “ authority for the
determination of the board” in the Roach case.
These two opinions bring to light the difficult and unsettled question
of the extent to which a distinction may be recognized, within the
spirit and purpose of the compensation laws, between accidental
causes and accidental results. What can be looked upon in no other
light than as a border-line case, though of a somewhat different nature
than those under consideration above, is one in which the compensa
tion commission of New York allowed a claim where a man had been
at work for 21 hours, with a total of 1^ hours out for meals, during
which time he was on his feet almost continuously and climbed 216
steps three times. About half an hour after stopping work he was
found sitting dead in a chair. Death was said to be due to angina
pectoris, brought on by overexertion and exhaustion.
But whatever view is taken of the propriety of recognizing a distinc
tion between cause and result, it does not seem in harmon}^ with the
intent of such legislation to permit an employer to operate with immu
nity and at the sole risk of the workman, under conditions and for
periods that produce immediate and demonstrable results, not antici
pated indeed, but following a more or less protracted routine, and at
some unforeseeable moment breaking over the boundary of human
endurance and working disability or death of the exact economic

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effects and under the same general conditions as are contemplated in
the enactment of the laws.
The New York Supreme Court, appellate division, denied benefits in
a case of heat prostration, following the ruling of the industrial com*
mission to the same effect, in a case (Campbell v. Clausen-Flanagan
Brewery, 171 N. Y. Supp. 522), in which a driver was overcome while
out in the open air. The accidental nature of the injury was admitted
but, since the surroundings were only those of the public generall}7,
it was held that it did not arise out of the employment, and was there
fore not compensable under the law.
The rule as to injury by freezing or frostbite would naturally be the
same as for heat prostration. A compensation commissioner of Con
necticut ruled that a collector driving long distances in very cold
weather was exposed to such hazard as to warrant an award for freez
ing followed by erysipelas and death. This was affirmed by the su
preme court of the State (Larke v. Insurance Co., 97 Atl. 320). The
same commissioner, however, denied the claim of a night watchman
who suffered frostbite of a toe while bringing coal from a storage shed
into the boiler room of the establishment. The Massachusetts indus
trial accident board made awards for freezing where outdoor employ
ment led to the exposure of the employees, and the supreme court of the
State affirmed an award in favor of a longshoreman whose hands were
frozen while at work at a wharf, the view being adopted that he was
exposed to materially greater danger of freezing than the ordinary
outdoor worker (in re McManaman, 113 N. E. 287). The industrial
accident board of Montana took a similar position, saying that where
an accident is due to forces of nature which might have been antici
pated or foreseen there must be present some aggravation of the
hazard whereby the workman is more exposed to danger as a result
of his employment than is the ordinary man; but if the employment
entails such unusual degree of exposure there is liability for the
injurious consequences.
So also in a Wisconsin case (Ellingson Lumber Co. v. Industrial
Commission, 169 N. W. 568), the court found that a woodsman was
exposed to the inclemency of the weather by reason of his occupation,
and that frozen feet were the result of an ‘ ‘ accident within the mean
ing of the compensation statute.”
The same principle was applied by the Supreme Court of Minne
sota in a case in which a workman’s thumb was frozen while he was
cutting and handling timber in the snow. It was held on authority
that freezing is a personal injury within the meaning of compen
sation acts, and is an accident in so far as it is an unexpected and un
foreseen event, producing at the time injury to the physical structure
of the body. Whether it also meets the requirement of happening
“ suddenly and violently” was said to be a more difficult question;

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I ll

but the court, one justice dissenting, concluded “ that a fair con
struction of the statutory definition does not exclude freezing, and
we hold that it is a personal injury caused by accident within the
meaning of the act” (State ex rel. Virginia & Rainy Lake Co. v.
District Court of St. Louis County, 164 N. W. 585). Another case
before the same court turned more directly upon the question of
whether or not the injury arose out of the employment, the circum
stances being the employment of a janitor who was working both at
keeping up the fires in a building and cleaning off the sidewalk, the
weather being very cold. The two duties alternated, and the em
ployee could divide his time as he chose. The court below found that
the injury was sustained in the course of his employment, and arose
out of it, but decided that the freezing was not an accident. Subse
quently the supreme court made the ruling as to accidental injury
noted above, and on the appeal in this case held to that ruling,
reversing the court below in this respect, but affirming that the
injury arose out of the employment on account of the nature of the
work in which the employee was engaged, thus clearing the way for
an award in the injured man’s favor (State ex rel. Nelson v. District
Court of Ramsey Co., 164 N. W. 917).
That there was no ground for an award was the opinion of the
commissioner of labor of Minnesota in a case in which there was an
abcess due to ink or metal poisoning where there was no break or
infection due to accident, the commissioner saying that “ if there was
no breach of the surface of the body due to accident and through
which the infection or poisoning takes place, it does not come within
the meaning of the act.” Likewise adverse was the ruling of the
compensation commissioner of West Virginia in a case where a coal
miner was overcome by smoke on account of returning to his work
ing place too soon after the firing of a shot; and the law of this State
was held not to cover the case of a miner suffering from an abraded
bunion infected by the poison of bank water in a mine, though claims
were allowed for ulcerated eyes caused by the splashing of such water
into the eyes of a miner while pulling down coal, and where carbolineum used to preserve the crossarms of a telegraph pole got into
a lineman’s eyes and face, causing abcesses. The compensation board
of Pennsylvania also allowed compensation in a case where a work
man was poisoned by sumac in a skin which he was handling, der
matitis and disability resulting. The board ruled that the injury
was sudden, not a disease and not a secondary result, but due to a
cause proceeding from without and encountered in the course of
service.
Hie condition of a breach of the surface of the body prescribed by
the labor commissioner of Minnesota seems to have been met in a
case passed upon by the industrial commission of Ohio in which an

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W O RK M EN ’ S COMPENSATION LAWS OF THE JNITED STATES.

employee handling goods claimed to have incurred blood poisoning
by scratching her face with her fingers, this being held not to be an
occupational disease, but an accidental injury. That lesion is not re
quired by the industrial commission of California as a basis of awards
appears from favorable rulings in two cases passed upon by that
body, ona being that of a man who appeared to be suffering from
nervous shock due to efforts to rescue fellow workmen from suffo
cation in a septic tank, two having been killed and the superinten
dent nearly so. It was said that the risk of such experiences was
involved in any employment and should be compensated if it direct
ly causes injury. In the other case there was no apparent serious in
jury, but an apparently sincere belief of incapacity, which was held
to entitle the claimant to compensation until the restoration of men
tal balance. As to such cases it must be said that there is an abund
ance of experience to show that a final determination, whether
favorable or adverse to the claimant, is very generally followed by
prompt recovery.
The Supreme Court of Wisconsin sustained an award as for an
accidental injury proximately causing the death of lumbermen where
the death was due to typhoid fever induced by drinking polluted
water furnished for the camp by the employer (Vennen v. New Delfs
Lumber Co., 154 N. W. 640).
A settlement was made under the compensation law of Illinois
on account of the death of 20 employees due to diphtheria and
typhoid fever. These diseases were contracted by drinking pol
luted 'water furnished by the employing company. No contest
against the payments was made by the company, the settlement
being voluntary, according to a statement by one of the members
of the State industrial board. The Illinois act contemplates the
payment of benefits for accidental injuries arising out of and in the
course of employment, the term accidental, according to the con
struction usually adopted, eliminating the ordinary occupational
diseases from the scope of the act. The Supreme Court of Minne
sota took a diverse view from the foregoing in a case involving a
similar infection. The cases are identical in that the employer’s
responsibility was claimed to be due to the quality of the drinking
water supplied by him for his employees; but while the Wisconsin
court awarded benefits, that of Minnesota decided that under the
definition of an accident appearing in the law of that State (i. e.,
“ an unexpected or unforeseen event, happening suddenly and vio
lently, with or without human fault, and producing at the time in
jury to the physical structure of the body” ), the happening in ques
tion could not be construed as an accident. The period required for
the development of the infection afforded the chief ground for hold
ing that the definition excluded the case from compensation (State

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113

ex rel. Faribault Woolen Mills Co. v. District Court of Rice County,
164 N. W. 810). Somewhat similar to the foregoing was the posi
tion taken by a commissioner of the State of Connecticut, who
denied compensation where the cumulative effect of an acid dip used
for four days led to pus formation, the amputation of a finger at the
second joint, and the partial loss of use of another finger, the refusal
being based on the ground that the condition was “ not due to an
injury which can be located in point of time and place."
On like grounds the Supreme Court of Michigan denied the claim
for compensation in a case where there was an infection from an
untraced source, which might have gained access to the system
through cracks in the skin of- the hands due to the nature of the
employment, the court saying that there was no sufficient evidence
of an accident in the course of employment to sustain an award
(Jermer v. Imperial Furniture Co., 166 N. W. 943). But where a
tannery employee suffered an infection of the throat, due, as the
board held, to inhaling dust from dry hides in a work place where
the ventilation was poor, the same court upheld the award on the
ground of an accidental contact with a septic germ or germs, taken
up by the respiratory organs and thus carried into the system -said
to be an unusual occurrence, but one shown by the evidence to be
probable in the case at hand (Dove v. Alpena Hide & Leather Co.,
164 N. W. 253). An award was also approved by this court where
an undertaker’s assistant died from a streptococcus infection after
cleaning his employer’s instruments after the embalming of the
body of a person who had died of such an infection, the employee
having apparently cut himself slightly while cleaning the instru
ments (Bloess v. Dolph, 161 N. W. 885).
Suffocation by the accidental inhalation of illuminating gas at a
gas plant was also held to be a compensable injury under the Michi
gan law (Holnagle v. Lansing Fuel & Gas Co., 166 N. W. 843).
Over against these awards stands a reversal by the same court
of an award made in behalf of a fireman who was wet while fighting
a fire, and remained so for many hours on a winter day. Taken ill
the next morning, his death followed from pneumonia in about two
weeks. The court held that it was no unusal thing for a fireman to
become wet while at work, so ‘ ‘ that pneumonia was brought on, not
by an unexpected event, but by an event which was an incident to
his regular employment,” to be classed “ among the ordinary ones
attending the duties of a fireman, and not as an accident” (Landers
v. City of Muskegon, 163 N. W. 43).
The Supreme Court of Connecticut ruled similarly adversely in
the case of a workman whose exposure was the result of a walk
through deep snow to his place of employment, where he worked for
12 hours in wet clothing. The line of reasoning was different, how1779820— 21— Bull. 272------- 8

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W O RK M EN ’ S COMPENSATION LAWS OF THE UNITED STATES.

ever, for though the combination of weather conditions and pro
longed and exhausting labor may be regarded as the accidental cause
of the exhaustion which was followed by the pneumonia, such exhaus
tion could not be classed as “ in and of itself a bodily injury” within
the meaning of the act (Linnane v. Aetna Brewing Co., 99 Atl. 507).
The circumstances in the Linnane case are not unlike those in a
case under the Indiana statute (United Paper Board v. Lewis, 117
N. E. 276). Here overwork in a hot, steam-filled room was followed
by chills and nephritis developed. This was said to be a personal
injury by accident, and an award in behalf of the workman was
affirmed.
This accords with the action of the Supreme Court of Massachu
setts in allowing compensation in a case in which lobar pneumonia
was found to result from the wetting of the clothing and the inhala
tion of smoke by a fireman—a situation quite comparable to that in
the Landers case above (In re McPhee, 222 Mass. 1, 109 N. E. 633).
The court in this case declared the inhalation of smoke and the
drenching to be a personal injury within the act, the law of the
State not necessitating the finding that it was accidental.
Compensation was allowed in a New York case where the acci
dent itself caused no injury, but was followed by injurious consequen
ces. Disease due to inclement weather conditions was the basis of
the award (Rist v. Larkin & Sangster (1916), 156 N. Y. Supp. 875),
though there was some complication of causes. A heavy cold fol
lowed by pleurisy and pulmonary tuberculosis was attributed to
the accidental necessity of the workman's jumping into a river, where
the jumping itself had no immediate disabling effect, but the wetting
and the subsequent exposure were chargeable with having caused the
disease.
Where a compensable accident originates the train of events
in the course of which serious results follow an apparently slight
physical injury, the question is not of the nature of the injury,
but of proximate cause. This subject is considered more fully
under another head (see pp. 128 to 135).
Construing the act as limited to accidental injuries, the solicitor of
the Department of Commerce and Labor allowed benefits under the
Federal law of 1908 in a case of compressed-air illness, otherwise
known as “ bends” or caisson disease, distinguishing this as a trau
matic disease due to the lesion of tissues on account of the abnormal
atmospheric pressure (Op. Sol., p. 201). This disease, however, is
classed as an occupational disease by the British law and in treatises
on the subject. Other traumatic diseases (i. e., those due to an in
jury or wound,) as in the case of lockjaw or other infection, would
be excluded from the class of occupational diseases as being entirely
unrelated to the nature of the employment. Such diseases if the

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115

sequel of a compensable accident, would, of course, come within the
provisions of all compensation laws.
Tyhoid fever and diphtheria, for which compensation was paid
under the Illinois law, are neither occupational nor traumatic in
their origin, but are idiopathic—i. e., of primary causation—and are
subject to compensation, if at all, either on the basis of being acci
dental injuries, or injuries arising out of employment merely, under
laws not requiring the injury to be accidental.
Hernias as injuries have been the subject not only of much discus
sion by courts and commissions, but special sections have been de
voted to them in some of the more recent statutes. Questions of
preexisting condition and proximate cause are involved, as well as
of the proper treatment to be applied and the right of the employee
to accept or reject the prescribed course of conduct. The industrial
commission of Ohio concludes that “ hernia (or so-called rupture)
is a disease which ordinarly develops gradually, being, very rarely,
the result of an accident.” Rules were therefore adopted to the effect
that where there is real traumatic hernia, resulting from the applica
tion of force directly to the abdominal wall, either puncturing or
tearing the wall, full disability will be allowed; but in all other cases
it will be considered as either congenital or of slow development and
not compensable, being a disease rather than an accidental injury,
unless conclusive proof is offered that the immediate cause which
calls attention to the hernia was such as a sudden effort, severe strain,
or bruise; that the descent of the hernia immediately followed the
cause; that there was severe pain immediately following; and that
the foregoing facts were noticed and communicated immediately
to one or more persons. Where these conditions are fulfilled, com
pensation will be allowed as for the aggravation of previous condi
tions, for a time loss only and to a limited extent.
The Washington commission presented in its first annual report
a tentative decision to award compensation only when it is proved
that the hernia appeared suddenly, that it was accompanied by pain,
that it immediately followed an accident, and that it did not exist
prior thereto. A year later it called attention to the Ohio rules, say
ing, however, that the Ohio commission’s findings are not subject to
review in court, so that it can settle hernia cases on their merits from
a medical standpoint, not being confronted by the legal side of
the question. A case rejected by the Washington commission came
to the supreme court of the State, and a claim was there allowed, the
court holding the injury complained of to be the result of a “ fortui
tous event” within the meaning of the law, saying that “ to hold
with the commission that if a machine breaks, any resulting injury is
within the act, but if the man breaks, any resulting injury is not
within the act, is too refined to come within the policy of the act as

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w o k k m e n ’ s c o m p e n s a t io n l a w s o f t h e u n it e d s t a t e s .

announced by the legislature. * * * It must admit that the
tearing of the muscles or the rupture of fibers, or whatever it is that
causes hernia, while exercising unusual effort, is likewise covered
by the act” (Zappala v. Industrial Insurance Commission, 144
Pac. 54).
It is apparent that the matter of the “ tearing of the muscles or the
rupture of the fibers” was rather vaguely assumed by the court as
the explanation of the condition made the ground for a claim; while
a compensation commissioner of the State of Connecticut, in an ex
tensive memorandum, quotes medical authorities in accord with the
statements of the Ohio commission, one of them saying that “ local
trauma, which has long been accorded by the laity an important place
in the etiology of hernia, practically very rarel}7 is the cause.” The
commissioner, however, awarded compensation in a limited form to
the claimant in the case in hand, requiring him to submit within four
weeks to proper surgical treatment.
The industrial accident board of Michigan likewise has furnished
a pretty full discussion of the question, concluding in favor of the
accident theory, if it may be so designated, saying:
We do not overlook the medical evidence introduced at the hearing
to the effect that hernia should be classed as an accident only in a few
rare cases. We think the weight of authority in workmen’s compensa
tion cases is clearly against such theory, and that the general rule
established in the adjudicated cases and the textbooks is otherwise.
The award of the committee in the case under consideration was
approved by the board. That this is the conclusion of the supreme
court of the State appears from its decision in a case (Bell v. HayesIoniaCo., 158 N. W. 179) in which an award of theboard was affirmed,
even though there was evidence that there had been structural weak
ness prior to the event to which the injury was traced: the court saying
that this would not “ preclude a recovery if the injury itse f is dis
tinct and the result of a particular strain causing a sudden protrusion
of the intestine.” This case was decided largely on the authority of an
earlier case (Robbins v. Original Gas Engine Co., 157 N. W. 437), in
which the view that hernia is a disease was discussed. It was said by
the court that it would be assumed from the evidence that the strain
to which the condition of the claimant was traced was the occasion
of the first protrusion of the sac through the abdominal wall, and if it
was also assumed that there was a certain lack of physical integrity of
the parts, still compensation might be allowed for the injury, and that
not on the basis of disease, but of accidental injury.
It would seem, however, that the Michigan Supreme Court has here
again assumed a more conservative attitude, as was done in the Roach
case (p. 108), since in a more recent case (Tackles v. Bryant & Detwiler
Co. (1918), 167 N. W. 36) compensation was denied where an inguinal

PARTICULAR PROVISIONS OF THE LAWS.

117

rupture developed, following the lifting of a heavy timber, at which
time a severe pain was felt, and the hernia was found to be developed,
but as <4he did not slip nor fall, nor did the timber strike him,” it was
concluded there was no accident. Nothing out of the ordinary hap
pened, “ because he had lifted such timbers before,” so that there was
evidently no “ accidental injury within the meaning of the act.” Evi
dently the doctrine of accidental result as accident is rejected by this
court quite uniformly.
The Appellate Court of Indiana, on the other hand, affirmed an
award made by the industrial board of the State, when'a man suffer
ing from hernial trouble had his condition so aggravated by heavy
lifting as to necessitate an immediate operation. The mere fact of
his susceptibility was said to afford no grounds for denying benefits,
even though in some jurisdictions there was a restricted use of the
word “ accident” that would preclude the award; “ but the weight
of authority and the better reason, we think, favor the adoption of
the popular meaning of said word, which includes any unlooked-for
mishap or untoward event not expected or designed.’ ” (Puritan
Bed Spring Co. v. Wolfe, 120 N. E. 417).
The industrial commission of Wisconsin, in passing on a case
before it, said:
This is another case where a man who suddenly discovers that he
has hernia concludes that it must have resulted from some fall or
strain, and immediately recalls to his mind some recent incident
which not only seems to him to constitute a sufficient cause, but
which he honestly brings himself to believe did cause it. At best,
such an incident constitutes nothing more than a mere possible cause.
Except such incident was particularly violent or was followed imme
diately by severe pain, it can not, with an}7 degree of certainty, be
said to be a probable cause. In this case, a hernia on each side, an
insignificant accident or strain given as the cause does not argue
much.
The application was accordingly dismissed. Similar was the
position of the Massachusetts board in a case in which the claimant
testified to injury by heavy lifting, the impartial physician testifying:
The hernia could have been caused by his work. But every hernia
is related to and is caused by strain, and if the board authorizes
compensation for this hernia, it must require some employer hereafter
to pay for every hernia that arises in any employee. Hernia, to be
caused by some specific accident, can only follow a physical effort of
tremendous and unusual violence.
The finding of the board was adverse to the claimant.
The Supreme Court of West Virginia, on the other hand, takes the
view of that of Washington and of the Michigan board, and specifi
cally rejects the position of the Washington commission, reversing
also the public service commission of its own State, allowing a claim

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attributed to heavy lifting, and holding hernia to be an accident
within the meaning of the law of the State (Poccardi v. Public Service
Commission, 84 S. E. 242). The Minnesota department of labor
and industries took a similar position, offering as a typical decision
and award the case of Rakovich v. Agnew Bros, decided by a county
court, in which a rupture was held compensable as an injury under
the act, with an award also for medical and hospital expenses covering
the costs of an operation.
It would seem therefore still to be a matter for medical definition
and legislative determination, since the courts are so ^unable to agree.
Whether or not the true cause of hernia can in any case be found in
the strain of extraordinary effort, the fact remains that a previously
capable workman is frequently found to be disqualified for further
labor as the result of such strain; while there are admitted, even if
rare, instances of genuine traumatic hernia. In either case there is
a disabling injury arising out of and in course of the employment;
and it would seem to be more in accordance with the fundamental
principles of compensation legislation that it should be a charge on
the industry than on the worker alone.
An entirely different phase of the term “ accident” is presented
when an intentional assault is committed on an employee, several such
cases being noted under the head, “ Arising out of and in course of
employment ” (pp. 170 to 188). An opinion on this point is that of the
Supreme Court of California (Western Metal Supply Co. v. Pillsbury,
156 Pac. 491), in which a night watchman was shot by a burglar,
the court ruling that as to the injured man there was an accident,
even though there was intention on the part of the person inflicting
it, citing Western Indemnity Co. v. Pillsbury (p. 177), where a fore
man was assaulted by a discharged workman. The statute of Wash
ington, as construed by the supreme court of that State (Stertz v.
Industrial Insurance Commission, 158 Pac. 256), does not require
that the injury arise out of the employment, so that a man shot by a
discharged workman is within the protection of the act in any case
if on the employer’s premises, and if in course of employment when
off the premises.
Occupational diseases.—As already noted, the Federal act of 1908
provided for compensation for employees injured in the course of
employment without the restricting words “ by accident.” However,
the Attorney General of the United States said of this act that “ there
is nothing either in the language of the act or its legislative history
which justifies the view that the statute was intended to cover disease
contracted in the course of employment, although directly attributa
ble to the conditions thereof. On the contrary, it appears that the
statute was intended to apply to injuries of an accidental nature
resulting from employment in hazardous occupations, not to the

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119

effects of disease. * * * The word 1injury/ as used in the statute,
is in no sense suggestive of disease, nor has it ordinarily any such
signification.” The language and intent of this statute had been pre
viously construed by the Solicitor of the Department of Commerce
and Labor in the same way, a case of lead poisoning incurred from
employment being held not covered by it.
It may be noted here that the later rulings by the Solicitor of the
Department of Labor, construing the same Federal statute, approved
claims for disability due to lead poisoning, distinguishing such cases
from the one in which the Attorney General used the language above
quoted, the disease in that instance being pneumonia contracted in
the course of employment. In construing the law to include cases of
lead poisoning and the like, the solicitor said:
It is, in fact, difficult to find any good, substantial reason why
Congress should have desired to make a discrimination as to the man
ner in which the incapacity arose. The intention was clearly to
provide compensation for loss of time caused by incapacity arising
from the employment in a similar manner to which the States and
United States “ are requiring private employers to respond, so that
all injuries shall be compensated for out of the business or industry
in which sustained instead of requiring the employee to bear this
burden.”
Attention has already been called to the fact that there is apparent
in legislation something of a tendency in favor of the inclusion of
occupational diseases as entitled to consideration in a system under
taking to provide against the untoward consequences of industrial
activities. The United States employees’ compensation act of 1916
authorizes compensation “ for the disability or death of an employee
resulting from a personal injury sustained while in the performance of
his duty,” excluding cases of willful misconduct, etc. The com
mission administering the law took the view that the term “ personal
injury” as used in the act covers “ not only accidents as ordinarily
defined, but also any bodily injury or disease due to the performance
of duties and causing incapacity for work,” citing as precedents the
interpretation of the act of 1908 by the Solicitor of the Department
of Labor and of the Massachusetts industrial accident board and
Supreme Court. Compensation has been allowed by this commis
sion, in pursuance of this construction, in cases of lead poisoning,
dermatitis from fulminate of mercury, dermatitis from machine oil,
injuries from a variety of corrosive and poisonous substances, typhoid
and malarial fevers, rheumatism due to the dampness of the dirt
floor on which the employee was compelled to stand, apoplexy due to
overexertion in a position involving unusual strain, etc. A number
of claims where similar diseases were under consideration were re
jected on account of the failure to establish a causal connection.

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As above noted, the amendment of 1915 did away with the neces
sity of making proof of injury “ by accident” under the California
law; but in passing upon an injury antedating this amendment, it was
held that loss of sight due to poisoning by wood alcohol was com
pensable (Fidelity & Casualty Co. v. Industrial Commission (1918),
171 Pac. 429); and the industrial commission of the State awarded
benefits in the case of a traffic policeman who developed flat feet or
broken arches as a result of constant standing on the hard pavement,
classing this as an injury due to the nature of the employment. The
new act of 1917 formally includes diseases “ arising out of the em
ployment. ”
The Supreme Court of Errors of Connecticut construed the law
of that State as not covering occupational diseases, reversing an
award by one of the compensation commissioners in a case of lead
poisoning (Miller v. American Steel & Wire Co., 97 Atl. 345).
There was a dissenting opinion, in which was pointed out the fact
that the majority, by “ judicial construction, ascertains that the term
1personal injury7 includes only injuries arising through accident,
while I [the dissenting judge], by judicial construction, find the same
term to include all injuries, whether arising from accident or disease.”
The commissioner for the fifth district of that State allowed com
pensation for incapacity from an injury to a plumber caused by
working in a kneeling position for a considerable time, the result
being what is commonly known as “ housemaid’s knee.” The account
of the ruling at hand does not designate the disability as one due to
occupational disease, though it comes within that definition accord
ing to British law, the award being made on the basis that “ there
was a direct causal connection between the employment and the re
sulting injury.” A committee of arbitration considered another case
in the same State in which claim was made for occupational neurosis
attributed to the jarring of the arm of a workman using a pneumatic
chipping machine, and while the statement was not made directly, it
is inferable that if the facts had been found to support the claim,
there would have been an award. As it was, apoplectic strokes were
held to be the cause of the weakness, and as these were not due to
the employment, no compensation was allowed. The law of the
State was amended in 1919 so as to include diseases “ peculiar to the
occupation.”
Under the Massachusetts law the meaning of the term “ personal
injury” without the qualifying jvords “ by accident” was held by the
supreme judicial court of that State to so broaden the law as to war
rant the inclusion of occupational diseases, awards being made in the
case of a claim by an employee suffering from lead poisoning (John
son v. London Guarantee & Accident Co., 104 N. E. 725); and one
based on blindness induced by the inhaling of poisonous gases at a

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121

kiln or furnace (In re Hurle, 104 N. E. 336). The court held that
personal injuries as contemplated by the act are not restricted to
those caused by external violence or physical force, but that the
phrase covers bodily harm caused by the conditions of employment.
Under the same law a committee of arbitration awarded benefits in
the case of a claim based on illness said to be due to the severe shak
ing of the floor on which the workman sat while at work, the referee
physician reporting the case as one of “ occupation neurosis due to
continual vibration” ; but the supreme court of the State reversed
an award for neurosis caused by a bad posture of a cigarmaker
while at his work, saying that nothing appeared to show a necessary
connection between the work and the posture, so that the induced
neurosis could not be regarded as an injury arising out of the em
ployment (In re Maggalet, 225 Mass. 57, 116 N. E. 972).
Quite similar to the circumstances in the Maggalet case are those in
a case (PimentaFs case, 127 N. E. 424), in which a somewhat de
formed cigar worker was unable to sit evenly and squarely on account
of a bodily deformity. He developed a condition of neuralgic pain,
which the court found as a “ reasonable inference” to be “ not due to
his occupation, but was rather the result of faulty posture brought
about by long and laborious work. ” The case was held not to be one
of disease. “ Pain is not disease, nor is disease resulting in pain a
personal injury.”
In the Johnson case, above, the same judge wrote the opinion as in
the Pimental case, saying in the earlier case that “ it is clear that
‘personal injury’ under our act includes any injury or disease which
arises out of and in the course of the employment, which causes in
capacity for work and thereby impairs the ability of the employee
for earning wages.” It is the more surprising therefore to read in the
later case:
“ If it could be held that the employee was suffering from an occu
pational disease, still the workmen’s compensation act does not in
terms include disease. It can not be held to cover disease contracted
by employees in the course of and arising out of their employment.”
It can not only be said that this statement is in exact contradiction
of the language used by this judge in the Johnson case (which is said
to be “ not an authority in favor of the contention of the employee
in the case at bar” ), but it is also out of harmony with the very
desirable trend toward broad and adequate coverage for industrial
disabilities. The statement is not required as a basis for the decision
reached in the Pimental case, and the hope may be entertained that
on further consideration it will be regarded as obiter, and the forwardlooking attitude of the earlier Massachusetts cases be continued.
Lead poisoning is so typically a disease of occupation that the
attitude of a court or commission on a case of this malady is deter

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minative of the construction of the local law on the entire sub
ject; so that the ruling of the commissioner of industries of Ver
mont that lead poisoning is not compensable under the law of that
State (Bennett case, 1918) must be taken as a guide for the inter
pretation of the law in that field. It was said that, though the injury
arose out of and in the course of employment, it was not accidental,
and therefore not within the act. The Superior Court of Rhode
Island based its judgment somewhat differently, though with the
same practical result, when it denied a claim for compensation for
neuritis developed in the hand of a workman engaged in punching
holes in rubber balls, subjecting his hand to great strain, and fur
thermore receiving a wrench by the accidental twisting of a ball in
a specific instance, the claim being overruled simply on the ground
that it was for an occupational disease, and was for that reason not
within the act.
The law of Michigan in its body uses the same phraseology as that
of Massachusetts, and the industrial accident board of the State held
that the language was broad enough to include cases of occupational
disease, the particular instance being one of lead poisoning. The
supreme court of the State .took the opposite view, construing the
compensation act as a substitute for the old liability laws only, pro
viding relief in cases of accidental injuries, and not embracing new
fields. It was further held that the title of the act, which indicated
its purpose to provide “ compensation for accidental injury or death,”
was sufficiently restrictive to exclude occupational diseases not due to
accident (Adams v. Acme White Lead & Color Works, 148 N. W.
485).
The Ohio statute, while not containing the word “ accident,” has
been construed by the industrial commission of the State to be re
stricted in its application to injuries other than those which can be
classed as diseases. It was admitted that the word “ injury” might
be so construed as to include every kind of disability, whether due to
accident or not, “ but if the word is to be taken in its ordinary and
popular sense, then the applicant is not entitled to compensation, for
by the term ‘injury' is generally understood some sudden and un
expected event inflicting bodily harm and resulting in a period of
disability.” The fact that the constitution of the State had just been
amended so as to specifically authorize compensation for occupational
diseases was also referred to as supporting the construction. A case
of lead poisoning incurred in factory processes thus decided adversely
to the claimant by the industrial accident commission was reversed
by the trial court, and compensation awarded. This case reached
the supreme court of the State, however, and the award of the com
mission denying compensation was approved, practically for the
reasons assigned by the commission (Industrial Commission v. Brown,

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123

110 N. E. 744). However, when a laborer died from poisoning by
fumes given off by paint being heated in a closed room, preparatory
to its use on a cold day, the court ruled that this was a death by misadventure and not from a disease incident to the occupation and
“ developed in the usual and ordinary manner by reason of and
because of the occupation.” The rule against occupational diseases
did not apply, therefore, and an award by the commission was
affirmed (Industrial Commission v. Roth, 120 N. E. 172). What was
said to be a border-line case was approved by a judge in a Minnesota
case, where tin poisoning developed so suddenly and under such cir
cumstances as to “ conform to the requirements of an accident,”
and was compensated (Meisel case, 1919), and the Supreme Court
of New York allowed a claim where a workman was disabled by rea
son of the poisonous fumes and gases which were allowed to accumu
late in his working place, the injury being classed as accidental
(Naud v. King Sewing Machine Co., 159 N. Y. Supp. 910).
In Texa*, though the word accident does not appear, the court
held that the law relates to accidental injuries. However, the dis
tinction w^as between accidental and intentional injury, and not
between accident and disease (Middleton v. Texas Power & Light
Co., 185 S. W. 556). No decisions or rulings have come to hand
relative to the construction of the law of West Virginia as to this
point. In Colorado a dishwasher complained of a rash caused by
sal soda used in the dishwater, claiming compensation therefor. The
State industrial commission held that the disability was not due to
accident, as is required by the statute, but was an occupational dis
ease and not compensable. In Illinois injuries that might be classed
as diseases were admitted under the act, one case being that of a
punch pressman who after three days’ work found his arm numb
from constant vibration, with acute pain, necessitating cessation of
work. The diagnosis was traumatic peripheral neuritis, resulting in
practical loss of the use of the right arm. An award was made over
the contention that there was no accidental injury within the mean
ing of the compensation act. So also in the case of an employee
working on an inside pipe at a pumping station within from 1 to 5
feet of a gas flame. There was imperfect combustion, and death
followed within 24 hours after a collapse, an autopsy and analysis
of the blood showing cerebral hemorrhage caused by gas poisoning,
due to the inhalation of the unburned particles of gas. The indus
trial board took as its definition of an accident, “ an untoward event
which is not expected or designed,” and ruled that there was a causal
connection between the conditions of employment and the resulting
injury warranting the award.
A later Illinois case that reached the supreme court of the State
(Mattheisen & Hegeler Zinc Co. v. Industrial Board, 120 N. E. 249)

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involved a claim for death due to inhaling fumes given off by oxide
of zinc in a smelter. The poison was said to have accumulated dur
ing a long period, with a fatal climax. An award in favor of the claim
ant was affirmed, the court saying that “ the word ‘ accident’ is not
a technical legal term with a clearly defined meaning, and no legal
definition has ever been given which has been found both exact and
comprehensive as applied to all circumstances.” It was said that
the statute was “ meant to include every injury suffered in the course
of employment for which there was an existing right of action at
the time the act was passed; also, to extend the liability of the em
ployer to make compensation for injuries for which he was not
previously liable and to limit such compensation” ; and if there is
“ a definite time, place, and cause, and the injury occurs in the course
of the employment, the injury is accidental within the meaning of
the act.” The company claimed that in 50 years they had never
had a case of either sickness or death from such poisoning, but also
denied liability for compensation on the ground of the death being
due to an occupational disease. The court ruled that there was no
evidence to prove that the poisoning was a disease incident to the
occupation, and the award was affirmed.
The industrial board of Indiana awarded compensation to a work
man who suffered from an eruption and sores on his hands, follow
ing the use of the same gloves for four days, without cleaning, while
handling TNT powder, for which work fresh gloves had custom
arily been supplied daily.
A New Jersey case quite similar to that of the dishwasher in Colo
rado is one that was passed upon by the New Jersey Supreme Court,
where claim was made for an eczema probably due to acid used in a
bleachery. This was held not to be an injury by accident, since no
specific time or occasion of its occurrence could be pointed out
(Liondale Bleach, Dye & Paint Works v. Riker, 89 Atl. 929). The
industrial commission of Wisconsin in November, 1913, and Decem
ber, 1914, had before it cases in which claims were made for disability
from lead poisoning. In the earlier case it is said that “ lead poison
ing is an occupational disease and is not contemplated within the
provisions of the act, except such as might follow so quickly and
proximately from some specific condition in the employer’s business
that it could be included within the meaning of the word 1accident ’
as used in the law.” In the other case it was said that if the poison
ing was due to the inhaling of lead it must have been through a
considerable period of time, “ which in its culminative effect resulted
in an occupational disease, which is not an injury within the meaning
of the act.” An amendment of 1919 includes occupational diseases.
The Pennsylvania law limits its benefits to injuries due to “ vio
lence to the physical structure of the body.” Claims were presented
in a case of anthrax without evidence of any wound or cut, and in

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125

one of palsied wrist caused by inhaling acid fumes, the industrial
board holding in both cases that the act did not extend to such
injuries. However, compensation was allowed where the claimant
was made sick from inhaling fumes caused by an explosion in the
workroom, the board holding that such “ involuntary inhalation of
gas is an accidental injury” (Baith case, 1917); and the supreme
court of the State affirmed an award in the case of a wool sorter who
became inoculated with anthrax through an abrasion on his neck
(McCauley v. Imperial Woolen Co., 104 Atl., 617). The court pointed
out that though occupational diseases are not within the act, there
was in the contact with the anthrax germ a fortuitous happening,
determinable in time and effect, and of the nature of an accident
within the meaning of the act.
The Supreme Court of New York, appellate division, took identical
grounds in a similar case, the germ gaining access to the system
through a crack in the back of the workman’s hand. The injury
was said to be due to an attack “ made unexpectedly by a concealed
disease germ” (Hiers v. John A. Hall & Co., 164 N. Y. Supp. 767).
The same court affirmed an award in a somewhat later decision
(Eldridge v. Endicott, Johnson & Co., 177 N. Y. Supp. 863), in which
the case of a man dying from anthrax was considered. In the Hiers
case it was at least presumable that the crack in the hand was the
result of the conditions of the employment; but in the Eldridge case
it was admitted that the germ gained access to the system through
a slight cut inflicted by a barber on the day prior to the development
of the disease. In affirming the award as for an accidental injury
arising out of and in course of the employment, the court cited as
authority a recent decision of the court of appeals of the State (Horrigan v. Post-Standard Co., 224 N. Y. 620, 121 N. E. 872). In this
case a workman had cut his finger while at home, the cut evidently
becoming infected while he was at work the next day by contact
with filth, blood poisoning and death following. This case was dis
posed of in a memorandum decision, the ruling being merely that
the poisoning was the result of the work in which he was employed
rather than of the cut received at home. However, the court of
appeals reversed the decision in the Eldridge case, and remanded it
to the industrial commission for rehearing, on the ground that there
was no evidence that the anthrax was contracted from the hides
handled (126 N. E. 254). It was said that the commission was not
authorized to take judicial knowledge of the presence of anthrax
germs in the hides, some evidence at least being necessary.23
Disfigurement.—Injuries disfiguring but not disabling the recipient
raise questions under laws whose intent is economic and not to make
good suffering or injuries not interfering with industrial opportunity.
23 Chapter 538, Acts of 1920, extends the law to cover anthrax and 22 other enumerated “ occupational
diseases.”

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W O RK M EN ’ S COMPENSATION LAWS OF THE UNITED STATES.

However, it must be recognized that disfigurements of certain kinds
are a pronounced hindrance to employment, and particularly in cer
tain lines of employment, and specific provision is made for their com
pensation in the laws of some States.
The industrial board of Illinois made allowances in cases where,
even though there was no wage loss immediately effected, it was
probable that the disfigurement was sufficient to affect the earning
capacity or opportunity for employment in another occupation; but
in a case where scars on the head would not be seen unless the hair
was cut very short, it was ruled that no award was warranted. The
statute provides for such awards where no claim is made for perma
nent partial or total disability. An award for disfigurement that
also took account of “ other disabilities” was therefore reversed by
the supreme court of the State, and new proceedings were directed,
to follow the terms of the act in excluding the idea of a permanent
partial disability, if compensation for disfigurement was in issue
(Stubbs v. Industrial Board, 117 N. E. 419).
In an Oklahoma case (Adams v. Iten Biscuit Co., 162 Pac. 938) the
claimant suffered permanent injuries and also serious disfigurement.
It was urged that the compensation law was inadequate, and that at
least a right of action for the disfigurement should be had. The
court ruled to the contrary, holding that it was the legislative intent
to provide by the act for all accidental injuries, and not to divide
them up, and that the compensation provided by the act was intended
to be exclusive.
A contrary view to the foregoing was taken in a Louisiana case, in
which a woman lost her scalp (Boyer v. Crescent Paper Box Factory,
78 So. 596). Here the temporary total disability for which the law
provided compensation was said to be less of an injury than that
sustained which was not a disability affecting earning power. The
law was therefore said not to cover such a case, and a judgment for
damages was affirmed.
The Iowa statute was construed by the compensation commissioner
of the State to give compensation only in cases of actual disability,
and no claim was allowed in the instant case. It was said, however,
that no decision was made on the question of a disfigurement which
would prevent the obtaining of any employment. Rulings covering
the loss of an ear are on hand from three sources, the industrial
accident board of Michigan and the labor commissioner of Minne
sota making allowances for the mutilation, while the New York
Supreme Court, appellate division, ruled that such an injury was
neither enumerated in the schedules of the law nor did it cause dis
ability, so that no compensation could be awarded for it. It was
said, however, that the right to sue for such an injury was not affected
by the statute, it not being included under it, so that an action at

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127

common law would lie (Shinnick v. Clover Farms Co., 154 N. Y.
Supp. 423). The supreme court of the State in special term in a
later case (Connors v. Semet-Solvay Co., 159 N. Y. Supp. 431)
rejected this view and allowed compensation for burns causing dis
figurement and pain, saying that no recovery could be had apart
from the compensation act, holding that the compensation law covers
all points of the employer’s liability, and citing the court of appeals
of the State (Jensen v. S. P. Co.) as authority.
An amendment of 1916 to the law of New York authorizes the
industrial commission, in its discretion, to allow awards in cases
of serious facial or head disfigurement, and fixes a maximum. The
court of appeals of the State recently affirmed an award in behalf
of a woman whose scalp and face were torn by the catching of her
hair on a revolving shaft, saying that the amendment in question
had so far modified the original basis of the law, which was to com
pensate for disability to work. There was no award for loss of earn
ing power, that not being ascertainable at the time, and the question
was held open. It was held that concurrent awards might be made,
one for loss of earning power and one for the facial or head dis
figurement, but that it should be clear that the latter did not include
any allowance for the former; and as this appeared to have been
safeguarded in the instant case, it was held that the award should
stand (Erickson v. Preuss, 119 N. E. 555); and in a quite similar case
the same court affirmed an award on the ground that disfigurements
had a tendency to impair earning power (Sweeting v. American Knife
Co., 123 N. E. 82), asserting also that the statute would stand even
though the facial disfigurement were unrelated to loss of earnings.
The constitutionalty of this provision of the law was sustained
in a case that reached the Supreme Court of the United States (New
York Central R. Co. v. Blanc, 40 Sup. Ct. 44). It was contended
that only impairment of earning capacity warranted a compulsory
payment of compensation, and that the “ disfigurement clause” of
the act was arbitrary and oppressive, violating the constitutional
rule as to due process of law. The court ruled that earning power
might be reduced by other than mere reasons of capacity; nor could
it concede that impairment of earning power is the sole ground for
compulsory compensation to injured workers. The amendment was
therefore upheld and the judgments upholding awards affirmed.
The doctrine expressed in this opinion finds application in the case
of other injuries, not necessarily impairing earning power, but unde
niably constituting physical injuries. Conflicting opinions in two
such cases are found in a New Jersey case (Hercules Powder Co. v.
Morris County Court of Common Pleas, 107 Atl. 433), and one de
cided by the Appellate Court of Indiana (Centlivre Beverage Co.
v. Ross, 125 N. E. 220). Both cases involved the loss of a testicle

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COMPENSATION LAWS OF THE UNITED STATES.

as the result of accidental injury. The Supreme Court of New
Jersey ruled that the law did not limit benefits to cases of loss of
earning power, but that the injured man might properly be com
pensated for a “ permanent impairment of his physical entity,” such
as was suffered in the case at hand. The Indiana court, on the other
hand, reversed an award made by the industrial board, saying that
the injury was not one specified by the act, nor was it one likely to
‘ ‘impair the future usefulness of the employee." It was held that
loss of earning power was the sole basis for compensation, in contrast
with the two opinions last cited.
Accidental injury as proximate cause.—The cases that arise under
this head are complicated by the fact that a prior existing condition
or a subsequent intervening event appears to modify the normal con
sequences of the conditions involved in the industry and the accidents
that may result therefrom. Where the laws are construed as apply
ing only to cases of accidental injury, using that term in its customary
significance, there is great difficulty in determining the proximate
cause of the physical conditions for which claims are submitted—
i. e., whether or not the causal connection between the condition and
the alleged happening back of it is such as to support a claim. It
is a common rule that where, on account of preexisting conditions, as
of varicose veins, hardening of arteries, or incipient or latent tubercular, cancerous, etc., conditions, the employee is peculiarly liable to
serious results from comparatively slight injuries, ‘ ‘the employer takes
his employee subject to the physical condition he is in at the time
he enters the employment";24 and even though the injury was in
reality but an aggravation of existing conditions, compensation must
be paid where the injury actually caused the disability of a person
otherwise able to continue in employment. This rule is followed by
the California industrial commission, but in a case in which recovery
from ulceration and varicose veins was prolonged by reason of a
previous ulceration which had destroyed the true skin and left only
a scar tissue of slow-healing capacity, the period of compensation was
restricted to an estimated period ordinarily required for recovery
from varicose ulceration. The Ohio industrial commission allowed
full benefits for the death of a man who was predisposed to apoplexy,
a stroke having been induced by overexertion in the course of his
employment. A ruling by the Massachusetts board on review
awarded total-incapacity benefits in the case of a man to whom an
injury had caused aggravation of an old arthritis of the spine, re
covery from the injury being interfered with by habits of regular
drinking which affected ‘ ‘circulation, heart, blood vessels, liver, and
kidneys. It will be a tremendously long time before such a spine
becomes normal. The accident is responsible for taking two or
*< Decisions, Industrial Accident Commission of California, vol. 2, p. 525.

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129

three years out of the man.” The same board, however, determined
that the general physical condition of another employee would have
incapacitated him in any event within approximately one year after
the date of the injury which effected his disability, and payments
were limited to that period; and a Minnesota county court decided
that the condition of a miner’s eye was such prior to the injury that
it would have become useless in 67 weeks, so that compensation
should be limited to the period thus fixed, where the injury resulted
in the blindness of the affected eye (Pintar v. Morton Mining Co.).
This corresponds to the action of one of the compensation commis
sioners of Connecticut in estimating the period of probable capacity
to remain at work of an injured man who was afflicted with a pro
gressive disease at eight weeks beyond the date of his injury, limiting
the award for compensation to that period.
It seems impossible to reconcile these rulings with another ruling of
the Massachusetts accident board in which compensation for the full
term was awarded a widow for the death of her husband from apo
plexy following heavy lifting. It was found that the man had pre
viously suffered from advanced arteriosclerosis, Bright’s disease, and
heart trouble, and “ probably would not have lived a year if he had
not been injured.” In making this ruling, however, the board cited
two decisions of the supreme court (In re Fisher, 108 N. E. 361, and
In re Brightman, 107 N. E. 527), in both of which the statutory
allowance was made for the death of employees who v^ere affected
by weakness of the heart and succumbed after exertion which would
probably not have produced any serious results in the case of a
person in normal physical condition. That this is definitely the posi
tion of the Massachusetts Supreme Court appears from the follow
ing, quoted from a later opinion handed down by it (In re Madden,
111 N. E. 379):
There is nothing said in the act about the protection being confined
to the health^ employee. The previous condition of health is of no
consequence in determining the amount of relief to be afforded. It
is the injury arising out of the employment and not out of disease
for which compensation is to be made. Yet it is the hazard of the
employment acting upon the particular employee in his condition
of health, and not what the hazard would be if acting upon a healthy
employee or upon the average employee. All who rightly are de~
scribable as employees come within the act.
This rule was also applied in a case, Crowley v. City of Lowell,
111 N. E. 786, in which' an accident to a man having dormant
syphilis resulted in insanity.
The industrial commissioner of Iowa, in discussing a case in which
there was a syphilitic condition which presumably doubled the
period of disability, ruled that there was nothing found in the law
which justified taking this difference into consideration, saying:
177982°—21—Bull. 272------9

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w o r k m e n ’ s COMPENSATION LAWS OP THE UNITED STATES.

It is my opinion that in Iowa compensation must be paid for the
entire period of disability and that you should not take into consid
eration the physical defects.25
The Supreme Court of Michigan took the same view as that ex
pressed by the Iowa court in a case (Hills v. Oval Wood Dish Co.,
158 N. W. 214) involving similar conditions. It was said that, as
suming that the disability was in fact prolonged by the disease, there
was yet no point at which it could be said that the consequences of
the injury ceased to operate, the claim being indeed that the conse
quences of the injury were prolonged rather than that they ceased to
have effect. “ There is no part of the period of disability that would
have happened, or would have continued, except for the injurj.”
Compensation was therefore to be continued during the whole term
of disability.
The Supreme Court of Louisiana took the same position where a
latent case of locomotor ataxia was developed by an injury, though
there was “ no doubt” that the plaintiff’s physical disability resulting
from the accident “ is worse than it would be if he had not been
diseased” (Behan v. John B. Honor Co., 78 So. 589); and the
Appellate Court of Indiana affirmed an award for death from a
ruptured aorta caused by a strain, although it was evident that the
aorta was in such a diseased condition that death would eventually
55 The provisions of the laws vary in regard to any limitation in this field, but they generally undertake
to exclude diseases not the result of injuries in the employment, the law of Kentucky excluding also “ the
results of a preexisting disease.”
An obvious necessity for safeguarding the situation in this respect is the examination of applicants for
employment, and it has been suggested that this duty be performed by the State so as to enable such dis
tribution or employment of impaired workmen as will best avoid their being entirely deprived of oppor
tunity for self-support. The industrial commission of Ohio has a special bulletin on this subject (Physical
Examination of Wage Earners in Ohio, 1915), giving an account of results of examinations of applicants
and employees in establishments employing some 68,000 persons. An Executive order of President Taft,
date of Dec. 7, 1912, covering “ all artisan and supervisory artisan positions under the jurisdiction of the
Department of the Navy” under the competitive classified service, contains the following:
“ No artisan or supervisory artisan whose position is included in the classified service by this order shall
be classified unless he has established his capacity for efficient service or has been examined and found
qualified by the labor board and is recommended for classification by the commanding officer under whom
he is employed.”
In accordance with the foregoing, instructions were drafted by the Civil Service Commission in 1914
barring applicants from examination who are affecteft by insanity, tuberculosis, paralysis, epilepsy, blind
ness, loss of both arms or both legs, loss of arm and leg, badly crippled or deformed hands, arms, feet, or
legs, uncompensated valvular diseases of tjie heart, locomotor ataxia, cancer, Bright's disease, or diabetes.
Ratings were also adopted showing deductions for the impairments named ranging from 5 per cent to
rejection.
Besides the rejections named, contagious or infectious disease (including venereal) and arteriosclerosis
were added. Deductions from 30 per cent to rejection were directed in case of loss of hand or foot or hernia;
from 15 to rejection for piles,fistula, or fissure, and for deformities, old fractures, etc.; from 10 to rejection
for chronic disorders of stomach or bowels; and from 5 to rejection for rheumatism or history of it. Also
deductions of 30 per cent for valvular disease of heart fully compensated, as attested by certificates of two
physicians; 15 for loss of eye, middle ear disease, or deafness; 15 to 30 for spinal curvature, loss of one or more
fingers or toes; 10 to 25 for enlarged heart (unaccompanied by valvular disease) or irregular heart; 5 to 30
for varicose veins; 5 to 25 for skin dieseass (noncontagious) and chronic bronchitis; 5 to 15 for chronic tonsilitis
or pharyngitis; 5 to 10 for varicocele, minor defects of vision, deficient chest mobility, insufficient muscular
development, obesity, too rapid heart, or deviation of nasal septum, cleft palate, etc.
A rating of at least 70 per cent on physical ability is required for all positions filled through noneducational examinations.

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131

result therefrom, even without severe exertion (Indian Creek Coal &
Mining Co. v. Calvert, 119 N. E. 519).
That a case of appendicitis was the result of a blow on the walls of
the abdomen, and compensable under the act, was the ruling of the
accident board of Maine, the injury following a fall against an object
near the injured man’s working place, the floor being slippery with oil.
A Connecticut commissioner made a full award in the case of a man
suffering from appendicitis, the appendix being ruptured by a strain,
resulting fatally; and an award was affirmed by the Supreme Court
of New Jersey, where an internal cancer was ruptured by effort while
at work, with fatal results, the court saying: “ But for the injury, life
might have continued for a considerable period ” (Voorhees v. Smith
Schoonmaker Co., 92 Atl. 280); while the California commission held
that the fatal consequences of a perforation caused by gastric ulcer,
following an effort in cranking an automobile, was not compensable,
as the effort was only the occasion of the injury and not the cause.
An unusual situation developed in the case of a ‘Connecticut employee
who had practically lost the sight of an eye previously, but received
an injury necessitating its removal. The award made was for the
period of total disability and for medical, surgical, and hospital servr
ices prescribed by the law, and not for the loss of an eye.
The administrative bodies of Michigan and Wisconsin ruled against
claims where workmen fell as the result of illness and injured
themselves by so falling, the Michigan board saying that “ the em
ployer is not lifeble for injury due to illness rendering the employee
incapable of properly guarding himself against injury” ; while the
Wisconsin commission declared that “ such injuries are not subject
to compensation.unless they result from unusual physical conditions.”
The New York commission, on the other hand, awarded the regular
benefits in a case in which an employee fell in a fit of apoplexy and
was burned by a pail of hot tar which he was carrying. And the
Appellate Court of Indiana held that compensation should be paid
as for an injury arising of the employment, where a workman fell into
a tank of water and was drowned while seized by an epiieptlc fit
(Miller v. Beil, 127 N. E. 567). It was said that, though his physical
condition was the remote cause of the death, the consequences were
due to his employment requiring htm to work at or near the tank.
A case of this nature was passed upon by the Supreme Court of
Michigan, where a workman on a properly constructed scaffold
fell in an epileptic fit and received fatal injuries. The court held
that he was not within the act, since the injury did not arise out
of the employment, the illness being the proximate cause of death
(Van Gorder v. Packard Motor Car Co., 162 N. W. 107). Some em
phasis is given to the fact in the foregoing case that the employer was
not aware of the liability of the employee to sueh fits, biri in a case

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considered by the Supreme Court of California, involving practically
identical circumstances, an award was denied without reference to
the fact of ignorance or knowledge, simply on the ground that the
injury arose from the fact that the injured man was an epileptic and
did not arise out of the employment (Brooker v. Industrial Accident
Commission, 168 Pac. 126). A distinction is drawn between cases
of this nature and cases where the injury, “ though apparently caused
by the idiopathic condition of the employee, is due in part also to the
overexertion of the employee in performing his work, or to the nature
of the work or the appliances furnished to him with which to work,
or to the lack of proper safeguards against the ordinary dangers
of the place of work, the injury being sometimes greater because of
his idiopathic condition.”
In this connection may be noted a ruling of the Supreme Court
of New York (Santacroce v. Sag Harbor Brick Works, 169 N. Y.
Supp. 695), affirming an award in behalf of a workman who had
previously been in good health, but who suffered at the time from
“ an attack of vertigo or some similar disorder” and fell from a
height of 15 feet. It was there held that the dizziness, fall, and injury
were all due to the place and nature of the employment. In a case in
which a fall while at work apparently lighted up a latent infection,
the Wisconsin commission allowed a claim for resultant disability.
A different form of the question of proximate cause was passed
upon by the Supreme Court of Massachusetts, which sustained an
award in the case of death from suicide following insanity, the em
ployee having had his eye burned from a splash of molten lead, the
court saying that if the injury arose out of and in the course of employ
ment it was not of importance whether the consequences appeared
natural and probable or abnormal and inconceivable, the only ques
tion being whether or not they actually resulted (In re Sponatski,
108 N. E. 466).
The question of sequence w~as also before the appellate division of
the Supreme Court of New York in Plass v. Central N. E. R. Co. (155
N. Y. Supp. 854), in which a railroad section man was poisoned by
contact with poison ivy, blood poisoning, bronchitis, congestion of the
lungs, and death following. These facts found by the industrial
commission were held not open to review by the court, there being
“ certainly some evidence to warrant them.” The award in this
case was affirmed by the court of appeals of the State (123 N. E. 852).
The question of proximate cause is quite closely related to that
of the preexisting condition of the employee in many instances, an
illustration being found in a case decided by the compensation com
mission of New York, in which a man injured by burning developed
delirium tremens while in the hospital and died. The ruling of the
commission was in favor of the dependent claimant, on the ground

PARTICULAR PROVISIONS OF THE LAWS.

133

that the primary cause of the death was the burning, the delirium
tremens being contributory. The industrial board of Massachusetts
took the same view in a case in which a fracture of the leg resulted
fatally by reason of the low resistance of the injured man, due to
regular use of alcohol. The chain of incidents was given as injuiy,
sepsis, delirium tremens, death, the death being held to be connected
with the injury. The Supreme Court of Michigan affirmed an award
of compensation in a very similar case (Ramlow v. Moon Lake Ice
Co., 158 N. W. 1027), the view being taken that the delirium tremens
would not have developed at the time but for the injury.
“ An inconsequential fair7 resulted in the breaking of a diseased
bone of the leg, and the diseased condition necessitated the ampu
tation of the leg some inches above the fracture. While admitting
the propriety of an award for the accident, the Supreme Court of
New York, appellate division, held that an award for the loss of the
leg was not warranted (Brady v. Holbrook etc. Corp., 178 N. Y.
Supp. 504), citing Richardson v. Greenberg (188 App. Div. 248,
176 N. Y. Supp. 651), in which the distinction between accident and
disease was more fully discussed.
The Supreme Court of Wisconsin denied compensation to a man
who, when recovering from a hurt, engaged in a boxing bout which
seems to have excited bacteria that were walled oil so as to be harm
less, but by blows received were brought into the circulation, re
sulting in blood poisoning. It was held in that case that the original
hurt was not the proximate cause of the subsequent disability, but
that it was superseded by.an act not in the course of employment
(Kill v. Industrial Commission, 152 N. W. 148).
Subsequent happenings were involved in a case in which a man
fractured his knee in October and was making normal recovery, when
he slipped and fell the following March, loosening the bone, and again
fell in July and received injuries while waiting to receive his crutches
after getting out of a wagon. The contention was raised that no
compensation should be allowed for the prolonged disability result
ing from these falls; but the Supreme Court of Michigan held that
there was nothing to show willful misconduct; that the injured man
was apparently doing nothing contrary to his doctor’s orders; and
that the infirmities from which he suffered were the consequences of
his original injury, so that payment should be continued, even though,
barring mishaps, recovery should have been complete at an earlier
date (Cook v. Hoertz & Son, 164 N. W. 464). Under the Massa
chusetts law decisions are originally made by a committee of arbi
tration, and in a case passed upon by such a committee it was shown
that liquor had been smuggled to the injured man while in the hos
pital, and the conclusion was reached that death was due to the delir
ium caused by such surreptitious use of liquor, and compensation
was denied.

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W O RK M E N ’ S COMPENSATION LAWS OF THE UNITED STATES.

A somewhat unusual distinction was drawn by the Superior Court
of Rhode Island (Gross case, 1917), which held that an injury
accelerating an existing disease was compensable only for the period
of the disability estimated to be due to the inj ury, and made an award
of six months1 benefits where there was actually a fatal termination,
when death might have been little, if any, delayed had there been
no accident (see Pintar case, etc., p. 129). On the other hand, the
Supreme. Court of Michigan sustained an award in the full amount
for the loss of an eye, where the injured eye was, in fact, so defective
before the accident as to be capable only of distinguishing light and
seeing approaching objects. It was said that the law did not specify
a normal eye as the basis of awards, though conceding that a mere
sightless organ might be considered no eye at all (Purchase v. Grand
Rapids Refrigerator Co., 160 N. W. 391; see ruling of Connecticut
commissioner, p. 131).
Pneumonia, regarded as the result of an accident, formed the basis
of awards by the commissions of New York and West Virginia, while
the Massachusetts accident board on review denied compensation in
a case where a janitor, overheated while stoking a furnace, became
chilled while sweeping, the finding being that there was no personal
injury in the course of employment, so that no compensation was due.
In the New York case a watchman fell and broke his leg and devel
oped static pneumonia and pleurisy, followed by death. In one of
the West Virginia cases the injured man was kicked in the chest,
while in the other the injury consisted of a fracture of the skull.
Obviously the development of a case of inhalation pneumonia fol
lowing an operation for compensable hernia would furnish a basis
for an award (Industrial Accident Board of Massachusetts). That
the injury was the proximate cause of death was determined by the
industrial accident commission of California in a case in which a
blistered heel, due to the wearing of boots, furnished by the employer,
too large for the employee, was followed by blood poisoning, uremia,
and death, it being held that the chain of causation was complete.
Where a chauffeur’s arm was broken, and unpadded splints led to the
formation of an abcess, followed by blood poisoning and anky
losis of thumb and fingers, the Supreme Court of New Jersey allowed
an award, as without the happening of the original injury none of
the subsequent events would have taken place (Newcomb v. Albert
son, 89 Atl. 928); and a district court judge of the same State allowed
a claim for the death of an upholsterer from cancer which was held to
be traceable to injuries to the tongue caused by his holding tacks
in his mouth, according to the custom of the trade.
Somewhat stricter than the foregoing appears to be the ruling of
the Supreme Court of Kansas in a case (Ruth v. WitherspoonEnglar Co., 157 Pac. 403), compensation for total disability

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135

being disallowed on the ground that it was due, not to the
original injury, but to the malpractice of the physician treating the
case. The cause was remanded to the lower court for a determination
of the extent of the injury due directly to the accident as distin
guished from the subsequent malpractice.
COVERAGE.

The question of coverage, or the exclusion or inclusion of desig
nated groups of employment or occupation, is one that is disposed of
quite differently in the laws of the different States. Experience under
the acts has tended to a broader inclusion by amendatory legislation
in a number of cases, while on the other hand the difficulty attendant
upon establishing different systems of relief in cases of the identical
employment of railroad employees engaged in interstate and intrastate commerce operates to eliminate entirely from the scope of com
pensation acts employees engaged in the movement of trains. The
cases under this head turn so largely on the specific wording of
the provisions of the acts that they are of less general interest, but a
few of them will be noted.
Domestic and farm labor.—The common omission of domestic and
farm labor is sometimes absolute and sometimes conditional. In
some States, in common with other excluded employments, it may
be brought within the act by an affirmative election. In others,
however, the exclusion is absolute by the terms of the act. Thus the
attorney general of Minnesota ruled that a farm owner could not bring
his workmen under the law of that State, which “ shall not be con
strued or held to apply to * * * farm laborers.” Questions re
quiring determination arise where there is a combination of duties or
of industrial undertakings. Thus the industrial accident board of
California excluded an employee who was in regular employment in
his employer’s saloon, but whose injury was received while cleaning
windows in the employer’s apartment above the saloon, such employ
ment being classed as household domestic service and not compen
sable. On the other hand, a horseman and general utility man about
a house, caring for the garden, lawn, etc., was held to be within the
compensation act while exercising horses belonging to the employer.
The Supreme Court of Illinois rejected a claim on account of the
injury of a carpenter received while building a crib for a farmer, the
ground being taken that the farmer was not engaged in the business
or occupation of building, the work itself not being extrahazardous
and the business of farming being excluded from the act (Uphoff v.
Industrial Board, 111 N. E. 128). The question is approached from
the other side in a case before the industrial board of this State
where a farm hand and teamster on the farm of a seedsman was
injured, the employer maintaining a seed warehouse with an elevator

136

W O R K M E N ^ COMPENSATION LAWS OF THE UNITED STATES.

subject to city ordinances and a storeroom, so that he was an em
ployer within the hazardous class and had elected to accept the law.
The employer was held bound as to all employees except those
specifically exempted, this exemption including the claimant in the
present case.
The Massachusetts law was construed by the supreme court of
that State so as to permit a farmer and market gardener to insure
drivers and helpers, while omitting laborers whose duties were
strictly agricultural, the court saying that such a classification is
reasonable and valid and conforms to the spirit of the act (In re
Keaney, 104 N. E. 438). The industrial board of the same State
recognized similar distinctions in the case of an employer who in
sured his office force and other employees. The family chauffeur
was held not to be included in the policy of insurance, as his work
was not in the usual occupation of his employer, his principal duties
being to drive the car of his employer on errands of pleasure. The
industrial accident board of Michigan awarded compensation to
a farm laborer where the employer was a corporation whose business
it was to manufacture chemicals, serums, etc., incidental to which a
farm was maintained, the injury being caused by a kick from a
horse. It was held that the maintenance of the farm was in this case a
part of the manufacturing business of the company, and it was further
pointed out that the law of the State does not exclude farmers, but
merely places them under no added burdens if they fail to accept
the act. This was reversed by the supreme court of the State
(Shafer v. Parke, Davis & Co., 159 N. W. 304), on the ground that
the status of the employee was fixed by the work actually done by
him, and not by the fact that his employer had other interests,
not affecting the nature of his work.
Questions similar to the foregoing were passed upon by the indus
trial accident board of Texas in a case in which a partnership op
erated a farm and an irrigation plant. It was held that even though
the management of the two undertakings was the same, if they were
operated separately the irrigation plant could come under the statute
while the farm and the laborers on it would be excluded. It was
further said that the same workmen might be included or excluded
according as they were employed in the one undertaking or the
other. The same board in another case, however, excluded all the
employees on a farm and ranch, though one man was a mechanician
in charge of a considerable amount of machinery on the place. It
was added that even if a different ruling should be made with ref
erence to the mechanician it would not have the effect of bringing *
the farm laborers within the act.
No one who knows the actual hazard of farming operations, and
the accident rate incident thereto will claim that the exclusion of farm

PARTICULAR PROVISIONS OF THE LAWS*

137

labor from the compensation acts is based on its freedom from danger
of accidental injury. This is perhaps particularly true of the opera
tions of harvesting and thrashing, and the specialized nature of the
latter has opened the door to its inclusion in some cases. Thus the
Appellate Court of Indiana ruled that an employee engaged as a part
of the crew of a thrashing machine, which was moved about from farm to
farm thrashing oats and wheat at a fixed price per bushel paid to the
owner of the machine, was not a farm laborer within the exemptions
of trie Indiana statute. The fact that the farmer himself rarely
undertakes the work of thrashing, and that thrashing and milling
are industrially distinguishable from farming operations, was held
to sustain the view that such work should not be excluded from the
operations of the law, even though the machine is moved about
from farm to farm and operates on them (In re Boyer, 117 N. E.
507).
The Supreme Court of New York, appellate division, took a similar
view as to the nature of the work, so that an employee following a
thrasher was said not to be a farm laborer; and while the law did not
name the running of a thrashing machine as a hazardous business,
the fact that the injury was received while moving the separator
enabled a classification as operating a vehicle to be made, which
brought the case within the act (White v. Loades, 164 N. Y. Supp.
1023). The Supreme Court of Minnesota took the opposite view,
classing a separator man as a farm laborer, and not within the law of
the State (State ex rel. Bj^kle v. District Court, 168 N. W. 130).
Similar or perhaps greater hazards attend the operation of corn
shredders, which likewise are moved from farm to farm in the perform
ance of their work. The Supreme Court of Iowa classed an engineer
and laborer working for the owner of a shredder, who was an independ
ent contractor as to the work in hand, as a farm laborer engaged in
agricultural pursuits (Stycord v. Horn. 162 N. W. 249).
Hazardous employments.—The question of hazard is made the basis
of determining inclusions and exclusions in a number of the laws,
enumerations being made by the acts in a number of cases, while in
the others the matter is open to determination. The Supreme Court
of New York, appellate division, has had before it a number of cases
involving the definition of the term “ hazardous” under the act of
that State. Thus (Aylesworth v. Phoenix Cheese Co., 155 N. Y.
Supp. 916), a laborer employed b}r a company at harvesting ice
was held not to be within the act, since the harvesting of ice is not
classed as hazardous (since included by an amendment of the law’ ,
1916), and the employee was not working for the company in the
preparation of foods, in which case he would have been included. A
butcher or chef’s assistant in a hotel who cut an artery while prepar
ing a leg of mutton for cooking and died from the injury was held

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W O RK M E N ’S COMPENSATION LAWS OF THE UNITED STATES.

not engaged in the manufacture or preparation of meats or meat
products, so that no claim on his account could be allowed (De la
Gardelle v. Hampton Co., 153 N. Y. Supp. 162); so also where a driver
for a packing house, who in his ordinary employment would be in
cluded within the act, but who was sent on foot to deliver a retail
order and fell over a bucket of glass and received injuries from which
he died, it was held that he was at the time not in hazardous em
ployment (Newman v. Newman, 155 N. Y. Supp. 665; affirmed by
court of appeals).
While the business of warehousing is covered by the statute, it was
held that an employee injured while handling a barrel of vinegar for
a wholesale produce merchant in his warehouse was not protected by
the law, since the employer was not engaged in warehousing, that
phase of his business not being for pecuniary gain (Mihm v. Hussey, 155 N. Y. Supp. 860). The act by amendment of 1916 now in
cludes storage of all kinds. Another excluded case was that of a
janitor whose general duties were not of the kinds classed by the law
as hazardous, and who was injured while hanging out a flag, which
was a part of his duties. It was held that in the case of such em
ployees it must be specifically shown that the work in which the
employee was engaged at the time of his injury was of the hazardous
class, which was held not to be the case in the present instance,
though the man fell and broke his leg (Reisner v. Gross & Herbener, 155 N. Y. Supp. 946).
. Admitted to benefits by this court were a porter and elevator man
in a manufacturing and wholesale drug house in which some parts of
the work were hazardous, the court saying that an employee therein
would be presumptively included in the act (Larsen v. Paine Drug
Co., 112 N. E. 725); and a butcher’s helper in a retail establishment
who lost four fingers in an electric meat chopper, penumonia and
death ensuing, it being held that the injured man might be regarded
as included in the work of manufacture or preparation of meats or
meat products unless the employer showed specifically otherwise
(Kohler v. Frohmann, 153 N. Y. Supp. 559). Meat markets are
now within the act. A man injured while lifting glass from a cut
ting table in an establishment in which plate glass was polished,
mirrors made, etc., was presumed to be engaged in the manufacture
of glass, glass products, etc., unless specific facts to the contrary
should be presented in the defense. It was said in this case that the
employer’s premiums were the same, whether or not the employee
was engaged in hazardous employments at all times (McQueeney
v. Sutphen & Hyer, 153 N. Y. Supp. 554).
The court of appeals of the State had before it a case involving the
operation of an elevator, and reached the conclusion that this does not
come within the protection of the law unless the business in connec
tion with which the elevator is used is classed as hazardous (Wilson

PARTICULAR PROVISIONS OF TH E LAWS.

139

v. Dorfiinger Sons, 112 N. E. 567) This reversed a judgment of
the supreme court, appellate division, awarding compensation in the
case named on the ground that elevators should be classed as vehicles
“ other than on tracks.” An amendment of 1916 brings freight and
passenger elevators within the scope of the act.
The compensation commission of the State ruled in favor of a
hotel porter injured while at work in the hotel’s ice-manufacturing
plant, since, though his regular employment was not covered by the
act, the work in which he was engaged at the time of his injury
was held to be so, laying down the rule that employees in industries
that are nonhazardous as a whole are protected under the act while
engaged in occupations covered by it. In another case before this
commission an employee of a mining company, whose duties were
to act as policeman on the premises, was killed while making an
arrest. It was found that he was an employee of the company
under contract, and since the business of the company was classed
as hazardous, all its employees would be covered by the act, the
injured man in this particular instance being required to be on the
premises in the discharge of his duties, even though not actually
engaged in the physical operation of the plant. Other contentions
to the effect that the injury was not an accidental one, and that
it did not arise out of and in the course of employment, were rejected
and compensation awarded.
It is of interest to note that the law of New York, the most im
portant one using hazard as a basis, after several amendments
adding enumerated employments, has practically abolished this
test by making the law apply to all unenumerated undertakings in
which four or more “ workmen or operatives” are employed, or,
to state the matter differently, fellow service is declared to be a
basis of hazard, and no longer an employer’s defense. An amendment
of 1916 also makes compensation available by election for all em
ployments.
The Supreme Court of Washington met the contention of a tele
graph company that the work in which it was engaged was not haz
ardous with the statement that the legislature had declared the work
of construction of telegraph and telephone lines to be extrahazardous,
which it might do unless the court could take judicial notice that
such was not the case (State v. Postal Telegraph-Cable Co., 172.
Pac. 902). The company could not therefore be heard to dispute
the declaration, and it was held subject to the act.
The law of Illinois classes as hazardous the work of building, main
taining, repairing, etc., any structure. The supreme court of the
State held window cleaning to be a work of maintenance within the
meaning of the act, and sustained an award in favor of a claimant
for the death of a workman employed by a window-cleaning com
pany (Chicago Cleaning Co. v. Industrial Board, 118 N. E. 989) j!

140

WORKMEN *S COMPENSATION LAWS OF THE UNITED STATES.

but the building of a shed 32 by 24 feet and 17i feet high was de
clared not to be an “ enterprise” in which the building “ of any struc
ture” would bring an employer automatically within the act as
engaging in an extrahazardous employment (Uphoff v. Industrial
Board, 111 N. E. 128).
This law includes as extrahazardous “ any enterprise in which statu
tory or municipal ordinance regulations” govern the use or guarding
of appliances for the safety of the employees or the public. This was
held (Hahnemann Hospital v. Industrial Board, 118 N. E. 767) to
warrant an award for the death of an engineer in a hospital in which
the elevator, electric wiring, etc., were the subject of municipal
regulation, even though none of these instrumentalities was connected
with his death. The digging of trenches for sowers was held to be
within the class of extrahazardous wrork, which includes excavating
(Scully v. Industrial Commission, 120 N. E. 492).
Rulings on the question of hazard are obviously difficult, since they
would seem to be practically answered by the fact of the occurrence
of the injury which must happen before the case can come to consid
eration; and the fact of the injury is in itself proof that the occu
pation is at least in some degree hazardous. It is difficult, therefore,
to avoid the impression of unfair exclusion in cases where a work
man suffers injury in circumstances ordinarily giving rise to valid
claims for compensation, but finds himself, or his dependents in
case of fatal injuries, deprived of supposed rights, and, indeed, of
all possibility of recovery, because the industry is reckoned by the
courts or administrative commission as nonhazardous. Industrial
protection is incomplete in such a state of affairs, besides the un
certainty that exists where the decision rests on opinion, statistics
# of accident rates in specific industries not being available in many
cases to afford a real basis of determination.
In any view, the matter resolves itself into this, that if a given occu
pation is hazardous, those engaged in it may properly expect
provision to be made in their behalf; if the risk is comparatively
slight, the cost of providing for the occasional injuries arising in it is
not burdensome on the employer while ministering to the needs of
the injured individual, which are none the less urgent because of the
comparatively small number of persons injured in like circumstances.
Casual employment.—The exception in many laws of persons whese
employment is only casual and not in the usual course of the trade,
business, etc., of the employer has been passed upon in a number of
cases at hand. The California law requires for exception that the
employment shall be both casual and not in the usual course of the
employment, its provisions corresponding with those of the British act;
the Iowa industrial commissioner construes the law of that State to be
of the same effect. In a California case, w^here an employee passing

PARTICULAR PROVISIONS OF THE LAWS.

141

a creamery operated by his employer was requested to furnish aid
for a short time in work outside the usual course of his employment
and was injured while doing so, it was held that while his employ
ment in this case was casual it was nevertheless in the usual course
of his. employer’s business, so that he was entitled to compensation.
This commission has fixed an arbitrary term of one week as the stand
ard, employment for a less period being held per se casual, if not in the
usual course of the trade or business of the employer. A plasterer
doing less than one week’s work for a rooming-house keeper was held
excluded for both reasons, while a decorator who usually had his
carpenter work done by his regular emplo3?ees was required to pay
compensation to a carpenter hired for less than one week to do such
work for him. as it was in the regular course of the employer’s business.
Where a locomotive engineer wished a garage built on his prem
ises he engaged the services of a workman, who agreed to secure the
services of another man and assured the employer that the job would
not last more than five days, relying on which assurance the employer
did not insure his liability under the compensation law. The failure
of the workman to secure constant assistance prolonged the work
beyond the period of one week, but the California commission held
that the employer had a right to rely upon his employee’s agreement
to complete the work within a time which would have made the
employment casual, so that no compensation could be demanded.
The law of‘Massachusetts originally excepted persons whose em
ployment was but casual or not in the usual course of the trade, etc.,
of the employer, and under it a caterer was held not required to com
pensate for injuries to a waiter employed by him for a single occasion
(In re Gaynor, 217 Mass. 86, 104 N. E. 339). As employment on
occasion merely is the custom in this class of work, it is evident that
service of this nature was by this decision excluded from the act,
until an amendment of 1914 struck out the provision debarring casual
employees from its benefits. They are therefore now within the act
unless employed at work “ not in the usual course” of the employer’s
business.
The exclusion of casual employees not only leads to difficulties,
but to absurdities as well, and some harsh results have followed
their exception from coverage. The status of a workman not
employed in the business of the employer was considered by the
Court of Appeals of New York in a case (Bargey v. Massaro Macaroni
Co., 113 N. E. 407) in which a carpenter engaged in making altera
tions in the factory was injured while at work. It was held that
under the act the company was an employer in its capacity as a
manufacturer of foodstuffs, but as the carpenter was not engaged
in that work he was not an employee, his work having no relation to
the hazardous business of the employer. Recovery under the pro

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vision of the act covering the construction, demolition, and repair
of buildings was also denied on the ground that the company did not
carry on such occupation for pecuniary gain. An award of the com
mission of the State in the claimant’s behalf was therefore reversed.
The Supreme Court of Michigan, also, while recognizing that it
is usual for the owner of a hotel to have his rooms painted and deco
rated occasionally, set aside an award in favor of a painter and
decorator, holding that such work was not a part of the business of
keeping a hotel within the meaning of the State law (Holbrook v.
Olympia Hotel Co., 166 N. W. 876). The law of this State no longer
excludes casual employees.
Perhaps even more unsatisfactory than the foregoing is a decision
of the Illinois Supreme Court (two justices dissenting) declaring
casual the employment of a laborer on a highway who was killed by
a dynamite explosion while assisting in the removal of stumps. The
work of blasting was to continue but a comparatively short time,
and while the general work on the highway at the time was held not
to be hazardous within the meaning of the act, the work of blasting
was declared to be so; but this work was said to be “ a mere casual
or incidental employment in connection with the matter of grading
and repairing the road, this bringing the workman within the class
of casual employees who are not included within the act” ; this
though the workman was regularly and continuously employed in
the general undertaking (McLaughlin v. Industrial Board of
Illinois, 117 N. E. 819).
This is in contrast with the position of the Supreme Court of
Minnesota (State ex rel. Nienaber v. District Court, 165 N. W. 268),
which held that the driver of a street sprinkler, who went to the aid
of the driver of a coal wagon at his request, and was injured while
so aiding him, was an employee of the coal dealer, since, though the
employment was but casual, it was in the course of the employer’s
business and within the act.
As in the case of Massachusetts, such results have in some
States led to amendments enlarging the scope and clarifying the
purpose of the acts. Of principal interest, perhaps, under this head,
is the rectification of the conditions which arose under the New York
statute as set forth in the case of Bargey v. Massaro Macaroni Co.
The impropriety of excluding from the benefits of the act a carpenter
engaged in making alterations and repairs in a factory building,
merely because his employer was not engaged in the business of
erection and repair of buildings, was too obvious to remain without
remedy. The law of the State was therefore amended in 1916 so as
to include persons engaged in any of the hazardous occupations
named in the act who are in the service of an employer whose principal
business is that of carrying on or conducting a hazardous employment

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within the act, eliminating the earlier provision that the employee
must be himself at the time “ engaged in a hazardous employment in
the service of an employer carrying on or conducting the same,” thus
making it possible to compensate an employee in a hazardous occupa
tion differing from that ordinarily engaged in by employees of the
employer in his usual course of trade or business.
^A case practically identical with the Bargey case in its circumstances
arose under the amended law, when a bricklayer, employed by a litho
graphing and printing company to repair the walls of its plant, was
injured. The fact that an amendment had been recommended by the
industrial commission of the State so as to ^ cover employees called
in to do construction and repair work as in the Bargey case,” was
referred to by the court in its opinion, and it was held that the injured
man was entitled to benefits even though the work in which he was
engaged was entirely different from the regular business of the estab
lishment. The court below had denied compensation on the ground
that the employer did not carry on the employment of bricklaying for
pecuniary gain. This view was rejected by the court of appeals as
tending to nullify entirely the effect of the amendment, the court
saying also that the employer was carrying on a designated hazardous
business for pecuniary gain, and that the injury sustained by the
workman was in the service of the company, which was obligated to
maintain a suitable plant for the proper conduct of its business; and
since the employment in which the bricklayer claimant was engaged
was “ incidental and requisite to the business carried on by the
company,” under the law as amended he was clearly entitled to com
pensation (Dose v. Moehle Lithographic Co., 221 N. Y. 401, 117
N. E. 616).
So that although an employment may be properly classed as casual,
as where a workman was replacing a smokestack at a factory, he is
now within the act if the principal business of his employer is hazard
ous (Cummings v. Underwood Silk Fabric Co., 171 N. Y. Supp. 1046) ;
and even before the amendment of 1916 the court had gone so far as
to say, in a case where a handy man was putting in a shelf in a manu
facturing establishment, that if “ an employee is injured while per
forming an act which is fairly incidental to the prosecution of a busi
ness, and appropriate in carrying it forward and providing for its
needs, he or his dependents are not to be barred from recovery because
such act is not a step wholly embraced in the precise and character
istic process or operation which has been made the basis of the group
in which employment is claimed” (Larsen v. Paine Drug Co., 218
N. Y. 252, 112 N. E. 725).
The Supreme Court of Wisconsin also held that repairs in an in
dustrial plant, whether'usual and capable of anticipation, or such as
may occur but once in a long industrial life, are not without the usual

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course of business of the employer. It therefore affirmed an award
under a provision of law which excluded employees whose work ‘ 4s
but casual, or not in the usual course,” etc., where the injured man
was in no wise a regular employee of the establishment (Holmen
Creamery Assn. v. Industrial Commission, 167 N. W. 808). The law
of this State has also been amended by striking out the words ‘ is but
casual or.”
The strict attitude of the Illinois Supreme Court has already (p. 142)
been noted. A plasterer at work in an addition to the employing
company’s plant was fatally injured, practically at the completion
of a three-day job. The court denied his widow’s claim on the ground
that irregular employment, even through a period of years, was
casual within the meaning of the act (Aurora Brewing Co. v. Indus
trial Board, 115 N. E. 207). And where the work was admittedly
in the line of the employer’s business, a structural-iron worker who
was employed by a railroad for a job of three or four days’ duration
was held to be a casual employee, and not within the act (Chicago
G. W. R. Co. v. Industrial Commission, 120 N. E. 508). The law,
which was of the same effect as that of Wisconsin, noted above, was
similarly amended in 1917.
The laws of Connecticut and Minnesota agree with that of Cali
fornia in following the British act, so that even if the business is but
casual, if it is in line with the employer’s business, the employer is
liable (State v. District Court of Rice County (Minn.), 155 N. W.
103); while in a Connecticut case (Thompson v. Twiss, 97 Atl. 328),
an indefinite term of employment, though to last at least several
weeks, was held not to be casual, even though the work was not in
the main business of the employer, ‘ ‘yet a very substantial one.”
This viewpoint coincides with that of the compensation commission
of Pennsylvania; in this State the law excludes persons whose em
ployment is casual and not in the regular course of the employer’s
business. The commission rules that1‘the policy of the law is against
the creation of any situation whereby a workman can be engaged in
his occupation in the State of Pennsylvania and be deprived thereby
of the benefits of the workmen’s compensation act.” It was said
that if a farmer undertook to build a barn, hiring the men therefor,
they would not be classed as agriculturists because employed by him;
but if he hurriedly employed a workman to repair a suddenly dis
covered leak that would be a casual employment. This accords with
an earlier ruling by a referee in this State who allowed the claim of
a carpenter remodeling the residence of his employer, who was
engaged in no trade, but was held for the occasion to be engaged in the
business of reconstructing the home. It was said that if there was
“ time for premeditation, calculation, and design he must be consid
ered to have engaged in a business, and the employee under those
circumstances can not be considered as casual.”

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145

The attitude of the supreme court of the State is less liberal. In the
case of Marsh v. Groner (102 Atl. 127) the court denied compensation
to a plasterer who was engaged to do several days’ work on a residence
on which the work of remodeling had been carried on for some
months, the rejection being based on the view that the employer
was not engaged in the business of building in the sense intended by
the law. One justice dissented, saying that the majority had changed
the law from “ the regular course of the business” to “ the course
of the regular business” of the employer, thus unduly narrowing it.
Where an employee came to the employer’s house for one day each
week to assist in domestic duties it was held that such employment
was not casual but periodical, and injuries received during its con
tinuance were compensable (compensation commissioner of Connecti
cut). Quite similar was the view taken by the Maryland accident
commission in the case of an employee who received $2 per week
from an employer in a market, with the privilege of rendering serv
ices to other persons having stalls in the same market. An injury
received while at work for one employer was held not to be during
the rendering of casual services. Where one renders occasional serv
ices, but is under no contract and has no agreement therefor, the
defense of casual employment was held to apply in a Massachusetts
case, even though the employment was in the line of the employer’s
business. This ruling by a committee of arbitration is in harmony
with a decision of the supreme court of that State, where a teamster
with team rendered services of a few days’ duration once or twice a
year (In re Cheevers, 106 N. E. 861). The accident board of the
same State allowed a claim where an employee was supplied under a
contract with a union, the man not being hired as an individual but as
a member of the union; the injured man was supplied as a substitute
mailer, and was injured during the first day of his employment,
though he had been pretty constantly at work in other offices in the
city. The board held that his employment was substantially regular
and not casual and that he was working under a contract, so that
compensation must be allowed. The supreme court of that State
passed upon another case in which a workman employed to trim trees
to keep the wires of the employing company clear was directed by his
foreman to trim the limbs of a tree through which none of the com
pany’s wires ran. The court held that as he was supposed to dbey
orders it was none of his business to inquire as to the right of the com
pany to trim a particular tree, and that as he was doing what he had
been hired to do the work was not casual (In re Howard, 105 N. E.
636).
The Minnesota commissioner of labor ruled that the length of
service did not determine the nature of employment as casual in a
case where a contractor who had no regular employees took on such
177982°—21—Bull. 272------ 10

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men as he could obtain in a strange town for the purpose of a piece
of work which he had contracted to do there.
The Supreme Court of New Jersey applied a principle already noted
under this head in a case where a longshoreman was killed two hours
after taking employment. Men in his line of service do not work
regularly for one employer, but render services on the occasion of
ships coming into port, being a regular class of employees for this
purpose. The court held that such employment was not casual
despite its irregularity (Sabella v. Brazileiro, 91 Atl. 1032). The
industrial commission of Ohio holds the law of that State to cover
public employees without distinction as to whether casual or not.
The same view is taken of the Wisconsin statute by the industrial
commission of that State and of the Michigan law by its board.
Other exclusions.—The Washington statute was held not to author
ize the inclusion of elevators in mercantile establishments, the term
“ elevator,” where used in the act, referring to grain elevators, and
mercantile establishments not being among the extrahazardous places
of employment1 contemplated by the act (Guerrieri v. Industrial
Insurance Commission, 146 Pac. 608).
The law of Illinois includes occupations subject to statutory or
municipal regulations. This was held by the appellate court not to
cover occupations known not to be extrahazardous, so that the driver
of a milk wagon was held not to be covered by the act, even though
the dairy business was subject to municipal regulation. It was stated
that transportation and warehousing were mere incidents to the
conduct of the employer’s business and were not of such nature as
the act was intended to cover, and an award by the lower court was
reversed (Bowman Dairy Co. v. Noyes, 111. App.). The Supreme
Court of Washington, in passing upon this phase of the law of that
State, rules that a merchant who has repair shops and employs me
chanics in them is, as to such employees and mechanical depart
ments, engaged in extrahazardous employment within the meaning
of the act, though simply as a merchant he is not (Wendt v. Indus
trial Insurance Commission, 141 Pac. 311).
The Texas statute excludes railways operated as common car
riers, and this exclusion is held to cover street railways. The indus
trial accident board held that a company operating a street railway
and also an electric light plant would be under the act as regards the
latter if the electricity was furnished for other purposes than the
operation of the road. Labor being interchangeable to a certain
extent, it would be a question of fact in each case whether a claimant
was injured while working for the electric light plant as such or
was in the service of the railway company. The statute of this State
also has a provision exempting employers of not more than five em
ployees. It was held that a mercantile partnership operating stores

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147

in two different places in one city, each store having five employees,
might become a subscriber under the act on the basis of its aggregate
force of employees, since it was a single employer, though operating
separate establishments.
Inasmuch as compensation is to be paid by the employer or his
insurer to the employee, the question of who are employees is essen
tial. The compensation board of Pennsylvania denied benefits to
the secretary and treasurer of a mercantile company, who was also a
buyer, and sometimes sold goods behind the counter, saying that the
law was for the benefit of workmen and laborers serving at modest
salaries or for wages, under the direction and control of others, and
not for the executive officers of corporations. (Bastheim case, 1917.)
A similar conclusion was reached by the Court of Appeals of New York
in a case (Bowne v. S. W. Bowne Co., 116 N. E. 364) in which the
president and principal stockholder of the company lost a leg as the
result of an accident occurring while he was handling lumber. His
salary was not affected by the accident, nor were his dividends re
duced thereby. The industrial commission of the State, however,
granted his claim for compensation, awarding the maximum schedule
benefits. The company and the insurer carried the case to the court
of appeals, where it was held that the intention of the law was to
make a distinction between such an officer as the claimant in this
case and other employees of the corporation, and the order granting
the award was reversed.
This accords with a decision of the Supreme Court of California in
the case of a member of a mining partnership (Cooper v. Industrial
Commission,-171 Pac. 684). This man was a practical mining engi
neer, and was killed in a mine shaft while getting samples of ore for
assaying. It was said that the compensation act did not contem
plate such a mixed relation as would result if partners were to be
regarded at the same time principal and agent or employer and em
ployee. The industrial accident board of Massachusetts likewise
denied the benefits of the act of that State to a partner who received
$30 a week from the firm and claimed that it was wages. The public
service commission of West Virginia also disallowed the claim of an
employee who was bookkeeper and secretary of the company, on the
ground that he was an officer of the corporation and not an employee
within the meaning of the act of that State.
One of the compensation commissioners of Connecticut declared
that if it had been desired to exclude officers of corporations from
benefits as employees specific language would have been employed,
so that one who was engaged in the company’s service, although he
was stockholder, director, and treasurer, was held entitled to com
pensation. The compensation commissioner of New York likewise
allowed benefits to ttue president of an employing corporation who

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was injured while working in its shops as a mechanic; and the supreme
court of the State, appellate division, though denying a claim on the
ground that the employment was not covered by the act, held that a
shareholder and vice president of a corporation was an employee
within the meaning of the compensation act where he worked along
side the regular workmen, though he was general foreman (Beck
man v. J. W. Oelerich & Son, 160 N. Y. Supp. 791).
The law of Texas was construed by the industrial accident board
of that State to cover sons, wives, and daughters of merchants work
ing in the store and paid a salary or wages. On the contrary, the
Supreme Court of Massachusetts held that the wife of a merchant,
who acted as cashier and bookkeeper and drew regular wages, was
not an employee of her husband. Cases were cited to the effect that
a married woman can not make a contract either with her husband
or with a partnership of which he is a member (In re Humphrey,
116 N. E. 412).
The question of the status of employees engaged otherwise than on
a fixed salary was ruled upon by the compensation commission of
New York, the instant case being that of a traveling salesman em
ployed on a commission basis. It was held that such employees
should be included in the pay roll upon which premiums are based,
though it is permissible to exclude any salesmen who are continu
ously employed outside of the State. Similar were the rulings of the
industrial accident board of Texas as to salesmen taking orders on
commission and pieceworkers in factories; so also as to a porter
working in a hotel, dependent entirely upon tips for his income, the
same board ruling that he was rendering service for the company,
even though his payment came from such tips.
The matter of numerical exclusions would ordinarily seem to offer
no ground for dispute. However, the question was raised in a Con
necticut case, the State law not being applicable unless there are at
least five employees. The fact that a building contractor employed
a housekeeper in addition to four workmen about a building was held
by a commissioner to bring him within the law.
The New York law, applicable to designated hazardous groups of
employment, was amended by adding “ all other employments not
hereinbefore enumerated” in which “ four or more workmen or
operatives” are regularly employed. This was an attempt to
cover all occupations having the requisite number of employees;
but the question was immediately raised as to the meaning of the
terms used, and the attorney general of the State gave it as his
opinion that the phrase “ workmen or operatives” is less broad than
if the word “ employees” had been used, and applies only to persons
engaged in manual labor as mechanics, laborers, or artisans, and not
to clerks or those engaged in professional work. In this view the

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149

act would not apply to an establishment employing, say, two la
borers and two bookkeepers, but it is admitted that this construc
tion is not authoritative, and until the courts pass upon it the safest
course would be to elect to bring all employees under the act. As
emphasizing this, it may be noted that the industrial commission of
the State, charged with the administration of the law, is said to regard
the amendment as bringing all employees under the act, excluding
only farm laborers and domestic servants; while the counsel to the
commission regards the distinction made by the attorney general as
correct, except that if the law is applicable at all, as where there are
four or more mechanics, etc., the law would then apply to all em
ployees in the establishment, regardless of the nature of their em
ployment; but it would not apply where there is strictly a clerical
force and no manual labor is done.
Public employees.—The status of employees in public service was
passed upon in a number of cases coming under notice. The law of
New York as enacted defined employments as trades, etc., carried on
by the employer “ for pecuniary gain/’ and under this provision the
attorney general of the State in 1914 made a ruling, under which the
commission has since acted, by which the claims of a number of em
ployees of municipalities were rejected on the ground that no munici
pality could be engaged in business for pecuniary gain. The view of
nonliability was taken by the supreme court of the State, appellate
division, in the case of a worker on a State road (Allen v. State, 160
N. Y. Supp. 85), though it was said that the State has power to
engage in business for profit, of which this was not an instance.
Where there is profit, therefore, as may occur in municipal docks,
lighting and water plants, and the like, compensation would seem to
be payable. The Supreme Court of Kansas took a similar position
in the case of a teamster hauling sand for a county road, holding that
the county was not, in the work in hand, engaged in trade as business
within the meaning of the act (Gray v. Board of County Commis
sioners, 165 Pac. 867).
It is obvious that such interpretations largely minify the value of
the laws as regards public employees; and the New York law was
amended in 1916 so as to make it applicable to work carried on by
the State or a municipality, regardless of the question of profit.
The attorney general of the State has ruled that all such agencies
must insure their employees coming within the classes covered by the
act, though self-insurance is permitted.
The law of Illinois brings within its scope all employers engaged
in the enumerated hazardous occupations, including under the
term “ employer” the State and each county, city, town, township,
etc., election being presumed in the absence of active rejection of the
act. In McLaughlin v. Industrial Board of Illinois (117 N. E. 819) the

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contention was made that the act was invalid, since there was at
common law no liability of the township in cases such as that in hand,
in which a road workman was killed by an explosion of dynamite used
in removing stumps from a highway; and that the legislature could
not and did not intend to require a township to make an election
in order to escape the provisions of the act. As to this the court
held that the legislature had the right and power to make a township
liable in damages to its employees, and that it was not essential that
it should specify the means by which an election not to provide
and pay compensation under the act should be made. It was also
urged that it would be illegal to compel taxpayers to pay compensa
tion under an elective act when they had no choice in the matter
and no opportunity of making an election. To this the court replied
that the officials in interest had the power of making the election,
and that municipalities speak through their elected officials and not
through the taxpayers. The law was therefore held constitutional
and applicable to employment of the nature under consideration.
Compensation was denied, however, as already noted, on the ground
that the employment was casual (p. 142).
Somewhat resembling the contention raised in the McLaughlin
case was the objection made to the law of Nevada, that in making
it compulsorily applicable to counties there was a violation of the
due-process-of-law clauses of the Federal and State constitutions.
The supreme court of the State took the position, however, that in
requiring counties to pay premiums under the act it was directing
money to be spent for a public purpose, which was a legitimate charge
upon the people, the State, and its subdivisions, so that the law was
constitutional (Nevada Industrial Commission v. Washoe Co., 171
Pac. 511).
Another class of employment was under consideration by the
Supreme Court of Michigan (Wood v. City of Detroit, 155 N. W.
592), the injured person being an employee of the public lighting
commission of the city. The State accident board had made "an
award over the city’s contention that the act was void as applied
to municipalities, and this award was sustained by the court. The
method of disposing of the question of constitutionality has already
been noted (p. 93).
The constitutionality of the Montana law was challenged by a
county of that State, the claim being made that inasmuch as counties
were not originally subject to the operation of the liability statutes
they could not be brought under the compensation law. The supreme
court of the State dismissed this contention, stating that the present
law was not a substitute for the liability statutes, but rested on funda
mentally different grounds, and that counties were subject to its

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151

operations (Lewis and Clark County v. Industrial Accident Board,
155 Pac. 268).
The University of Illinois claimed that it was not covered by the
act of that State; that it had not elected to come under the act; and
that it was not engaged in a hazardous occupation. A claim was
allowed on account of the death by accident of an elevator operator
in the institution, the industrial board ruling that the institution was
within the act compulsorily, and that on account of the various en
terprises connected with it it was an employer at hazardous labor.
The Agricultural College of Michigan also contested the claim of a
carpenter who did repair work about the buildings of the institution,
in the course of which he fell, sustaining a fractured leg. The claim
was contested on the ground that the employee was a casual one, and
also that the college ^as not subject to legislative control, so that it
was not under the law. The industrial accident board of the State
held that the proviso excluding casual employees does not apply to
employees of the State or municipal corporations, and also that the
college is subject to general laws regarding liability, an award in
behalf of the claimant being affirmed.
A separate statute extends the benefits of the New Jersey com
pensation law to public employees, but provides that elective officers
and persons receiving salaries greater than $1,200 per year shall not
be entitled to compensation. This was held (Mayor etc. of Jersey
City v. Borst, 101 Atl. 1033) to debar disability benefits only, and
where the injury was fatal the claim of dependents was allowed
without regard to the excess of salary above $1,200.
In Connecticut a woman supervising pupils in a State school for
imbeciles was held to be an employee of the State within the act,
the law covering all employers who use “ the services of another for
p

”

The industrial commissioner of Iowa discriminates between school
teachers in cities and in the country on the ground that country teach
ers frequently have to do the work of a janitor, while teachers in the
city schools are not required to perform such duties. School janitors
and country school-teachers, as well as other employees who perform
manual labor for the school districts, were held to be included in the
act; but as the law contains no reference to either manual or hazard
ous employments as conditioning rights under it the grounds for the
distinction are not clear.
A Massachusetts statute (ch. 807, acts of 1913) authorizes cities
to vote on the question of accepting the provisions of the State com
pensation law for “ laborers, workmen, and mechanics” employed
by them. These words were held by the supreme court of the State
(Devney v. City of Boston, 111 N. E. 788) not to apply to a hoseman
in the city fire department, such .employees being classed as in “ the

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official service” of the city and not in “ the labor service,” as deter
mined by the civil service rules laid down by the State civil service
commission. It was also said that laborers were persons without par
ticular training, employed at manual labor, while workmen and
mechanics broadly embrace those who are skilled users of tools, hosemen coming in neither class.
The same court held, however, that a janitor of a school building,
though under the civil service act, was nevertheless a laborer or me
chanic, the nature of the service and not the mode of appointment
being the test (White v. City of Boston, 116 N. E. 481). But a
teacher in a vocational and industrial school, who taught and demon
strated repair work, was held not to be a laborer or mechanic, and
was outside the law (Lesuer v. City of Lowell, 116 N. E. 483).
The status of police officers, under a city charter where appoint
ment is made by a commission and the police are required to take an
oath of office, was passed upon by the supreme court of the State of
Michigan (Blynn v. City of Ponttac, 151 N. W. 681), the court hold
ing that the injured man was a public officer and not an employee of
the city, reversing an award by the State accident board. The Su
preme Court of Connecticut spoke similarly of a sheriff elected to
office, and not “ working under a contract of service,” and therefore
not an employee (Sibley v. State, 96 Atl. 161). The legal depart
ment of the city of Newark, N. J., held that the law of the State did
not apply to a patrolman of the city; while the Pennsylvania com
pensation board rules that policemen are protected by its statute,
though constables and elective officers generally are not. The indus
trial commission of Ohio also held that, a police lieutenant in a
city which does not maintain a policeman’s pension system is an em
ployee within the meaning of the act of that State, this decision being
based on the particular provision of the law on this point.
The law of Minnesota excludes city officials elected or appointed for
a regular term of office. This was held (State v. District Court of St.
Louis Co., 158 N. W. 790) not to debar policemen from a right to
recover under the act; nor firemen in the city fire department (State
v. District Court of St. Louis Co., 158 N. W. 791); and the fact
that the fireman was a member of a voluntary relief association sup
ported in part by the city and in part by the members, from which the
dependents of the decedent drew benefits, does not affect the right to
compensation nor the amount thereof. The compensation law was
also held not to repeal provisions of a city charter granting injured
firemen full wages for fixed periods; they may therefore receive both
benefits (Markley v. City of St. Paul, 172 N. W. 215).
The status of a city policeman was passed upon by the Supreme
Court of Kansas in Griswold v. City of Wichita (99 Kans. 502, 162 Pac.
276). In this case, as in the Grayjsase, it was said that the city in

PARTICULAR PROVISIONS OF THE LAWS.

15 3

employing the policeman was not engaged in trade or business, and
further that he was not in any case a workman within the meaning
of the law, so that no compensation would be allowed. A sheriff
elected to office was held by the California courts not to be an em
ployee under appointment, and an award in his favor made by the
compensation commission of the State was annulled; and this even
though words of specific exclusion in the act of 1911 were omitted
from the act of 1913 (Mono County v. Industrial Accident Commis
sion, 167 Pac. 377).
The industrial commission of Wisconsin ruled that a prisoner
placed at work during the term of his sentence was not an employee
of the State, so that no compensation could be allowed for the loss
of the right hand of an imprisoned sailor from an injury while
employed about a planing machine in a chair factory. A similar
ruling was made by the attorney general of Minnesota where a prisoner
lost an eye while working for the county.
Children unlawfully employed.—The status under the compensa* tion acts of children employed in contravention of other statutes is
not well defined. Some laws explicitly exclude them, leaving the
employer subject to a suit in damages, with the special liabilities
attaching to cases in which a statute has been violated (Waterman
Lumber Co. v. Beatty (Texas), 204 S. W. 448); also with those con
nected with the status of children against whom the common law
defenses can not be pleaded. But even where the laws are similarly
phrased, the courts of different States have ruled differently. Thus
in New York, where the law covers “ employees” generally in desig
nated classes of industries, the compensation law was held to be
available in the case of a minor employed at a prohibited dangerous
machine (Ide v. Faul & Timmins, 166 N. Y. Supp. 858); and this
over the objection that the insurance contract limited the company's
liability to cases of employees “ legally employed.” However any
person “ entitled to compensation” under the State law was to be
covered, and the court held that the fact of employment in violation
of the labor law furnished no defense to either the employer or the
insurance carrier. A suit for damages was held not to be available
in a similar case, on the ground that compensation is the exclusive
remedy; though in this the judge declared himself to be following
precedent, and not his own views as to the better policy (Robilotto
v. Bartholdi Realty Co., 172 N. Y. Supp. 328; see also Kenny v.
Union R. Co., 166 App. Div. 497, 152 N. Y. Supp. 117).
These opinions have been announced in the absence of any deci
sion by the State court of last resort, and a later opinion by another
court takes a different attitude (Wolff v. Fulton Bag & Cotton Mills,
173 N. Y. Supp. 75). The foregoing cases are cited, but the view
is taken that by “ employee” the legislature meant only a person

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legally employed, so that a suit for damages is the proper and only
remedy in the case of employment in violation of the labor law.
This accords with the view taken by the New Jersey Court of Errors
and Appeals, the provisions of the laws of the State being the same
as in New York (Hetzel v. Wasson Piston Ring Co., 89 N. J. Law
203, 98 Atl. 306), and of Washington (Hillestad v. Industrial Com
mission, 141 Pac. 913). However, a recent decision by the Supreme
Court of New York, Trial Term, regards the position taken in the
Wolff case as untenable, both on reason and on authority (Boyle v.
Piano Action Co., 181 N. Y. Supp. 668).
The Supreme Court of Wisconsin drew the line at a somewhat
different point, and held that a minor who was of legal age for em
ployment but was engaged at forbidden hazardous occupations was
under the compensation act, and could not sue for damages, since
the statute itself gives minors of employable age a right to contract
under it (Foth v. Macomber & Whyte Rope Co., 154 N. W. 369).
In a later case the same court held that a child of employable age
but working without a statutory certificate was not an employee
under the compensation act, even though his age had been misrepre
sented and the employment was found by the court to have been
in good faith. A compensation award had been paid and release
secured, but this was held void, and damages were allowed under
the liability act of the State (Stetz v. Boot & Shoe Co., 156 N. W.
971). This case is distinguished from the Foth case above on the
ground that in that case the minor was legally authorized to engage
in the business in which he contracted to work, even though at the
time of the injury he was employed at a machine forbidden by law;
while in the present case, in the absence of an employment certificate,
no employment was lawful. One judge dissented from this finding,
while two others took no part in the decision. The law of this State
was amended in 1917 so as to give treble damages in case of a child of
permit age working without a permit or at a forbidden employment,
and suffering injury. The amendment was declared constitutional,
and was applied in the case of a boy 16 years of age being employed
without a permit, the law requiring permits for children up to 17
years of age (Brenner v. Heruben, 176 N. W. 228).
The law of California includes minors as employees, and their
illegal employment is held by the accident commission of the State
not to bar recovery under the compensation act (Shanton case, 2
Com. Dec. 698); however, an insurance company limiting its policy
to persons legally employed is not liable under such policy. But if
the policy covers employees for whom compensation is provided by
law, the company must pay the award, even though the employment
was unlawful (Clark case, 5 Com. Dec. 219).

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155

The Illinois law covers “ minors who are legally permitted to work
under the laws of the State.” The industrial commission awarded
benefits where a minor was illegally employed, saying that, as he
could recover wages, so also he was entitled to compensation; but
the supreme court of the State denies such right (Boszek v. Bauerle
& Stark Co., 282 111. 557, 118 N. E. 991; Moll v. Industrial Com
mission, 123 N. E. 562). The Ohio law contains a similar limita
tion, and is similarly construed (Acklin Stamping Co. v. Kutz, 98
Ohio St. 61, 120 N. E. 229); and the supreme court of Indiana ruled
that employment means lawful employment, so that the compensa
tion law was no bar to a suit for damages when a boy unlawfully
employed suffered an injury (New Albany Box & Basket Co. v.
Davidson, 125 N. E. 904).
The accident board of Massachusetts, however, gave compensa
tion to a boy injured while employed without a permit, saying that
the penal liability of the employer did not affect the boy’s rights
under the compensation act (Kroeger case, 1920.)
Extraterritoriality.—The terms of the laws vary as to their ap
plicability to accidents occurring outside the State, being explicit in
some instances, while in other cases construction by the courts is
necessary. Thus the law of Indiana specifically states that ever}
employer and employee under the act shall be bound by its pro
visions regardless of the place of the occurrence of the injury; so
that a circus employee, himself a resident of Indiana, his employer
being a corporation organized under the laws of the State, was
entitled to the benefits of an award made by the State board for an
injury received in the State of Illinois (Hagenback v. Leppert, 117
N. E. 531). On the other hand, the Kentucky board ruled that the
law of the locality should decide, and dismissed the claim of a work
man usually employed in Kentucky, but receiving the injury com
plained of in the State of West Virginia.
Denying extraterritorial application of the laws of their respective
States are also to be found the opinions of the industrial accident
commission of Maryland and the industrial accident boards of
Michigan and Texas.
The industrial commission of California took the position that
though its law was in itself of no effect beyond the boundaries of the
State, a contract made in the State followed the employee even
though injured outside its limits; and as such contracts were made
with the statute in view, compensation under it was recoverable
regardless of the place of the injury. The supreme court adopted this
view on its first consideration (Anderson v. North Alaska Salmon Co.,
Mar. 31, 1916); but on rehearing in December it reversed its position
(North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1, 162 Pac. 93).
A distinction was drawn at this time between elective laws, under

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which the obligation to pay compensation may be regarded as a
matter of agreement or contract, and compulsory laws, as that of
California, where the obligation is fixed by the statute and not by
the contract. The law was amended in 1915, subsequent to the
occurrence of this accident for the purpose of covering injuries to
employees, residents of the State at the time of the injury and con
tracting within the State, regardless of the place of the injury (sec.
75a. of the act of 1913; sec. 58 of the act of 1917).
The constitutionality of this amendment was challenged in an
action (Estabrook Co. v. Industrial Accident Commission, 177 Pac.
848) in which it was claimed that it discriminated against nonresi
dents. The plaintiff was an employer and a resident of the State,
and the court held that he was not affected by the discrimination
complained of, if any existed, and therefore had no right to raise
the question of constitutionality. The award against him made
under this section was therefore affirmed.
However, another employer petitioned about a year later, raising
the same question, and the court held there were exceptions to the
general rule laid down by the supreme court; so that if a member of
the class discriminated against was not in a position to contest the
validity of the act, any person affected by its application might take ac
tion (Quong Hstm Wah Co. v. Industrial Accident Commission, 59 Cal.
Dec. 18), citing Buchanan v. Warley (245 U. S. 60, 38 Sup. Ct. 16). and
Middletons. Texas Power and Light Co. (249 U.S. 152,39 Sup. Ct. 227).
In passing on the point raised it was held that the legislature had
the power to enact a law providing for compensation under California
contracts, whether the employee be a citizen of the State or not. It
was also recalled that the industrial accident commission was with
out power to act on any extraterritorial case unless such power was
given by the statute under consideration. But to limit the benefits
of the act to citizens or persons domiciled in the State, in so far as
extraterritorial effects are concerned, would effect an unlawful dis
crimination against citizens of other States of the Union who might
make contracts in the State, but would be debarred the benefits of
the act because not coming within its designated class of residents of
the State. The provision was therefore declared unconstitutional.
On rehearing, however, the court decided that the State had power
to regulate all contracts entered into within its borders, and might
make compensation benefits payable to the parties to such contracts
wherever injured. The grant of that right could not be confined to
residents of the State, under the Federal Constitution, but must be
available to all the citizens of all the States who are affected by like
conditions of contract and injury; so that instead of declaring the
section void, it was broadened to include nonresidents, citizens of other
States (Quong Ham Wah Co. v. Industrial Acc. Com., 59 Cal. Dec. 18).

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157

The industrial commission of Colorado decides that the contract
of employment follows the employee into other States wherever he
goes in its performance. This view was adopted by the supreme
court of the State, saying that otherwise an employer would be
burdened with the duty of insuring under the law of each separate
State into which his employee might go in the performance of his
contract (Industrial Commission v. Aetna Life Ins. Co., 174 Pac.
589). The Supreme Court of Connecticut similarly construed the
law of that State (Kennerson v. Thames Towboat Co., 94 Atl. 372).
This is the position also of the Supreme Court of Rhode Island
(Grinnell v. Wilkinson, 98 Atl. 103), the Supreme Court of Minnesota
(State ex rel. Chambers v. District Court, 166 N. W. 185), the Supreme
Court of West Virginia (Gooding .v. Ott, 87 S. E. 802), and the
Supreme Court of New Jersey, the latter saying that the compensation
act is contractual in its nature and the place of the perfortnance of
the contract thereunder is no more essential than in the case of life
insurance (Rounsaville v. Central R. Co., 94 Atl. 392).
The law in all of these States is elective. However, the New York
Court of Appeals, construing a compulsory law, takes the same view,
saying that the contract was entered into with the compensation law
in view, and that the premiums paid for i$surance were computed
on the pay roll and not on the time worked within or without the
State boundaries (Post v. Burger & Gohlke, 216 N. Y. 544, 111 N. E.
351). It was pointed out by this court that the liability was not
contractual, strictly speaking, since the law is a compulsory one;
but that it is quasi-contractual, and the provisions of the law would
affect the contract on that basis (Smith v. Heine Safety Boiler Co.,
224 N. Y. 9, 119 N. E. 878).
The Supreme Court of Iowa went so far as to say that, where the
statute was elective as to both parties, the payment of compensation
was not the performance of a statutory duty, but the fulfillment of
the conditions of a contract, and the place of injury was not of the
essence of the case (Pierce v. Bekins Van & Storage Co., 172 N. W.
191.)
Where an accident occurred in the State of New Jersey, the con
tract of employment having been made beyond its borders, recovery
under the New Jersey law was allowed on the ground that it covers
all accidents occurring within the State unless rejected (American
Radiator Co. v. Rogge, 92 Atl. 85). However, where an employer
hires an employee outside the State to do work outside its borders,
the New York Supreme Court holds that the law does not apply
(Gardner v. Horseheads Construction Co., 156 N. Y. Supp. 899).
The original law of New Jersey provided that disputes under the
act are to be settled by a judge of the court of common pleas, and
this provision was held by the Supreme Court of New York, special

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t h e u n it e d s t a t e s .

term, to prevent it from taking cognizance of a claim under the New
Jersey law, or giving judgment on an amount alleged to be due under
the provisions of that law, the court saying that a forum had been
fixed by the act itself, and the right being statutory, all its conditions
should be complied with (Lehmann v. Eamo Films, Inc., 155 N. Y.
Supp. 1032); and this was said to be true even though both parties
are citizens of New York, where the claim is under the law of New
Jersey (McCarthy v. McAllister Steamboat Co., 158 N. Y. Supp. 563).
When this question came to the court of appeals, however, it was
said that there was no public policy of the State that would prevent
recognition and enforcement of the law of New Jersey in the courts
of New York (Barnhart v. Am. Concrete Steel Co., 125 N. E. 675).
The industrial commission of New York made a distinction in
the case of an employee of a corporation doing business in New
York, th6 employee himself being a resident of Rhode Island, but
at the time of his injury working in the State of Texas. The case
of Post v. Burger was distinguished, Post being said to be a resident
of New York and potentially a public charge on the State if injured,
while in this case the injured man would in no event assume such a
status. It was said that he might recover under the laws of Texas,
since in actions of tort the law of place must govern, so that com
pensation was denied (Carlson case, 1917). It is not clear, however,
how this distinction could be made to nullify the argument of the
court of appeals to the effect that the premiums paid for insurance
under the act are computed on the pay roll, and not on the time worked
within or without the State boundaries. The State fund was the
insurer, and the workman had been directed by his employer in New
York to go to Texas, where the injury occurred. In passing upon
the case, the commission stated that the New York statute could not
compel employers either in New York, in Rhode Island, or in Texas
to cover their employees everywhere with compensation insurance.
A New York workman injured in Pennsylvania claimed and was
awarded compensation under the law of Pennsylvania, and afterwards
sought the larger benefits provided by the New York statute. The
insurer claimed that by accepting benefits under the Pennsylvania law
the workman was estopped from further proceedings. However, the
New York commission allowed the claim, but with deduction of the
amount received under the Pennsylvania law (Dumberger case,
1919.)
Other variations were passed upon by the industrial commission of
the State of New York, pne case being that of a resident of New Jersey,
who had been hired by a Philadelphia corporation to do work in the
State of New York. The employee was injured and applied for com
pensation under the New York law. It was held that jurisdiction
existed in the State of New York and that difficulty might arise in

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159

establishing it in the other States named, while if the claim is made
in New York the claimant would be estopped to deny recovery had,
so that no double recovery could be secured. The claim was there
fore allowed. In another instance a marine engineer living in New
Jersey, but employed by a New York corporation in waters in and
about New York Harbor, was killed in Newark, N. J. A claim in
his behalf was allowed. The Ohio law is given the same application
by the industrial commission of that State where a citizen of the
State was sent outside its boundaries in the employer’s service.
The question of extraterritorial jurisdiction was before the Supreme
Judicial Court of Massachusetts in the case of In re American Mutual
Liability Insurance Co. (Gould’s case, 215 Mass. 480,102 N. E. 693).
In this case the parties in interest were residents of the State of Mas
sachusetts and had accepted the provisions of the compensation law
of the State. The death, however, occurred while the workman was
rendering service to his employer in the State of New York, his em
ployment occasionally leading him to service in that State and in
other States. The industrial accident board of the State found that
the insurance company had been paid by the employer for insuring all
injuries received by its employees in the course of their employment,
whether within or without the Commonwealth. The supreme court,
however, declined to accept this fact as binding, and held that the
scope of the law itself must determine; and from a consideration of all
its terms it was decided that the law had no effect as to injuries re
ceived outside the State and that the company was not liable in
the case in hand.
The ruling in this case as to the nonextra£erritorial effect of the
Massachusetts law is cited by the Supreme Court of Connecticut in a
case in which a Massachusetts employee of a Massachusetts employer
was injured while performing a piece of work in the State of Connecti
cut (Douthwright v. Champlin, 100 Atl. 97). Its own decision favor
ing the extraterritorial operation of the Connecticut law (Kennerson
case, supra) was mentioned, and a statement was quoted therefrom
that the Connecticut courts would enforce such laws of other jurisdic
tions, “ provided they did not conflict with our laws or public policy,”
and the processes prescribed “ could be used in our jurisdiction.”
However, as the Massachusetts law is restricted by State boundaries,
according to the construction put upon it by its own courts, the parties
come into Connecticut in the same status as “ if the contract had been
made in South Carolina, where there is no compensation act.” In
either case a contract performed in Connecticut will have read into it
the conditions of the law of Connecticut, in the absence of a positive
rejection of the act.
The Supreme Court of Wisconsin considered the nature of com
pensation legislation as bearing on the question: “ We do not regard

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the liability of the employer under the workmen’s compensation act
merely as a substitute for the common-law liability of the employer.”
The question is not of the result of a wrong committed by the employer
but of an incident of industry conducted under modern conditions.
“ Therefore the damages arising therefrom should be borne by the
whole industry rather than by the employer or employee.” To put
injuries occurring within the State boundaries in one class and those
occurring without in another would open the way to a continuation of
both the old and the new system, ‘ ‘ and the legislative purpose would
not be accomplished” (Anderson v. Miller Scrap Iron Co., 170 N. W.
275). A judgment for damages under the Michigan liability statute
was therefore reversed and the cause remanded for proceedings under
the compensation Jaw of Wisconsin, the place of residence, contract,
and principal employment of the deceased workman, this law being
declared a part of every contract, and exclusive in its effects, where
both parties are under the act.
Admiralty.—What might be considered as a part of the foregoing
subject is the question of persons employed at occupations giving
them a right of action under the admiralty law. The Supreme Court
of Connecticut held that the State has concurrent jurisdiction in such
cases, and the compensation law is available (Kennerson v. Thames
Towboat Co., supra).
The compensation commission of New York held that the law
administered by it was exclusive in its application to longshoremen,
whether at work on docks or on vessels in the harbors of the State,
and the court of appeals (In re Walker, 109 N. E. 604) ruled that as
the employee formerly had the option of proceeding at common law
or in admiralty to recover for injuries, so now he has the option of
choosing the compensation law, which has superseded the common
law. As to the contention that shipowners are not equally exempted
from possible suits with other employees, the court held that this
lies in the nature of the case and is not a result of the action of the
legislature, so that no question of the constitutionality of the act
was raised thereby.
The California commission held that a man injured on the high
seas was covered by the law of that State on the ground of the
residence of himself and of the employing corporation and of the
location of the port of registry of the vessel and the place of contract.
When the supreme court of the State came to consider the subject
it held that the provision of the judiciary act of 1789 that saved to
suitors in admiralty their common-law remedies, where the common
law was competent to give a remedy, was broad enough to let in
statutory remedies of subsequent enactment, even though a new
right was thereby created (Northern Pac. S. S. Co. v. Industrial Acc
Comm., 163 Pac. 199). The new remedies were said to be personal

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and not in rem, and therefore could exist alongside of the admiralty
rights.
The Supreme Court of Washington took the opposite view, holding
that since the State had no power to modify the shipowner’s liability
under admiralty, it could not be presumed to make the compensation
act effective where admiralty might apply; it was further held that
to do so would require shipowners to contribute to the State insur
ance fund and still be liable to suits in admiralty (State v. Daggett,
151 Pac. 648). The same view was taken by the District Court of
the United States for the Western District of Washington (The
Fred E. Sander, 208 Fed. 724).
In thus construing and applying their law the New York authorities
had in mind provisions of the act specifically covering longshore work
and the operation and repair of vessels used in interstate or foreign
commerce; also those covering employees in interstate and foreign
commerce working within the State, in so far as not forbidden by
act of Congress (Jensen v. Southern Pacific Co., 215 N. Y. 514, 109
N. E. 608). However, when these cases (Walker and Jensen cases)
came to the Supreme Court of the United States for consideration
the statute was declared to go beyond the power of the State legis
lature to enact, and these particular provisions were held uncon
stitutional. It was said, four judges dissenting, that a State can not
impose obligations such as are contained in the New York law upon
maritime commerce, since to do so would be to destroy the uni
formity in maritime matters that the Constitution intended to es
tablish in its provisions as to admiralty jurisdiction (Southern Pacific
Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524; Clyde Steamship Co. v.
Walker, 244 U. S. 255, 37 Sup. Ct. 545).
An interesting sequel to this decision was an amendment to the
Federal Judicial Code (Oct. 6, 1917), saving to claimants of the class
affected the right to proceed under any compensation law applicable
to the locality in which the injury w^as received, similar to the sav
ing of the common-law remedies. Following this amendment also
w^as the act of the New York Legislature restoring the provisions of
its law which had been declared unconstitutional by the Supreme
Court.
Questions of construction and application of the amended code and
of the State law immediately arose, leading to widely differing ad
judications. Thus it has been held that the amendment of the
Judicial Code had the effect of so far validating the compensation
law of New York in its application to maritime workers that no other
remedy remains. The act purports to provide an exclusive remedy
where it applies, and this provision was held to be incorporated into
the Judicial Code by its amendment of 1917, the limitation declared
by the decision of the Supreme Court in the Jensen case having been
177982°—21— Bull. 212---- CL1

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set aside by the action of Congress (The Howell, 257 Fed. 578). The
United States District Court for the Eastern District of Louisiana,
on the other hand, rejected the contention that where there was a
compensation law the admiralty courts were deprived of jurisdiction
(Hogan
Bula, 262 Fed. 225). The United States District Court
for the District of Oregon holds that the amendment does not inter
fere with the power of Federal courts to administer the maritime
law, where a remedy in admiralty is chosen, and that they must
administer maritime law only, unaffected by State statutes. An
action in admiralty was therefore held to be a proper means of secur
ing redress for injuries to a maritime worker, where he chose that form
of relief (Rohde v. Grant Smith Porter Co., 259 Fed. 304). To the
same effect is a decision of the Supreme Court of Washington, uphold
ing the right of the injured man to exercise a choice of remedies
(Lund v. Griffiths & Sprague Stevedoring Co., 183 Pac. 123). Here
the option was to proceed at common law, and it was contended that
the State compensation act barred suits for damages in case of
injuries to employees; but the court held that the Federal act con
trols, and that the amendment of 1917 did not abolish either ad
miralty or common-law remedies, but merely added compensation to
the list of remedies available. The same view was adopted by the
Supreme Court of New York in cases where ^he common-law remedies
were pursued (Dziengelewsky v. Turner & Blanchard, 176 N. Y.
Supp. 729; Simpson v. Atlantic Coast Shipping Co., 176 N. Y. Supp.
731).
In the case of a dredge hand who fell overboard and was drowned,
the Massachusetts accident board rejected the contention that the
amendment to the Judicial Code did not bring under the State com
pensation law any injury not theretofore included, and awarded
compensation, though there could be no recovery for the death of a
seaman either under the common law or the general" maritime law
(Dorman case, 1920).
The California commission went so far as to award compensation
to an injured seaman who had received benefits from his employer
on account of an injury during the voyage, and subsequently made a
claim under the act. It was said that the mere receipt of benefits
from the employer did not constitute an election under the admiralty
law, so that his claim was not barred (Mestrand case, 1919).
Somewhat earlier than the foregoing was the decision by the
commission in the Soarez case (July 31, 1918), in which an award
was made for the death of a stevedore injured while unloading lumber
at a dock. The contention was made that no compensation legisla
tion would be valid unless enacted subsequent to the amendment of
the Judicial Code. This the commission rejected, ruling that the
amendment granted rights under existing laws, and awarded com

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1S3

pensation for the death of Soarez. This case was taken on appeal
to the supreme court of the State, where it was decided on March
30, 1920, the award being annulled (Sudden and Christenson v. In
dustrial Accident Commission, 188 Pac. 803).
The court took the view that Congress had exceeded its powers
under the Constitution in attempting to confer upon the States
authority given to Congress alone under Article III, section 2, of the
Constitution of the United States. The decision of the Supreme
Court in the Jensen case was cited as sustaining the view that “ Con
gress has paramount power to fix and determine the maritime law
which shall prevail throughout the country.” It was held that this
must be done by Congress acting directly and not by giving the
State legislatures authority to act in such a manner as would “ de
stroy the uniformity of the maritime law which it was the aim of
the Constitution to secure.’’
The Court of Appeals of New York had earlier sustained the con
stitutionality of this amendment (Stewart v. Knickerbocker Ice Co.,
226 N. Y. 302, 123 N. E. 383), but the argument in this case did not
appeal to the California court. Subsequently the New York case
was reversed by the Supreme Court of the United States (Knicker
bocker Ice Co. v. Stewart 40 Sup. Ct. 438). This opinion was ren
dered May 17, 1920, and authoritatively annuls the amendment of
1917 to the Judicial Code, Congress having no power to so act in
view of the limitations fixed by the Constitution. “ To say that be
cause Congress could have enacted a compensation act applicable to
maritime injuries, it could authorize the States to do so as they
might desire, is false reasoning.” As the California court pointed
out, so also here it was said that to do so “ would inevitably destroy
the harmony and uniformity which the Constitution not only con
templated but actually established.”
The industrial accident board of Texas had before it the case of
a claim for injuries received by the employee of a company engaged
in business described as “ general towing,” the employer being in
sured in a stock company in conformity with the provisions of the
State compensation law. An award was made under a construction
of the law that held that such operations as the towing of vessels
entering and leaving the harbor of Port Arthur were within the
provisions of the State law. On the rendition of the opinions in the
Winfield cases and the Jensen case the insurer declined to make
further payments on the ground that the decisions of the Supreme
Court showed the case to be one for Federal jurisdiction and not
under State law.
Assuming that as between the towboat company and its employees
there was a question of admiralty rights and jurisdiction, the board
took the position that nevertheless the insurance company could not

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plead any defenses under the maritime law, since it had come into
the case voluntarily, assuming certain contingent liabilities for a
valuable consideration. “ It has no admiralty rights whatever; it
neither owns nor operates a boat; could not do so under its charter
powers.” It was held also that when the towboat company volun
tarily became a subscriber to the act it waived its admiralty rights,
and that the employee working for the company with a knowledge
of the facts likewise waived his admiralty rights. Under the law the
case in question was one between the insurance company and the
employee or his beneficiaries, and as the company was without ad
miralty rights, and the employee had waived such rights, the doc
trines enounced in the decision by the Supreme Court had no appli
cation. In so far as the question of interstate commerce was con
cerned, the purely optional nature of the Texas statute was said to
distinguish it from the laws of New Jersey and New York; and since
the employee had by voluntary agreement accepted provisions of law
by which he did not look to the employer, either directly or indi
rectly, for damages or compensation in case of injury, but to a third
contracting party, the Federal statute was not operative. In view of
this position, compensation payments by the insurer were directed
to be continued.
Interstate commerce.—The initial difficulty confronting both legis
latures and courts in determining the application of State com
pensation laws to railroad emploj^ees lies in the fact that the con
trol of interstate carriers is vested by the Constitution of the United
States in the Federal Congress. Various regulative measures have
been enacted by this body affecting employees of such carriers, but
the only statute which demands consideration in this particular
field is the act of 1908, amended 1910, determining the liability of
railroad companies for injuries to their employees while engaged
in interstate commerce. As the authority of Congress is necessarily
paramount (Michigan Central Railroad Co. v. Vreeland, 227 U. S.
59, 33 Sup. Ct. 192; Grand Trunk Railway v. Knapp (C. C. A.),
233 Fed. 950), the States are compelled to legislate with this statute
in mind. Phraseology is frequently used to indicate the purpose
of the legislature to enact laws applicable to railroad employments
only in so far as such employments are not covered by the Federal
law. The laws of other States exclude railroad emplo}anents,
or at least train operation, from their purview, leaving persons in such
employments in recovering for injuries therein to the rights established
by statutes declaring the liability of employers. Actions for damages
are therefore necessary in these jurisdictions in all cases of injury to
railroad employees, whether engaged in interstate or intrastate
commerce; and this principle controls even to the extent of making it
impossible for an injured workman and his employer to make an

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165

agreement of settlement under the terms of a State compensation
law (that of Michigan in the instant case), where the case is clearly
one of interstate commerce, according to a decision of a United
States circuit court of appeals (Waters v. Guile, 234 Fed. 532)26.
In States having compensation laws opposite conclusions have
been reached as to the boundaries of the field within which they
may act, one view being that since the Federal law applies only
where there is negligence on the part of the employer, other cases
may be cared for by a supplemental act, the contrary opinion being
that the Federal statute is exclusive and comprehends the entire
liability of employers in interstate commerce by railroad. Thus,
in harmony with the latter view, the Illinois Supreme Court re
versed the lower courts which awarded judgment in favor of an
employee injured in interstate commerce without negligence of the
employer, holding that the State had no authority to supplement the
Federal statute in this manner (Staley v. I. C. R. Co., 268 111. 356, 109
N. E. 342). The industrial commission of Ohio took practically
the same view, setting forth that under the State law railroads
and their employees engaged in intrastate and also in interstate
commerce are subject to the provisions of the State compensation
act only to the extent that the two kinds of work are clearly sepa
rable and distinguishable; also that under the act the application
as to intrastate employees is effective only after the voluntary accept
ance of the act by both parties in writing. Since such acceptance
is voluntary, a nonaccepting employer loses no defenses by a failure
to accept (Connole v. Norfolk & Western Railway Co., 216 Fed.
823).
In contrast with the Illinois opinion, the Court of Errors and Ap
peals of New Jersey held that the Federal act is exclusive only where
there is negligence on the part of the employer. In proceedings for
compensation the plaintiff does not charge negligence, and if the
plaintiff does not admit or plead negligence none appears, so that
there is no applicability of the Federal law, and compensation may be
awarded on the contractual obligation imposed by the compensation
statute (Winfield v. Erie R. Co., 88 N. J. L. 619, 96 Atl. 394). The
supreme court of the State in an earlier case (Rounsaville v. Central
R. Co., 87 N. J. L. 371, 94 Atl. 392) remarked that the Federal law
2« It is of interest to note in this connection the procedure agreed upon by the Pennsylvania Railroad
Co. in regard to injuries due to accidents occurring in the State of Pennsylvania. In cases elearly intra
state the compensation law of the State is followed by the making of agreements for periodical payments
as contemplated by the act. Where there is doubt and where the commerce was clearly interstate, if a
claim petition is filed in accordance with the act, an agreement for a lump-sum payment is made, based
on the schedule of the act, and on payment of this to the proper party a general release is obtained, thus
securing protection for the company under both Federal and State laws. Where no claim is filed the com
pany seeks an adjustment on the basis of the schedule provided in the act, commuted to a lump-sum pay
ment, taking the release as above. In both these cases commutations are either made by, or notified to,
the compensation authorities, so that a proper record can be kept

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WORKMEN ?S COMPENSATION LAWS 03f THE UNITED STATES.

established no new right of action, merely taking away defenses, and
that liability under it is not affected by the terms of contract, while
the compensation act is a new remedy, contractual in nature, the two
not overlapping, but each valid where applicable; but a referee
under the Pennsylvania law refused to admit the defense of inter
state commerce in the case of a brakeman killed in railroad yards,
and awarded compensation under the State law. The State board
confirmed such an award, saying that where the company offers the
objection that the Federal law controls, its contention is matter of
defense and must be supported by positive testimony, the full
burden of proof resting on the company to take the case out from
under the State law.
The New York Court of Appeals took the same view as the New
Jersey courts, saying that the acts are so different as to leave room
for both. Employees in the State are protected by the regular in
surance covering all accidents regardless of negligence. The Federal
law covers cases of negligence by its exclusive right, but goes no fur
ther, so that there is no risk of double liability (Winfield v. N. Y. C. &
H. R. R. Co., 216 N. Y. 284, 110 N. E. 614). The industrial com
missioner of Iowa similarly construed the law of that State, though
the point seems not to have been passed upon by its courts.
The New York Court of Appeals also held that longshoremen load
ing interstate vessels are not operating the vessels within the meaning
of the State law. It was added that regulating the relations between
employers and employees was not a regulation of commerce, and
was within the jurisdiction of the State until Congress acts, which
it has not done as to vessels, so that an award might be made in
the case in hand (Jensen v. S. P. R. Co., 215 N. Y. 514, 109 N. E. 600);
and generally where the interstate commerce is by water, the author
ities available agree that, since Congress has not legislated at all on
the subject, the State laws control. The law of Washington declares
on this point that its provisions “ shall apply to employers and work
men engaged in intrastate and also interstate or foreign commerce,
for whom a rule of liability or method of compensation has been or
may be established by the Congress of the United States, only to the
extent that their mutual connection with intrastate work may and
shall be clearly separable and distinguishable from interstate or
foreign commerce.” The court held that taking the law as it stood
in all its points it was intended to legislate for all persons engaged in
the extrahazardous employments enumerated in the act, and that
Congress having in no way legislated in the particular premises, the
State had the right to enact laws incidentally affecting sueh com
merce. It was held, therefore, that any right of recovery which the
plaintiff might have would be by way of a claim under the com
pensation law of the State (Stoll v. Pacific Coast S. S. Co., 205 Fed.
169).

PARTICULAR PROVISIONS OF THE LAWS.

167

Not using the same language as to strict exclusiveness, but main
taining the applicability of the laws, are to be found the supreme
courts of Connecticut (Kennerson v. Thames Towboat Co., 89 Conn.
367, 94 Atl. 372) and of Minnesota (Lindstrom v. Mutual S. S. Co.,
132 Minn. 328, 156 N. W. 669); while the industrial commission of
Ohio, though refusing to consider cases of interstate commerce by
railroad, as already noted, applied the compensation law to the case
of an employee swept overboard from a tug in Lake Erie and drowned.
In spite of the weight of authority usually accorded to the courts
holding the views set forth above, the persuasive reasoning by which
their positions were supported, and the obvious need for relief not
afforded by the Federal liability law, the Supreme Court of the United
States declared against the supplemental or piecing-out theory of
these courts. In taking their stand, the State courts had recognized
the exclusive force of the Federal act where it was applicable, but
where no negligence was charged it was assumed that there was no
applicability of the Federal law, and that compensation might be
awarded on the contractual obligation imposed by the compensation
statute. This the Supreme Court denied, holding that interstate
commerce is not in any way subject to State compensation laws,
and saying that the Federal statute is “ comprehensive and also
exclusive, fixing the entire responsibility of interstate carriers to
their employees, so that no power to supplement the laws lies within
the purview of State legislatures” (New York Central R. Co. v.
Winfield, 244 U. S. 147, 37 Sup. Ct. 546; Erie R. Co. v. Winfield,
244 U. S. 170, 37 Sup. Ct. 556).
Thus both the New York and New Jersey courts of last resort
were reversed. It may be noted that two justices dissented in these
cases, on the ground that the Federal law was intended to cover
only the limited field of the carrier’s liability for negligence, and not
the whole field of obligation that might exist by reason of the occur
rence of accidents.
Assuming the exclusive authority of the Federal act in its terri
tory, the question of which law to seek relief under, whether State or
Federal, remains obscure in many cases. The rights of recovery
are widely different, dependent upon whether the employee is en
gaged in interstate or intrastate commerce, and the boundaries be
tween these two classes of employment are not only obscure in them
selves, but the efforts of the courts in attempting to determine them
have been hardly less confusing than clarifying. Thus a prelim
inary question to be disposed of in the case of New York Central R.
Co. v. White, noted under the discussion of constitutionality of the
laws, was as to the status of the employee suffering the injury. It
appeared from the facts that he was a night watchman guarding
tools and materials intended to be used in the construction of a new
railway station and new tracks not yet brought into use. The com

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t h e u n it e d s t a t e s .

pany made the contention that, on account of the interstate nature
of the business, the rights of recovery against it were defined and
limited exclusively by the provisions of the Federal employers’ lia
bility act of 1908. The Supreme Court held, however, that since the
employee was not at the time of the injury engaged in interstate
transportation, nor in work so closely related to it as to be practically
a part of it, but had to do solely with construction work, he was
within the jurisdiction of the State law. On the other hand, where
a workman employed in cutting weeds, etc., along the right of way
of a railroad died from congestion of the lungs following poisoning
from ivy vine, an awrard and decision in his favor were reversed by
the Court of Appeals of New York because consideration had not been
given to the contention that the work of removing the wreeds, grass,
ete., was interstate commerce. The court held that if the work
contributed to the safety and integrity of the railroad, which was an
interstate carrier, it was a part of interstate commerce, and the in
dustrial commission must pass upon the nature of the employment
before making its awrard (Plass v. Central New England Ry. Co.,
117 N. E. 952).
A serious result of error in choosing the remedy appeared in a
Michigan case, where an employee was adjudged to be in intrastate
employment after having sued under the Federal law. Since the
compensation law required claims to be filed within six months after
the injury, and a greater time had been consumed in the court pro
ceedings, no right of recovery remained (Schild v. R. Co., 166
N. W. 1018).
The converse of this situation arose in a case in which the widow
of a deceased electric lineman presented a claim to the industrial
commission of California. An award wras made as for intrastate
employment, and wras affirmed by the supreme court of the State
(Southern Pacific Co. v. Ind. Acc. Com., 171 Pac. 1071). The de
ceased received an electric sheck while wiping insulators on a main
line by which current wras transmitted to a transformer station, from
which it passed to lines by which both interstate and intrastate
traffic was moved. The court regarded this service too remote to
be classed as interstate^, comparing it to switching coal cars to a chute
from w7hich both kinds of traffic would be supplied with fuel. The
Supreme Court of the United States reversed this decision (same
case, 40 Sup. Ct. 130), saying that if the current had been short
circuited through the decedent’s body, interstate commerce would
have been immediately interfered with; hence the employment must
be classed as interstate, and subject only to the Federal law. As
this law contains a twro-year limitation, and as a longer time than
twro years had elapsed when the final decision wras reached, the widow
wras without redress.

PARTICULAR PROVISIONS OF THE LAWS.

169

An interesting point in connection with this case is that the Supreme
Court of California in declaring the injury intrastate relied principally
upon the analogy of the present case to one decided by the Supreme
Court, holding a member of a switching crew to be in intrastate serv
ice (Chicago B. & Q. R. R. Co. v. Harrington, 241 U. S. 177, 36 Sup.
Ct. 517). The crew was engaged in switching cars of coal to supply
bins from which locomotives would be supplied, for both interstate
and intrastate operations. The argument in the Harrington case
was cited and said to be apt, the decision resting squarely on the
court’s understanding of the Supreme Court’s views. A subsequent
reversal by the very court which was sought to be followed illustrates
the complexity of the situation.
A very recent decision involves the claim of a trainman moving
coal from the mine to a railroad yard, 2 miles distant. A fatal
injury was the basis of an award to the widow, affirmed by the
Supreme Court of Pennsylvania (264 Pa. 220, 107 Atl. 735). The
case was then taken to the Supreme.Court of the United States and
there reversed (Philadelphia & R. Ry. Co. v. Hancock, 40 Sup. Ct.
512), on the ground that as some of the cars had been designated by
instruction cards to the conductor as intended for shipment outside
the State, they were in interstate commerce from the time of leaving
the mine, though not yet weighed and billed. “ The determining cir
cumstance is that the shipment was but a step in the transportation
of the coal to real and ultimate destinations in another State.”
The question is almost insoluble under existing conditions, and the
variety of conditions seems far from being exhausted. A recent case
before the Supreme Court of Washington involved the status of a
telegraph company (State v. Postal Telegraph-Cable Co., 172 Pac.
902). It was held that as to employees engaged in construction the
employment was intrastate and within the State law. Employees
sending messages were engaged in both interstate and intrastate
service, and inasmuch as the two forms of work could not be segre
gated, the State law had no application thereto. The problem is in
no wise different in principle from the earlier one of under v.h'ch law
to sue, before the enactment of compensation laws; and as to this it
was said by the Supreme Court that “ each case must be decided in
the light of the particular facts, with a view to determining whether,
at the time of the injury, the employee is engaged in interstate busi
ness.”
Alien beneficiaries.—The laws are in most instances specific enough
on the point of the inclusion or exclusion of nonresident alien bene
ficiaries to make construction unnecessary. The Illinois statute is not
thus specific, however, but the industrial board of the State ruled that
the wording of the law, “ the people of the State,” includes aliens as
among those workmen covered by the act, so that their nonresident

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OS. THE

UNITED STATES,

dependents are entitled to benefits; this view was confirmed when a
case involving the point came before the supreme court of the State
(Victor Chemical Works v. Industrial Board, 113 N. E. 173). The
New Jersey statute excludes nonresident beneficiaries, and inasmuch
as employees within the State have no other remedy than that pro
vided by the act, it was held that no right survives, so that Lord
Campbell’s act giving the right of recovery for fatal injuries no
longer avails for nonresident aliens, the only right that the injured
man had having died with him (Gregutis v. Waclark Wire Work,
91 Atl. 98, 92 Atl. 354).
The law of California makes no reference to alien beneficiaries, but
does include alien employees, and the contention was made (Western
Metal Supply Co. v. Pillsbury, 156 Pac. 491) that this made possible
payments to alien and nonresident dependents; that no public pur
pose cognizable by the legislature was to be served thereby, and that
therefore the law was unconstitutional. The supreme court of the
State rejected this view, saying that i( there is no constitutional or
rational ground for limiting the benefits of this legislative scheme to
citizens or residents of this State. If the employment was such as
to fall within the State’s lawmaking jurisdiction, the legislature cer
tainly had the power to pass law^s operating uniformly upon all per
sons affected by such employment.”
Under like conditions as to legislation, the Court of Civil Appeals
of Texas held that dependents of a workman to whom benefits had
been paid up to the time of his death were entitled to compensation,
even though nonresident aliens, usince neither under the workmen’s
compensation act nor under the general law of this State are they
denied right to inherit” (Surety Ins. Co. v. Vickstrom, 203 S. W.
3*89).
The Pennsylvania law allows nonresident aliens two-thirds bene
fits. This was held by the State board to be an attempt to equalize
money values, and if resident beneficiaries leave the State and go back
to their native country, the award should be reopened and revised
accordingly (Ciambella case, 1918).
ARISING OUT OF AND IN COURSE OF EMPLOYMENT.

The majority of the laws of the States contain as a limitation on
the injuries to be compensated the statement that they must arise out
of and in the course of employment, and the rulings on this point are
necessarily numerous. The phrase is copied from the British work
men’s compensation law, and in considering it frequent use has been
made of English decisions. The Supreme Court of New Jersey dis
cussed its effect in an early case (Bryant v. Fissell, 86 Atl. 458),
reaching the conclusion that “ an accident arises in the course of
the employment ’ if it occurs while the employee is doing what a man

p a r t ic u l a r

p r o v is io n s

th e

law s.

171

so employed might reasonably do within the time during which he
is employed, and at a place where he may reasonably be during that
time.” Since, however, the law of New Jersey contains also the
words “ out o f ” and requires that both conditions be met, further
consideration was had, concluding “ that an accident arises out o f’
the employment when it is something the risk of which might have
been contemplated by a reasonable person when entering the employ
ment as incident to it. * * * A risk is incidental to the employ
ment when it belongs to or is connected with what a workman has to
do in fulfilling his contract of service.” In this case a carpenter
engaged in the erection of a building was injured by the falling of
material in charge of the ironwork contractor, who was a separate
employer of labor. It was held that the injury was received in the
course of and arising out of the employment. The same court
applied this doctrine to include the case of a workman killed while
crossing railroad tracks on the way from the place of his employ
ment to the toilet customarily used by persons in the employer’s
service (Zabriskie v. Erie R. Co., 88 Atl. 824). In discussing the
same phraseology the Supreme Judicial Court of Massachusetts (In re
Employers’ Liability Assurance Corporation, 102 N. E. 697, fre
quently cited as “ McNicol’s case” ) first laid down the rule that both
conditions of the phrase must be complied with, and in discussing
the effect of these words said:
It is not easy nor necessary to the determination of the case at
bar to give a comprehensive definition of these words which shall
accurately include all cases embraced within the act and with pre
cision exclude those outside its terms. It is sufficient to say that an
injury is received “ in the course o f” the employment when it comes
while the workman is doing the duty which he is employed to per
form. It arises “ out o f” the employment, when there is apparent
to the rational mind, upon consideration of all the circumstances, a
causal connection between the conditions under which the work is
required to be performed and the resulting injury. Under this test,
if the injury can be seen to have followed as a natural incident of the
work and to have been contemplated by a reasonable person familiar
with the whole situation as a result of the exposure occasioned by
the nature of the employment, then it arises “ out o f” the employ
ment. But it excludes an injury which can not fairly be traced to
the employment as a contributing proximate cause and which comes
from a hazard to which the workmen would have been equally
exposed apart from the employment. The causative danger must be
peculiar to the work and not common to the neighborhood. It must
be incidental to the character of the business and not independent
of the relation of master and servant. It need not have been fore
seen or expected, but after the event it must appear to have had its
origin in a risk connected with the employment and to have flowed
from that source as a rational consequence.
On these grounds the court allowed benefits for the death of a
man killed by blows and kicks of a fellow workman who was “ in

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an intoxicated frenzy of passion/’ his habits and disposition having
been known to his employer, the award being based “ upon the
causal connection between the injury of the deceased and the con
ditions under which the defendant required him to work.”
Difficulty remains in the determination of the question as to
whether the hazard is due to the employment or to conditions affect
ing the public generally. Thus a delivery man walking along the
street and falling over a bucket of broken glass, receiving fatal
injuries, was denied compensation by the New York Supreme Court,
appellate division (Newman v. Newman, 155 N. Y. Supp. 665,
affirmed by the court of appeals, 113 N. E. 332), the court saying that
he was exposed to no other hazard than that to which any one walk
ing in the same locality would have been exposed, so that it was not
|an incident of the employment. The supreme court of the State,
appellate division, however, allowed compensation in a case (Miller
v. Taylor, 159 N. Y. Supp. 999) in which the driver of an express
truck was struck by an automobile while crossing the street to
1deliver a package, distinguishing this from the Newman case above;
and the same court affirmed the finding of the industrial commission
,in a case (Putnam v. Murray, 160 N. Y. Supp. 811) where a driver
engaged in collecting dirt from the streets of a city stepped on a
rusty nail, the injury resulting in tetanus and death, the contention
that the injury was the result merely of conditions to which the
public generally was exposed not being admitted as a defense. The
employee was held to have been engaged in a hazardous employment
under the act, and “ the mere fact that a person not engaged in a
hazardous employment was exposed to the danger of a similar injury
should he chance to travel that way furnishes no argument for a
denial of the right of compensation to a person whose hazardous
employment compelled his constant presence on the street.”
A foreman struck by an automobile while crossing a street from
his work place to use a telephone was held by the Supreme Court of
Illinois to have been injured in the course of his employment and to
be entitled to benefits (Mueller Const. Co. v. Industrial Board, 118
N. E. 1028). So also a Minnesota court ruled that a driver was
exceptionally exposed to street risks, so that one hurt by the fall of
material from a building which he was passing was held to have been
injured by an accident arising out of and in course of the employ
ment (Mahowald v. Thompson-Starrett Co., 134 Minn. 113, 158 N. W.
913; Hansen v. Northwestern Fuel Co., 174 N. W. 726). An award
was also made by the Massachusetts board in the case of a street
sweeper injured by a runaway horse, over the contention of the city
of New Bedford that such an occurrence was not a natural incident
of the injured man’s employment.

PARTICULAR PROVISIONS OF THE LAWS.

173

The California commission allowed the claim of a motorman who
had reported for work five minutes before starting time, according to
rule, but slipped and fell on the street while going from the bam to
his car; it was contended that the nature of his employment was not
such as to expose him to street risks more than the average man,
but the commission stated that this rule should not be applied too
broadly, but with reference to the particular circumstances of the
case. Where an office employee, after finishing her day’s work, took
some of her employer’s letters to deposit in the post office on the way
home and was struck by a train, the New York commission rejected
the claim for compensation on the ground that she was following
the same route that she would have followed if she had been going
home without undertaking to mail the letters; that she was exposed
to no unusual hazard due to the employment; and that the injury
did not arise out of and in course of the employment.
The Supreme Court of Wisconsin made a ruling similar to that of
the California commission in the case of the motorman above, in the
instance of an employee who reported at 7.30 a. m. for orders as to
work which was to begin at 8, and while proceeding along the street
under orders to his work place, slipped and fell; the court held that
the status of employer and employee existed, and that the accident
grew out of and was incidental to his employment (City of Mil
waukee v. Althoff, 145 N. W. 238).
Where the injury was due to lightning stroke the Michigan
Supreme Court held that the exposure of a railroad section man
who sought shelter in a barn which was struck by lightning was in
no way different from the risk of other members of the community,
and was not caused by or in connection with his employment
(Klawinski v. Lake Shore & M. S. Ry., 152 N. W. 213)—a position
that was assumed also by the Supreme Court of Wisconsin (Hoenig
v. Industrial Commission, 150 N. W. 996), deciding on a case in
which a workman on a dam was killed by lightning. The Supreme
Court of Minnesota, on the other hand, affirmed an award of the
lower court in behalf of a claimant, where a man was injured by
lightning wiiile. seeking shelter under a tree at the time of a storm,
the court saying that there was evidence to sustain a finding that the
injury arose out of the employment (State ex rel. People’s Coal &
Ice Co. v. District Court of Ramsey County, 153 N. W. 119).
The Pennsylvania statute provides compensation for accidents in
the course of employment, omitting the limitation as to “ arising out
of.” It was held, therefore, by the compensation board of the State
that as death by lightning is unquestionably an accident, and the
law does not require that it should arise out of the employment, an
employee killed by lightning while engaged in the regular course of
his employer’s business wras within the act.

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To the same effect was the ruling of a Pennsylvania referee, who
held that a delivery boy struck by an automobile on the street and
killed was at the time engaged in furthering his employer's interests,
and compensation waa allowed accordingly. The supreme court of
the State affirmed an award in a case where an engineer was found
dead from a bullet wound inflicted by an unknown person, holding
that it was for the employer to prove that the injury was due to
personal reasons; further, the act is not limited to injuries “ arising
out of” the employment (Keyes v. New York, O. & W. R. Co., 108
Atl. 406).
Compensation was also allowed an employee who was shot by a
fellow employee who had gone insane, the board holding that “ it is
sufficient that he suffer his experience while in the course of his
employment (Quam case, 1917). Similarly the Ohio statute does
not contain the words “ arising out of,” but this was held by the
supreme court of the State (Fassig v. State, 95 Ohio Stat. 232, 116 N. E.
104) not to warrant the extension of the remedy provided by the
act to cases other than those in which the injuries resulted from or
were connected with the employment; so that it “ would not cover
any case which had its cause outside of and disconnected with the
employment, although the employee may at the time have been
actually engaged in doing the work of his employer in the usual
way.”
The United States employees’ compensation law provides relief
for injuries to an employee “ sustained while in the performance of
his duty,” thus adopting a phraseology which differs from that found
in the majority of compensation statutes. The absence of judicial
construction of these words put upon the commission the duty of
adopting a rule for its own guidance, the language being obviously
somewhat broader than that generally used. The rule is thus stated:
A personal injury sustained by a civil employee of the United
vStates while on the industrial premises of a navy yard, arsenal, or
other place of employment, provided such employee is on such
premises for the purpose of going to or returning from his work or
performing duties connected with or incidental to his work, and is
not on such premises merely for purposes of his own, shall be an
injury sustained “ while in the performance of his duty” within the
meaning of that phrase as used in section 1 of the compensation act
of September 7, 1916. This ruling is based upon the responsibility
of the United States, as the employer, for the safe and sanitary con
dition of its premises.
The award in the Minnesota case last named necessarily involved
the conclusion that the injured man had not left employment while
thus seeking shelter, and this question was also involved in the case
of a railroad lineman who took shelter from a storm under cars
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was injured, and the Supreme Court of New York, appellate division,
affirmed an allowance of compensation on the ground that to seek
available shelter was not leaving the employment but was incident
thereto (Moore v. Lehigh Valley R. R. Co., 154 N. Y. Supp. 628 .
And where a workman, chilled by exposure, fell asleep and was burned
while sitting by a fire, waiting for an opportunity to use an elevator.,
the injury was held to have arisen out of the employment {Richard*
v. Indianapolis Abattoir Co., 92 Conn. 274, 102 Atl. 604); also wheiv
an injury occurred to a workman unloading cars at intervals of about
15 minutes, injured by a car running upon him while seeking warmth
from the unloaded contents of the previous one (Northwestern Iron
Co. v. Industrial Com., 160 Wis. 633, 152 N. W. 416). But an em
ployee taking a rest between the loading of two wagons, and choosing
a place on a frequently used track to lie upon, and going to sleep
there, was held not to be protected by the act, other places being
available, and the unnecessary hazard being the result of his own
choice (Weis Paper Mill Co. v. Industrial Com. (111.), 127 N. E. 732).
Where one’s employment is of such a nature as not to involve fixed
working hours, difficulty may arise in determining between service
for the employer and the pursuit of private ends. Thus a real estate
and insurance agent, whose time was occupied largely according to his
own judgment, was injured while on his way to keep an appointment
with a prospective customer. The injury was held by the California
industrial commission to be while in his employer’s service, without
regard to the time. The same body awarded compensation to a
traveling salesman injured in an automobile accident while returning
from a search for prospective customers, basing the decision on the
same grounds. This principle was also applied b j a compensation
commissioner of Connecticut in the case of a general manager of his
employer’s business, who was killed while going on an errand for his
employer’s benefit after the expiration of the usual working time.
The industrial accident board of Texas approved the claim of a
traveling salesman who volunteered to assist workmen repairing a
bridge which he was to cross on his way from one town to another,
a delay of several hours being imminent; and the appellate court of
Indiana held that the injury arose out of the employment where an
insurance agent slipped on an icy sidewalk on his way from the station
to a hotel in the town to which his employer had sent him (In re
Harraden, 118 N. E. 142).
Taking a contrary position to that assumed in the foregoing
rulings, the Supreme Court of Massachusetts laid down a rule of a
strictness that would go far to limit the application of a compensation
law in cases where an employee was not restricted in his movements
to a set of conditions strictly affected by his employment. The
superior court had affirmed the award of the State industrial accident

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board in a case where a life insurance agent was injured in an auto
mobile accident, he having accepted the invitation of a prospective
customer to ride with him and talk over the policy proposed. The
court held that the field of the agent’s employment was in a sense
boundless—that his time and his method of procedure were his own.
He might travel on foot, or horseback, by trolley, train, or auto"
mobile. * * * He was wholly free as to time, place, or weather.
Under such circumstances, when one accepts an invitation to ride,
an injury received is not “ occasioned by the nature of the employ
ment.” The danger incident to the use of an automobile is not a
“ causative danger” “ peculiar to the work,” but is a risk which is
common to all persons using one. The injury can not be said reason
ably to have been contemplated as the result of the exposure of the
employment.
The claim of the injured man was therefore ordered dismissed
(Hewitt v. Casualty Co. of America, 113 N. E. 572).
A still different aspect of the question of the nature of the employ
ment calls for consideration where the preservation of discipline or
order or the handling of funds giving rise to a temptation to robbery
is a factor. The California commission awarded compensation in the
case of a city marshal killed while in the performance of duty, even
though a premeditated assault could not be classed as an accident. It
was said, however, that the injury under such circumstances might
be said to be accidental. Similarly a citizen called upon to aid a
deputy sheriff in arresting an offender was held to be entitled to
compensation as an employee of the municipality, an award to this
effect being affirmed by the Supreme Court of Wisconsin (Village of
West Salem v. Industrial Commission, 155 N. W. 929); so also of a
night marshal or .policeman killed while attempting to enforce the
speed laws of the State (Village of Kiel v. Industrial Commission,
158 N. W. 68).
Compensation was denied by the commissioner of West Virginia
in a case where a night watchman was attacked and went in the
darkness to secure his gun, which was accidentally discharged, caus
ing injury to himself, the commissioner saying that the injury was
not one received in the course of and by reason of the employment.
On the other hand, the industrial board of Illinois awarded com
pensation in behalf of a railroad watchman who was shot by a thief
whom he had taken; and the supreme court of this State (Ohio
Building Safety Vault Co. v. Industrial Board, 115 N. E. 149) took
the view that the murder of a night watchman might properly be
found to be connected with the nature of his employment as the
proximate cause, the injury being one to which the employee would
not have been equally exposed apart from his employment; so also
where a night watchman was killed by a burglar (Supreme Court of
California, Western Metal Supply Co. v. Pillsbury, 156 Pac. 491);

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and where a mill superintendent was murdered by an objectionable
person whom he had ordered to leave the mill (Massachusetts Supreme
Court, In re Reithel, 109 N. E. 951; see also Hayden v. Keown, 122
N. E. 264); where a foreman was shot by an employee whom he had
discharged (Ohio industrial commission); where a foreman was
assaulted and seriously injured while trying to compel a discharged
workman to leave the place of his former employment (California
Supreme Court, Western Indemnity Co. v. Pillsbury, 151 Pac. 398);
where an employee with authority to enforce discipline was attacked
after threatening discharge for frolicking during work time (com
pensation commission of New York); and where a superintendent
was killed by a watchman, following a quarrel in which both matters
of employment and personal matters were involved (Am. Smelting &
Refining Co. v. Cassil (Nebr.), 175 N. W. 1021).
A difficult case within this group was before the Supreme Court
of Massachusetts (In re Harbroe, 111 N. E. 709), in which a night
watchman was mistakenly shot by officers pursuing burglars who had
robbed a safe elsewhere and were being pursued. There was nothing
to indicate a fear of robbery of the premises which Harbroe was
guarding, and he was not fired upon because of his employment.
Shots were exchanged under mutual mistake, and the fatal injury
was said not to be an incident reasonably connected with employment
of that nature. The claim was therefore rejected on the ground that
the injury did not arise out of the employment. Quite similar is a
case decided by the Supreme Court of New Jersey (Schmoll v. Weisbrod & Hess Brewing Co., 97 Atl. 730), in which an award approved
by a lower court was reversed. The claim arose on account of the"
death of the employee who was a delivery man and collector for the
employing company and who was shot by an unknown person and
for an unknown cause while in the service of the company. The man
had money on his person, but no attempt at robbery was made, and
it was held that there was nothing to indicate that the shooting was
in any way connected with the employment.
In another case (Walther v. American Paper Co., 98 Atl. 264) the
same court affirmed the award of the court below—a night watchman
having been killed by a coemployee for purposes of robbery. It was
said that the facts differentiated the case from the Schmoll case above,
and the reasoning of the memorandum filed in the lower court was
approved. One point emphasized therein was that the assailant
gained the knowledge as to the watchman’s movements and his pos
session of his pay from the fact of coemployment, which also gave
him access to the building in which the attack was made. “ The
facts are so interwoven with the question of his employment that it
must be determined that the accident arose both out of the and in
course of his employment.” This case was reversed by the court of
177982°—21—Bull. 272------ 12

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errors and appeals (99 Atl. 263), practically without opinion, the
court merely saying that it thought the death didliot arise out of the
employment, and was not distinguishable in this respect from Hulley
v. Moosbrugger (p. 180).
Other cases in which robbery appeared as a motive were decided
in favor of the claimants by the industrial commission of California,
where a street-car conductor whose line terminated in an unin
habited locality was attacked for the purposes of robbery; by the
industrial commission of Ohio, where the bookkeeper of a firm was
assaulted and robbed while returning from a bank with the weekly
pay roll; and by the West Virginia public service commission, where
the paymaster of a coal company was ambushed while carrying money
for the employees, being killed and robbed. The correctness of such
rulings is supported by remarks of the Supreme Court of New Jersey
in the Schmoll case above, in which such conditions are discussed and
are said to fall within the principle of an approved English case cited.
The presumptions were held by the California commission to be
against a claim for the death of a chauffeur, whose body was found
after having taken two men out in his employer’s machine to an
agreed point a few miles outside. The employment was held not to
be one giving rise to risk of assault, and in the absence of direct evi
dence favoring an award the claim was dismissed. Where an inten
tional assault was committed upon a workman who had been em
ployed in the place of discharged employees, it was held that the
positive danger peculiar to the work and not common to the neigh
borhood was a factor that was present, and also that the injury was
incidental to the character of the business and not independent of
the relation of master and servant. The injury need not have been
foreseen or anticipated, but if it happens it must be seen to have had
its origin in a risk incidental to the employment and to have flowed
from that source as a rational consequence. The discharged work
men had been reemployed and had shown ill feeling, the injuries
being the result of a fight between them and the injured man. The
New York commission held that the incident might reasonably have
been anticipated and that it arose out of and in the course of the
employment. The award was affirmed by the supreme court, appel
late division (Hartnett v. Thomas J. Steen Co., 153 N. Y. Supp. 1119).
Where the injury is the result of horseplay, it is quite commonly
held that while the accident occurred in the course of the workman’s
employment it did not arise out of it. The Michigan compensation
board was therefore constrained to deny compensation in a case in
volving the perennially recurring folly of the application of com
pressed-air hose causing internal injuries to a workman, the case as
usual being one of a claim for fatal injury. In a similar though non
fat al case the supreme court of the State disallowed a claim as not

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arising out of the employment, though it was in evidence that the
employees “ all had a; habit of fooling around at different times.”
The injured man in this case was attending to his duties, which were
in no way connected with the use of the compressed air (Tarpper v.
Weston-Mott Co., 166 N. W. 857). The Appellate Court of Indiana,
however, took the view that where the injured man was taking no
part in the use of the hose or in the so-called sport therewith, he was
within the provisions of the act, so that his dependents might claim
compensation (Bimel Spoke & Auto Co. v. Loper, 117 N. E. 527).
In support of its position the court said in an earlier opinion on
the same case:
The employer, with knowledge of the facts, permitted such prac
tice to continue. It was within his power to have prohibited it.
By failing to do so it became an element of the conditions under
which the employee was required to work.
In line with the above was a decision by the Supreme Court of
Kansas to the effect that where the employer had notice of horseplay
as a custom, injuries due thereto are compensable, as arising out of
the employment (White v. Kansas City Stockyards Co., 117 Pac.
522). The industrial commission of California, while recognizing
that the general rule would be that “ skylarking’ ’ was out of employment and not compensable, allowed a claim in the case of a man who
was known to be peculiarly susceptible of being tickled, and was
made to fall by the action of one of his associates, he himself taking
no part in any scuffling or diversion. It was said that a rigid applica
tion of the general rule would deny compensation to a considerable
number of persons who are injured without stepping outside the
course of their employment, and without any intent to injure or
any seeming likelihood of injury resulting from the act of a fellow
employee. In a similar case, however, the same commission denied
benefits in the cage of an employee of a brewing company who, in
accordance with custom, undertook to drink beer from a bottle, and
found that a fellow employee had, as a practical joke, put caustic
soda used for cleaning the bottles into this bottle, causing injury;
and when the first case noted above came before the Supreme Court
of California the award was reversed, the court saying that while
the accident was undoubtedly in the course of the employment, it
did not arise out of it, as there was no causal connection between the
accident and the conditions under which the employee was working
(Coronado Beach Co. v. Pillsbury, 158 Pac. 212). The same view
was taken in a case (Fishering v. Pillsbury, 158 Pac. 215) where a
workman sought compensation for the loss of an eye due to an injury
afflicted by a fellow workman who pointed a trick camera at the
injured man, from which a spring was ejected when a button was
pressed.

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The industrial board of Illinois discredited the contention of horse
play where the employer claimed that the injury was received
during a scuffle among employees who were at the pay window for
the purpose of receiving their pay checks. Employment was said to
be continuous during this time, and the claim was allowed.
Two claims passed upon by the industrial accident board of
Massachusetts were rejected, one being where workmen were scuffling
for possession of a truck, the other that of a man who was tickled
by a coworker, he himself taking no active part in the affair. The
Supreme Court of Nebraska (Pierce v. Lumber & Coal Co., 156 N. W.
509) ruled that horseplay or anger leading to the injury of an employee
by another is not within the act. So also the Court of Errors and
Appeals of New Jersey reversed the supreme court of the State in
the case of an award made by it allowing a claim where an employee
fell and was fatally injured by dodging a playful blow, saying that
it was not the employer’s duty to prevent playful assaults, and that
it was immaterial whether the employee engaged therein or not,
the risk not being reasonably incident to the employment (Hulley
v. Moosbrugger, 88 N. J. L. 161, 95 Atl. 1007). This corresponds
to the action of the Supreme Court of New York, appellate division,
which reversed an award in behalf of a girl who practically lost the
sight of one eye by scissors thrust though a crack toward which she
leaned to discover the occasion of a slight disturbance (De Fillipis v.
Falkenburg, 155 N. Y. Supp. 761). However, the compensation com
mission of that State has made other awards in cases coming under
this principle which, so far as is now known, have not been reversed.
In one instance an employee slapped a fellow workman who was asleep
on a table and walked away while looking backward at him, running
into an object, which necessitated the removal of an eye. In another
case workmen quarreled as to the performance of a piece of work on
which they were jointly engaged; while in the third instance a friendly
controversy was in progress when injuries were incurred by one of
the parties which might lead to total blindness. The court of
appeals of the State took a position more nearly in accord with the
rulings of the commission than of the supreme court as expressed
above in a case in which an injury to the eye of a stableman, received
in the course of a quarrel or argument as to the best method of doing
a piece of work, was held compensable (In reHeitz, 112 N. E. 750).
The industrial board of Indiana allowed compensation where an
employee was assaulted by his employer, and the department of
labor of Minnesota ruled similarly where a bartender was injured
by a druken customer. This latter finding was approved by *the
supreme court of the State (State v. District Court of Koochiching
Co., 158 N. W. 713).

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The Ohio commission ruled in favor of a workman struck by a
missile thrown in sport by a fellow workman while the former was
going from his work place to a locker; also where a man was killed
by an enraged fellow workman with whom he had previously had an
altercation, though the deceased was engaged in his employment at
the time of the attack and was not fighting; and in the case of a
stenographer killed by a jealous suitor in the establishment. In this
last case the injury was said not to be due to the hazards of the em
ployment, but did occur in the course of it. Where, however, men
suspended their work for a brief time and engaged in a friendly box
ing bout, one being hurt, the injury was held not to have been re
ceived in the course of employment.
The industrial commission of Oklahoma rules that injuries of this
sort are not covered, whether only one or both of the employees
voluntarily engage in the diversion. The Supreme Court of Wis
consin also denied benefits in the case of a man injured by the spor
tive application to his body of a compressed-air hose by a fellow
employee, the injuries being said not to be a rational consequence of
the employment (Federal Rubber Mfg. Co. v. Havolic, 156 N. W. 143).
The Supreme Court of Michigan passed upon a case where a work
man voluntarily left his post to participate in an altercation in which
his employer was engaged, going to his defense, the court ruling
that the man was not injured in the course of his employment (Clark
v. Clark, 155 N. W. 507). On the other hand, the industrial com
mission of New York made an award in such a case (Sassabo case,
1917). The attempted rescue of a fellow workman, resulting in the
death of the volunteer, was held to be an act in the line of duty and
compensable (Supreme Court of Illinois, Dragovich v. Iroquois Iron
Co., 109 N. E. 999). .The New York Court of Appeals carried this
principle a step further in a case (Waters v. William J. Taylor Co.,
112 N. E. 727), in which an award was approved in behalf of a work
man who attempted the rescue of a workman on the same build
ing, but employed by another contractor. It was admitted that
the man stepped “ somewhat beyond the limits which would fix the
scope of his employment under ordinary circumstances,” but to bar
a claim in his behalf would be “ narrow and disappointing.”
What departure from the strict performance of duty will amount
to leaving employment was ruled upon by the California commis
sion in a case in which compensation was allowed where an em
ployee in a canning establishment moved a few steps to hear the
remarks of a fellow workman and was injured, the course of em
ployment being held not to be broken by this act; so where a deck
hand was in an engine room to help start the engine, as ordered by
his superior, though the rules forbade deck hands to be in' the engine

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room. The New York Supreme Court, appellate division, affirmed
an award by the commission of that State in behalf of the driver
of a truck who was injured while putting his horse in the stable, the
court holding that the care of the horse was a part of the operation
of the truck, and was therefore covered by the act (Smith v. Price,
153 N. Y. Supp. 221). The public service commission of West Vir
ginia rejected a number of claims on the ground that the injuries
were not due to the employment, one instance being that of a miner
who while on his way to work stopped at a pump to get some water
in a bucket, the pump handle striking his watch pocket and explod
ing four dynamite caps which were in it, causing serious injury to
his hands, it being held that the injury was not received in the
course of and resulting from the employment. In another case an
employee volunteered to assist a fellow employee in adjusting a
kicker on a log deck, and suffered injury, compensation being denied
on the ground that the injury was not received in the course of the
workman’s employment; so also where a lathe operator undertook to
operate a machine of a different type. The fourth instance was that
of a miner attempting to drill a dynamite cap for a tube for his
carbide lamp. The industrial commission of Wisconsin was less
stringent in its consideration of a case in which an employee in a
packing house, engaged in general lines of service, undertook to kill
a hog and cut his hand, the ruling being that as he had not been
instructed that it was not his duty to kill the hog, there was a fail
ure on the part of the employer to make the nature of the employ
ment sufficiently specific to lead to the conclusion that this acci
dent was not in the course of employment, and the claim was allowed.
But the Supreme Court of Illinois reversed an award in favor of a
punch pressman who left his own machine and undertook out of
curiosity to operate a similar one, differently equipped, that stood
near his own. The injury was said to be due to a voluntary act out
side of the duties of his employment, for which the employer was not
responsible (Adams & Westlake Co. v. Industrial Commission, 127
N. E. 168).
A case passed upon by the Supreme Court of Michigan presents a
construction of a strictness surpassing the usual attitude of the courts
on this point, and was dissented to by three of the eight judges before
whom it was tried. The claimant was a molder in a foundry, who
also as a part of his duties operated a crane used to aid him in his
work, such operation being effected from the floor. It was the duty
of a machinist to make any needed repairs, and there being need of
repairs, notice was given by the claimant, and the machinist, a Ger
man, went upon the crane to do the required work. The claimant
was a Croatian, and was not able easily to tell the machinist where
the difficulty lay, so went upon the crane to point it out, and while

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descending lost a portion of his hand by the unexpected starting of
the crane. The accident board awarded compensation, which the em
ployer contested on the ground that the employee had left his place
of employment, so that the injury did not arise out of and in course
of the employment, and that he was guilty of intentional and willful
misconduct. The majority opinion held that the injury did not arise
in the course of the employment, and that being the case, it was
immaterial whether or not there was misconduct (Bischoff v. Amer
ican Car & Foundry Co., 157 N. W. 34). The dissenting judges
were of the opinion that there was no other purpose in the man’s act
than to hasten the repair of the crane, the difficulty with which he
knew and which he was not able to indicate clearly by word of
mouth. “ His effort was made in furtherance of the master’s busi
ness, and it should not deprive him of the award.”
This case has been referred to as being violently out of harmony
with the entire spirit of compensation legislation. That the views
of the minority are regarded as good law in some jurisdictions is
evidenced by a decision of the Supreme Court of Wisconsin upholding
an award to a widow whose husband lost his life in an effort to extin
guish a fire which he discovered in his employer’s premises after
working hours (Belle City Malleable Iron Co. v. Industrial Commis
sion, 174 N. W. 899). In this case the court said:
We do not think that either the letter or the spirit of the workmen’s
compensation act requires that such employee should be penalized
for obeying such a natural and commendable instinct on his part.
See also the view of the New York Court of Appeals in the Waters
case, supra, and of the Illinois court in the Dragovich case.
The interruption of employment for a matter of personal con
venience has already been noticed in the case of a workman going
to the toilet (Zabriskie case, p. 171). Similarly, the public service
commission of West Virginia held that a laborer had not left service
while on his way to procure a drink of water, this being said to be a
necessity and not terminating employment. The Supreme Court of
Massachusetts held that an employee going out for lunch by the only
means of egress from the shop was within the act, even though the
stairway was not a part of the rented establishment nor under the
control of the employer (In re Sundine, 105 N. E. 433); and so of a
compositor going on a roof on a hot night for fresh air, in accordance
with a permitted practice, and falling presumably by reason of a
misstep, whereby his death was caused (In re von Ette, 111 N. E.
696). The decision in the Sundine case corresponds with the ruling
of a Connecticut commissioner under practically identical circum
stances. It was held by the Supreme Court of New Hampshire that
a workman did not leave the course of his employment when he
went some 20 feet from his work place in a moment of leisure to

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converse with a friend (Barber v. Jones Shoe Co., 108 Atl. 690).
The industrial commission of Michigan awarded compensation in a
a case where a section hand on a railroad was killed by a train while
going home for his lunch at the noon hour; this was reversed by the
supreme court of the State on the ground that the employee had not
remained on the premises and had broken the status of employer
and employee for the time being (Hills v. Blair, 148 N. W. 243).
The California commission held that service had not been sus
pended in the case of a cook who had left the kitchen to smoke for a
time on the adjoining porch, and on attempting to return opened the
wrong door and fell downstairs. It was held that what one may
reasonably do of a personal nature and not in conflict with specific
instructions does not take him out of his employment. The assistant
attorney general of Iowa approved a claim for compensation in the
case of a workman injured by undertaking to light his pipe while
his hands were moist with gasoline with which he had been cleaning
clothing; and the California commission allowed a claim where a
workman lit a cigarette, setting fire to a bandage on an injured hand,
the bandage being soaked with turpentine (Duarte case). The
supreme court of the State sustained the award, saying that the
habit of smoking was an incident to be reckoned with (WhitingMead Commercial Co. v. Ind. Com., 173 Pac. 1105). The Supreme
Court of Illinois likewise affirmed an award in a case in which an
employee entered the washroom in a factory and struck against a
locker, igniting matches that were in his pocket. His clothing was
oily and he was fatally burned. The carrying of matches was said to
be a common practice, and the employee had a right to be where he
was. The injury was therefore held to be within the act (Steel Sales
Corp. v. Industrial Commission, 127 N. E. 698). The industrial
commission of Iowa took a different stand from that adopted by the
attorney general and denied the claim of a workman injured while
attempting to light his pipe, on the ground that smoking was not
part of his employment, and the employer was not liable for the
injury (Rish case, 1917). And the public service commission of West
Virginia, in a case in which an employee of a gas company was burned
by lighting his pipe near a leaky line, ruled that no compensation
was payable, since it was no part of the man’s employment to smoke
or to light his pipe.
The compensation commissioner of the same State (succeeding the
public service commission mentioned above) similarly denied com
pensation to a plumber who drank a poisonous fluid by mistake,
thinking that it was drinking water furnished by the employer for
his workmen’s use. This action was reversed by the court of appeals
of the State, however, and compensation allowed (Archibald v. Ott,
87 S. E. 791). Where accidental poisoning on the premises involved

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the intervention of a third party the Court of Appeals of New York
(O’Neil v. Carley Heater Co., 113 N. E. 406) held that payment of
compensation was not warranted. In this case a workman com
plained of feeling poorly and was told by an employee of another
contractor at work on the same premises where about the establish
ment a remedy might be found. The workman, however, took the
wrong substance by mistake, with fatal results. The State commis
sion had made an award, v h'ch the court reversed, distinguishing
this case from that of Archibald, which had been cited as supporting
the award in favor of the claimant.
In line with the position of the court of West Virginia is the rul
ing of the New York commission in another case of poisoning, or
of corrosive effects rather, where an employee in a millinery estab
lishment became nervous, hysterical, and finally fainted after a
rebuke from her foreman for talking yhen she had in fact been
speaking on a subject connected with the establishment. Ammonia
and water were brought in separate receptacles, but in the confusion
the former was dashed on the employee’s face in lieu of the latter,
with serious results to the eyes, lips, etc. Compensation was awarded
as for injuries arising out of and in the course of employment.
The continuity of employment is not broken by reason of the fact
that service is being rendered in violation of the Sunday rest law, the
employer being also a violator of the law, and the fact of violation not
contributing to the injury (Frint Motorcar Co. v. Industrial Commis
sion (Wisconsin), 170 N. W. 285). And this was held to be true even
though the injury would not have been received if the workman had
remained at the place assigned him by his employer. The employee
was a mechanic and volunteered to go to one of his employer’s cars
on the race track, presumably in need of assistance, and this act was
said not to take him out of the scope of his employment. But the
Supreme Court of Illinois denied compensation where an employee
volunteered to take an implement from a fellow workman and do the
work the latter was directed to do, and was killed by accident while
attempting to perform the task (Mepham v. Industrial Commis
sion, 124 N. E. 540).
The situation of an employee whose hours of labor are spent under
conditions determined by the employer was passed upon by the
industrial commission of Wisconsin, the case being that of a lumber
man who was injured while in his bunk at the camp by a straw
dropping from the bunk above him into his mouth and causing an
infection. It appeared that no other sleeping quarters were avail
able than those furnished by the employer, so that the injury was
held to arise out of the employment, the employment being re
garded as continuous from the time the workman entered the camp
until the completion of his contract (Bebeau case, 1917).

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This was sustained by the supreme court of the State, as against
a contrary decision by a circuit court, the finding being that the em
ployee was under the protection of the company, using the things
furnished him for his use during the employment, and that under
these circumstances he was performing services incidental to and
growing out of the employment (Holt Lumber Co. v. Industrial
Commission, 170 N. W. 366).
The Supreme Court of Iowa ruled against a claim on account of
the death of a workman killed by lightning while sitting in a lodging
tent furnished by his employer, the work of the day being ended
(Griffith v. Cole Bros., 165 N. W. 577). It was said here that, though
injury occurred in the course of the employment, it did not arise out
of it.
Incidents arising before the beginning or after the termination of
work form a border area in which individual cases must be considered
largely on their own merits, and the fundamental principles can
hardly be said to differ from those applicable under the old liability
laws. Thus where an employer transports his employees to and
from their place of work the responsibility of the employer was ruled
upon diversely in two cases before the industrial accident commis
sion of California, in one case the ruling being made that where the
employer was in the habit of furnishing such transportation his
liability ran during the period of its performance; in the other case
it was found that the element of transportation was not a part of
the contract of hiring but merely an accommodation granted with
out cost and terminable without notice, so that no responsibility
attached for injuries occurring during its period. The Supreme
Court of Massachusetts held that transportation in a wagon furnished
by the employer was a collateral or subsidiary part of the contract
in the instant case and therefore within the act (In re Donovan,
104 N. E. 431).
In line with the Massachusetts decision are others from Con
necticut (Swanson v. Latham & Crane, 101 Atl. 492) and New York
(Littler v. Geo. A. Fuller Co., 119 N. E. 554), where it is held that the
employment relation continues during the period of transportation
by a conveyance furnished or procured for the purpose by the em
ployer.
A man employed by the city and furnishing his own team was held
by the Supreme Court of Minnesota not to have been in the course
of his employment by the city while feeding his horse in his barn in
the evening, so that compensation could be had for his death from
injury while so engaged (State ex rel. Jacobson v. District Court,
175 N. W. 110).
Where woodchoppers were allowed time to return to camp from
the place of the day’s work the commission of California ruled that

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an injury to an employee who fell from a log while on his way to
camp was on the employer’s premises and in the course of employ
ment.
The Supreme Court of New Jersey held within the act of that
State the action of a girl combing her hair to remove bits of wool
at the close of the day’s work, the hair being caught in the machinery
and injury following (Terlecki v. Strauss, 89 Atl. 1023). A similar
ruling was made by the Supreme Court of Michigan in the case of
an employee running to punch a time clock at the close of work
and colliding with a fellow workman on account of an obstruction
that hid him from view (Rayner v. Sligh Furniture Co., 146 N. W.
665). The same court more recently affirmed a decision of an
arbitration committee awarding compensation for the death of a
railroad laborer whose time of employment was irregular, and who
was killed while on his way home at night on the right of way after
leaving reports at the station (Papinaw v. Grand Trunk Ry., 155
N. W. 545).
The industrial commission of Ohio allowed benefits in the case
of a man killed on a roadway which was on the premises of his em
ployer, and while on his way to work; also in a case in which a work
man was hurt, by contact with objects lying on the floor, while going
for his coat and hat after the whistle blew; and the Wisconsin com
mission allowed a claim in the case of a 14-year-old boy returning
to work after lunch, who diverged from the most direct route, placing
his hand under a machine hood and losing the forearm by the action
of the knives therein. It was said that the natural curiosity of a boy
of 14 years must be taken into consideration and that a commonsense construction of the law must be made, the responsibility for
such accidents resting on employers who place such children in places
of danger rather than upon the children themselves.
Admitting that the accident arose out of the course of the em
ployment, but holding that the degree of injury complained of was
not due thereto”, the Supreme Court of Kansas reversed an award in
a claimant’s favor where it appeared that total disability would not
have resulted from the injury but for the malpractice of the attend
ing physician (Ruth v. Witherspoon-Englar Co., 157 Pac. 403).
The case was remanded for a determination of the degree of disa
bility due to the accident as such and a corresponding award.
The law of Washington makes no mention of arising out of em
ployment, but provides for employees “ injured in extrahazardous
work,” so that the law is of broader application than those con
sidered above. The State commission refused the application of a
widow for compensation for the death of her husband, who was shot
by a discharged workman in a general m6lee, on the ground that the
injury was not a direct result of the employment; but the supreme

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court reversed this ruling, saying that “ under our statute the work
man is the soldier of organized industry, accepting a kind of pen
sion in exchange for absolute insurance on his master’s premises ”
(Stertz v. Industrial Ins. Com., 158 Pac. 256).
WILLFUL MISCONDUCT.

The term “ willful and serious misconduct” is used in the British
compensation statute, and these words or words of similar intent
have been incorporated in a number of the American laws. What
constitutes such conduct as will bar claims is a question that fre
quently comes up for discussion. The industrial accident commis
sion of California held that an injured employee, who attempted to
clear away the sawdust from a saw after having signaled for the
power to be shut off and waited the usual time for the saw to cease
revolving, was not guilty of willful misconduct, even though negli
gent, in undertaking to do the work before movement had actually
ceased. In another case an award was made where an employee was
electrocuted by undertaking repair work without shutting off the
current; it was in evidence that this had been the custom, since to do
otherwise would bring a considerable amount of work to a stand
still, and there was no evidence that the foreman himself had taken
such precautions. It was said that in fatal cases evidence regarding
willful misconduct must be clear and of the highest character.
Another case of fatal injury passed upon by this commission was
that of an employee riding a motor cycle down hill at a claimed
excessive speed in violation of an ordinance. The brakes of the
motor cycle were defective, so that the speed was not entirely under
control of the employee. It was said that a mere violation of an
ordinance would not establish willful misconduct, and the defense
must prove the element of willfulness by a preponderance of. testi
mony. A somewhat similar award by the commission was reversed
by the supreme court of the State where the injury resulted from the
driving of an automobile at a rate of from 35 to 45 miles per hour,
the court saying that such action was willful misconduct, especially
where wholly unnecessary, even if not unusual in the locality and
not in violation of rules and orders of the employer (Fidelity & De
posit Co. v. Industrial Accident Commission, 154 Pac. 834).
A district court of appeal of the same State denied the right to
compensation where a messenger boy was killed by an elevator
which he had been warned not to ride on or to operate, and which
he undertook to operate, the court holding this act to be willful
misconduct such as to bar recovery (Pacific Coast Casualty Co. v.
Pillsbury, 162 Pac. 1040).
A compensation commissioner of Connecticut made an award in
the case of a motorman killed in a head-on collision said to be due

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189

to his running his car beyond an agreed stopping point. The same
view was taken as to the evidence in fatal cases as that indicated by
the California commission, pointing out that a distinction should
be drawn between a criminal action against a living man and a com
pensation claim made by dependents of a deceased employee. It was
said that “ serious and willful misconduct connotes deliberation and
intention, mere carelessness or negligence not being sufficient.” The
Supreme Court of Michigan applied practically this view in the
case of a man injured by failure to observe the movements of the
crew of a train on a track which he was crossing, the court saying
that, though there was gross negligence, it was not willful and inten
tional misconduct so as to defeat the recovery (Gignac v. Studebaker
Corporation, 152 N. W. 1037); while in New Jersey the defense of
willful negligence was not allowed where a workman digging at a
pier was injured by falling objects, the court saying that intentional
self-infliction and intoxication were the only bars to recovery men
tioned in the act of that State (Taylor v. Seabrook, 94 Atl. 399).
Less liberal was the ruling of the public service commission of
West Virginia where a “ pickier” in a sheet-iron mill attempted to
secure his tongs, which had slipped from his hand into the acid
solution, and wTas burned thereby. Compensation was refused on
the ground that he knew of the injurious nature of the acid, so that
reaching his arm into it was equivalent to serious and willful mis
conduct. The element of disobedience to rules and orders was in
volved in several cases in hand, the Supreme Court of California
denying compensation to a lineman who was killed by contact with
a live wire, though he had rubber gloves with him and had been
instructed to use them, an award of the commission in favor of his
beneficiaries being annulled (Great Western Power Co. v. Pills
bury, 149 Pac. 35). The earlier administrative body of the State
(the accident board) had formulated a rule that “ convincing proof
of the deliberate intentional violation of a rule formulated, brought
to the attention of those whom it is designed to govern, and diligently
enforced, will establish willful misconduct.” The later commission,
however, made an award in favor of a claimant who was injured
while performing a service which it was stated he had been for
bidden to render, the commission saying that where it appears that
the disobedience of an oral instruction was not actuated by willful
desire to disobey an order, but by a wish to further the employer’s
interests, it is not willful misconduct so as to defeat a claim.
This latter principle was applied by the industrial board of Illi
nois to the case of a workman who volunteered to operate a punch
press whose operator he was to serve by the delivery of material to
him, the operator being at that time absent. It was held here that
the violation of orders, specific or general, does not amount to willful

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u n it e d st a t e s .

misconduct or take one out of the course of his employment if it is
done in good faith and upon the theory that it is for the best inter
ests or promotes the business of the employer. In another case
it was said that to make a ruling that a workman violating instruc
tions or committing acts of negligence or willfulness should not be
entitled to compensation would add to the law by the exercise of
judicial powers not conferred upon the board by law.
The Supreme Court of New Jersey affirmed an award for the death
of a servant killed while attempting to start a fire by the use of wood
alcohol, though she had been warned not to use kerosene, “ or any
thing like that.” The court held that she was in her line of duty,
and that the measure of disobedience was not so great as to bar the
claim (Kolasynski v. Klie, 102 Atl. 5). And the Supreme Court of
Massachusetts allowed compensation in a case where a man was told
that he must do certain work only when the adjacent machinery was at
rest, but did not do so and came in contact with a revolving shaft and
was killed. The court said in this case that serious and willful miscon
duct means more than negligence or gross negligence, and that disobedi
ence to orders, to constitute such misconduct, must be deliberate and
not merely thoughtless (In re Nickerson, 105 N. E. 604). In a case
before the industrial accident board of the State, however, com
pensation was denied a workman who was injured by contact with a
machine which he had no occasion to touch, and which he had been
told repeatedly not to touch or work on, and had been threatened
with discharge if he used it contrary to orders. The supreme court
also denied compensation where a workman incurred injury while
attempting to open a window which was nailed down, obviously to
prevent its being opened. The plain implication was equivalent to an
order, the violation of which would bar his claim (In re Borin, 116
N. E. 817).
Misconduct was charged in the Rayner case (p. 1,87), where a work
man was injured while running to punch the time clock. This, how
ever, the Supreme Court of Michigan disallowed. In two cases the
Supreme Court of New Jersey denied compensation, where injuries
were fatal, on the ground of disobedience, one being that of an em
ployee using an automobile contrary to specific and immediate orders
(Reimers v. Proctor Publishing Co., 89 Atl. 931); the other that of
a workman on a building who was of infirm health and had been for
bidden to go on any scaffold, and was killed by a fall following dis
obedience of the order (Smith v. Corson, 93 Atl. 112). In two cases
also the industrial commission of Wisconsin denied benefits on
account of injuries, one of them fatal, where men undertook the
operation of appliances which they had been forbidden to use.
The failure of a workman at a quarry to take shelter from a blast
when warned by the usual signal was held by the Supreme Court of Con-

PARTICULAR PROVISIONS OF TH E LAW S.

191

necticut to be “ careless and perhaps negligent,” but not such tlserious
and willful misconduct” as to bar a claim for his death (Merlino v.
Connecticut Quarries Co., 104 Atl. 396). Quite similar was the view
of the Court of Appeals of Maryland where a shop employee was
killed while seeking to pass between moving cars, though warned of
his danger. “ It was a thoughtless and heedless act, but not a willful
breach of a positive rule of conduct or duty” (Baltimore Car
Foundry Co. v. Ruzicka, 104 Atl. 167).
Of like tenor with the foregoing are decisions by the Appellate Court
of Indiana (Haskell & Barker Car Co. v. Kay, 119 N. E. 811), and
by the Supreme Court of Oklahoma (Wick v. Gunn, 169 Pac. 1087),
in which the failure to use a guard for the machinery operated re
sulted in injury. In both cases it was found that the workmen used
poor judgment, but not that there was willfulness so as to prevent
the making of claims. A district court of appeal of California, on the
other hand, found that the removal of a guard by an experienced
laundry worker was willful misconduct within the meaning of the
compensation act, as well as a violation of the commission’s safety
orders (Bay Shore Laundry Co. v. Ind. Acc. Com., 172 Pac. 1128).
That the injury was self-inflicted was made the ground for the
denial of benefits in two West Virginia cases, both being cases where
the workman opened pimples or blisters, infection following, the
public service commission saying that the injury was not the result
of employment, but was a self-inflicted injury in nowise connected
therewith. The opposite view was taken by the accident commission
of California, where a man undertook to remove a sliver from his*
finger with a pocketknife against the protest of the employer’s wife.
The commission said that the action was unwise, but did not consti
tute willful misconduct. In another case metal splinters were ex
tracted from the hand of a toolmaker with forceps, infection and
dermatitis following, a Connecticut compensation commissioner here
ruling that the employee was guilty of willful misconduct, there being
full instructions for reporting injuries in all cases.
Intoxication is mentioned in a number of laws as a bar to claims,
or it may be classed in itself as serious misconduct. The California
commission rejected this defense in an instance where the only evi
dence w^as that of the smell of liquor on the breath and perhaps an
admission of the occasional use of beer, it being said that this did
not meet the burden of proof required. In three cases reported from
two compensation districts of Connecticut claims were disallowed on
the ground of the intoxication of the injured man, in one instance the
commissioner saying that the employee was guilty of willful miscon
duct in using intoxicants while in the course of employment; in the
second a quarrelsome and abusive man under the influence of liquor
was ordered to leave the works, and fell or was thrown down while

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UNITED STATES.

being ejected; in the third case a teamster under the influence of
liquor was permitted to remain at work on the strength of a promise
that he would drink no more that day, which promise was broken,
and the man fell off the wagon in the afternoon and suffered serious
injuries.
The omission of any mention of intoxication or willful misconduct
in the law of Illinois, already mentioned, left the industrial board
of that State free to approve the claim of a beneficiary of a man who
had fallen down a stairway while intoxicated. The law of Massa
chusetts bars injuries due to serious and willful misconduct, and the
degree of intoxication found in two cases, reports of which are at
hand, was held by the accident board of the State as sufficient to bar
recovery, one instance being that of a man falling from his wagon,
while in the second the injured man was struck by an electric truck
in the street.
The converse to the barring of claims by reason of the willful mis
conduct of the employee is the principle of allowing special damages
or double compensation where the employer is so careless of the wel
fare of his employees as to incur such liability under the law. A
committee of arbitration under the Massachusetts law had made an
award of double damages as for wanton and reckless disregard of an
employee’s safety in neglecting to furnish a kicking strap for a horse
of known vicious disposition. The industrial accident board of the
State reversed the penal part of the award, saying that the employee
knew of the tendency and should have been cautious, and that the
•personal injury could not be held to have resulted from the serious
‘ and willful misconduct of the superintendent.
The supreme court of the State had a like contention before it in
a case in which an award of double benefits had been granted against
an employer who maintained an elevator badly out of repair, which
was held by the commission to be the cause of the injury for which
compensation was sought (Riley v. Standard Accident Ins. Co., 116
N. E. 259). The court ruled that there was evidence of negligence,
but not of “ serious and willful misconduct,” which “ involves conduct
of a quasi criminal nature,” intentionally injurious or with “ wanton
and reckless disregard of its probable consequence,” citing Burns’s
case (218 Mass. 8, 105 N. E. 601).
The Ohio statute allows suit for damages where injury results from
the willful acts of the employer; and it was held by a Federal court
that it was not necessary that there should be a deliberate intent to
do bodily injury, but that liability would lie where there was, as ap
peared in the instant case, an “ utter disregard of consequences”
(McWeeney v. Standard Boiler & Plate Co., 210 Fed. 507). It may
be noted that the legislature of the State subsequently amended the
law by incorporating a definition of the term “ willful act,” restrict

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193

ing it to “ an act done knowingly and purposely with the direct pur
pose of injuring another,” thus controverting the position taken by
the court in the McWeeney case. This definition comports with the
interpretation placed upon the term udeliberate intention” found in
the Oregon statute, the supreme court of that State saying that it does
not imply carelessness or negligence, however gross, but a determina
tion to injure (Jenkins v. Carman Mfg. Co., 155 Pac. 703).
An Ohio case that arose subsequent to the amendment referred to
above involved the construction of the amendment and of the con
stitutional provision that permits suits for damages where an injury
is due to the failure of the employer to comply with lawful safety
requirements. The term 11lawful requirement” was held to imply
more than a mere common-law rule, and to mean either specific orders
or a definite statute or ordinance. An injury due to the negligent
piling of lumber on a car and to a defective condition of railway tracks
was held therefore not to sustain a suit for damages, as against a
claim for compensation (American Woodenware Mfg. Co. v. Schorling,
117 N. E. 366).
LIABILITY OF THIRD PARTIES.

It is commonly provided by the statutes that where the injury to
an employee is due to the negligence of a third party, claim may lie
against the employer, he being subrogated to the rights of the in
jured man, and entitled to sue; or the workman himself may sue, the
employer being thereby left free from liability. In construing-this
provision of the Massachusetts statute the supreme court of the
State held that the injured employee has the choice of remedies, and
if he dies his personal representative has similar rights to elect which
of the two remedies he will pursue; an insurer giving relief under
his contract is not equitably subrogated to the rights of the injured
man, but stands as an assignee of such rights, and may proceed in
any amount that the latter could recover, not being limited by what
he as insurer has paid or was liable to pay (Turnquist v. Hannon,
107 N. E. 443). The same court had before it a case in which a man
injured by the negligence of a third party had recovered from him
for the injuries received and subsequently died therefrom. It was
held that the widow could look to the employer for benefits under the
compensation law, as her rights were independent of her husband’s,
and were not affected by his receipt of any sum from the third party
(In re Cripp, 104 N. E. 565). But the injured man himself, having
accepted benefits under the act, can not then have recourse to a suit
against the third party (Barry v. Bay State Street Ry. Co., 110
N. E. 1030).
The validity of the corresponding provision of the Minnesota statute
was vigorously attacked in a case (Matheson v, Minneapolis Street
177982°—21—Bull. 272------13

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Ry. Co., 126 Minn. 286, 148 N. W. 71) in which a city employee
sued a street railway company for injuries inflicted by one of its cars
while he was laying paving near the track. All parties were under
the compensation law, which permitted such a suit, but limited
recovery to the amount of compensation fixed for a like injury if the
employer alone was responsible. This was held to be valid against
the injured man’s contention that his right to sue could not be thus
limited. In a later case before the same court (Hansen v. North
western Fuel Co., 174 N. W. 726) a similar situation was involved,
a laundry driver being injured by a truck of the fuel company. The
third party defendant was under the compensation act, as well as the
employer and injured employee. On hearing it developed that the
injury arose out of and in course of the injured man’s employment,
so that he would have been entitled to an award against his employer.
The third party moved the dismissal of the suit as a common-law
action, and that the court award or deny compensation in accordance
with the compensation act. This motion was granted, and the de
fendant having invited an award of compensation was said to be
without power to question its liability up to that of the employer.
The only duty devolving on the court, therefore, was to fix the com
pensation payable.
A New York claimant undertook to recover from both his employer
and a third party, which the supreme court of the State, appellate
division, held impossible (Miller v. New York Rys. Co., 157 N. Y.
Supp.* 200). The same court passed upon a case in which the injured
man had signed a release to the third party and sued to recover
compensation under the law, the court holding that the release
would serve only to reduce his claim for compensation by the amount
paid for such release, and was not an absolute bar to the claim; on
the other hand, the release would be ineffectual as against the insurer’s
rights to recover from the third party unless the insurer had assented
thereto in writing (Woodward v. E. W. Conklin & Son, 157 N.
Y. Supp. 948).
A somewhat different aspect of the question was developed in a
case in which a workman was injured while engaged in his duties, by
reason of an assault by strikers. In passing sentence upon the
assailants the court put them on parole on condition that they pay
specified sums periodically to the injured man. The injured man
also claimed benefits under the compensation law, and an award was
made by the industrial commission, which held that the employer
should make these payments without regard to the sums received by
the workman under the sentence of the court. The employer and
insurance carrier complained of this holding, and as the law provides
that the employer shall be subrogated to the remedies of the employee
against the third party, and makes the employer liable only for any

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195

difference between the recovery by suit and the statutory award
under the compensation law, it was held by the court that the com
mission had erred in not applying the sums paid by the assailants to
the statutory award, leaving the employer liable only for such bal
ance as might remain due (Dietz v. Solomonwitz, 166 N. Y. Supp.
849).
Quite similar was the decision in a Connecticut case (Rosenbaum v.
Hartford News Co., 103 Atl. 120), in which it was held that where
the third party had paid a sum for a release before any suit was
brought, the employer was entitled to have this sum deducted from
the amount to be paid by him as compensation. Conversely, the
Supreme Court of Michigan ruled that the amount recoverable by
an employer suing the third party was limited by the amount paid
by him as compensation to the injured workman (Albert A. Albrecht
Co. v. Whitehead & Kales Iron Works, 166 N. W. 855). It was also
held in this case that the judgment could not even cover future pay
ments under the award.
The Nebraska statute permits the employer paying compensation
to sue such third party without any limitation upon the amount
recoverable in the action; but it was held by a United States circuit
court of appeals that where the recovery by the employer was for a
larger sum than the statutory obligation under the compensation
law, he should turn over to the injured workman any excess remaining
after deducting his own payment and the costs of the proceedings,
such excess to go as an added benefit to the beneficiaries under the
compensation law (Otis Elevator Co. v. Miller & Paine, 240 Fed. 376).
A point incidentally decided in this case was to the effect that the
concurrent negligence of the employer does not bar his right to
proceed against a negligent third party.
The Ohio statute permits employers to act as self-insurers on a
showing of financial ability, etc. No provision as to injuries by third
parties appears in the law, and the industrial commission of the State
ruled that an employee injured by the negligence of a third party
might proceed both against such party for damages and against his
employer for compensation under the act. The Supreme Court of
New Jersey passed upon a case which was practically identical in its
situation to the facts in the Cripp case above, and the court held that
in the existing state of the law not only could a widow recover from
the employer under her independent right, but further that the
employer was not subrogated to the rights of the injured man as
against the third party (Newark Paving Co. v. Klotz, 91 Atl. 91).
It was said that double compensation would be possible under the
circumstances, just as was allowed under the ruling of the Ohio com
mission last noted; but it was said that this situation, if it was to be
remedied, must be remedied by the legislature. Action was subse

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quently taken to this end, and an amendment to the law subrogates
the employer to the rights of the injured man against the third party,
where compensation is claimed under the law.
In West Virginia, as in Ohio, the law omits all reference to injuries
due to the negligence of third parties, and the supreme court of that
State decided (Mercer v. Ott, 89 S. E. 952) that the personal repre
sentative of a man killed by the fault of a third party might recover
against the latter, the right of the widow to compensation from the
employer under the law being unimpaired thereby.
The Wisconsin statute contains a provision as to subrogation,
and in a case in which the employer had settled with his employee
and was therefore subrogated to the latter’s rights against the third
person for the injury, the employer subsequently assigned this right
of action to the injured employee; the third person thereupon
objected that the employer should be made a party plaintiff, which
contention the court rejected, ruling that there had been a full and
complete assignment (McGarvey v. Independent Oil & Grease Co.,
146 N. W. 895).
The Michigan law permits recovery against either the employer
or the third person, and if the employer pays he is entitled to take
action against the third person for his own reimbursement. It was
contended that this fixed the amount of the recovery against the third
person at the amount awarded as compensation and was uncon
stitutional, as depriving the third party of his right to appear and
defend in the action and have his rights determined by a court of
competent jurisdiction. The supreme court of the State (Grand
Rapids Lumber Co. v. Blair, 157 N. W. 29) held that this was not
the proper construction of the law and that as properly construed
it was not unconstitutional, merely making the payment of compen
sation prima facie evidence of the liability of the third party, which
was within the power of the legislature.
The same court had before it a case in which a widow had sued
the third party and recovered judgment to the amount of $10,000.
The widow and her deceased husband’s employer had agreed that if
her recovery should be less than $3,000, the employer would make
good the deficit up to that amount. The defendant offered this
agreement as constituting an election to accept compensation in
that sum and as a bar to the action. The court rejected this con
tention, holding the contract void, and declaring the suit the only
effective election (Detloff v. Hammond, Standish & Co., 161 N.
W. 949).
In a case before the Illinois board the claimant contended that the
amount received by him from the third party had nothing to do with
his claim against the employer for compensation. This was not
allowed by the board, and as the amount so received exceeded the

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amount recoverable as compensation, no claim was considered, the
application being dismissed. The law of this State provides that
where the employer, the employee, and the third party are all under
the act, the employer shall pay the compensation due, and shall be
subrogated to the employee’s rights against the negligent third
person. This was claimed to be a limitation on the employee’s
right to recover adequate damages without any benefit to offset the
loss. The court pointed out (Friebel v. Chicago City Ry. Co., 117
N. E. 467) that the employer is obligated to make the payment when
nothing might be recoverable from the third person; nor is the
employee dependent entirely upon the solvency of his employer,
since he might proceed against the third party in his employer’s name
in case of the latter’s insolvency and refusal to sue. In any case,
the employee took the choice of compensation, with the conditions
attached, when he made his election. The provisions of the law in
this respect were therefore held valid.
The Kentucky statute differs from the foregoing in that it permits
the injured man to sue the third party and also seek compensation
from his employer; but the employer is subrogated to the employee’s
rights to the extent of any compensation paid by him. This is held
in no way to limit the amount of the employee’s recovery against the
third party (Book v. Henderson, 197 S. W. 449). The employer
should interplead and set up his cause of action, whereupon it would
be the duty of the court to apportion between the employer and the
employee the damages recovered; or if the employer did not seek to
recover, the third party would be entitled to have credited on his
judgment any sum received by the employee in the form of compen
sation.
The California act of 1913 did not in terms provide for redress
against a third party, but did declare the liability of principals and
contractors other than the immediate employer, such remedies to be
administered by the commission. This provision was held to be un
constitutional, the court declaring that the legislature was not
authorized to confer upon the commission any authority to settle
liabilities against persons not employers, the constitutional amend
ment merely permitting legislation to “ create and enforce a liability
on the part of all employers to compensate their employees” for
injury (Carstens v. Pillsbury, 172 Cal. 572, 158 Pac. 218). A new
law was enacted in 1917, embodying provisions to the same effect as
those condemned in the Carstens case. The section containing these
provisions was held to be unconstitutional for the same reason as
previously assigned, “ in so far as it attempts to authorize the award
ing of compensation against a third person not an employer” (Perry
v. Industrial Accident Commission, 181 Pac. 788). This is not to be
construed as affecting the succeeding section of the law, which author-

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izes suits for damages where a third person is liable, and does not
attempt to confer on the commission the power to determine liabil
ities; and the subrogation of the employer who has paid compensation,
and seeks to recover from the third party, is likewise constitutional
(Western States Gas & Electric Co. v. Bayside Lumber Coal, 187
Pac. 735).
In the case of Bryant v. Fissell (86 Atl. 458), already noticed, the
negligence of the independent contractor whose employee caused the
death by dropping the piece of metal on the workman below, was
offered as a reason why Bryant’s employer should not be held as the
responsible party. The Supreme Court of New Jersey said on this
point that when there has been an acceptance of tlie elective com
pensation system provided by the act, it is expressly stated that
compensation shall be made by the employer without regard to his
negligence.
The fact, if it be a fact, that the representative of the decedent
has also a right of action against a third party in no wise militates
against the present action. The act under which this suit is brought,
and which at best provides only for partial compensation, nowhere
provides specifically or by implication that an employee shall be
deprived of his right to compensation thereunder merely because the
accident gives rise to a right of recovery against a third party.
Another phase of this general question was discussed in a case
arising under the law of Washington (Northern Pacific Ry. Co. v.
Meese, 36 Sup. Ct. 223). Action was first brought in the district
court of the United States to recover from a railway company for
an injury caused by the alleged negligence of its employees in moving
cars in a brewery yard, causing a fatal injury to an employee of the
brewery. This action was in damages as against a third person.^
The compensation law of the State provides that all claims against
employers for injuries to workmen shall be determined in accordance
with the provisions of this act, and civil suits for damages are abol
ished, with some exceptions. The statute provides that if an injury
to a workman occurs away from the plant of his employer, and is due
to the negligence or wrong of a third person, action may be brought
against the third person or a claim made under the compensation
law, at the option of the injured workman or his survivors. In the
case at hand the injury did not occur away from but at the plant of
his employer, and the court held that as the right of action for fatal
injuries was entirely a statutory one, it was within the power of the
legislature to make the provisions that it had, and that it was the
evident intent to abolish private controversies and civil actions except
as specifically provided for, the case in hand not coming within the
exception. Since, therefore, the provision of the law was thus clear,
the remedy by a claim for compensation was held to be exclusive, and
the action against the railroad company was dismissed (206 Fed. 222).

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On appeal, however, this decision was reversed by the circuit court of
appeals (211 Fed. 254), but the Supreme Court of the United States,
on further appeal, adopted the opinion of the trial court, reversing
the court of appeals. This accords also with the view taken by the
supreme court of the State (Peet v. Mills, 76 Wash. 437, 136 Pac.
685), which declares that the law is exclusive, reaching to “ every
injury sustained by any workman while engaged in any such [included]
industry, regardless of the cause of the injury or the negligence to
which it might be attributed.”
Not going so far as the above, but representing something of the
same attitude, was a case decided by the Supreme Court of New
York, appellate division (Winter v. Peter Doelger Brewing Co., 162
N. Y. Supp. 469), in which a driver employed by a brewery was
injured by reason of a defective elevator on the premises of a saloon
where he was making a delivery. Instead of taking compensation of
the employer, he sued the saloon owner as the negligent third party
liable for the injury. As it happened, the saloon was owned by the
employing brewery company, which resisted suit on the ground that
the case was one of compensation for injuries to an employee. This
contention was sustained by the court, it saying that the fact that
the elevator and saloon were located at some distance from the em
ployer’s brewery did not make the employer a third party or in any
way change the relation of the plaintiff to his employer, so that his
rights were based on the compensation law and not on the law of
negligence (reversing appellate term, 159 N. Y. Supp. 113).
Another phase of the question was before the same court in a case
(In re Cahill, 159 N. Y. Supp. 1060) where a deceased employee left
a widow and a. mother entitled to claim benefits. It was held that
the widow’s action in electing to sue the third party for damages did
not debar the mother’s claim for compensation under the act.
TEMPORARY DISABILITY.

As compensation usually terminates on recovery from the effects
of the injury, it is a fundamental necessity of administration to deter
mine when this occurs, and when there are other causes that intervene
to prolong disability, while the matter of malingering must also be
taken into consideration.
The industrial commission of California ruled in two very similar
cases that the prolongation of disability due to the failure of the in
jured man to take the necessary exercise required to restore a frac
tured limb to use was not ground for prolonging payments, saying
in one instance that the law does not contemplate compensation for
mere pain and inconvenience, but only for disability to labor, which
would not exist in the instant case had tlie injured man possessed
the necessary resolution to put the injured member into service. In
another case before this commission it was said that the applicant

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must prove his actual disability as a physical fact as distinguished
from an inability to secure employment on account of the scarcity
of opportunities, saying, “ compensation is payable for inability to
do work, not for inability to find work to do.*’ In contrast with this
is the ruling of the Supreme Court of Kansas (Gorrell v. Battelle,
144 Pac. 244), in which a man, unable to secure employment after
recovery from a total disability by reason of a continuing partial
disability, was held entitled to full compensation until work was
obtained, the court holding that compensation is to be paid for the
loss of earning power as the result of the injury, whether manifested in
inability to perform obtainable work or inability to secure work to
do. This accords with the ruling of the Supreme Court of Massa
chusetts that the act of that State covers not only physical incapacity
but also inability to obtain work, resulting directly from a physical
injury (In re Sullivan, 105 N. E. 463; In r6 Septimo, 107 N. E. 63).
The California rulings noted above accord with a statement in an
opinion by the superior court of New Haven County, Conn., in which
it was said that the law was not concerned with the fact of whether
an injured man had recovered and was actually earning the same
amount as before the injury or whether he had found a position where
he could so oarn, but that the statute was satisfied with his adequate
recovery to be able to do so.
In a case before a compensation commissioner of Connecticut the
injured man’s action in delaying recovery by the use of intoxicants
was held adequate ground for denying a claim for compensation
for 16 weeks, the award being for but 6 weeks. In another case a
Connecticut commissioner denied disability benefits where a claimant
refused to do work that was offered him and which he was able to
do, because he had formed the idea that it would interfere with his
getting pay for his injury. Apparently departing from the foregoing
practice is the ruling in another, case before a commissioner of the
State in which the former employer had no work for the injured man
on the declared termination of his disability, and the latter found
other employment which he was compelled to withdraw from after
two days, being unable to continue. It was ruled that the injured
man was entitled to employment by his former employer, or that
suitable work should be found for him. This corresponds also with
a ruhng by the industrial board of Indiana to the effect that the
employer was liable for compensation until such recovery as would
enable the injured man to resume his former occupation, though the
employer might discharge his liability by furnishing work which
the employee could do.
The industrial accident board of Massachusetts required an em
ployer to continue payments in behalf of an employee who lost a
foot, beyond the period of the schedule award for partial disability
11until occupation suitable for a one-legged man is found.”

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201

Taking the same view as that of the California commission above
was a ruling by the Massachusetts board terminating benefits on a
fixed date, as the continuing incapacity could be attributed to the
lack of confidence of the injured man in using his leg; while a find
ing of a committee of arbitration in this State was affirmed by the
board where there was claim of a continuing pain and disability
which led the man to stop working, although it was held that “ he
would be better off if he worked/’ so that, though he had not entirely
recovered, compensation benefits should not be extended beyond an
elapsed date, incapacity from the injury having ceased at that time.
Two cases involving alleged simulation required a determination of
actual capacity to work where there were vigorous claims of pain and
sensitiveness and inability to use the muscles, medical examination
showing injuries neither to the physical nor to the nervous system,
cases of a class that are so definitely recognized in German practice
as to receive the designation “ Renten-hysteria” or compensation
hysteria.22 The industrial commission of Wisconsin, in commenting
on a similar condition, said that “ the employee’s trouble is largely
of the mind, increased perhaps by the prospect of compensation.”
Compensation for an adequate period of recovery was allowed, but
not for the period for which claim was made. The necessity of re
turning to work, even at the cost of some inconvenience, was em
phasized by the commission in another case in which it was said that
there would necessarily be some tenderness of amputated fingers, no
matter when the injured man returned to work, and compensation
was terminated at the time of the healing of the wounds.
A situation the converse to that appearing in some of the fore
going cases was before the industrial board of Illinois in a case in
which an employee whose fractured patella had been joined by a
silver wire was taking exercise as directed by his physician and felt
something give way, an examination showing that the wire had
pulled through the bone. As against the contention of the em
ployer that this was a second injury for which he was not liable, the
board ruled that the condition of the employee was due to the origi
nal injury, and that he was doing what could reasonably be ex
pected, as advised by the physician, and payments were continued.
The same view was taken of a case before the California commission,
where a broken collar bone parted after a supposed uniting, no acci
dent intervening, and the original employer was held responsible.
PARTIAL DISABILITY.

Where there is a surviving effect of an injury, amounting to a
permanent partial disability, the question of the amount of compensa22 An interesting recent contribution to the literature on this subject is a work by Francis X . Dercum,
M. D ., entitled “Hysteria and Accident Compensation,” 1916.

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tior. for designated injuries is fixed in many of the laws by sched
ule, while in other cases proportional awards or estimated rates
must be allowed; questions of possible benefits from operations, etc.,
are also involved. (See “ Medical treatment,” pp. 232 to 240.)
The original Connecticut statute contained no provision as to par
tial loss of vision, and in a case before a commissioner an award
for the period of temporary total disability was all that was found
possible under the act, though there was a 50 per cent impairment of
the vision of one eye, which might not, however, and it was testified
that it probably would not, interfere with the employee’s earning
capacity. In a case before another commissioner of the same State
there was no evident loss of earning capacity at the time, but it was
ordered that in view of the possibility of further decrease or total
loss of vision on account of the injury, “ this claim remains active in
the files and is subject to revision.” The Pennsylvania schedule
provides only for “ the loss of an eye,” and it was held by the board
that in the absence of proved loss of earning power, a proportionate
award for partial loss of vision was not authorized.
The original Illinois statute, likewise, made provision only for
the loss of sight of an eye, but the board of that State ruled that
for the partial loss there should be a proportional award. The
schedule of Michigan makes the same omission, and where the State
board allowed a proportional award in the case of the loss of from
one-third to one-half the vision of an eye, there being no immediate
wage loss, the supreme court disallowed the award except for the
period of total disability (Hirschkorn v. Fiege Desk Co., 150 N. W.
851). In another case (Cline v. Studebaker Corporation, 155 N. W.
519), the same court held that where there was a 90 per cent loss
of vision which could be reduced to a 50 per cent loss by the use
of glasses, it was the duty of the employee to use such a common ap
pliance as glasses, and compensation would be allowed for partial
disability on the basis of the wage loss sustained, if any, and not as
for the loss of vision, which would be practically total without the
aid of the glasses. The Supreme Court of Wisconsin had before it
a case involving similar facts, there being a permanent impairment
of the vision of one eye, but no present wage loss. The law of this
State as it then stood provided for compensation “ in all other cases
in this class” in an amount proportionate to the awards presented
in the schedule, the schedule itself providing for both enucleation
and the total blindness of an eye. The industrial commission had
made an award on account of the probable difficulty in securing
future employment, which the court reversed, as not being judicially
aware of the loss of earning power of a man with but one eye. Three
judges dissented on the ground that “ in the exercise of common
knowledge and observation the capacity to obtain employment is

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203

impaired” (International Harvester Co. v. Industrial Commission,
147 N. W. 53).
The distinction between the loss of an eye and the loss of sight
was considered by the Court of Appeals of Kentucky (Nelson v. Ken
tucky River Stone & Sand Co., 206 S. W. 473). The law schedules
the loss of certain members at a fixed rate, but mentions only the
“ loss of sight of the eye.” Where a workman lost an eye, requiring
its removal, the court held that the loss was greater than that cov
ered by the schedule, and should be determined on the basis of
“ other cases of permanent partial disability.”
In a case that came before the New Jersey Supreme Court (Feld
man v. Braunstein, 93 Atl. 679) an award had been made as for
permanent partial disability, the injury consisting of a 90 per cent
loss of the vision of one eye, the partial disability payments to run
for not more than 300 weeks, there being an expression of opinion
that the disability would be but temporary if an operation was had.
The court reversed this award and made the schedule allowance of
100 weeks’ benefits as for the loss of an eye, subject to review in case
an operation should be had, saying that the award must be made
on the basis of existing facts and not on contingencies or the prob
able effects of an operation. In another case this court considered
the method of an award where both eyes were affected, there being
an 80 per cent loss of vision. The original award was for 80 per
cent of the 100 weeks for each eye, taken alone—i. e., for 160 weeks
for the two. The supreme court substituted for this an award of
80 per cent of the compensation allowed for the loss of both eyes—i. e., 400 weeks, which allowed 320 weeks’ compensation (Vishney v.
Empire Steel & Iron Co., 95 Atl. 143).
The Supreme Court of New York, appellate division, had before it
a question as to the nature of the injury where a workman lost the
lens of an eye (Frings v. Pierce-Arrow Motorcar Co., 169 N. Y.
Supp. 309). An artificial lens gave normal vision, but it could not
be coordinated with the other eye, so that he could use but one eye at
a time. The court held that, as he had two useful eyes, there was
not the loss of an eye within the meaning of the statute, so that
compensation was payable only for the period of temporary disa
bility. This case was distinguished from one in which the use of
glasses gave the injured eye about one-third normal vision, and
that only when the other eye was closed (Smith v. F. & B. Con
struction Co., 172 N. Y. Supp. 581). In the Frings case either eye
could be used as a normal eye; here the good eye must be closed to
obtain a one-third vision of the injured eye. An award for permanent
loss of use of the eye was affirmed.
The original law of Kansas contained no schedule, but provided
for a percentage of the wages for a period not exceeding eight years

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in cases of partial disability, no reference being made to actual wage
loss. The supreme court of the State held (Gailey v. Peet Bros.
Mfg. Co., 98 Kans. 53, 157 Pac. 431) that the continuation of an in
jured man in employment at the same wages would not deprive,,
him of a right to compensation unless the employment continued for
the full period for which compensation might be paid; and, even so,
the employee might wish to take other employment where the injury
would, perhaps, interfere with his earning capacity, in which case
recovery of compensation in accordance with the terms of the act
would be the only means of discharging the liability of the employer.
An award in the claimant’s favor was therefore affirmed, at the mini
mum rate allowed by the law. The same action was taken in the case
of a carpenter who lost an eye, but suffered no reduction in earning
power, so far as shown; however, he testified that he was not able to
“ get the focus” so as to drive nails or do similar work with his former
facility (Oliver v. Christopher, 159 Pac. 397). In another case partial
disability for 80 weeks was estimated and an award made, and the
court refused to disturb this, although within that period the injured*
man was earning more than his original wages (Dennis v. Cafferty, 99
Kans. 810, 163 Pac. 461; see also Hood v. Transit Co., 186 Pac. 977).
An opinion of the Supreme Court of New York, appellate division,
(Wagner v. American Bridge Co., 158 N. Y. Supp. 1043) corresponds
more closely to that of the dissenting opinion in the International Har
vester case above than to the decision of the majority. The injury re
sulted in practically total deafness of one ear. The New York statute
presents a schedule of awards for specific permanent partial disabili
ties, but does not mention deafness as one of them. The injured man
sought to recover damages in a suit at law, but the employer claimed
the right to settle under the compensation law of the State, whose
provisions were applicable to him. This position was sustained by
the court, saying that, though there was no mention of this particular
injury in the schedule, the enumeration did not profess to be inclusive,
the injuries set out being merely examples to aid in administering the
statute. The law provides that in other cases where there is a perma
nent partial disability compensation shall be awarded on the basis of
the loss of earning capacity, and the court directed that the industrial
commission of the State should take the case under advisement and
make such award as the facts indicated, saying that “ Total deafness,
the gravamen of this complaint, obviously impairs plaintiff’s indus
trial efficiency,” thus taking judicial notice of the consequences of
such an injury.
The enumeration by schedule of certain frequently occurring
injuries and the fixing of stated benefits therefor does not render
purely automatic the administration of the laws in this field. Where
the awards prescribed are to be used as a standard for disabilities of

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205

a comparable nature, it is obvious that the administrative board must
use its discretion in determining the amount due according to these
standards. The Indiana law fixes specific amounts for the loss of
separate fingers, and also for the loss of a hand, the latter being less
than the aggregate that would result from the four fingers and the
thumb computed separately. The appellate court of the State,
however, pronounced absurd a view that would allow such an aggre
gate award, since it must be assumed that the loss of the hand at the
wrist would be a greater loss than that of the fingers and the thumb,
unless under extraordinary and unusual circumstances. An award
was therefore directed to be made in such amount as the board might
find proper, “ not to exceed 200 weeks,” following the language of
the statute applying to cases not specifically provided for; though
as the award for the loss of a hand is but 150 weeks, it is clear that
the intention of the court could not be carried out if an award in
excess of that term was made (In re Maranovitch, 117 N. E. 530).
The law of New Jersey fixes a schedule of benefits for designated
injuries and provides that other injuries shall be proportionately
compensated. Under these provisions the supreme court reversed a
judgment allowing more for a stiffened ankle, than the schedule
allowance for an amputation between the knee and the ankle,
leaving it for the trial judge to decide on reconsideration whether the
award should equal such amount or be less (Rakiec v. D., L. & W.
R. Co., 88 Atl. 953).
The Appellate Court of Indiana had before it a case in which an
award had been made for temporary total disability due to injury to
one part of the body, and also for permanent partial disability result
ing from the same accident. It was held that the two awards were
not to run concurrently, but should be consecutive and within the
statutory limitations as to the total term and amount of benefit
payments (In re Denton, 117 N. E. 520). A number of the laws are
specific in their statement that where there is a schedule of awards
for permanent partial disabilities the payment prescribed shall be
in lieu of all other compensation for the injury; but where there was
an amputation of one finger, compensable under the schedule as a
permanent partial disability, and a crushing and laceration of another
finger, causing temporary total disability, the industrial accident com
mission of Maryland awarded benefits for the two injuries inde
pendently.
In a somewhat similar case the New York Court of Appeals set
aside an award for the temporary total disability period where the
commission had awarded for both this and the schedule loss for a
permanent partial disability (Marhoffer v. Marhoffer, 116 N. E. 379).
The Supreme Court of Connecticut took a different view, and held
that where multiple injuries occurred, one causing temporary partial

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disability should be compensated independently of another, received
at the same time, causing permanent partial disability and com
pensable at a fixed rate under the schedule (Olmstead v. Lamphier,
104 Atl. 488). This court drew a distinction between an injury
requiring an immediate amputation of a finger (Kromer v. Sargent
& Co., 104 Atl. 488) and one in which a period of disability preceded
the amputation (Franko v. Schollhorn Co., 104 Atl. 485). In the
former case the temporary total and permanent partial disability
were a single* incident, and no separate awards could be made, that
for the permanent partial disability being the sole remedy. In the
Franko case there were several weeks of disability while a cure was
being attempted, and compensation was said to be due for this
period, as well as for the schedule period fixed for the loss of the
member.
In the New Jersey case of Nitram Co. v. Creagh (86 Atl. 435) an
employee was injured by the crushing of certain fingers of his hand,
causing a temporary total disability of approximately six months
and also a partial but permanent disability, due to the injury to the
fingers. The law provides for compensation for temporary total
disability at a rate based on the injured employee’s earnings, and in
another clause for compensation in amounts determined on the basis
of a percentage of the employee’s wages payable for fixed periods of
time for different specific injuries. In the case in hand the award for
total disability for the term of its continuance was made, and in
addition to this the award under the subsequent clause for permanent
disability partial in character. To this the employer objected that
compensation could be awarded only under a single clause, which
contention the supreme court rejected, sustaining the principle of a
combined award, one for total disability during its continuance and
one for the partial disability that remains after any degree of
maiming..
Much the same question was involved in the case of George W.
Helme Co. v. Middlesex Common Pleas (87 Atl. 72), in which an
injury involving several fingers was compensated for under provisions
of the law which designate the amount to be paid for each separate
injury. The injury consisted in the loss of parts of the second and
fourth fingers and all of the third finger, and separate awards were
made according to the schedule for each finger. It was claimed by
the employer that as all three fingers were injured in the same acci
dent the time should run concurrently, so that during the first 15
weeks there would be a total computed compensation of $13.20,
reduced to $10 per week by the maximum limitation of the statute,
while for the succeeding weeks during which any compensation was
allowed there would be the concurrent operation of awards for the
designated injuries. This contention was denied in the trial court

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and on appeal in the Supreme Court of New Jersey. It may be noted
that the law of this State has been amended so as to make benefit
payments consecutive and not concurrent, allowing first for the tem
porary total disability and subsequently for such payments as are
awarded as Compensation for permanent partial disability.
Instead of making the schedule ay/ards a standard by which other
injuries of a comparable nature should be compensated, the law of
Nebraska enumerates but a brief list of maimings, and directs that
other partial disabilities shall be compensated on the basis of the
wage loss occasioned thereby. Under this law, the loss of a toe,
which is specifically provided for in the laws of several States, was
held not to entitle the injured workman to compensation for maiming
unless it appeared that his earning power was thereby impaired
(Epsten v. Hancock-Epsten Co., 163 N. W. 767). The employee in
this case had taken special training and been reemployed at higher
wages; but compensation was awarded on the ground that there was
evidence of his being unable to perform the duties of his former
employment.
The New York cases vary from this point of view, the court of
appeals saying that the terms “ loss” and “ loss of use” used in the
law should be given their unrestricted and ordinary meaning, and
not limited to mean incapacity merely for the work of a particular
employment (Grammiciv. Zinn, 219 N. Y. 322, 114 N. E. 397 ; Modra
v. Little, 223 N. Y. 452, 119 N. E. 853). So that the loss of 80 per
cent of the vision of the eye, capable of improvement by the use of
an artificial pupil, does not warrant compensation as for the loss of
an eye; since, the use of an artificial pupil, though not fitting him for
a vocation requiring reading or fine work, will qualify him for some
employments (Boscarino v. Carfagno & Dragonette, 115 N. E. 710).
A ruling by the Illinois board related to the rating of disability
where the four fingers of a hand were lost, claim being submitted
as for the complete loss of the use of the hand. Award was made
on this basis as against the contention that with the thumb and palm
remaining intact the schedule award for individual fingers should
control.
Another aspect of the question was before the Supreme Court of
Minnesota, which affirmed an award in behalf of a man suffering from
an ununited fracture of the leg near the hip. It was held that there
was not only the loss of use of the leg (compensable under the law as
for the loss of a leg), but there was a greater injury on account of the
inconvenience and suffering, occasioning total disability, so that com
pensation should be the maximum for temporary total disability—300
weeks—and not 175 weeks as for the loss of a leg (State ex rel. Albert
Lea Packing Co. v. District Court of Freeborn Co., 178 N. W. 594).

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The industrial accident board of Michigan took the same view
of the loss of all the fingers of the right hand as constituting loss
of the use of the hand as that set forth by the Illinois board above;
in this instance, however, there was some impairment of the use of
the thupib. In another case before the Michigan board the schedule
of maimings was‘interpreted as having the purpose to furnish indem
nity to the person who suffers the loss of members; and the fact that
he earned the seme wTages as before w as not admitted to considera
tion, specific indemnities being “ payable not on account of the effect
on the earning capacity but because the injured man must go through
life without the use of the member lost.” A similar view was taken
by the Supreme Court of California in a case (Frankfort General
Insurance Co. v. Pillsbury, 159 Pac. 150) in which a carpenter was
awarded 20J per cent of disability for the loss of the greater part of
a forefinger, though no loss of wages wTas suffered on account of the
maiming. The law of the State has no schedule of awrards, but uses
a table based on employment, occupation, etc., the immediate effect
of the injury on earning capacity not being the sole test.
In contrast with this is a decision of the Supreme Court of Wis
consin (Northwestern Fuel Co. v. Leipus, 152 N. W. 856), in which
an award based on an impairment of function of the arm of the
injured man was reversed, the court saying that the basis of com
pensation was not the impairment of function but the impairment of
earning capacity. This diverges again from the opinion of the
Supreme Court of New Jersey (Burbage v. Lee, 93 Atl. 859), where
it was said that permanent injuries (limitation of wrist motion and
shortening of leg in this case), even if not causing wage loss, are to
be compensated, as it is not the mere loss of earning power that is
considered but also the physical efficiency not so measured, which
harmonizes more nearly with the expressions of the Michigan board
and the Supreme Court of California.
Another case, involving the construction of the New York schedule,
was that of a workman who lost a phalanx of a finger, with injuries
stiffening other joints. The supreme court, appellate division, ruledthat there should be an award on the schedule basis as for not more
than the loss of a finger, and not a compensation on the basis of wage
reduction, which might increase the award above that for such a loss
(Fineman v. Albert Mfg. Co., 155 N. Y. Supp. 909). The industrial
accident board of Vermont made a ruling involving this principle,
in which it declared that the schedule of maimings as set forth by
the law of that State was the exclusive award in cases to which it
was applicable, nothing being allowable for subsequent reduced
earning capacity.
The schedule of Connecticut contains a provision for injury to
the hand involving partial disability, and an award on the basis

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209

of the present condition of the injured hand was made in a case
in which it was admitted that an operation might improve the
condition, the commissioner ruling that an award on a contingency
could not be made.
Questions of fluctuating status were passed upon by the Supreme
Court of Massachusetts in two cases, in one of which (In re Durney,
111 N. E. 166) it was said that where partial disability is to be
compensated for by a payment of one-half of the wage loss, as was
required by the law of that State, no account should be taken of the de
pressed labor market, but the difference between the amount that the
injured man would have been able to earn if there had been no
depression in employment and his former earning capacity should
be made the basis of payments. In the other case (In re Stickley,
107 N. E. 350) a man who returned to work for his former em
ployer with a partial disability and was allowed compensation there
for, at the expiration of this contract found himself unable to obtain
work on account of his crippled condition; he was held entitled to
compensation as for total disability for an indefinite period, subject
to the right of review.
The disposition of cases involving multiple injuries was considered
by the supreme courts of Minnesota, New Jersey, and New York in
cases at hand. The Supreme Court of Minnesota (State ex rel. Ken
nedy v. District Court of Clay County, 151 N. W. 530) held that an
award involving injuries to the hand and arm should be propor
tionate to the total effects and not to the sum of the items. This
was the view taken by the Supreme Court of New Jersey (O’Con
nell v. Simms Magneto Co., 89 Atl. 922). In both these cases awards
made below by addition were in excess of the award computed
according to the rules of the courts. In a case before the Supreme
Court of New York, appellate division, however (Rockwell v. Lewis,
154 N. Y. Supp. 893), separate awards for the loss of several fingers
amounted to less than the award for the loss of the hand; on review
the injury was found practically to amount to such loss, and the
award made on the latter basis was affirmed. In another case
before this court there was the loss of a foot, together with injuries
to the hands, and concurrent awards had been made. This was
reversed by the court, the award for the loss of the foot being
allowed to stand, though leaving the matter of other injuries open
for subsequent consideration if they should continue beyond the
period of the schedule allowance for the loss of the foot, the court
saying that a payment of two-thirds of the wages (for 205 weeks
in the case of a foot) is the maximum benefit, and concurrent awards
leading to an excess of such an allowance would violate the prin
ciple of the law, which is not to furnish profit to'the employee nor
177982°—21—Bull. 272------14

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to punish the employer who, though liable under the statute, may
not have been negligent (Fredenburg v. Empire United Railways
Co., 154 N. Y. Supp. 351).
TOTAL DISABILITY.

A number of States declare total disability as a presumed fact in
case of the loss of both eyes, both hands, both feet, a hand and
foot, etc. From one point of view it would appear to be one of the
simplest problems of workmen’s compensation to determine when an
employee is to be classed as totally disabled. In practice, however,
the question is complicated by reason of the terminology of the laws
and perhaps by the point of view of the administrative bodies as
well. The point is illustrated by the decision of the Supreme Court
of Kansas in Sauvain v. Battelle (164 Pac. 1086), in which it was
held that a workman customarily engaged at hard manual labor
prior to his injury and totally incapacitated for such labor by reason
of an industrial accident was entitled to compensation even though
he subsequently obtained employment at better wages than he had
earned before (Cf. New York Cases, p. 207). The Wisconsin
Supreme Court also was constrained to make an award as for total
incapacity in the case of a man who was only partially disabled for
employment in many occupations, but would never be able to follow
the employment in which he was engaged at the time of his injury
(Mellen Lumber Co. v. Industrial Commission, 142 N. W. 187). The
adoption of a schedule of maimings eliminated the difficulty which
was developed in this particular case; and it is evident that to
make an award as for permanent total disability in cases where
there is room for readjustment and rehabilitation does not accord
with the spirit of the compensation law. Still, the rights of the
injured man and the fact that he has suffered serious economic and
physical loss can not be overlooked in any settlement of this ques
tion.
A result of the form of the Michigan law was considered in a
case before the supreme court of the State (Foley v. Detroit United
Ry., 157 N. W. 45) in which an injured man suffering permanent
partial disability was earning more after the injury than before,
though disabled from work in his former employment. The law pro
vides for compensation for partial disability on the basis of the wage
loss suffered, but further provides that this shall be computed so that
it will “ fairly represent the proportionate extent of the impairment
of his earning capacity in the employment in which he was working
at the time of the accident;” and while the court recognized that the
law might work inequitably in its literal application, it was said that
this was for the legislature and not for the court, as the law was not
contradictory nor impossible as it stood, and an award as for partial
disability was approved.

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211

An award of compensation as fo$ permanent total disability,
due to injuries to both hands, was held reviewable by the Supreme
Court of New Jersey (Safety Insulated Wire & Cable Co. v. Court
of Common Pleas, 100 Atl. 846), where the injured man, after about
a year and a half, began to do light work, and subsequently secured
a position paying more than his wages at the time of injury. The
Supreme Court of Wisconsin, on the other hand, refused to hold up
a lump-sum award as for permanent total disability where a car
penter was partially paralyzed so as to be unable to do work re
quiring walking or stooping (McDonald v. Industrial Commission,
162 N. W. 345). The fact that he and his wife might be able to
conduct some small business successfully was said not to contradict
the finding, even though the law required “ other suitable employ
ment” than the vocation of the injured m.an to be considered. In
reaching this conclusion a Kansas case (Moore v. Peet Bros. Mfg.
Co., 162 Pac. 295) was referred to. In this case the injured man was
awarded full benefits, and was found to have opened a small business
in his home, from which he made profit. The court ruled that
these profits were not earnings under the law, and refused to disturb
the award.
The status of an employee who has previously lost an eye or a
hand raises the question of the degree of the award where the second
member is subsequently lost. The industrial accident commission
of California considered the question at length and reached the con
clusion that it would be an injustice to one-eyed workmen in the
State seeking employment to hold that there would be a liability
as for the loss of both eyes in case of the loss of the second eye, and
an award was made as for the loss of one eye. The industrial board
of Illinois made a similar ruling in a like case. The Supreme Court
of Massachusetts, on the other hand, held that a man with but one
eye “ had that degree of capacity which enabled him to do the work
for which he was hired,” and since the loss of the second eye termi
nates that capacity, it causes total disability, and he should be so
compensated (In re Branconnier, 223 Mass. 273, 111 N. E. 792).
The Supreme Court of Louisiana took a similar view, saying that a
“ workman is as totally disabled from work by the loss of one eye as
by the loss of two, if he has but one,” and should be compensated
as for total disability (Brooks v. Peerless Oil Co., 83 So. 663).
The Supreme Court of Illinois (Wabash R. Co. v. Industrial Com.,
121 N. E. 569), awarded compensation as for total disability where
a man with one arm lost a leg, citing the Massachusetts case as a
precedent. The Supreme Court of Rhode Island also followed the
Branconnier case in finding total disability to be the result of the
loss of a second eye (In re J. & P. Coats (R. I.), Inc., 103 Atl. 833).
As the law of this State gives additional benefits in the case of maim-

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ings, there was also an award for the specific loss of an eye, but
not of two.
On the contrary, the Supreme Court of Michigan (Weaver v. Max
well Motor Co., 152 N. W. 993) and that of Minnesota (State ex rel.
Garwin v. District Court of Cass County, 151 N. W. 910) sustained
the view enunciated by the California commission, the latter court
saying that “ If the injury would alone cause partial disability, but
with a previous injury causes total disability, the employer is liable
for a partial disability,” which conforms to the provision of the law
of that State. The compensation commissioner of West Virginia
adopted the position set forth by the Massachusetts court and made
an award for life payment in such a case as for permanent total disa
bility. The department of justice of Iowa ruled in favor of a middle
course, holding that a workman having but one eye and losing that
was entitled to more compensation than one with two good eyes,
but not as much as though he had lost both eyes in the single accident.
The Supreme Court of New York, appellate division, had before it
the question of the loss of the hand of a man who had suffered by a
previous maiming, and it also followed the doctrine of the Massa
chusetts Supremo Court, making an award as for total disability,
arguing that such a man was presumably paid on the basis of a re
duced earning capacity, and to allow merely as for the loss of but
one hand of an unmaimed man would be to place him at a double
disadvantage, so that he would practically get but half as much for
the second hand, which was of double importance, as for the first
(Schwab v. Emporium Forestry Co., 153 N. Y. Supp. 234). An
amendment of 1915 limits awards to the consequences of the imme
diate injury, without regard to combined effects.
In 1916 a further amendment provided for payments in addition
to the specific loss, such payments to be in compensation for the re
sultant total disability. The fund for this payment is to be sus
tained by payments in case of death where no beneficiary survives.
A provision comparable to this was embodied in the first Kentucky
statute, and was declared unconstitutional by the court of appeals
of the State, which was of the opinion that the legislature did not
have “ the right to take what is due the estate of one man and give
it to another” (Kentucky State Journal Co. v. Workmen’s Compen
sation Board, 170 S. W. 1166). The New York Court of Appeals
upheld the provision, however, saying that the creation and use of
the fund do not differ in principle from those of the State fund, and
are “ within the letter and spirit of the constitution (Industrial Com
mission v. Newman, 118 N. E. 794). It was also held that the pay
ment of $100 to an undertaker was not payment to a “ person enti
tled to compensation” so as to relieve from the contribution to the
special fund. The fact that the deceased workman received benefits

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213

for a time prior to his death is not a bar to the collection of this sum,
since he himself is not “ a person entitled to compensation ” in a “ case
of injury causing death” (Stempfler v. Rheinfrank & Co., 179 N. Y.
Supp. 659).
The creation of a fund derived from employers where the deceased
employee leaves no dependents, the money to be used merely as an
administrative fund, was held by the Supreme Court of New Jersey
to be beyond the power of the legislature, as it was a taxing law resting
on no proper basis of classification (Bryant v. Lindsay, 110 Atl. 823).
A case of temporary total disability, involving an award for the
entire loss of a previously mutilated but usabJe member, was passed
upon by the Pennsylvania board, the workman having lost in boy
hood four fingers at the knuckles and the thumb at the first joint.
However, he had acquired such skill as to be able to perform many
of the duties of a laborer with this hand until a second injury removed
the remainder of the thumb and the entire palm of the hand. It
was said that no award could be made for the loss of use of the hand
because he had had no hand to lose; but an award was made on the
basis of 50 per cent of the wage loss due to the injury for the period
of total disability, the award being subject to revision on the basis of
the wage loss remaining after the healing and adjustment period had
expired, subject to the statutory Jimitations (Wills case, 1918).
This is in contrast with the decision in the Purchase case, decided by
the Supreme Court of Michigan, where the loss of a defective eye
was compensated for as for the loss of an eye (see p. 134).
A different cause for total disability from any heretofore noted
was set up by the employer in a case before the Supreme Court of
Kansas (Ruth v. Witherspoon-Englar Co., 157 Pac. 403), where it
appeared that the state of total disability was due not to the original
injury as a proximate cause, but to the malpractice of the physician
who treated the case. The court held that recovery under the com
pensation law could be had only for the consequences of the accident
as such and not for the consequences of an intervening event, such cs
the failure of the physician to give the injured man proper treatment.
A decision of the lower court in favor of the claimant was therefore
reversed and a new trial ordered for a determination of the extent
of the disability actually due to the original injury. Action was
pending at the time to recover from the employer for the injuries
due to the malpractice of the physician, who had been furnished by
the employer in accordance with the requirements of the act.
Appropriate for consideration in this connection or in connection
with the cases in which preexisting conditions due to disease were
discussed are a few cases in which the injury affected aged em
ployees. In answering the contention that the injury disabling the
employee would not have had that effect but for his senility the in

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dustrial board of Illinois ruled that if the injured man was able to
do the work for which he had been employed, his disability was
chargeable to the accident and not to his physical condition, and
compensation was allowed. The Supreme Court of Massachusetts
took the same view, saying that the fact that a man’s powers are fail
ing and he would soon be unable to work on account of age was no
bar to compensation if the present incapacity was the result of in
juries (Duprey v. Maryland Casualty Co., 106 N. E. 686). The
court in this case also applied a principle already noted in ruling
the incapacity total, though the man was able to do certain kinds
of work which were not obtainable. A different view was taken
by the Supreme Court of New Jersey in the case of a man 73 years
old whose broken leg bones would not knit on account of his age and
who had been awarded compensation as for total disability. This
award the court reversed, allowing compensation only for the loss of
a leg (Bateman Mfg. Co. v. Smith, 89 Atl. 979).
Noted here because the same principle is applied, though involv
ing a death claim, is a case that was before the Supreme Court of
Wisconsin (City of Milwaukee v. Ritzow, 149 N. W. 480). The law
of Wisconsin provides for a scaling of permanent disability payments
to aged persons, 5 per cent being deducted if over 55, 10 per cent
if over 60, and 15 per cent if over 65 years of age. The deceased
was 80 years of age, and the full death award was allowed in his
case, the provision for scaling being held not to apply in case of
death, since the law does not specifically provide therefor, though
it was said that analogy would suggest it. It is of interest to note
that the award in this case provided an income, based on the assumed
earning capacity of the deceased, for a period of 320 weeks, i. e., in
excess of six years, while according to the American experience table
of mortality his life expectancy was but 4.4 years. In the New
Jersey case above, also, the award for disability as originally made
was for 400 weeks, which was in excess of the life expectancy of the
workman in that case, though unless the award should be construed
to be a vested right in the estate payments would of course terminate
with the death of the injured man unless it was found due to the
injury.
DEPENDENCE.

Other than as prescribed by the statutes themselves, questions of
dependence for purposes of compensation administration involve
identical principles with those elsewhere applicable. A somewhat
peculiar situation arose in a case passed upon by the Pennsylvania
compensation board where a woman had lived apart from her hus
band and was not dependent; but not having been legally separated
she was held by the board to be the widow of a deceased workman
in such a sense as to bar the claim of his dependent mother, the law

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allowing awards to dependent parents only “ if there be neither
widow, widower, nor children” (Zimmerman case, 1917).
The provision of law declaring that the status of dependents is
fixed as of the time of the injury giving rise to the claim was held
by the Supreme Court of Wisconsin to bar the claim of a widow
who had become the wife of an injured man subsequent to his injury;
moreover, the child who was legitimated by the marriage was de
nied benefits as not a potential dependent at the time of the injury,
all compensation going to the dependent father of the deceased
(Kuetbach v. Industrial Commission, 165 N. W. 302). On the other
hand, the Supreme Court of New York (Crockett v. International
Ry. Co., 162 N. Y. Supp. 357) held that, though the law of that
State makes a similar provision, this does not affect the status of a
widow, who is entitled to benefits as the “ surviving wife” of the
injured workman, without regard to actual dependency or the date
of the marriage.
The determination of benefits payable to survivors of deceased
employees was the subject of several cases arising under the New
Jersey statute, which in its original form did not make a clear pro
vision for the various classes of survivors. Thus in the case of a
dependent mother where the deceased employee left no widow (Blanz
v. Erie R. R., 85 Atl. 1030), it was held by a judge of the com
mon pleas that the failure to make a specific provision for a case
of this kind left applicable only that section of the law which allows
benefits in the amount of $200 in cases in which there are no dependents
surviving.
The mother appealed, and the supreme -court took the view that
the object of the law was clearly to award compensation to actual
dependents, and while it made no specific stipulation for a mother
alone, it contained no language expressly excluding her if there is no
widow, provided, of course, that she is an actual dependent. It fol
lows from the above that where dependence is actual and the law
clearly contemplates compensation to actual dependents, specific
statutory provision is not necessary. In another case before the
same court (Miller v. Public Service R. R. Co., 85 Atl. 1030) the
question arose under the law of New Jersey as to the amount payable
in a case where the decedent left a childless widow and a father,
brothers, and a sister. As already noted, the widow was entitled
under the law to a benefit of 25 per cent of her deceased husband’s
wages, while if there was also a dependent parent the compensation
would be 50 per cent. The court below made an award of 50 per
cent of the deceased workman’s wages on the ground that besides a
childless widow there was a father surviving. This ruling was held
by the Supreme Court of New Jersey to be erroneous, the mere fact
of relationship not being controlling, but a showing of actual
dependence.

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Another case before the Supreme Court of New Jersey (Batista v.
West Jersey & S. R. Co., 88 Atl. 954) resulted in reversing a judg
ment which awarded compensation to a widow who had been
abandoned some years before her husband’s death, the latter having
lived unlawfully with another woman whom he had supported and
who had borne him children.
The question of dependence was also involved in a case arising
under the Wisconsin statute (Northwestern Iron Co. v. Industrial
Commission of Wisconsin, 142 N. W. 271). In this case the benefi
ciary was a nonresident alien, widow of the deceased workman. The
deceased workman had made two remittances to his wife during the
time of his employment, at intervals of three months, having made
the statement that if he did not send money every three months his
wife could not make a living. On the facts the industrial commission
ruled that the husband and wife were living together within the
meaning of the statute, and that she was therefore an actual dependent
entitled to the benefits provided by the law for such persons. The
employing company appealed from this ruling and it was set aside
by the circuit court as being in excess of the powers of a commission
and contrary to the facts. The supreme court considered the lan
guage of the law which provides for a conclusive presumption of the
dependence of a wife upon a husband with whom she is living at
the time of his death. Speaking on this point, the court said:
Proof of total dependency is dispensed with under the statute where
the husband and wife are “ living together” at the time of the death
of the injured employee. It seems, therefore, quite obvious that the
legislature intended by the use of the words to include all cases where
there is no legal or actual severance of the marital relation, though
there may be physical separation of the parties by time and distance.
The “ living together” contemplated by the statute, we think, was
intended to cover cases where no break in the marriage relation
existed and therefore physical dwelling together is not necessary in
order to bring the parties within the words “ living together.”
The judgment of the circuit court was therefore reversed and the
award of the industrial commission directed affirmed.
The Minnesota statute presumes the dependency of the wife unless
shown to be voluntarily living apart from her husband at the time
of the injury. Separation for 12 years following an order to leave
and threats of shooting was held not to imply a voluntary living
apart, and the supreme court of the State affirmed an award in the
widow’s favor (State ex rel. London, etc., Indemnity Cp. v. Dist.
Court, 166 N. W. 772).
The Supreme Court of Massachusetts construed the law of that
State in a case in which a wife was living apart from her husband for
alleged justifiable cause, ruling that under the circumstances the
question of dependence would be subject to proof and not con-

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217

clusivelv presumed. It was said that such cause may not be sufficient
to warrant divorce, but it must be continuing, and if not in existence
at the time of the fatality it will not suffice even though once valid
(In re Newman, 111 N. E. 359). An award was refused in the case
of a nonresident wife to whom the deceased had sent $161 in the
course of eight years, there being insufficient evidence as to the wife's
circumstances and means of support. It was said that there must be
proof of actual dependence and a knowledge of the facts as to the
separation of the parties before an award can be made (In re Fierro,
111 N. E. 957). That the intent of the parties will be considered was
ruled by the accident board of this State in a case where a wife and
children had been left in Syria, but with the definite purpose in mind
of a future reunion of the family, an award for the wife’s total de
pendency being made. That such intention must be definite would
be concluded from the decision of the Supreme Court of Michigan in
a case (Finn v. Detroit, etc., Ry., 155 N. W. 721) in which a wife had
left her husband following some friction and resumed teaching,
contemplating a reunion as possible some time in the future, the
court holding that such indefinite prospect did not bring the case
within the act.
In the foregoing case, of course, the wife was earning, but that this
of itself would not be a bar to a claim was the ruling of the industrial
commissioner of Iowa in applying the law of that State to the case of
a claimant widow who was herself a wage earner. It is pointed out
that there must be a legal marriage and not a willful desertion without
fault of the husband, and that under the provisions of the act of the
State it is immaterial that she herself earns and was helping to sup
port herself at the time of the injury.
The Ohio commission awarded benefits in the case of a wife and
child deserted and left without support for several months through
no fault of her own; in the case of a bigamous wife, ignorant of the
fact of the first marriage of the deceased (lawful wife deserted for
18 years ruled not a dependent and was not a claimant); and in the
case of a common-law wife and child with whom the deceased had
lived and whom he supported. The West Virginia commissioner
struck a middle course in the case of a man who had deserted his
legal wife and had lived with another woman for 14 years, denying
compensation both to the deserted wife and to the common-law wife
making claim, but allowing compensation for the benefit of the three
young children of the latter. In another case the same law was
considered to warrant compensation to the children of the deceased,
the widow's claim being denied, where she had deserted her husband
two months prior to his death, taking her children with her, and going
to live with another man, who supported the family.

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Where the commissioner denied compensation to a nonresident
widow on the ground that dependency had not been proved, the
supreme court of the State reversed him on the widow’s testimony
that while able to aid herself in part, she was in greater part depend
ent on her husband for support (Poccardi v. Ott, 96 S. E. 790, Schipani case). Total dependency is not essential to support a claim, the
law providing for those dependent “ in whole or in part.” It was
said in another case (Poccardi v. Commissioner, 91 S. E. 663, Cucca
case) that it was not a question of being able by skimping to provide
the bare necessaries of life, but of reasonable support and maintenence,
taking into consideration the class and position of the claimant,
citing Dazy v. Apponaug Co., 36 R. I. 81, 89 Atl. 160. It was decided
in the Cucca case that the mere sending of occasional contributions
to the father and mother did not prove dependence upon the son.
The Massachusetts law declares a presumption in favor of the
dependence of the widow of a deceased workman and of “ a child or
children under the age of 18 years * * * upon the parent with
whom he is or they are living at the time of the death of such parent,
there being no surviving dependent parent. Under this provision
of the act it was held that a divided award to a widow and to a child
under 18 years of age residing with her was not in accordance with
the terms of the law, since the child would be a beneficiary only in
case there was no surviving dependent parent, the widow in the pres
ent instance being entitled to the entire amount of the benefits (In
re Employer’s Liability Assurance Corporation, 102 N. E. 697).
Another case under the law of Massachusetts (Coakley v. Coakley,
102 N. E. 930) involved the correlative rights of a dependent daughter
of a deceased workman and his widow and children by a second
marriage. It was held by the supreme court of the State that
the daughter was entirely orphaned and a dependent to share equally
with the widow, even though the latter had also dependent children
of the deceased dependent on her, the widow and the orphaned
daughter representing a case in which “ there is more than one
person wholly dependent,” between whom the law provides that
the death benefit should be equally divided.
The Illinois law of 1913 allowed benefits to certain relatives to
whose support the deceased had contributed within the four years
preceding the injury. This was held to cover the case of an adult
daughter who had been self-supporting, but whose father had aided
her during illness and an operation, and she had subsequently lived
with him for at least a part of the time (Mechanics’ Furniture Co. v.
Industrial Board, 117 N. E. 986). Awards were also sustained where
the deceased father had regularly contributed to the assistance of
two married daughters and their families, though they were not
dependent upon their father (Peabody Coal Co. v. Industrial Board,

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117 N. E. 983). The law was amended in 1917 so as to require actual
dependence or a legal obligation to support.
The dependence of children is usually restricted by a provision of
the law fixing an age limit, though physical or mental incapacity
frequently waives this limitation. The Massachusetts board had
before it a case in which the father and mother lived separately,
and an 18-year old daughter was unable to work. The mother made
a statement that she was not dependent, while the daughter had
made a claim on the ground of her total dependence, she having
been previously supported by the father, and having no other income.
An award was made exclusively for the daughter’s benefit on the
ground that she was wholly dependent. In a case before the supreme
court of this State (In re Herrick, 104 N. E. 432), an adult daughter
capable of self-support but living with and caring for her father,
both being supported by his earnings, was held a dependent.
An anomalous result follows from the wording of the Colorado law,
which stops the payment of awards to children on their reaching the
age of 18, unless mentally or physically incapacitated, but makes no
such restriction in the case of other minor beneficiaries. An award
to a minor sister of the deceased was held therefore not to terminate
on her reaching 18, as she was not a “ child” of his, though when the
beneficiary is the offspring of decedent, the limit would be effective
(Hasselman v. Travelers’ Ins. Co., 185 Pac. 343). Such a contra
diction is safeguarded in the Kansas statute, for instance, by making
the 18-year limitation effective in all cases of “ minor dependents.”
The industrial accident board of Massachusetts denied compensa
tion to an illegitimate child, not living with the deceased but
actually supported by him (Olson case, 1920). It was noted
illegitimate children had been allowed compensation under similar
laws, but on the ground that they were members of the employee’s
family, and the employee in this case was not the head of any family.
An insane woman supported entirely by the State for several years
was held not entitled to be considered as a beneficiary under the
Michigan law (Roberts v. Whaley, 158 N. W. 209), but the attorney
general of Minnesota held that a man confined in jail was neverthe
less entitled to compensation, and the department of labor of the
same State awarded compensation to a child in confinement in a
reformatory institution.
The question of dependence of parents on their children involves
no particular principle peculiar to compensation laws, but a few
rulings have been noted. In a case before the Supreme Court of New
Jersey (Reardon v. P. & R. R. Co., 88 Atl. 970), the employer con
tested an award under the law of the State for the death of an un
married workman. The court held, however, that since the father
had been dependent on his son’s earnings an award in his behalf was

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valid. A compensation commissioner of Connecticut awarded bene
fits to a nonresident alien mother in a case in which the son had been
in the habit, while in France, of giving his earnings to his parents,
and while in this country had given the money to his father for the
support of the family. The industrial accident board of Massachu
setts made an award on the claim of the mother where it was shown
that the son had contributed to the support of herself and a large
family, making contributions in an amount which was found to be
more than double the actual cost of the board received by him.
Where the father aiid son worked together, both losing their lives in
the same accident, and the son’s earnings had gone largely to the
family support, the mother was held to be a partial dependent of the
son. It was also held that the young man’s sister, though 19 years of
age and competent to make her own living, was in fact supported by
the family and was dependent so as to justify an award in her behalf
on account of her brother’s death. So, also, under the law of New
Jersey an award was made on behalf of a sister who received sub
stantial benefits from her adult brother’s earnings, which he had
turned over to the father, the question being one of dependence as a
fact, and not of minority or incapacity to work (Conners v. Electric
Co., 97 Atl. 792). Of course such a ruling depends on the terms of
the act.
The Supreme Court of Massachusetts made an award as for entire
dependency—i. e., based on the full wages of a minor son, where all
his earnings had been turned into the family fund, the father and
other children also working (In re Murphy, 105 N. E. 635). In
another case (Grove v. Royal Indemnity Co., I ll N. E. 702) this
court affirmed an award of the State board where a young man had
turned over part of his wages to his mother, receiving his board as a
member of the family, the father also working. The mother was
declared to be a dependent upon the son to the full amount of the
wages turned-over to her, without deducting therefrom the value of
the board received by him, the benefits under the compensation law
differing from the judgments allowed under Lord Campbell’s act,
in that it is not on the amount of injury done to the dependent,
but on the amount of the decedent’s wages that awards are to be
based.
In a third case (In re Murphy, 113 N. E. 283), the deceased work
man had lived with a dependent mother, who was an invalid, whose
sole support he was. A sister was the housekeeper for the family,
there being other members who were, however, self-supporting. Be
fore the final determination of the mother’s claim she died and an
administrator intervened and secured an award in behalf of the
next of kin of the deceased mother. The superior court affirmed
this award, but it was reversed by the supreme court on the ground

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221

that the mother was the sole next of kin dependent on the deceased
workman under the act, the family being not his but his mother’s
and the determination as to dependence being made necessarily at the
time of the injury. In a quite similar case an unmarried son as
sumed the care of his aged parents and invited his sister to become
the housekeeper of the family/ not on a w^age basis, but with a
promise of support. It was held that the sister was a dependent on
the brother, but since she had some property of her own the de
pendence was said to be partial only, and consideration was not to
be given to any sum that she might inherit from her brother (Ken
ney v. Boston, 111 N. E. 47).
Somewhat in contrast with the ruling in the Murphy case above is
the decision of the Supreme Court of Rhode Island in a case (Dazy
v. Apponaug Co. (36 R. J. 81; 89 Atl. 160), in which it appeared that
there was no actual dependence on a minor son who had turned in
his wages to his father, the facts being that without them the father
was able to support his family and put by savings. The only allow
ance made therefore was for last sickness and funeral expenses. A
lower court of Minnesota, on the other hand, declared the partial
dependency of a mother on her son where she was earning $60 per
month, and he had given her $97.50 monthly (Hayden v. Great
Northern Power Co.).
The position taken by the commission of Ohio, in a case where a
son contributed $7 or $8 per week to the family fund and lived as a
member of the family, the father earning $12.50 per week, was the
same as that taken by the Massachusetts commission above, holding
that the mother was entitled to an award as a partial dependent.
Where the deceased made no contributions and was under no legal
obligation to do so in the absence of court proceedings, the Supreme
Court of Michigan held that the mother was not a dependent (Pinel
v. Rapid Ry. System, 150 N. W. 897).
In the case of Boyd v. Pratt (130 Pac. 371) the construction of the
Washington statute as to the duration of benefit payments where
the deceased employee was a minor, on whose earnings his mother
was dependent, was the question before the court. The deceased
was 19 years of age, and on the occurrence of his death by accident
an order was made providing for payments to his dependent mother
until such time as he would have arrived at the age of 21 years.
From this order of the industrial insurance department an appeal
was taken to the court, where the order of the department was
reversed and a new order entered allowing monthly payments as long
as dependency should continue. The statute in question provides
that dependents shall receive during dependency 50 per cent of the
average monthly support received during the preceding 12 months,
but not in excess of $20 per month. It also provides that in the

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case of the death of unmarried minors their parents shall receive $20
per month for each month after the death until the time at which
the deceased would have arrived at the age of 21 years. The Su
preme Court of Washington construed the latter clause as being based
on the parents’ right to the earnings of a minor and not involving the
question of dependence. Where, however, there was actual depend
ence, as in the case in hand, the question of minority was not con
trolling, and the case would come under the general provision relat
ing to dependence. The judgment of the lower court was therefore
affirmed.
Going beyond the narrower bounds of relationship was a ruling of
the industrial commission of Ohio to the effect that an invalid
father and the stepmother and half brothers and sisters were wholly
dependent on the earnings of a 19-year old son of the father by a
prior marriage. So also in a case passed upon by the Wisconsin com
mission, where th^e employee had been reared by the claimants, but
was not their child nor had she been legally adopted. She had,
however, regularly turned over a part of her weekly wages for their
support, and they were held to be proportionately dependent. Ah
award was made accordingly.
The attorney general of Minnesota ruled on a case in which a child
by the first marriage of the deceased had not lived with the family
for the past five years though she had not been adopted by others
and might be returned any time. The fact of separate residence was
held not to bar her dependence under the act, since it was only neces
sary that she be unmarried and under 18, or incapable of self-support
over that age. The child was but 10 years old and compensation
was directed in her behalf. Quite similar to the Herrick case above
was a decision by the Supreme Court of Minnesota (State v. District
Court of Ramsey County, 158 N. W. 798), applying the law of Minne
sota as amended by chapter 209, acts of 1915. In this case a widowed
daughter was held to be partially dependent on her father where
she lived with him and derived part of her support from him, the
law providing for such an award without regard to age or inability
to earn.
The law of Pennsylvania provides for payments to the widow or
dependent widower alone, with additional sums where there is one
child, where two children, etc., the phraseology suggesting payments
to the head of the family only, if there be one. It was held by a
court of common pleas (Irvin v. William M. Frost & Co.) that children
are entitled to compensation in their own right no less when there is
a parent surviving than where there is none. In the case in hand a
posthumous child was held entitled to the award made in its behalf
by the State board.

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*

223

'BASIS OF AWARDS.

In practically every law compensation awards are based on the
amount of wages received. What shall be considered as the proper
wages or earnings comes up for decision in several cases for which
reports are available. In a California case passed upon by the State
commission the amount of tips or gratuities additional to the salary
was held not to be a part of the earnings on which compensation
could be based, the ground being taken that if that were allowed there
would be room for fraudulent claims. On the other hand, the in
dustrial accident board of Texas took as the basis of an award for
a porter in a hotel the amount of his income from tips, he being
entirely dependent upon this source of revenue. This accords also
with the decision of the industrial accident board of Massachusetts,
where tips to a waiter formed a part of his income, allowance being
made therefor as included in his regular earnings.
The Pennsylvania compensation board ruled that bonuses regu
larly paid as an inducement to steady work are to be considered as a
part of the wages and used as a basis on which percentage awards
are to be computed.
Another case before the California commission was that of a 7-day
employee, as to whom it was ruled that the general computation of a
6-day week would not apply, and the commission fixed upon 332
days as the average for a year's work as against 300 days allowed
for the 6-day worker.
The converse of the foregoing was passed upon by the New York
Court of Appeals, where a bricklayer had been given an award based
on 300 working days per year. This was reversed on a showing that
the average employment in the trade was 30 weeks annually, and an
award directed, based on the “ actual annual earning capacity"
(Littler v. Geo. A. Fuller Co., 119 N. E. 554).
Where the occupation in which the man is engaged at the time of
his injury differs from his usual occupation it was held by the com
missions of California and Connecticut that the award must be based
on the amount of the earnings in the occupation in which the man
was engaged at the time of the injury. In the California case a
lineman earning $4.50 per day was injured while in camp with the
National Guard, where he received 70 cents per day and board.
Compensation was awarded, not on the basis of his earnings as a
lineman, but the minimum rate fixed by law was allowed, his em
ployment being considered at the time as in the National Guard.
Somewhat similar was the question decided by the Supreme Court of
Wisconsin, involving the case of a citizen killed while obeying a
summons to aid an official in making an arrest. Compensation was
awarded not on the basis of his occupational earnings but on the

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t h e u n it e d s t a t e s .

customary pay for police services in the locality (Village of West
Salem v. The Industrial Commission, 155 N. W. 929).
On the other hand, it was held by the industrial board of Massa
chusetts that where a man’s average wages were greater than those
ordinarily paid for work of the kind on which he was temporarily
employed at the time of his injury, the award should be based on
such average, the evidence being to the effect that the injured man
was competent to earn the higher rate of pay in work for the same
employer.
Where an employee is rendering part-time services for one em
ployer, with the privilege of serving other employers, the basis of
a compensation award will be the average weekly earnings which
he receives from all sources, and not merely the amount received
from the employer in whose service he is at the time of the injury
(Maryland Industrial Accident Commission).
The same principle was involved in a California case (Western
Meta] Supply Co. v. Pillsbury, 156 Pac. 491), where a night watch
man employed by several parties independently was killed by a
burglar on the premises of one, and his beneficiaries were held to be
entitled to an award based on his entire earnings but payable by the
person on whose premises he was at the time of the fatal injury
This differs in no respect from the question which was considered by.
the Supreme Judicial Court of Massachusetts in a case (Gillen v. Ocean
Accident & Guarantee Corporation, 102 N. E. 346), in which the claim
ant was a longshoreman employed by a company which was insured
with the insurance corporation named. His employment being irreg
ular, the question arose as to the amount of compensation payable
under the Massachusetts law, the basis provided by the statute being
the average weekly wages, for the determination of which various
methods are indicated. Owing to the circumstances of the company’s
business, Gillen while working for it received not more than $8
weekly, while with employments at other jobs his average earnings
were $13 per week, which was the average weekly wage earned by
other longshoremen in the same class of employment and in the same
district. Benefits payable being 50 per cent of the average wages,
the insurance company contended that they were liable only to the
amount of $4 per week, while the plaintiff Gillen claimed $6.50 per
week as being one-half his average weekly earnings as longshoreman
from all sources. The latter view was the one adopted by the lower
court and sustained by the supreme judicial court, this court holding
that the law does not restrict consideration of what constitutes
weekjy wages to a single employer, but takes into consideration
the custom of the employment and has regard for all the wages
which the employee received. It was held that this was a case
where the condition of the workman is one of continuous labor

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225

in regular employment with different employers. “ The loss of his
capacity to earn, as demonstrated by his conduct in such regular
employment, is the basis upon which his compensation should be
based.”
While this decision apparently works for liberality toward the
injured man, the opposite situation certainly works for hardship;
and this is the practical result of the findings in a case where a printer
was regularly employed for a 5§-day week at $28 per week. He
worked Saturday nights for another employer at $9.20 per night and
while so employed was fatally injured. Instead of finding that the
basis for awards was the total weekly wage, or even the regular
weekly wage, the Supreme Court of Massachusetts ruled that the
basis must be the wages earned in the employment where the injury
happens (King’s case, 125 N. E. 153). This was distinguished from
Gillen’s case, above, on the ground of the difference in the nature of
the employment, which brougnt the cases under different provisions
of the law. This rule was also applied to a shipyard worker, killed
while in an outside employment. He had been engaged by the
owner of a building to wax the floor, for which he was to receive a
dollar every two weeks. His widow was awarded the minimum bene
fit of $4 per week, the court ruling that his average wage was 50
cents per week, bis main employment not coming into consideration
(Marvin’s case, 125 N. E. 154).
Where a workman suffers an injury while receiving compensation
for partial disability incurred in a previous employment, and is
injured a second time, resulting in total disability, the Supreme
Court of Michigan ruled that the combined awards could.not exceed
the statutory maximum of $10 per week, this rule applying whether
there was one employer or several (O’Brien v. A. A. Albrecht Co.,
172 N. W. 601).
The inclusion of overtime earnings was passed upon by the com
missioner of labor of Minnesota and the industrial commission of
Ohio, both holding that such earnings should be considered as a part
of the total income on which awards should be based; so also, of the
inclusion of the value of board and room, as decided by the commis
sioner of labor of Minnesota.
There is a wide divergence of opinions expressed on the subject of
the anticipation of an increase in earnings of minors, the Supreme
Court of New York, appellate division, stating that the law of that
State provided for such anticipation, and where a boy of 16 was
then earning $5.50 per week, it was estimated that in two years he
would be earning $12 per week, and in five years from $12 to $18,
and an award made on this basis was affirmed (Kilberg v. Vitch,
156 N. Y. Supp. 971); on the other hand, the industrial accident
board of Vermont ruled that where a learner was injured the award
177982°—21—Bull. 272------15

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should be based on his earning capacity at the time, without taking
into consideration what he would earn with the increased pay that
continuance in his trade would bring.
The Massachusetts Supreme Court ruled that where a man's wage
loss for partial disability has been increased on account of business
depression, the award should be based on the earnings that would
have been possible for the injured man if business had continued as
at the time of the injury, and not on the wages he was actually able
to earn (In re Durney, 111 N. E. 166), the proper test being the
physical condition of the injured man and not the prevalent indus
trial conditions.
The computation of earnings for seasonal employments is regu
lated by the law of Pennsylvania by a provision that in such em
ployments the total earnings of the previous year, omitting overtime
pay, shall be divided by 50 to determine a week's average earnings;
while for regular employments the determination is arrived at by
multiplying the average daily earnings by 5J. A mining company
gave notice of its intention to pay compensation on the basis of a
seasonal occupation, which would effect quite a reduction in the
amounts payable; the compensation board of the State ruled against
the proposition, however, and declared the employment continuous
within the meaning of the act.
The Supreme Court of Iowa in passing on the question of the wage
basis in a case involving the earnings of miners, from whose gross
earnings deductions are made to pay the cost of powder and of
blacksmithing, held that these charges were not to be considered in
deciding the amount of weekly earnings as a basis for determining
the amount of compensation, but that the award should be made on
the amount earned without such deductions (Richards v. Central
Iowa Fuel Co., 159 N. W. 696).
SETTLEMENTS.

Various points are involved in the question of settlements and
vested rights, and also in the powers of the parties under the act to
conclude agreements. Under the last head may be noted the ruling
of the industrial commission of Ohio in a case in which a widow
made formal claim for compensation, and subsequently undertook to
withdraw the claim, alleging that the insurance company had paid
her the sum of $2,000 in full settlement. The commission insisted on
evidence in the case, and a ruling was made that proceedings brought
under the act can not be settled without the consent and approval
of the commission. The award finally made was for a sum practically
double the amount of the original settlement by the company.
The workmen's compensation board of Pennsylvania passed upon
a case in which the employer had continued to pay full wages by

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227

voluntary action on his part during the term of the disability of an
injured employee, the injured man subsequently claiming compensa
tion. The board ruled that in the absence of proof that the wages
had been paid in settlement of the employer’s obligation to pay com
pensation, they would be treated as a gratuity, and an award was
allowed the claimant within the terms of the act (Keyser case, 1917).
The Indiana statute specifically provides that payments made to an
injured employee, not due or payable under the act, may be taken
into account in making an award; so that an award deducting the
amount advanced by the employer was approved (Underhill v-. Cen
tral Hospital for the Insane, 117 N. E. 870).
The Ohio commission considered the status of a claim in which an
award was made, but at the time of the award the claimant had dis
appeared without giving information as to his whereabouts* He had
undertaken, however, to assign the anticipated award as payment
for a board bill; and though the assignment was made in writing
for this specific purpose, it was held that it was invalid, since com
pensation must be paid to the employee only.
Another case involving restricted application of compensation
settlements was passed upon by the California commission, in which
the employer sought to secure an order deducting a certain indebted
ness from the employee to himself from the award of the commis
sion; this the commission denied as being outside its powers.
The effect of a settlement under the Massachusetts statute where
the injured person was a minor was considered by the supreme court
of that State, the decision being reached that such settlement did not
bar the right of a parent to sue under the common law for the loss
of the minor’s services (King v. Viscoloid Co., 106 N. E. 988).
Whether or not compensation rights are vested so as to survive
death or a change of status of the beneficiary is a question that has
received conflicting answers from the authorities passing upon it.
Thus the Massachusetts board ruled that where an award for a
specified time was payable to a widow and her death occurred within
the period fixed, the estate had a vested interest, so that the remain
ing payments should be made to the administrator; and the remar
riage of a widow was held by the supreme court of the State not to
terminate payments under an award, dependence having been
determined as a status at the time of the injury, even though actually
relieved by the remarriage (Bott’s case, 119 N. E. 755). The Supreme
Court of Rhode Island ruled similarly (Newton v. Rhode Island
Co., 105 Atl. 363).
However, where a mother was the sole dependent at the time of
her son’s death an award in her behalf, made by a committee of
arbitration, could not be transferred by the board to her heirs in
event of her death during the proceedings (In re Murphy, 113 <

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UNITED STATES.

N. E. 283). It was said that the law of Massachusetts differed from
that of Ohio, under which an award to a sole dependent, once made,
was held to be h vested right and payable without regard to the sub
sequent death or other change of status of the beneficiary (see
State ex rel. Munding v. Industrial Commission, 111 N. E. 299).
A ruling of the Ohio commission also confirmed the right of a
widow, whose husband had died before an award was made for
an industrial injury, and from another cause than the injury, to
receive such disability payments as the injured man might have
received if an award had been agreed upon before his death; and it
would seem that equity would warrant a readjustment of benefits
in cases where a recipient died or from any cause ceased to be eligible
for further payments. Lump-sum payments once made have obvi
ously passed beyond the control of the payer, and to cut off con
tinuing payments, as was done in the Murphy case above, places a
premium on the lump-sum method of settlement, from the point
of view of the recipient. But this is not without its exceptions, as
appears from a ruling by the Supreme Court of Massachusetts that
such a settlement with full release is binding, even though unantici
pated blindness subsequently developed from the injury (In re
McCarthy, 115 N. E. 764).
The New Jersey law as originally enacted authorized payments to
an injured workman during disability but not beyond 400 weeks.
An amendment of 1913 provided that in case of the death of a per
son from any cause other than accident during the payments for
permanent injury surviving dependents should receive any unpaid
balance of the award within the term indicated. It was held (Erie
R. Co. v. Callaway, 102 Atl. 6) that an award under the unamended
law ceased with the death of the injured man, if from some other
cause than the injury, even though the death occurred after the
enactment of the amendment continuing unaccrued payments to
dependents.
A unique decision comes from a trial court in Pennsylvania, hold
ing that the employer is entitled to some protection where the widow
has secured a commutation to a lump sum and remarries after
receipt of the same. It is admitted that the law does not cover the
point, but relief is said to be a matter of right.
The Texas statute names the potential beneficiaries and provides
that they shall be entitled to compensation according to the laws of
the State governing descent and distribution. This is construed by
the industrial accident board of the State to warrant a readjustment
of benefits on the lapse of payments to any member of the group,
whether by death or otherwise; the survivors taking, however, not
as heirs of a deceased beneficiary but by their original right, which
was either reduced by a cobeneficiary in being at the time of the

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229-

earlier award or was entirely in abeyance on account of a superior
claimant. The effect of this construction is to continue the payment
of the full amount of 60 per cent of the wages as benefits so long as
any person of the designated class or classes, entitled thereto if
standing alone, is in being, up to the end of the term contemplated
by the act. However, the Court of Civil Appeals of Texas ruled
against the claim of a widow when she attempted to recover the
unpaid portion of an award to her husband on account of injuries,
his death occurring from other causes, while he was in receipt of
benefits (United States Fidelity & Guaranty v. Salser, 224 S. W., 557).
Under the law of Washington an injured man dying without
heirs after an award has been made but not paid leaves nothing to his ad
ministrator (Ray v. Industrial Insurance Commission, 168 Pac. 1121).
In a number of States provision is made for the cessation of pay
ments, either at once or with a commutation for a fixed period, in
case of the remarriage of a widow receiving benefits, while in others
the matter is left open. Under the Ohio law the industrial commis
sion ruled that benefits are a vested right after an award, and a
widow remarrying is entitled to their payment according to the origi
nal award, citing the Munding case above. The New Jersey Court
of Common Pleas, on the other hand, held that as the law is for the
benefit of dependents, payments would cease on the remarriage of a
widow, as it would be presumed that she was no longer a dependent,
and it was not fair to burden industry for the benefit of such persons.
When the question came to the supreme court of the State it ruled
that payments should continue as a vested right, having been awarded
for the period of 300 weeks without limitation (Hansen v. Brann &
Stewart Co., N. J. L. 444, 103 Atl. 696). The fact that'the law had
in the meantime been amended so as to establish a different rule
was held not to affect prior awards. A like position was taken on
the question by the Supreme Court of Illinois (Wangler B. & S.
Metal Works Co. v. Industrial Commission, 122 N. E. 366), though
in this case there had been no change in the law.
Under the law of Maryland, benefits to a widow cease on her re
marriage, other beneficiaries receiving benefits for eight years.
Under this provision, the accident commission of the State held that
the award to a sister became a vested right on its being made, so that
her marriage would not terminate it, a ruling which shows an obvious
inconsistency of legislation. The trial court to which the case was
taken ruled against the continuance of payments, but the court of
appeals of the State found nothing in the law that would warrant such
action and the right was held to survive (Adleman v. Ocean Ac.
& G. Corp., 101 Atl. 529).
The mutual exclusiveness of classes of awards was passed upon
by a compensation commissioner of Connecticut in a case in which

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the disabled workman received compensation during the period of his
incapacity, and on his subsequent death the claim was made that this
amount should.be deducted from the compensation awarded the
widow; this contention the commissioner rejected, saying that the
rights of the widow are separate and distinct from the rights of
the deceased, and the two forms of compensation should be kept
separate. This was the position taken by the Supreme Court of
Massachusetts in a like case (In re Nichols, 104 N. E. 566). So also
of a release by an injured man who subsequently died of the injury,
the Supreme Court of Wisconsin holding that this was no* bar to the
widow’s claim, which was an independent right, not in being during
her husband’s lifetime, and not capable of being affected by his acts,
and her claim was allowed accordingly (Milwaukee Coke & Gas
Co. v. Industrial Commission, 151 N. W. 245).
The law of Oklahoma applies to nonfatal injuries only, and where
an injured man had received an award and subsequently died as a
result of his injuries, it was held that payments under the award
terminated at his death, and any rights that his heirs or dependents
might have must be determined by suit under the laws governing
recovery on account of death (Lahoma Oil Co. v. Industrial Com
mission, 175 Pac. 836).
The law of Michigan is construed by a recent decision of the su
preme court of the State (Foley v. Detroit United Ry., -157 N. W.
45), in which it was held that an approval by the State board of an
agreement between employer and employee covering the period of
total incapacity was no bar to a reopening of the case to determine
what was a proper award for permanent partial incapacity, and the
release given %
by the injured man as a full discharge against the em
ployer, at the end of total disability payments, not having been ap
proved by the board, was no bar to the claim. Likewise the Supreme
Court of Minnesota refused to recognize a release procured by an
insurance company, without consideration, and without the approval
of the district court (Clarkson v. N. W. Consol. Milling Co., 175 N. W.
997). An award for temporary disability had been made in due
order in this case, and payments made, but disability recurred, and
the unapproved release was set up as a bar to further claim, but was
rejected by the court.
The industrial accident board of Michigan ruled that the employer
had no power to regulate the contract for burial expenses under
the provision of the law of that State, which limits such expenses
to $200 in cases in which the injured man left no dependents, the
board pointing out that he could not be required to pay more than
$200, but had no right to undertake the control of matters that
properly belonged to the next of kin or the relatives or friends.

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A very common provision of the laws arranges for the commutation
of payments to a lump sum. Under the Massachusetts statute it
was held that this matter rested with the parties affected, and in
the absence of a submitted agreement the court had no power to act,
though it might approve or reject any proposition made by the parties.
A case involving this question was before the Supreme Court of
Kansas (McCracken v. Missouri Valley Bridge & Iron Co., 150 Pac.
832). There had been an award for death, and the court took the
view that the insurer was seeking to prevent commutation and
continue periodical payments with the hope that the death of the
beneficiary would end the obligation before it was completely dis
charged. It was said that the insurer was not entitled to raise such
an objection, ruling that the mode of payment is in the discretion of
the trial court under the law of that State. The Supreme Court of
Michigan likewise ruled that lump-sum awards may be ordered
without the employer’s consent if the board decides that circum
stances warrant (McMullen v. Gavette Const. Co., 175 N. W. 120).
An award of a lump sum by the industrial board of Illinois was
overthrown by the supreme court of the State where it was not shown
that it would be for the best interests of the parties, the request
being supported only by a statement by the claimant’s attorneys
(Goelitz Co. v. Industrial Board, 115 N. E. 855).
The Texas statute authorizes lump-sum settlements in cases of
death or of total permanent disability, and the accident board of the
States rules that such settlements for temporary or partial disabilities
are null as outside the scope of the act.
The compensation commission of Pennsylvania took the view that
lump-sum payments should not be favored, refusing its sanction in
a case where a widow with children had secured the consent of her
former husband’s employer to pay in a lump the amount of $6,015
in settlement of an award, which sum she wished to invest. Install
ment payments as provided by the law were ordered, since “ it is well
to protect her against herself and an uncertain investment.”
The status of an award in case of bankruptcy was decided by a
Federal court (Wood v. Camden Works, 221 Fed. 1010), in a ruling
to the effect that compensation payments were a charge against
the operation of the business, to be paid the same as wages.
Insurance carried by an employer without cost to the workman,
payable only in the absence of a recovery of compensation or damages,
was held by the Supreme Court of Nebraska to be deductible from the
amount of compensation awarded when it had been paid before the
right to benefits had been determined (Am. Smelting & Refining
Co. v. Cassil, 175 N. W. 102).

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UNITED STATES.

MEDICAL TREATMENT.

The fact that an injured workman, claiming compensation on
account of his status as an element in the productive forces of society,
owes a reciprocal duty to make the most advantageous use of the
provisions afforded him would seem to be increasingly recognized.
A number of the laws direct compliance with reasonable medical
instructions, and provide for the suspension of compensation pay
ments during any period of refusal or neglect.
The refusal of an employee to undergo an operation for the removal
of a cataract caused by accidental injury was held by the Supreme
Court of Illinois to be so unreasonable, in view of medical experience
and testimony, as to warrant the withholding of an award while such
refusal continued, the court holding that the loss of sight was probably
due to such refusal and not to the accident; if the operation should
be a failure, the question of compensation for any existing disability
would then be open for a decision in the light of the facts (Joliet Motor
Co. v. Industrial Board, 280 III. 148, 117 N. E. 423). Similarly, the
industrial accident board of Massachusetts directed the discontinu
ance of compensation payments until a woman who had lost a hand
should agree to undertake to wear and accustom herself to the use
of an artificial hand furnished by the employer, which, it was expected,
would enable her to earn wages and so reduce the amount of com
pensation necessary, physicians having testified that the stump left
by the amputation was suitable for the use of such a hand (Wiaczkis
case, 1917). The Superior Court of Rhode Island also refused to
allow a claim for permanent total disability where the sensitiveness
of an injured finger could probably be remedied by the simple opera
tion of removing a portion of the bone to secure a better flap to cover
the end, and ordered compensation to cease after six weeks unless
an operation was submitted to.
The constitutionality of the provision requiring submission to
medical examinations was upheld by the Texas Court of Civil Appeals
(Texas Employers' Ins. Assn. v. Downing, 218 S. W. 112), citing a
decision of the Supreme Court of the United States sustaining the
validity of an act of the New Jersey Legislature (1896) authorizing
such examinations in cases of suits for damages (Camden & Sub
urban R. Co. v. Stetson, 177 U. S. 172, 20 Sup. Ct. 617). No inherent
right to order such examinations exists under the common law,
however (Union Pac. Ry. v. Botsford, 141 U. S. 250, 11 Sup. Ct.
1000).
Where the employee refuses to accept or act on the advice of the
physician the question of actual or estimated consequences comes
up for consideration. Thus where the neglect of a fracture led to
infection and amputation the commission of California reckoned
that recovery would have taken place in five weeks with proper

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233

care and allowed compensation only for a temporary total disability
for that period and nothing for the loss of* the limb. The ruling in
another case was that the commission may bar absolutely all claims
for compensation for the remaining disability if .a probably advan
tageous operation of comparative^ inconsiderable risk is refused;
while in a third case payments were suspended until the injured
naan should consent to undergo a minor operation which medical
testimony indicated to be necessary to a recovery of the use of the
injured member.
Such, also, was the position of a commissioner of Connecticut in a
case where an operation was indicated for the recovery of the use
of a fractured limb; but where the testimony was only as to a possible
benefit and the injured man declined, it was hdd that he would
not be penalized for the refusal. So also in a case that was before
the Supreme Court of Massachusetts, an operation was not required
where the evidence of prospective benefit was said to be too slight
to warrant an insistence thereon (Floccher v. Fidelity & Deposit
Co., 108 N. E. 1032). Serious danger attendant on the operation
was held to be ground for a refusal to undergo it, especially as the
result might not be of curative effect in the case in hand (accident
board of Massachusetts); though in a case where there was no such
risk the man was required to decide within a period of six days
what course he would pursue, at the end of which time, if refusal
persisted, compensation would be suspended during its continuance.
The industrial commission of Oklahoma also ruled that refusal to
observe instructions, leading to the prolongation of disability, did
not afford a basis for the extension of the compensation period; and
in a case before the industrial commission of Wisconsin the refusal
of an injured man to accept the advice of both his employer’s and
his own physician, causing, as was alleged, a prolongation of the
term of incapacity, was held to warrant the rejection of his claim
for such excess of time.
The attitude of the Supreme Court of New Jersey differed from the
foregoing (Feldman v. Braunstein, 87 N. J. L. 20, 93 Atl. 679). An
injury to the eye was found to be permanent, causing a 90 per cent
disability, unless an operation was performed, when the injury
would be only temporary. The court ruled that the proper award
would be the schedule rating of 100 weeks’ benefits, as for the loss
of an eye; but if a successful operation was had within the 100
weeks a modification of the decree might be secured, reducing the
period of compensation. Likewise, when a claimant declined to
submit to an operation for hernia, it was held that he should not be
deprived of his award, where it was in evidence that, of 230,000
operations, 48 had been unsuccessful or resulted in death. It was
held that the injured man was not required to take even this slight

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risk of an operation classed as major, and that the award should be
for permanent disability, With leave to modify in case of a successful
operation, and not for six months and then to terminate unless
there was an operation that proved unsuccessful (McNally v.
Hudson, etc., R. Co., 87 N. J. L. 455, 95 Atl. 122).
The effect of deferring consent to a serious surgical operation was
before the Supreme Court of Michigan in Jendrus v. Detroit Steel
Products Co. (144 N. W. 563), the physician employed in the case
having urged an immediate operation as offering the only oppor
tunity for saving the injured man’s life. Assent was refused, but
given the next day. The injury was to the intestines, and perito
nitis had set in at the time the advice to operate was first given.
Vomiting followed, becoming fecal in its nature. Pneumonia next
developed, caused, as claimed by all the surgeons who testified,
by the entrance into the lungs of this fecal matter. The operation
was apparently followed by a measure of favorable results, but
death ensued in a few days, chiefly due to the pneumonia. Under
these circumstances the employer contended that the action of
the injured man in delaying the operation was so unreasonable
and persistent as to defeat the claim to compensation made by his
widow. In affirming an award of the arbitration committee, ap
proved by the industrial accident board, the court took into consider
ation the fact that the injured man was a foreigner, little able to
understand what was being said, in great pain, and unacquainted
with his surroundings, and decided that it could not be held, as a
matter of law, either that the conduct of Jendrus was so unreason
able and persistent as to defeat the claim for compensation by his
widow, or that in his delay in assenting to the operation he was
guilty of .intentional and willful misconduct. When, however, a
simple operation (loosening the tissue on an injured leg), Involving
little danger or suffering, is reasonably likely to relieve or terminate
the disability, refusal to submit thereto will warrant a suspension of
compensation payments (Kricinovitch v. American Car & Foundry
Co., 192-Mich., 387, 159 N. W. 302); and this doctrine was carried
so far as to withold benefits unless an operation for hernia be resorted
to, requiring the use of a general or local anesthetic, where the
physicians representing both parties agreed that an operation was
advisable (O’Brien v. A. A. Albrecht Co., 172 N. W. 601).
The Supreme Court of Wisconsin makes a lucid statement of the
principles involved in its discussion of a case in which it was found
by the State commission on the testimony of three physicians and
surgeons that disability subsequent to a date fixed “ resulted directly
from the injured man’s willful refusal to submit himself to safe and
simple medical treatment,” and rejected his application for perma
nent disability benefits. The court sustained this view, saying that

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235

“ where the disability is so related to the accident that it is the natural
consequence thereof, then compensation should be awarded” ; but
holding further when there is an unreasonable refusal to accept a
safe and simple operation, fairly certain to remove the difficulty, sub
sequent disability “ is not proximately caused by the accident, but is
the direct result of such unreasonable refusal.” The duty of society
to carry the burden of a man in such a case was emphatically denied,
the court saying that to prolong or probably even increase his dis
ability by such refusal, “ and thereby cast the burden of his wrongful
act upon society in general, is not only repugnant to all principles of
law, but is abhorrent to that sense of justice common to all man
kind” (Lesh v. Illinois Steel Co., 157 N. W. 539). It was pointed
out that no question of compelling the man to submit to an operation
was involved, but only his status as a claimant under the law.
The appellate court of Indiana refused to bar a claim for a serious
disability resulting from the claimant s insistence that a finger be
not amputated until further efforts to save it, with the result of a
spread of infection and an increased disability, such insistence being
declared not unreasonable or willful misconduct (Enterprise Fence &
Foundry Co. v. Majors, 121 N. E. 6).
What constitutes a sufficient compliance with the law requiring med
ical treatment to be furnished was considered by the California com
mission in a ruling that set forth that (1) the physician most quickly
obtainable should be summoned; (2) -the employer should furnish
instruction as to further treatment; (3) if insured, the insurer should
furnish the employer with definite instructions to be followed in case
of accident. It was also said that the commission will not favor the
policy of procuring the cheapest physician. A request by the em
ployee is not required, as the duty of an active compliance with the
law rests upon the employer; if he has knowledge of an injury and a
reasonable opportunity to furnish the needed service, that is sufficient
to charge him with the reasonable expense of any service obtained by
the employee in default of the employer’s action. Where, however,
the employee has secured emergency treatment, and the employer
afterwards offers the services of his physician, they must be accepted,
as a general proposition, and subsequent services rendered by the
employee’s physician will be at his risk and cost; but if there has been
a capital operation, the physician originally taking charge will not
be dismissed unless shown to be wholly unfit to continue the treat
ment.
In a case in which there was a wrong diagnosis of an injury, this
commission ruled that the mistaken advice of the employer’s physi
cian could not be used to deprive the injured man of his rights, but
was rather an injury to the employer himself. However, where the
wrong diagnosis was not corrected until after the expiration of the

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WORKMEN ’S COMPENSATION LAW S OF THE UNITED STATES.

90 days during which medical aid was to be furnished, it was held
too late to require such treatment, though disability payments must
be made; but if the employer tender the necessary treatment, the
employee must accept it or forfeit such payments. Where a man
suffered from a hernia and chose to take a truss, not desiring an op
eration at the time for family reasons, he asked to have an award
in order to hold the case open for future review. This the commis
sion declined to do, as there had not been a disability of 14 days’
duration. It ruled, however, that as hernia was a permanent dis
ability, an award would be considered on that basis unless an opera
tion was tendered, together with temporary disability payments for
the time required for recovery therefrom, saying that a cure offers
the best service to the community, and accords with the purpose of
the law. The discontinuance of medical service was held not to be
warranted by the disobedience of hospital rules by an injured man
who absented himself without permission and drank several glasses
of beer during his absence.
An opinion by the Supreme Court of Massachusetts declares that
the mere posting of lists of physicians to whom injured men may
go is not a compliance with the requirement to furnish treatment,
and in the absence of positive instructions as to the proper course to
be taken, the employee may select his physician, and the board will
have jurisdiction of the question of the employee’s right to recover
the costs of the treatment (In re Panasuk, 105 N. E. 368). In a
case in which the injured man had been furnished a physician, but
called in his own doctor on account of pain during the first night,
and continued to have him, the accident board of the State allowed
the payment of a fee for the call for relief during the first night, but
held that as the employer had furnished a physician, resort should
have been had to him for subsequent treatment, and bills therefor were
disallowed; and so generally where the employer is prompt to make
provision of medical treatment, it can not be rejected unless for suffi
cient cause shown, except at the employee’s own cost. Therefore,
while there is an evident movement toward allowing the injured
workman a measure of freedom in the selection of his physician,
the arrangement for the treatment must be made in conformity with
the law, which, while it makes the employer responsible therefor,
does not provide for independent action on the part of the em
ployee in this respect. Thus it w^as held that although the New
York law authorizes and requires the employer to furnish medical
aid as required or demanded, it does not permit the recovery of
medical costs in a separate suit at law, the industrial commission
having the duty to make awards in this field and passing upon all
fees and charges (Semmen v. Butterick Publishing Co., 166 N. Y.
Supp. 993); nor can the employee assign a claim for services to his

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237

physician, the law giving the physician no recourse in his own
right or by assignment that will permit him to sue the employer for
his fees (Bloom v. Jaffe, 157 N. Y. Supp. 926).
The law of Kansas was construed by the attorney general of the
State to authorize an injured man to employ his own physician and
send the bill to his employer, restricted, of course, by the statutory
limitations as to amount and period.
The question of the expense of medical and surgical services was
involved in the case of City of Milwaukee v. Miller (144 N. W. 188),
in which the Supreme Court of Wisconsin disallowed a claim for
services rendered by a physician employed by the claimant, Miller,
who gave no notice to the city of his desire for medical attendance,
and continued the employment of his physician after the city had
voluntarily offered the services of a competent physician. The
time during which the claimant could properly employ a physician
was held to be limited to such reasonable time as necessarily inter
vened between his injury and reasonable opportunity, after due
notice, for the city to exercise its privilege of furnishing a physician.
The injury was a comparatively slight one, and the industrial com
mission had regarded the charges as quite large, but accepted the
attending physician's evidence as controlling in the matter, on
account of his greater experience as compared with that of the city's
physician, who had testified that practically one-fourth the amount
of the claim would have been adequate as the cost of medical attend
ance. As to balancing the evidence in such a case the court said
that where there were great doubts as to the amount, and the truth
of the matter rested solely on the word of the interested party,
opposed by the evidence of a competent witness who had little or
no interest in the result, there should be much hesitation and gener
ally a refusal to decide the matter wholly against the defendant;
adding that one who, by reason of special knowledge, might b0
competent to give opinion evidence might deal in such exaggerations,
especially when they favor his selfish interests, as in this case, as
to render his evidence of little or no value. It was also said that it
did not devolve upon the city to exercise active vigilance to discover
the necessities of injured employees, since the language, “ neglect
or refusal seasonably to do so," was held to necessarily imply that
reasonable notice should be given of the employee's needs and of
his desire for treatment.
It was held, therefore, that the act did not authorize the payment
of medical and surgical costs incurred under the circumstances, and
the compensation awarded was confirmed only as to the actual com
pensation benefits approved by the industrial commission plus the
cost of bandages and supplies.

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u n it e d s t a t e s .

To the same effect was a decision of the Supreme Court of New
York, appellate division, holding that where suitable provision of
medical service is made by the employer, the employee can not refuse
the same and claim payment for a physician of his own choosing
(Keigher v. General Electric Co., 158 N. Y. Supp. 939).
The Indiana statute provides for medical, etc., services for 30 days
immediately following the injury. The appellate court of the State
held that where the disability developed sometime after the acci
dent causing it, the date of the beginning of the disability should
be taken as the date for the computation of the period of treatment
(In re McCaSkey, 117 N. E. 268). This also is the position taken
by a Connecticut commissioner. However, the Supreme Court of
Michigan held (Cooke v. Holland Furnace Co., 166 N. W. 1013)
that though the words “ accident” and “ injury” are not s3rnonymous they are concurrent in point of time; so that though a dis
ability accruing after the expiration of the period for medical
treatment was clearly due to the accident it was entitled to no
such treatment; nor could an award be extended beyond the statu
tory period, even though it appears that the legal provision as to
furnishing treatment was not fully complied with, the board having
no power to assess any form of damages but only to administer the
act according to its terms (McMullen v. Gavette Construction Co.,
166 N. W. 1019). This agrees with the position taken by the
Supreme Court of Maine, the injury being held to be contemporaneous
with the accident, even if not immediately developing (In re McKenna,
103 Atl. 69).
Another Indiana case involved an additional factor, immediate
medical treatment being afforded, but after a lapse of seven months
new disability developed from the injury. However, the appellate
court held that inasmuch as service had been rendered within the
period fixed from the receipt of the injury, the new disability could
not be treated under the act (Schumaker Co. v. Kendrew, 120 N. E.
722). This case was differentiated from the McCaskey case, in
which no disability was immediately developed. The payment for
medical services in excess of the statutory 30 days was held to be
a proper charge against the insurer where the employer furnished
the same in order to save the life of the injured man (In re Kelley,
116 N. E. 306). The law permits the employer to furnish additional
attendance at his option, and the court pointed out that this might
be to the advantage of the employer and the insurer no less than of
the injured employee.
Some cases in hand involve the question of the status of the physi
cian himself. Thus an employer in Connecticut disputed a fee on the
ground that the services were rendered by a “ bonesetter,” and not
by a regularly qualified physician. A commissioner of the State dis

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239

allowed the contention on the ground that the services had been ren
dered at the desire of both parties, with a knowledge of his status,
so that any complaint on that point was of no avail. The industrial
commission of Ohio, on the other hand, refused any payment to a
“ bonesetter,” on the ground that the law of that State contemplated
payments on this account only to persons who have been regularly
admitted to practice medicine. Similarly, the Iowa commission ruled
that an osteopath does not furnish “ medical or surgical service”
within the meaning of the act of that State.
The Supreme Court of Wisconsin ruled that an employer was
liable for the malpractice of a physician furnished by him during
the period of service required by law (Pawlak v. Hayes, 156 N. W.
464); while that of Minnesota held that there was no other duty
owed by an employer who collected hospital money than to select a
competent physician. However, the release to him on settlement for
compensation was declared not a bar to an action against the physi
cian for malpractice (Viita v. Dolan, 155 N. W. 1077).
The Pennsylvania statute requires the employer to furnish medical
and hospital services during the first 14 days of disability of the
injured employee, and also that, in case of death, expenses of last
sickness and of burial be met by the employer, the amount not to
exceed $100, this sum to be in addition to any benefits payable to
the dependents of the deceased. The compensation board of the
State held that where payments had been made for medical services
during the 14 days succeeding the injury, and death occurred after
the expiration of this period, the employer is authorized to deduct
the value of the amount so paid from the sum payable as expenses
of last sickness and burial.
Nursing is, of course, a part of the provision to be made by the
employer in cases requiring the same, and a Connecticut commis
sioner allowed a man’s wife $10 per week for nursing him, estimating
this sum to be the cost of nursing in a semiprivate ward in a hos
pital. The California commission, on the other hand, refused to
make allowances for home nursing, on the presumption that the
family would render such services without cost, qualifying the rule
in another case by saying that allowance would not be made for
nursing by members of the family not professional nurses. The
Ohio commission also refused to make allowance for nursing by
members of the family where no loss of time or wages is involved,
as did the Supreme Court of Wisconsin, where a niece voluntarily
nursed an injured man and a claim for nursing was afterwards
made (City of Milwaukee v. Miller, supra).
Paying for home nursing was considered also by the industrial
commission of Utah, the claim for services rendered being allowed
the wife of an injured man in a case recognized as a “ hospital case”

240.

W O R K M E N ’S COMPENSATION LAWS OF THE UNITED STATES.

on the testimony of the physician in charge, where it appeared that
the wife was competent and actually rendered the services for which
payment was claimed (Fowler case). It was said that if the em
ployer objected he should see that such cases are cared for at a
hospital.
The matter of fees was involved in the Ohio case last noted, and
the ruling was representative of others that have been made by
other authorities, taking the ground that there will be a scrutiny
of bills submitted, since there is a real discretion in the commission
in this matter, and it is not obligated to honor all claims presented,
and will only allow rates ordinarily charged for such services in
the locality for persons of the station of the persons treated—not of
the employer nor of those having the financial resources of the in
surer. (See also the case of City of Milwaukee v. Miller, p. 239.)
The Texas board considered railroad fare in transporting an
injured employee to a hospital for treatment as a proper charge on
account of medical aid, etc., if expended during the statutory first
week following the injury.
Bills for dental services are allowed under rulings of the accident
board of Massachusetts and the labor commissioner of Minnesota.
The attorney general of Iowa said that no disability payments as such
would be allowed for injury to the teeth, but that dental work might
properly be allowed for under the head of surgical and medical
attention. The public service commission of West Virginia refused
to allow for gold crowns made necessary by the breaking of two
teeth in an accident, holding that the act does not provide for the
payment of dental bills.
A question involving fees in another field was passed upon by
the commission of the State of New York when it declined to con
sider any agreement for fees for legal services in advance of the
rendering of the services, saying that in all cases claims will be
considered solely with reference to the actual service rendered, upon
a statement submitted to the commission upon the conclusion of the
service.
Some laws specify the supply of artificial limbs, appliances, etc.,
where of course there is no occasion for construing the law. The
Connecticut law calls for such medical and surgical aid as the physi
cian or surgeon shall deem reasonable or necessary, and this was con
strued by the supreme court of the State to warrant the furnishing of
artificial members (Olmstead v. Lamphier, 104 Atl. 488). Doubtless
going beyond the law, or at least not provided for by it, was a case
approved by a Minnesota judge, where an insurance company settled
with an employee whose artificial leg was broken in an accident, by
paying for loss of time until a new member could be procured.

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241

ELECTION.

As already noted, election, either passive or active, is required
by the laws of a number of States to bring parties within the pro
visions of the acts. In a Connecticut case it appeared that as
employer had mailed a notice, on the prescribed blank, electing
not to accept the terms of the law of the State. This was sent
by ordinary mail, not by registered mail or served in person, as
prescribed by the act. The claimant received the notice and read
it, but did not preserve it. It was held by a commissioner of com
pensation that his claim to compensation was barred, as he was
said to have sufficient notice of the employer’s rejection; he was
accordingly remitted to his rights, if any, in a suit at law. In a case
in which the employer contested a claim on the ground that, though
he had elected to accept the act, he had not taken the required steps
to prove his ability to make compensation payments, the supreme
court of this State held that such failure on the part of the employer
to comply with the provisions of the act would not deprive the
employee relying upon the law of his rights under it (Bayon v.
Buckley, 93 Atl. 139). The Supreme Court of Iowa, on the other
hand, held the employer liable in a suit for damages where he had
failed to procure insurance of his liabilities under the compensation
act, the law stating that such failure is to be construed as a rejection
of the compensation system (Elks v. Conn, 172 N. W. 173).
The Supreme Court of Kansas held that the employer defending
against a claim could not require the claimant to offer proof of the
employer’s acceptance or rejection of the act; but if he wished to make
his alleged rejection a defense he himself should be required to prove
it (Gorrell v. Battelle, 144 Pac. 244).
In a case arising under the Wisconsin statute it appeared that the
employer had elected to accept the act, while the employee rejected it
but subsequently made claim for compensation, which was denied.
He then brought suit and recovered damages at law. But on appeal
the supreme court reversed the decision of the trial court, since the
employer having elected was entitled to all the common-law defenses
and the injury was not shown to have been due to the negligence of
the employer, while the employee had assumed the risks (Karny v.
N. W. Malleable Iron Co., 151 N. W. 786). Another provision of this
act allows employees 30 days within which to make their decision
following the employer’s election to accept the act. It was held by
the supreme court (Green v. Appleton Woolen Mills, 155 N. W. 958)
that an injury to the employee before the expiration of his 30 days'
option is not compensable, but must be passed upon in accordance
with the provisions of the liability laws of the State, since, unless
the employee has taken action, he may reject within the time fixed.
177982°—21—Bull. 272------16

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W O R K M E N ’ S COMPENSATION LAW S OF TH E UNITED STATES.
EXCLUSIVENESS OF REMEDY.

While most of the States provide for the voluntary acceptance of
the laws before they are binding, after which it is generally held
that suits can not be brought, the law of Washington is explicit in
declaring the abrogation of all suits for injuries of employees. This
provision was held to reach so far as to bar an action by a brewery
employee who was injured by the negligence of a railway company
moving cars in the yard of the brewery, so that even the liability of
the third person who caused the injury could not be made the basis
of an action by the injured workman (Northern Pacific Ry. Co. v.
Meese, 36: Sup. Ct. 223). A Federal court (district) ruled that an
action for wrongful death would He where it was caused by a third
party, away from the plant of the employer, if the dependent should
elect to sue instead of proceeding under the compensation act
(Martin v. Matson Navigation Co., 244 Fed. 976). The supreme
court of the State also construed the statute to cover incidental suits,
as well as those arising directly from the injury, as where an injured
man who had received compensation under the act undertook to sue
for the malpractice of the physician engaged by the employer but
paid by deductions from the employee’s wages, such suit not being
allowed (Ross v. Construction Co., 155 Pac. 153).
In another case arising in the same State (Peet v. Mills, 136 Pac.
685), a railway employee sought to hold the president of a railway
company personally liable for his injuries, claiming that, though
actions against the employing company were abrogated, the presi
dent could be sued on an individual liability. This the court denied,
emphasizing its ruling as to the constitutionality of the law given in
the case, State v. Clausen (65 Wash. 156 117 Pac. 1101) and declaring
the new remedy to be exclusive. A provision of the same statute
permitting employees to sue an employer who is delinquent in
premium payments was held not to warrant such a suit where the
delinquent employer makes good his shortage within the period
allowed by the rules of the State insurance commission for such pay
ments after notice of delinquency (Barrett v. Grays Harbor Commer
cial Co., 209 Fed. 95).
If the law of Washington is thus exclusive and other remedies are
not available, it may be noted as a complementary fact that it is of
broad application, the supreme court of the State calling it a provi
sion for a kind of pension given the workman in exchange for
absolute insurance on his master’s premises (Stertz v. Industrial
Insurance Commission, 158 Pac. 256), thus covering injuries not
classed in other jurisdications as within the scope of acts containing
more restrictive terms.
The Supreme Court of New York in special term denied the right
of a plaintiff to sue for damages for pain and disfigurement, after

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243

having received compensation under the act of the State providing
therefor, holding the remedy offered by the statute to be complete
and exclusive and enacted with a view to afford certain relief and
obviate litigation (Connqrs v. Semet-Solvay Co., 159 N. Y. Supp. 431).
A similar view of this point was taken by the Supreme Court of
Oklahoma in a case in which there was serious disfigurement as well as
permanent total disability for the regular employment of the injured
man. The claim for additional damages for the disfigurement was
met by the court’s remark that the law was meant to be exclusive in
cases of injury in employment, not dividing up injuries and forms of
relief, but abolishing the right of action in the courts (Adams v, Iten
Biscuit Co., 162 Pac. 938). Where the disability caused is secondary
and the disfigurement much the larger factor, the Louisiana compen
sation law was held not to be the proper means of redress, but a suit
for damages (Boyer v. Crescent Paper Box Factory, 78 So. 596).
But the law of this State was held to be exclusive over the contention
of a widow that she was in no contractual relationship with the em
ployer of her husband, and was therefore not bound by the latter’s
election (Colorado v. Iron Works, 83 So. 381).
Election is presumed under the law of Nebraska, and where an
employer was sued for damages and answered that he was operating
under the compensation act, the jury was discharged, and the court
proceeded to make an award of compensation, from which it deducted
the costs to which the employer had been put by the unwarranted
bringing of the suit by the employee (Beideck v. Acme Amusement
Co., 166 N. W. 193).
The constitution of Arizona requires the enactment of a compulsory
compensation statute, retaining, however, to the employee the option
of suing under the liability law or choosing his right under the com
pensation statute. The supreme court of the State held (Consol.
Arizona Smelting Co. v. Ujack, 139 Pac. 465) that this election may
be made after the injury has been received, and the remedy becomes
exclusive only by the institution of an action in the chosen form. This
option is held to extend only to the employee, however, the personal
representative in the case of death having only the right to sue
(Behringer v. Copper Co., 149 Pac. 1065).
This is in contrast with the situation in New York, where the court
of appeals holds (Shanahan v. Monarch Engineering Co., 219 N. Y
469, 114 N. E. 795) that the law takes away the right of the next of
kin of a deceased workman to sue under the former statute allowing
suits for damages on fatal cases, the compensation law being held to
cover the entire field of remedy for the death of an employee. There
were no dependents in the case in hand. In so holding, this court
reversed the supreme court, special term (92 Misc. 466), and appellate
division (172 App. Div. 221), both of which had held that the law

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w o r k m e n ’s c o m p e n s a t io n l a w s of t h e u n it e d s t a t e s .

fixed the rights of certain classes of persons only, leaving the rights of
others as they were before its enactment. An amendment of 1916.
declared the contrary, and the court of appeals likewise took the
view above set forth.
Under the laws of most of the States election is made at the time
the contract is entered into either actively or passively, and such
election is binding until other action is taken disavowing the same.
The supreme court of Kansas held that under its law the remedy
by compensation is exclusive, and if one desires to retain the right
to sue for damages he must reject the compensation law in advance
(Shade v. Ash Grove Lime, etc., Co., 144 Pac. 249). So also the
supreme court of Rhode Island held that an employee making a
contract in the State of Massachusetts and accepting the compen
sation law of that State extinguishes his right to sue for damages
at common law in that State, and, having lost that right, he can not
sue at common law in any other State in which he may reside (Pendar
v. H. B. Am. Mach. Co., 87 Atl. 1). Applying the same principle of
the control of local law, it was held by the Washington supreme court
that its statute, though exclusive where applicable, as already noted,
does not bar suits for damages in that State where the cause of action
arose in a State permitting such suits, the law of the locality being
enforceable in whatever jurisdiction it might be brought (Reynolds
v. Day, 140 Pac. 681).
The New York Court of Appeals took the same view of this point
in the case of a New Jersey employee of a New Jersey corporation
who was killed while in his employment in New York State. His
administratrix sued for damages, and recovered in the trial court, but
the judgment was declared erroneous, since the right of the employee
under the New Jersey law was contractual, and the agreement was
enforceable in the courts of New York, so that no right to sue for dam
ages remained (Barnhart v. Am. Concrete Steel Co., 125 N. E. 675).
NOTICE AND CLAIM.

The requirement that notice be given by the injured person of his
injury and of his intention to claim compensation is phrased differ
ently in the different acts. Thus the law of Michigan directs that
notice be given within three months of the happening of the injury
if a claim is to be submitted. This was construed by the court to
mean within three months of the happening of the accident causing
the injury, and not three months from the time disability com
menced or the real seriousness of the injury was understood
(Dane v. Michigan United Traction Co., 166 N. W. 1017). The New
York law, on the other hand, requires notice of the accident within
10 days after disability, which would ovbiously imply a different
starting point from that fixed by the Michigan statute. In con

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struing its law, the Court of Appeals of New York held that no suf
ficient notice of an injury had been given in a case where a cloak
model claimed that she had spoken of the pricking of her finger
with a pin and had asked for peroxide to use on it. Infection re
sulted, and an employee of the company carried the girl's pay to her
and saw that she had a swollen arm, but no connection was made
with the alleged pin prick, nor was any claim submitted until some
nine months later, when the industrial commission approved the
claim on the ground that the employer had not been prejudiced
by the lack of notice. This was rejected by the appellate division
and by the court of appeals, the latter court saying that the require
ment of notice should not be regarded as a mere formality, and that
the burden rested on the claimant who had been neglected in the
matter of notice to supply evidence and secure a finding that no
prejudice had resulted. As to the claim that notice had been given,
the court pointed out a distinction between the happening of a trivial
accident, liable to occur in any one of many ways, and a statement
that a workman at a machine where he was properly employed had
been injured by it, saying that in the latter case the employer might
properly be assumed to have been put on notice that an industrial
accident had taken place, but that in the present circumstances no
presumption could be indulged (Bloomfield v. November, 119 N. E.
705).
This question was again before the Supreme Court of Michigan
in a case in which the foreman of a plant had knowledge of the
original injury, but no serious disability developed for several months.
The accident board awarded compensation, but this was reversed
by the supreme court which found that u unless we resort to judicial
legislation” notice of a claim must be .given within three months
from the injury, meaning thereby the accident and not the developed
disability (Cooke v. Holland Furnace Co., 166 N. W. 1013). This
is in contrast with the decision of the Supreme Court of Nebraska,
whose law requires claims for compensation to be presented within
six months “ after the injurf occurred” Where a man was the
victim of an accident which did not result in noticeable injury
for some time afterwards, and gave notice within six months from
the later date, but more than six months from the date of the
accident, it was held that the law had been complied with (Johansen
v. Union Stockyards Co., 156 N. W. 511).
A provision common to several of the laws is that want of or
defect in the notice shall not be a bar to a claim unless the employer
is prejudiced in his rights thereby. Such a provision is found in
the Kansas statute, and the supreme court of that State (Knoll v.
City of Salina, 157 Pac. 1167) sustained an award to a claimant in
a case where written notice had not been given within the period

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W ORKM EN ?S COMPENSATION LAW S OF THE UNITED STATES.

named in the law, but oral notice had been given, and no right of
the employer had been affected. It was also held in this case that
an oral demand for compensation was a sufficient claim.
A case involving multiple injuries was before the Supreme Court
of California (Ehrhart v. Industrial Accident Commission, 158 Pac.
193), in which an award by the commission was reversed. The in
jured man had submitted a claim for injuries to a leg, compensation
being allowed. Some months later he asked compensation on ac
count of injuries to the chest alleged to have been received at the
same time, which the commission allowed on the ground that it had
continuing jurisdiction over the case for the period of 245 weeks
fixed by law, taking this to cover all injuries received by the injured
man at the time of the accident. This contention the court rejected,
holding that the commission had jurisdiction of only such injuries
as had been called to its attention within the period of six months
prescribed as a limitation by the act. This view was held to be
necessary to the realization of the intention of the legislature that
all injuries for which claims were to be submitted should be sub
jected to timely investigation, both to prevent the encouragement of
fake claims and to enable the proper steps to be taken to give
remedial treatment.
The Connecticut law made want of notice within the time fixed
a bar to the claim to the extent that the employer should be shown
to be prejudiced thereby. The phrase “ want of notice” was con
strued by the supreme court of that State to mean absolute lack of
notice. It was said, however, that this was not intended by the
act to be an absolute bar to the claim, but only a ground for
diminution of the award to the extent that the employer should be
shown to be prejudiced by .the failure to receive notice (Schmidt
v. Baking Co., 96 Atl. 963). Where there has been a delay beyond
the period fixed by statute, provision is made in the Massachusetts
law that the claim may still be renewed if the delay was due to
reasonable cause. The supreme court of the State held (In re
Fierro, 111 N. E. 957) that the industrial board should not assume
that there was reasonable cause or act on a supposed reason, but
that it must be positively shown that there was ground for the
delay. What was a sufficient notice under the Massachusetts law
was passed upon by the industrial accident board, and, where
it was shown that oral notice had been given to the manager and also
to one of the partners in the business, it was ruled that the employing
association had knowledge of the injury under the law, even though
no written notice had been given either to the employer, the insur
ance company, or the board; and the supreme court of the State
ruled similarly where the injured man had told a foreman and a
timekeeper of the injury (In re Bloom, 111 N. E. 45).

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247

Oral inquiry of the manager of a firm as to “ what he was going
to do” in the matter of compensating an injury was held by the
Supreme Court of Kansas to be sufficient notice (Gailey v. Peet
Bros. Mfg. Co., 157 Pac. 431). The effect of such informal but
actual notice was discussed by the Supreme Court of Wisconsin
(Pellett'y. Industrial Commission, 156 N. W. 956), the court saying
that the employer would be estopped to plead the lack of statutory
notice unless actual prejudice could be proved; in this case the
injured workman told one of his employers of the fall causing the
injury, and they agreed to pay the doctor’s bill, and also made a
payment for time lost within the 30 days during which notice might
be given, the law of this State providing that such payment shall be
equivalent to notice.
A claim was held by the Supreme Court of Michigan not to be
barred in a case in which notice of the death of an alien had been
timely given, and steps had also been taken to procure letters of
administration, though these did not arrive until after the expira
tion of the prescribed six months’ period; it was held that the claim
had not been outlawed, as the employer had had opportunity to
investigate the facts and had not been prejudiced by the delay, the
court ruling that the law ought not to be technically construed
(Matwiczuk v. American Car & Foundry Co., 155 N. W. 412). More
technical was the ruling in the case of a claim preferred by the
Austrian consul at Pittsburgh for compensation under the law of
West Virginia, the public service commission ruling that it could not
be considered on the ground that the application must be made in
due form within six months from the date of the death, as provided
by the act.
Another limitation contained in this law barred a claim in the case
of the death of a man as the result of an injury, the death not occur
ring until after expiration of 90 days from the date of the acci
dent causing it. The law provides that compensation is payable only
where death supervenes, as a result of the injury, within 90 days after
the accident.
In New Jersey, notice is required unless there is “ actual knowl
edge” of the occurrence of the injury on the part of the employer.
It was held (Allen v. Millville, 87 N. J. L. 356, 95 Atl. 130), that
the law does not require first-hand knowledge by the use of this
term, but that it may be understood in the popular sense; and
knowledge of a proper corporate agent was held to be knowledge
of a corporation.
This principle was applied by the appellate comrt of Indiana to a
case in which a mine employee suffered an injury to his eye, which
was known to his superior and to the company’s physician, who
pronounced the injury slight. After the time for giving formal

248,

w o r k m e n ’s c o m p e n s a t i o n l a w s

t h e u n it e d s t a t e s.

notice had expired the injured man learned that he had lost the sight
of his eye. His claim was allowed, however, and sustained by the
court, on the ground that the company’s agents and representatives
had knowledge of the injury, and that his reliance on the advice
of the physician had influenced him to disregard the injury (Vandalia Coal Co. v. Holtz, 120 N. E. 386). A similar view of this
question was adopted by the Supreme Court of Maine, where a fore
man knew of an injury at the time it occurred, though the infection
£nd loss of use were subsequent (In re Simmons, 103 Atl. 68).
DISPUTES.

There is a considerable variety in the method of determining
disputes or reviewing awards on appeal or otherwise, the laws of
some States being'much more stringent in this respect than others.
The power of the industrial commission of Colorado to make awards
was passed upon in a case (Industrial Commission v, London Guar
antee & Accident Co., 185 Pac, 344) in which the supreme court of
the State held that a district court had power to set aside the orders
of the commission only where there was fraud, lack of jurisdiction,
or lack of evidence. The court was without power, therefore, to
render judgment on an agreed settlement for a sum less than the
commission’s award. The contention that the claimant and the
insurer are the only parties in interest, so that they are entitled to
submit an agreement to the court without the intervention of the
commission, was said to ignore the public interest expressed by the
law and represented by the commission, whose participation was
therefore essential.
The Kansas statute permits the bringing of suits to determine
awards under the law “ in default of agreement and arbitration.”
This was held by the supreme court of the State (Halverhout v. S.
W. Milling Co., 155 Pac. 916) not to make an attempt to agree or to
secure arbitration a condition precedent to the bringing of the suit,
but that either in the absence of such action or upon its failure, suit
might be brought.
Many of the provisions of the acts indicate a desire to secure the
prompt determination of the points in issue, the law of Massachusetts
providing that no second hearing shall be had as a matter of right
on any question of fact. The supreme court of the State (In re
Fierro, 111 N. E. 957) ruled that on an appeal, if there was a full
trial of the question in issue there shall not be a rehearing ordered,
but a final decree shall be entered. The right of appeal was denied
to a railroad company under the New York law in a case in which
an award had been made to the injured employee, the supreme court
of the State, appellate division, holding that since the employer
is protected from all liability by the insurance fund, he has no

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249

interest in the award that would give him a right to appeal, the
possibility of an increase of the premium rates being too remote to
confer such a right (Crockett v. State Insurance Fund, 155 N. Y.
Supp. 692).
A provision of the New Jersey law requires the determination of
cases before the court within 30 days after final hearing. This
was held by the supreme court of the State to be directory only, and
not mandatory, so that no invalidity was attached to later decisions
(Diskon v. Bubb, 96 Atl. 660).
EVIDENCE.

Procedure under the compensation laws naturally differs largely
from the technical court procedure in damage suits, though the courts
differ largely as to the real extent of such departure that is proper. ;
The Supreme Court of California (Englebretson v. Industrial Acci- I
dent Commission, 151 Pac. 421) held that evidence that a certain
act might have been a sufficient cause of the injury suffered would not
support the claim, being only hearsay, saying that though the com- (
mission was not bound by technical rules the rule excluding hearsay
was not technical. On the other hand, the Supreme Court of New
York, appellate division (Carroll v. Knickerbocker Ice Co., 155 N. Y.
Supp. 1), said that the spirit of the statute is that the commission
shall be “ wholly unfettered by any law previously invented by man.”
In the case in hand there was slight evidence of internal injury and
some evidence supporting the inference that the man strained him
self in his work, which was, however, mamly hearsay and partly
“ hearsay on hearsay.” It was said that “ no court would have hesi
tated a moment to reject it,” but that “ all the rules of evidence, the
accumulation of centuries of experience and wisdom, were ignored by
the commission.” The decision was affirmed as carrying out the pur
pose of the legislature in enacting the law. When the case came to
the court of appeals, however, it was said that while the law does
provide that the commission is “ not bound by common law or statu
tory rules of evidence or by technical or formal rules of procedure,”
it must be borne in mind that this provision of the statute is meant
to enable the commission “ to ascertain the substantial rights of the
parties.” The presumption that the claim comes within the pro
visions of the act, as the law provides, can not prevail against sub
stantial evidence to the contrary; and while the commission “ may
in its discretion accept any evidence that is offered, still in the end
there must be a residuum of legal evidence to support the claim
before an award can be made.” Persons present testified that they
saw no injury inflicted or accident take place, nor were there any
marks as of bruises or abrasions, such as would have existed had
the statements of the decedent been correct; so that the reported

250

w o r k m e n ’ s c o m p e n s a t i o n l a w s or t h e u n i t e d s t a t e s .

remarks of a man in a highly nervous condition, verging on delirium
tremens, which subsequently developed, were held not sufficient to
support an award, and the judgment was reversed with costs against
the commission (218 N. Y. 435, 113 N. E. 507).
The industrial commission of Ohio went almost as far as the New
York commission and Supreme Court in the above case in making an
award for the death of a man from blood poisoning, where there was
no one who saw the injury inflicted which was regarded as responsible
for the death, and the evidence as to causation was contradictory.
A large amount of evidence was considered, both direct and hearsay,
but since the commission was not bound by statutory rules of evi
dence or of procedure it was able to reach the conclusion that the
injury should be regarded as the proximate cause of the death, and
compensation was awarded accordingly.
Where a car carpenter was seen to fall and was found to be dead
it was held that the burden of proof that there was injury in the
course of the employment was on the claimant. This demand was
said by the Supreme Court of Illinois to be met by the showing that
the deceased was a steady workman, in perfect physical condition,
and that the circumstances pointed to a fatal electric shock from an
exposed end of a cable near his working place (Bloomington, D. &
C. R. Co. v. Industrial Board, 114 N. E. 939).
The Supreme Court of Wisconsin sustained presumptions in favor
of the claimant in a case in which the trial court had decided that in
the absence of witnesses the theory of accident was only equally
plausible with that of suicide. The decision of the lower court was
reversed on the ground that the burden of proof rested on those
advocating the suicide theory, and compensation was allowed (Mil
waukee Western Fuel Co. v. Industrial Commission, 150 N. W. 988).
This accords with the position taken in a very similar case by the
accident board of Michigan, where it was said that the lack of direct
evidence would not be allowed to defeat the applicant’s claim if the
facts and circumstances justify and reasonably require the inference
that death was due to drowning as the workman was leaving a lumber
dock for dinner. Similar to the foregoing was the conclusion of the
Supreme Court of California in a case (Western Grain & Sugar Prod
ucts Co. v. Pillsbury, 159 Pac. 423) in which an award for the death
of a night watchman was allowed, the body not having been found,
but evidences of a struggle and other circumstances suggesting murder
being disclosed.
The vSupreme Court of New York, appellate division, likewise
refused to indulge in presumptions unfavorable to the claimant, as
being impossible under the law where there was an absence of proof
as to the exact cause of the injury, though “ many reasons might
have made it proper” for the injured man to go to the place where

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251

he was injured (Chludzinski v. Standard Oil Co., 162 N. Y. Supp.
225).
On the ground that questions of negligence had nothing to do with the
right of the claimant under the compensation act, the Supreme Court
of Kansas (Ruth v. Witherspoon-Englar Co., 157 Pac. 403) declared
that evidence as to the misconduct of a foreman in ordering the
workman into a place of danger was prejudicial to the rights of the
company where there was a trial before a jury. But if the findings
of the jui*y are not in reality affected by such evidence, its erroneous
admission will not necessitate the reversal of the judgment (Oliver
v. Christopher, 159 Pac. 397).
APPEALS.

In the more technical matters of procedure the courts have held
that the terms of the law must be strictly complied with, as where a
period is fixed within which an appeal must be taken from an award
to secure a review by the courts. Delay in this regard was held to
be fatal, the provisions of the statute establishing an absolute limita
tion (Northern Pacific S. S. Co. v. Industrial Accident Commission,
168 Pac. 30; New Dells Lumber Co. v. Industrial Commission, 164
N. W. 824). In an Ohio case (Roma v. Industrial Commission, 119
N. E. 461), however, a claimant was allowed the right of appeal
where it was in evidence that his attorney had been informed of the
rejection of his claim, and more than 30 days had elapsed before
the appeal, it appearing that actual notice was not received by the
claimant himself. The court said that to deny the rights of the
claimant under such circumstances would be to take advantage' of a
technicality, whereas the spirit of the law required a determination
on the merits of the case, and that it would not be a harsh rule to
require the board to assure itself, in the event of a rejection, that the
claimant was himself informed of the fact.
This case involved the right of appeal by an employee of an
employer who was a self-insurer under the statute, the court of
appeals of the State having held that such an appeal was not possible.
This point had been decided to the contrary by the State Supreme
Court in Reinholz v. Industrial Commission (119 N. E. 129), in which
it was said that to deprive employees of self-insurers of a right enjoyed
by employees of insurers in the State fund would be to create a dis
crimination that would lead to the invalidation of the provision of
the law permitting self-insurance; but having held this section of the
law constitutional, it was the duty of the court, unless the language
of the act made it impossible, to give effect to all the provisions of the
law by avoiding any construction that would lead to such an unwar
ranted classification. It was added that if the State authorized the
publication of notices by an employer to the effect that he was per
mitted by the board to carry his own insurance, it became the duty

252

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u n it e d st a t e s .

of the State to safeguard the employee’s interests under the act; also
that the self-insurer’s contribution to the surplus fund provides a
source from which payments under jury awards on appeal might be
paid, while the State might also recoup the fund by an action against
the self-insurer or his bondsman. The court of appeals was there
fore reversed.
A further point involved in the appeal in the Roma case was the
form of the award. The jury had allowed a recovery of $2,000 in a
lump sum, but the court found that this method of payment was not
in accordance with the spirit of the compensation law, and asserted
its authority to modify the award, reducing it to a series of weekly
payments of $8 per week for 250 weeks, this appearing to be a reason
able finding under the verdict of the jury, and in accord with the
design of the legislature in the enactment of the law.
The purpose of the law to eliminate technicalities was given by
the appellate court of Indiana as a reason why a motion for a new
trial was not an essential preliminary to an appeal under the rules
of procedure in that State. A review by the full board was said to
safeguard all rights, so that the appeal could properly be taken
directly (Union Sanitary Mfg. Co. v. Davis, 114 N. E. 872).
INSURANCE.

The primary importance of securing to the workman the awards
potentially provided for by the compensation statutes has led to the
enactment of various provisions looking toward the insurance of the
employer’s obligation or the making of guarantees by him that he
will meet the contingent liabilities fixed by the laws. Alternative
provisions are made in most States, giving an option or choice to the
employer as to the mode of carrying his insurance.
Naturally stock companies writing insurance of this kind are
opposed to the idea of a State monopoly, the situation being par
ticularly acute in the State of Ohio, where the question of monopoly
was in discussion between the insurance companies and the State
authorities, the law being differently interpreted by the two parties.
The commission took the view that the intent of the law was that
insurance should be taken in the State fund and not elsewhere.
The Supreme Court of the State considered the law as permitting
stock companies to write insurance, and requiring all employers of
five or more workmen regularly in the same business, oilier than
employers providing self-insurance to pay into the Sfc&ie insurance
fund the amount of premium determined and fixed by the State
authorities. Self-insurers were, moreover, held to be legally required
by the law to contribute to the surplus fund, which i» a guaranty
fund for the State insurance fund. The existing provision of the
general code conferring upon employees the rights of the employer
under any insurance policy which he may carry after the employee

PARTICULAR PROVISIONS OF TH E LAW S.

253

has secured a judgment against his employer for injuries due to the
latter’s negligence was held not to be repealed by the compensation
law but to remain subject to construction in connection with the
provisions of the compensation law. Contracts providing indemnity
for employers in all cases in which they are required to pay compensa
tion in accordance with the provisions of the compensation act may
be written by any insurance company, stock or otherwise. The
question as to whether or not employers can insure against other
liabilities than those established by the compensation law was left
undecided, reargument to be had thereon when the court should
again convene.
On the final consideration it was held that civil liability for willful
acts or failure to observe safety laws could not be covered by any
such policy; also that contracts for insurance could be written only
in behalf of contributors to the compensation fund, or legal selfinsurers. The right of insurance companies to write any policy other
than as should be in line with these rulings was terminated.
These findings are in effect embodied in an opinion handed down
in January, 1917 (State v. Employers’ Liability Assurance Corp.,
95 Ohio St. 289, 116 N. E. 513). They clearly left to insurance
companies the power to write policies covering compensation liabili
ties, but only where there is also a contribution made to the State
fund or in behalf of self-insurers.
It was undertaken to withdraw even this permission by an initiated
act amending the law so as to declare void all insurance contracts
covering compensation or liability obligation (act of Feb. 19, 1917).
In the meantime the constitutionality of the law permitting selfinsurance was again challenged, the case involving also the right of
insurance companies to write policies to indemnify such self-insurers
in case of loss (State v. United States Fidelity & Guaranty Co., 117
N. E. 232). It was held that the provision was constitutional, even
though it permitted two forms of insurance to exist side by side—
one through the fund, and one by direct payment from the employer.
Since both are supervised by the commission, it can not be said that
there is any inequality, or that all do not have protection of the
laws, the standards of benefits being identical in the two classes.
The right of the insurance companies to act was not denied, this
case coming up prior to the amendment of February 19, 1917.
A further amendment of March 20, 1917, provided that only such
persons should be allowed to be self-insurers as “ do not desire to
nsure the payment thereof or indemnify themselves against loss
sustained by the direct payment thereof.” The power to enact such
legislation was challenged by an employer who was a self-insurer, but
carried a policy to protect himself, and injunction was sought to
restrain the industrial commission from revoking his permit to act as

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a self-insurer. The court held that a contract previously entered
into and continuously maintained was no bar to legislation, and could
have no right of existence contrary to a new law; also that the right
to withdraw approval of a self-insurer was properly provided for by
the law, and that a duty to do so devolved upon the commission as
a result of the amendment. Such amendment being within the power
of the legislature, and in line with “ the purpose and intent of the
constitution and the law to create and maintain one insurance fund,
to be administered by the State,” no injunction would issue (Thorn
ton v. Duffy, 124 N. E. 54). This apparently ends the conflict aris
ing from the effort to establish exclusive State insurance in Ohio.
Other States offer a variety of options, even specifically saying, as
in Michigan, that the purpose is to make a comparative test as to the
value and desirability of the different forms. Where a State fund is
provided, and subscription thereto is made the essential condition
of conduct of an industry, questions of alternative rights are of course
foreclosed. This is the case with the Washington statute, and the
Supreme Court of the United States in Mountain Timber Co. v.
Washington (243 U. S. 219, 37 Sup. Ct. 260) considered the form
of a general but graduated tax upon industry as being a proper
method of securing the efficient working of the law. The act forbids
the employer to deduct any part of the insurance premium payable
by him to the State fund from the wages or earnings of his workmen.
As to this, the court saw a possible serious question as to the uncon
stitutional interference with the freedom of contract if the provisions
“ were to be construed so broadly as to prohibit employers and em
ployees, in agreeing upon wages and other terms of employment,
from taking into consideration the fact that the employer was a con
tributor to the State fund, and the resulting effect of the act upon
the rights of the parties.” Inasmuch, however, as there was no
intimation that the clause had been so construed, the court declined
to “ assume in advance that a construction will be adopted such as to
bring the law into conflict with the Federal Constitution.”
Options are given under the New York law, the employer being
permitted to insure in a State-administered fund, or in an author
ized corporation or association, or to maintain self-insurance, socalled, by furnishing satisfactory proof to the State commission of
his financial ability to make such payments as might be anticipated
in the conduct of his business. In the last-named case the commis
sion may, in its discretion, require the employer to deposit securities
of a kind prescribed by the statute, in an amount to be determined
by the commission. Assuming that the method of self-insurance
would be open to all employers on reasonable terms, it was held that
the other modes of insurance might constitutionally be prescribed as
optional alternatives, the rights of the employers not being thus in

PARTICULAR PROVISIONS OF TH E LAW S.

255

terfered with; while, assuming that the State commission would be
diligent in requiring the employer either to furnish satisfactory
proof of his ability, or to write insurance in suitable companies, the
employee could not be regarded as injuriously affected in a consti
tutional sense bv the granting of options to the employer (New
York Central Co. V White, 243 U. S. 188, 37 Sup. Ct. 247).
The industrial commission of Utah (as in several other jurisdic
tions) is authorized to fix the premium rates for companies writing
compensation insurance. The power of the legislature to pass such
a law was denied by an employer, who claimed that the act was
unconstitutional in this respect; that the legislature could not delegate
the rate-fixing powers to a commission; and that in any case there
was no power under the act to fix rates for private companies. The
supreme court of the State overruled all these contentions, relying on
a decision of the United States Supreme Court relative to the power
of a State agency to fix fire insurance rates (German Alliance Ins.
Co. v. Kansas, 233 U. S. 409, 36 Sup. Ct. 618), adding that the case
is even stronger here, inasmuch as compensation insurance is affected
with a public interest. Too low a rate would jeopardize safet}r,
while too high a rate would be an imposition. A proposed partici
pating policy was also ruled out as being a method for avoiding the
rates prescribed by the commission (Scranton Leasing Co. v.
Industrial Commission, 170 Pac. 976).
The same court had before it the question of the nature of the act
as compulsory or elective, and whether the industrial commission
could compel an employer to insure his liabilities under the act, or
otherwise comply with its provisions. It was held that the act was
compulsory, and that the commission was acting within its powers
when it sought a mandate to compel conformity to its provisions
(Industrial Commission v. Daly Mining Co., 172 Pac. 301). Suing
to recover the premiums due was not the proper procedure, as con
tended by the company, but the commission was entitled to a mandate
to compel insurance, where in its discretion it concludes that such
security of the employees’ right is needed.
The California commission ruled an insurance policy in effect on
its delivery and during its existence, even though no premium is paid
thereon. The law makes the employer and insurer jointly liable for
compensation payable under any policy, and a failure of the former
to pay and of the latter to collect his premium is a personal matter
between the two parties and does not bar the employee’s rights.
Quite similar is a ruling construing the Iowa statute to the effect
that under the law of that State the employer is primarily liable to
the injured employee regardless of any arrangement which he may
have with the insurer to carry the risk. He may protect himself
by insurance, and, indeed, is required to do so; but if for any reason

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u n it e d s t a t e s .

the insurance company is not able to carry out its contract, the
injured person or his beneficiaries still have direct recourse to the
employer for the amount of compensation due.
Subject to mention either under this heading or under that of
course of employment is a case (Bayer v. Bayer, 158 N. W. 109),
in which an employee of a carpenter was injured while doing some
work for the latter’s brother in an undertaking in no way con
nected with the business of the injured man’s employer. The em
ployer was insured against the risks of his business, and the insurance
company was joined in the defense against the enforcement of an
award made by a committee of arbitration and approved by the
industrial accident board of Michigan. The arbitrators had said
that the only question involved was whether the employee was
under the employer’s control and was paid by him; but the court
ruled that the policy was expressly and effectively limited to cases
of employment “ in the operation of and in connection with the busi
ness herein stated.” The order of the board for the payment of the
award was therefore vacated.
The relation of accident insurance, carried by the injured man,
to insurance in the State fund, was considered in a Washington case,
the supreme court of the State holding that accident insurance was a
matter of private contract, and the law fixing an amount of compen
sation payable for industrial injury neither affected such a contract
nor was affected by it (Ross v. Erickson Construction Co., 89 Wash.
634, 155 Pac. 153).
Incidental questions relating to State funds were passed upon by
the Attorney General of the United States, who held that policies
issued by a State fund are exempt from the special tax levied by the
war-revenue act of October 3, 1917; also that State funds are not
subject to the law requiring the payment of an income tax (31 Op.
A. G.# 308),

WORKMEN'S COMPENSATION LAWS OF CANADA.
PROGRESS OF LEGISLATION.

Compensation legislation in Canada has an earlier origin than in
the United States, due undoubtedly to the influence of Great Britain.
The British act of 1897, extended in 1900, and replaced by an act of
1906 is of a type quite distinct from that adopted by any of the United
States. However, it very naturally furnished a model for the earlier
legislation of the Provinces which first took action of this kind.
Following is a list of the Provinces having laws of this type, arranged
in chronological order of the enactment of the original law:
British Columbia................................................................................... .1902
Alberta.....................................................................................................1908
Quebec....................................................................................................1909
Manitoba................................................................................................. .1910
Nova Scotia......... .*................................................................................ .1910
Ontario....................................................................................................1914
Yukon Territory......................................................................................1917
New Brunswick.......................................................................................1918

The act of British Columbia of 1902 continued in force until 1916,
and that of Alberta of 1908 was not superseded until 1918. New
laws were enacted in Nova Scotia and Manitoba in 1915 and 1916,
respectively.
Arbitrators and judges of courts were the recourse for the settle
ment of disputes under the older laws, and the very limited recoveries
provided fell far short of the liberality of the law of Ontario, for
instance, which Province first came into line in 1914 with a law
patterned after the United States type rather than that of Great
Britain. Some of the Provinces appointed commissions to investi
gate the workings of statutes in the States before revising existing
legislation or enacting new laws. This has been influential in estab
lishing throughout the two adjacent countries a system of legislation
closely comparable in many aspects. The later laws are administered
b y special boards in most instances, Yukon Territory being an
exception. The statute of Quebec has remained without essential
revision since its enactment in 1909, and therefore does not represent
the more recent compensation practices. Prince Edwards IIsland
and Saskatchewan are as yet without any compensation legislation/
the so-called compensation law of the latter Province being in fact a
liability statute.
177982°—21— Bull. 272------ 17

257

258

w o r k m e n ’s

COMPENSATION LAW S OF CANADA.

Beginning* with the year 1914, when the Province of Ontario
enacted its first law, there is a notable uniformity of legislation
throughout the Dominion. Except in Yukon Territory the scope of
the laws is determined by the enumeration of the classes of employ
ments to which they apply, though provision is made in most of the
laws for the addition of other classes by the action of the boards.
The laws are compulsory in their application, and all except Manitoba,
Quebec, and Yukon maintain exclusive insurance funds for the pay
ment of benefits, for which the Province assumes liability. All
except Quebec and Yukon compensate for enumerated industrial
diseases. Administrative boards are of long tenure (during good
behavior until retirement for age at 75, except in British Columbia,
where the term is 10 years), and have practically full and final power
for the determination of cases arising under the acts. The boards
are distinctively compensation boards, and not general industrial
commissions, though they are given certain powers for accident
prevention in British Columbia, Manitoba, Nova Scotia, and Ontario,
and of inspection of premises in the foregoing and in Alberta and New
Brunswick as well.
An act of the Dominion Parliament of 1918 provides that em
ployees of the Federal Government killed or injured in their work shall
come under the compensation law of the Province in which the
accident occurred.
On the following pages will be found analyses of the various laws
of the same form as for the laws of the various States. The full text
of the laws also appears following those of the various States.

ANALYSIS OF THE PRINCIPAL FEATURES OF THE LAWS.
ALBERTA.
Date o f enactment.—March 5, 1908; in effect January 1, 1909. New act, April 13,
1918; amended, 1919.
Injuries compensated.—Injuries by accident arising out of and in the course of the
employment which cause disability for at least four days or death. Those due to the
serious and willful misconduct of the workman excepted, unless death or serioua
injury results. If disability lasts over 10 days, compensation dates from the injury.
Enumerated occupational diseases included.
Industries covered.—Enumerated hazardous employments. Itinerant occupations
and railroads are excepted. The board may add to, withdraw from, or rearrange the
schedule of hazardous employments contained in the act.
Persons compensated.—Workmen engaged in the employments covered, including
employers ana members of their families if they are occupied as workmen. Traveling
salesmen, clerks, outworkers, and casual employees not in the usual course of the
employer’s business, are excluded.
Government employees.—Covered if employed in establishments or undertakings
to which the law applies.
Burden o f payment.—Rests upon employer, but employee may be required to
contribute to the medical aid under plans approved by the board.
Compensation for death:
(a) Burial expenses, maximum $100, and, in the case of no dependents, reasonable
expenses of the last sickness.
(b) To widow or invalid husband $20 monthly, with $5 additional for each child
under 16 years; to orphan children, $10 each; maximum monthly, $40;
to parents, $20 monthly; to. parents and other dependents, maximum
monthly, $30; total maximum, $2,500.
(c) To partial dependents a Sum proportionate to the pecuniary loss; maximum
monthly, $30, during the period of reasonably expected assistance.
(d) Payments to children cease at age 16, unless invalid, and to a widow upon
remarriage, but she shall receive a lump sum equal to the monthly pay
ments for two years.
Compensationfor disability:
(а) Such special medical and surgical treatment and apparatus as the board
may deem necessary.
(б) For total disability, if permanent, $10 weekly, with $2 additional for first
and $1 additional for succeeding dependents; maximum weekly, $16;
total maximum, $2,500. If temporary, same as for permanent, except
that weekly maximum of workmen under 21 years without dependents
is fixed at $7.50. ^
(c) For partial disability, if permanent, fixed sums for certain injuries as listed
in schedule, payments ranging from $50 to $1,000. If temporary, and wage
loss exceeds 10 per cent, 55 per cent of wage loss during disability.
Awards may be commuted in whole or in part to lump-sum payments.
Revision o f compensation.—Awards may be reviewed by board on its own motion
or on motion of workman.
Insurance.—All employers covered by act contribute to provincial accident fund.
Security o f payments.—If accident fund is exhausted, advances may be made from
general funds of the Province. Payments can not be assigned or attached, nor are
they liable to set-off.
Settlement o f disputes.—Workmen’s compensation board has exclusive and final
jurisdiction.

259

260

W O R K M E N ’ S COMPENSATION LAW S OF CANADA.

BRITISH COLUMBIA.
Date o f enactment.—May 31, 1916; in effect, January 1, 1917; amended, 1918, 1019.
Injuries compensated.—Injuries by accident arising out of and in the course of the
employment causing disability for more than three days or death; those due to serious
or willful misconduct excepted, unless death or serious and permanent disability
results. Includes facial disfigurement and designated occupational diseases.
Industries covered.—Enumerated list; voluntary as to other industries or workmen.
Farm labor and domestic service excluded.
Persons compensated.—Workmen engaged in industries and occupations covered
by act, not including traveling salesmen, clerks, persons not subject to hazards of
industry, or whose work is casual and not for the purpose of the employer’s business,
outworkers, or members of employer’s family.
Government employees.—Included if from the nature of their work they would be
covered if working for a private person.
Burden o f payment.—On employer, except that employees must contribute to the
medical aid.
Compensationfor death:
(a) Burial expenses, maximum, $75.
(b) To widow or invalid widower for life, $20 monthly, with $5 additional for
each child; to orphan children, $10 each; maximum, $40 monthly; to
parents, $20 monthly, or to parents and other dependents, $30 monthly
maximum.
(c) To partial dependents a sum proportionate to the pecuniary loss, maximum
$30 monthly, during the period of reasonably expected assistance.
(d) Payments to children cease at age 16 unless invalid, and to a widow upon
her remarriage, but she shall receive a lump sum equal to the monthly
payment for two years.
Compensationfor disability:
(a) All reasonable and necessary medical, surgical, etc., aid.
(b) For total disability, during disability 2 55 per cent of the average wages;
minimum, $5 per week, unless wage is less, then full wages.
(c) For partial disability, 'during disability, 55 per cent of wage loss; minimum,
$5 per week, unless wage is less, then full wages.
Periodical payments may be commuted into lump-sum payments; lump
sum also allowable for facial disfigurement.
Revision o f compensation.—Awards may be reopened and reviewed at any time for
sufficient cause.
Insurance.—All employers under the act must contribute to a provincial accident
fund.
Security for payments.—Province is liable for safekeeping of fund. Payments can
not be assigned, attached, subjected to set-off, nor shall they pass by operation of law
except to personal representatives.
Settlement o f disputes.—Workmen’s compensation board, a body corporate, has
exclusive and final jurisdiction.

ANALYSIS OF PRINCIPAL FEATURES OF TH E LAW S.

261

MANITOBA.
Date o f enactment.—March 16, 1910; in effect January 1, 1911. New act 1916;
amended 1917,1918, 1919.
Injuries compensated.—Injuries by accident arising out of and in course of employ
ment, causing disability for at least six days or death; those due solely to the serious
and willful misconduct of the workman excepted, unless death or serious disability
results. Includes enumerated occupational diseases. All compensation dates from
the injury.
Industries covered.—Enumerated list, which the board may add to or take from.
Other establishments may be included by election of the employer and approval of
the board. Farm labor and domestic service are excluded.
Persons compensated.—Workmen in the industries covered except casual employees
for other purposes than the employer’s trade or business.
Government employees.—Included if from the nature of their work they would be
included if working for a private employer.
Burden o f payment.—On employer.
Compensation for death:
(a) Burial expenses not exceeding $75; if no dependents, reasonable expenses
for medical aid, nursing, maintenance, and burial.
(fi) To widow or invalid husband, $20 monthly, and $5 for each child under age
of 16; orphans, $10 each; the total in no case to exceed $40 monthly nor
55 per cent of the workman’s average earnings. To others^ in proportion to
the pecuniary loss, not over $20 to'parents, nor over $30 m all, during the
period of reasonably expected assistance.
(c) Payments to children cease at age of 16, and to a widow on remarriage, when
she receives two years’ payment in a lump sum.
Compensation for disability:
(а) Medical attendance, care, and maintenance, not to exceed $100 in value.
(б) For total disability, 55 per cent of the average weekly earnings; during
disability, not less than $6 unless earnings are less, then full wages.
(c) For partial disability, 55 per cent of the wage loss, during such disability;
if impairment does not exceed 10 per cent, an equivalent lump sum shall
be paid, unless thought not of advantage to the workman.
Earnings in excess of $2,000 are not considered as basis for awards.
Any periodical payment may be commuted to a lump sum.
Revision o f compensation.—The board may at any time rescind, alter, or amend
any decision or order made by it.
Insurance.—All employers covered by the act contribute to a provincial accident
fund. Insurance in an approved company is required, unless self-insurance is
permitted.
Security of payments.—Insurance companies and self-insurers maintain deposits
for the prompt payment of compensation. Benefits are a preferred claim in bank
ruptcy, and are exempt from assignment, attachment, etc. All benefits are to be paid
through the board.
Settlement o f disputes.—Workmen’s compensation board has full and final jurisdiction
of all questions under the act.

262

W O R K M E N ^ COMPENSATION LAW S OF CANADA.

NEW BRUNSWICK.
Bate 0/ enactment.—Law enacted April 26, 1918; in effect------; amended in 1919.
Injuries compensated.—Injuries by accident arising out of and in course of the em
ployment causing disability for more than seven days or death, not due to willful
misconduct,. intoxication, or a fortuitous event not connected with the industry.
Indudes occupational diseases.
Industries covered.—Industries listed in law or which may be added by orders in
council. Farm labor and domestic service excluded. Voluntary as to excluded in
dustries and occupations.
Persons compensated.—Workmen engaged in the included industries and occupations
except traveling salesmen, fishermen, clerks, and office workers not subject to the
hazards of the industry, outworkers, casual employees employed otherwise than for
the purposes of the industry, and members of an employer’s family.
Government employees.—Included if engaged in employments such as those included
under act, except municipal firemen and policemen*
Burden o f payment.—Entire cost rests upon the employer.
Compensation for death:
(a) Burial expenses, maximum $75.
(b) To widow or invalid widower, $20 per month for life, with $5 additional for
each child under 16 years; not over 55 per cent of average wages, with
maximum basic wage of $125; total maximum, $3,500.
(c) To partial dependents a sum proportionate to the pecuniary loss during the
period of reasonably expected assistance.
(d) Payments to children cease at 16, and to widow upon her remarriage, but she
shall receive a lump sum equal to two years’ monthly payments.
Compensation for disability:
(a) Such special medical and surgical aid as may reduce the disability and such
first aid and hospital service as the b6ard may require.
(b) For total disability, 55 per cent of the average wages during disability. Basic
salary, minimum $6 per week and maximum $125 per month; total maxi
mum, $3,500.
(c) For partial disability, if temporary, 55 per cent of wage loss; if permanent,
according to a schedule to be adopted by the board; total maximum, $1,500.
Wage loss must exceed 10 per cent. Maximum monthly basic salary, $125.
Periodical payments may be commuted to lump-sum payments, and lump
sum payments may be made subject to periodical payment.
Revision o f compensation.—The board may reopen and review awards on its own
motion.
Insurance.—All employers covered by the act must contribute to a provincial
accident fund. Boara may make or sanction arrangements for reinsurance.
Security o f payments.—Accident fund under government control; payments may
not be assigned, attached, or made subject to pass by operation of law except to a
personal representative.
Settlement o f disputes.—Workmen’s compensation board has exclusive and final
jurisdiction over all matters, but appeal may be had to supreme court on questions of
law and jurisdiction if permission is secured from a judge of the supreme court.

ANALYSIS OF PRINCIPAL FEATURES OF TILE LAW S.

263

NOVA SCOTIA.
Date of enactment.—April 23,1915* in effect January l y 1917; amended in 1916, 1917,
1918^ and 1919.
Injuries compensated.-—Iniuries by accident arising out of or in the course of the
employment causing disability for seven days or death. Those due to wiHful mis
conduct are excepted unless death or serious permanent disablement results. When
compensation is payable it dates from disability. Enumerated occupational diseases
are included.
Industries covered*—Compulsory as to all employments listed in act. Voluntary
as to excluded industries and workmen, except farm labor and domestic service,
which are outside law.
Persons compensated.—Workmen engaged in the included industries and occupations,
not including traveling salesmen, casual workers employed otherwise than for the
purpose of the employer’s business, outworkers, and members of an employer’s family.
Government employees.—Included if engaged in occupations such as are included
in the act, municipal policemen and firemen excepted.
Burden o f payment.—Entire cost rests upon the employer.
Compensation for death:
(a) Burial expenses, maximum $75.
(b) To widow or widower, $20 per month for life, with $5 additional for each child
under 16 years; to orphan children, $10 each per month; maximum monthly,
$40, not over 55 per cent of average wages. To parents* $20 per month; to
parents and others, maximum $30 per month.
(c) To partial dependents a sum proportionate to the pecuniary loss, not over $30
per month, during the penod of reasonably expected assistance.
(d) Payments to children cease at 16 unless invalid, and to widow upon remarriage,
when she receives continued payments for two years or an equivalent lump
sum.
Compensation for disability:
(а) All necessary medical, surgical, hospital, etc., treatment for 30 days. Addi
tional special treatment may be allowed by board if necessary to reduce
disability.
(б) For total disability, 55 per cent of the average wages during disability. Mini
mum, $5 weekly^ unless wage is less, then full wages.
(c) For partial disability, 55 per cent of the wage loss during disability. Im
pairment of capacity without actual wage loss may also be compensated.
In no case are wages in excess of $1,200 per annum considered.
Periodical payments may be commuted to lump-sum payments and lump
sum payments may be made subject to periodical payment.
Revision of compensation.—Board may reopen and review awards on its own motion.
Insurance.—All employers covered by the act must contribute to the provincial .
accident fund.
Security of payments.—Accident fund under Government control. Payments may
not be assigned, attached, be liable to set-off, nor made subject to pass b y operation
of law except to a personal representative.
Settlement of disputes.—Workmen’s compensation board has exclusive and final
jurisdiction over all matters, but appeal may be had to the supreme court on questions
of law and jurisdiction if permission is secured from a judge of the supreme court.

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COMPENSATION LAW S OF CANADA.

ONTARIO.
Date of enactment.—May 1, 1914; in effect January 1, 1915; amended 1915, 1916,
1917,1919.
Injuries compensated.—Injuries by accident arising out of and in course of employ
ment which cause death or disable a workman for at least seven days; those due to
the serious and willful misconduct excepted^ unless resulting in death or serious
disablement. Where compensation is payable it dates from disability. Enumerated
industrial diseases included.
Industries covered.—Extensive list; includes manufacturing, construction, lumbering,
mining, quarrying, transportation, navigation, operation of public utilities, etc.
Farm labor and domestic service are excluded.
Persons compensated.—All employees in industries covered other than those whose
employment is casual and not for the purposes of the employer’s trade or business.
Government employees.—Included in so far as their employments would be covered
if under private employers.
Burden of payment.— Cost rests entirely on the employer.
Compensation for death:
(a) Necessary burial expenses, not exceeding $75.
(b) To a widow or invalid widower, $30 per month until death or remarriage,
with $7.50 additional for each child under 16 years of age; orphan children,
$10 per month each; no total to exceed $60.
(c) To other dependents, not over $20 to the parent or parents, and not over $30
per month in all, for not longer than support might be reasonably expected.
(id) If no dependents, reasonable allowance may be made for medical attendance,
care, maintenance, and burial.
The aggregate compensation, except for burial expenses, may not exceed
55 per cent of the monthly wages of the deceased.
Payments to children cease at 16 unless invalid, and to widow on remarriage,
when she receives two years’ benefits.
Compensation for disability:
(а) Necessary medical and surgical aid, with transportation to hospital or home
if needed.
(б) For total disability 55 per cent of the average weekly earnings, during dis
ability.
(c) For partial disability, 55 per cent of the weekly wage loss, payable during the
continuance of such disability.
Periodical payments may be commuted to a lump sum after six months, or
earlier with the consent of the workman and the approval of the board.
In computing compensation no earnings in excess o f $2,000 are to be con
sidered in any case.
Revision of compensation.—Awards may be reviewed on the motion of either party
in interest; also on the board’s own motion if payments are being made from the
accident fund.
Insurance.—Payments under the main schedule are made from an accident fund
compulsorily maintained by employers under schedule I of the act. Board may
require employers under schedule II to insure in an approved company.
Security of payments.—State board administers the accident fund and is required
to maintain a reserve. Employers not contributors to the fund may be required to
deposit a capital sum to secure payments, or furnish other security. Payments are
exempt from assignment, attachment, or set-off, except with the approval of the board;
nor may they pass by operation of law to other than to a personal representative.
Settlement of disputes.—All disputes are to be settled by the board, suits at law being
forbidden except in defined classes of cases of liability for negligence of employers
not under schedule I.

ANALYSIS OF PRINCIPAL FEATURES OF TH E LAW S.

265

QUEBEC.
Date of enactment.—May 29, 1909; in effect January 1, 1910. Amended 1914, 1918.
Injuries compensated.—All injuries happening to workmen by reason of or in the
course of their work causing death, or disability lasting over seven days. Injuries in
tentionally caused by the person injured are not compensated.
Industries covered.— Building, manufacturing, transportation, engineering, and con
struction work, mining, quarrying; stone, wood, and coal yards;' any industrial enter
prise using machinery operated by power. Agriculture and navigation of sailing
vessels are excluded.
Persons compensated.—Workmen, apprentices, and employees earning not more than
$1,200 per annum. Foreign workmen or their representatives are compensated only
if and so long as they reside in Canada.
Government employees.—Government employees are not mentioned in the act.
Burden of payment.—The entire expense rests upon the employer.
Compensation for death:
(a) Medical and funeral expenses not in excess of $25, unless same are provided by
an association of which the deceased was a member.
(b) Four times average yearly wages, but not less than $1,000 nor more than $2,500
payable to surviving consort, to children under 16 years of age, and depend
ent ascendants, shares to be agreed upon or determined by court.
All amounts may be decreased or increased by court on account of inexcusable
fault of employee or employer.
Payments to children cease at 16, unless invalids.
Payments made for disability before death are deducted.
Compensation for disability:
(a) For permanent total disability, a pension equal to 50 per cent of the yearly
wages.
(b) For permanent partial incapacity, a pension equal to 50 per cent of the amount
by which the wages have been reduced because of the injury.
(c) For temporary incapacity lasting over seven days, compensation equal to onehalf the daily earnings received at the time of the accident, beginning with
the eighth day, not less than $4 per week.
(d) In computing pensions only one-fourth the excess of the annual earnings
between $800 and $1,200 is considered ; the capital of any pension shall not
exceed $2,500, unless higher because of accidents due to inexcusable fault
of the employer.
All periodical payments may be commuted to lump sums.
Revision of compensation.—Demands for change of amount of compensation may be
made within four years.
Insurance.—No reference concerning the insurance of risks under the law is con
tained in the act, except as to the payment of pensions due, which may be transferred
to insurance companies. No release from liability is obtained by the employer by
such transfer.
Security of payments.—Claims for compensation or pensions form a lien on the real
and personal property of the employer so long as they remain unpaid.
Settlement of disputes.—Superior and circuit courts have jurisdiction over all dis
putes arising under this act. All proceedings are summary, no trial by jury being
allowed.

266

W O R K M E N ’ s COMPENSATION LAW S OF CANADA.

YUKON TERRITORY.
Date of enactment.—April 24,, 1917.
Injuries compensated.—Injuries by accident arising out of and in course of employ
ment, causing disability for at least 14 days, or death, not due to willful misconduct
or intoxication. Where compensation is payable, it dates from the disability.
Industries covered.—All, where five or more workmen are employed.
Persons compensated.—All in industries covered except outworkers and casual empl
i
’ * ’ e or business.
Compensation for death.—If dependents survive, $2,500; if none, burial and medical
expenses, nursing, etc., not to exceed $500, of which not over $150 may be for burial
expenses.
Cc
----I sums for injuries scheduled: others in
proportion to degree of disability.
(c) For temporary disability, 50 per cent of wages, payable weekly for not more
than six months.
Revision of compensation.—Weekly payment awards mav be reviewed at the request
of either party.
Insurance.—No provision.
Security of payments.—Claims are not assignable, and awards are exempt from execu
tion, attachment, etc. Judge may order award to be invested or otherwise applied for
the benefit of the person entitled thereto.
Settlements of disputes.—If parties do not agree to settlement, application may be
made to a judge of the Territorial court, whose decision is final.

APPENDIX.—TEXT OF WORKMEN’S COMPENSATION LAWS
OF THE UNITED STATES AND CANADA.

U N IT E D S T A T E S .
ALABAMA.

ACTS OF 1919.
No. 245.— Compensation o f workman for injuries.
P a r t 1.— C om pen sation

A ction

Law .

S ection 1. When personal injury or death is caused to an employeeby

Actions for
an accident arising out of and in the course of his employment, of which ama2es*
injury the actual or lawfully imputed negligence of the employer is
the natural^ and proximate cause, he, or in case of death, his personal
representative, for the exclusive benefits of the surviving spouse and
next of kin, shall receive compensation by way of damages therefor
from the employer, provided the injury or death was not caused by the
willful misconduct of the employee or was not due to misconduct on
his part as hereinafter in section 9 hereof defined.
S ec . 2. In all cases brought under part 1 of this act it shall not be a . Defenses aboldefense (a) that the employee was negligent, unless and except it shallistlecl*
also appear that*such negligence was willful, or that such employee was
guilty of willful misconduct as hereinafter in section 9 hereof defined;
(6) that the injury was caused by the negligence of a fellow employee;
(c) that the employee had assumed the risks inherent in, or incidental
to the work, or arising out of his employment or arising from the failure
of the employer to provide and maintain safe premises and suitable
appliances which grounds of defense are hereby abolished except as
provided in section 4.
S ec . 3. If the employer elects not to come under part 2 of this act, Same,
he loses the right to interpose the three defenses named in section 2
in any action against him for personal injury or death of an employee.
S ec . 4. If the employee elects not to become subject to part 2 of When
availthis act, in any action brought to recover damages for personal injury a le*
or death by accident against an employer who has elected to come under
part 2 of this act, said employee or his personal representative shall
proceed as at common law only, and such employee shall have no right
of action under sections 3912, 2485, 2486, 3910, 2484 of the Code of 1907
or any other right given by statute, and the employer in such suit may
avail himself of all defenses as provided by statute m effect at the adop
tion of this act or at common law.
S ec .5. The provisions of sections 1, 2, 3, and 4 shall apply to any Application,
claims for death of an employee as covered by sections 3912, 2485, and
2486 of the Code of 1907, and to personal injuries arising under sections
3910 and 2484.
S ec . 5a. The provisions of this act shall apply to employees who Minors unaw
are minors and who have been employed in accordance with or cony employed,
trary to laws regulating the employment of minors.
S ec . 5b. When an accident occurs while the employee is employed Extraterritorial
elsewhere than in this State which would entitle him or his dependents 6
to compensation had it happened in this State, the employee or his
dependents shall be entitled to compensation under this act if the
contract of employment was made in this State unless otherwise ex
pressly provided by said contract, and such compensation shall be
in lieu of any right of action and compensation for injury or death
by the laws of any other State.

268

w o r k m e n ’ s c o m p e n s a t io n

law s

of t h e

u n it e d

states.

B u r d e n of SEC. 6. In all actions of law brought pursuant to part 1 of this act,
*
the burden of proof to establish willful misconduct (or other misconduct
as .hereinafter in sec. 9) hereof defined of the injured employee shall
be upon the defendant.
Attorney’sfees. Sec. 7. No part of the compensation payable under this act shall
be paid to attorneys for the claimant for legal services unless upon the
application of a claimant to a judge of the circuit court such judge shall
order or approve of the employment of an attorney by the claimant and
in such event the judge upon the hearing of the petition for compensa
tion shall fix the fee of the attorney for the claimant for his legal services,
and the manner of its payment, but such fee shall not exceed ten
(10) per cent of the compensation awarded or paid.
P a r t 2 .— E l e c t i v e C om p en sa tion .

Scope of act.

S e c t io n 8 . This act shall not be construed or held to apply to any com

mon carrier (doing an interstate business) while engaged in interstate
commerce, or to domestic servants, farm laborers or persons whose
employment at the time of the injury is casual, and not in the usual
course of the trade, business, profession, or occupation of the employer,
or to any employer who regularly employs less than 16 employees in
any one business, or to any county, city, town,village, or school district:
Provided, however, That any employer who regularly employs less than
16 employees in any one business or any county, city, town? village, or
school district may accept the provisions of this act by filing written
notice thereof with the probate judge of each county in which said
employer is located or does business, said notice to be recorded by the
judge of probate for which he shall receive the usual fee for recording
conveyances, and copies thereof to be posted at the places of business
of said employers: And providedfurther, That said employers who have
so elected to accept the provisions of this act may at any time with
draw the acceptance by giving like notice of withdrawal: Provided
further, That in no event nor under any circumstances shall this bill
apply to farmers and their employees.
Effect of agree- Sec. 9. If both employer and employee shall by agreement expressed
ment*
or implied or otherwise as herein provided become subject to part 2 of
this act, compensation, according to the schedules hereinafter contained,
shall be paid by every such employer in every case of personal injury or
death of his employee caused by an accident arising out of and in the
course of his employment, without regard to any question of negligence,
except no compensation shall be allowed for an injury or death caused
willful miscon- by the willful misconduct of the employee or by the employee’s inten®uct*
tion to bring about the injury or death of himself or of another or due to
his own intoxication or his willful failure or willful refusal to use safety
appliances provided by the employer or due to the willful refusal or
willful neglect of the employee or servant to perform a statutory duty
or due to any other willful violation of the law by the employee or his
willful breach of a reasonable rule or regulation of his employer of which
rule or regulation the employee has knowledge. If the employer de
fends on the ground that the injury arose in any or all of the last above
stated ways the burden of proof shall be on the employer to establish
such defense.
Remedy ex- Sec. 10. Such agreement or the election hereinafter provided for shall
elusive.
be a surrender b y the parties thereto of their rights to any other method,
form, or amount of compensation or damages for any injury occasioned
by an accident proximately resulting from and while engaged in the
actual performance of the duties of his employment, and from a cause
originating in such employment, or determination thereof than as pro
vided in part 2 of this act, and shall be an acceptance of all the provi
sions of part 2 of this act, and shall bind the employee himself, and for
compensation of his death shall bind his personal representative, the
surviving spouse and next of kin, as well as the employer and those
conducting his business during bankruptcy or insolvency, for compen
sation for death or injury, as provided for by part 2 of this act.
Same.
S e c . 10£. The rights and remedies herein granted to an employee
shall exclude all other rights and remedies of said employee, his personal
representative, parent, dependents, or next of kin, at common law, by

TEXT OF LAW S— ALABAMA.

269

statute or otherwise on account of said injury, loss of services or death;
and except as herein provided in part (1) and part (2), (as the case may
be) of this act, no employer included within the terms of this act shall
be held civilly liable for any personal injury to or death of any workman
due to accident while engaged in the service or business of the employer,
the cause of which accident originates in the employment; but nothing
in this section shall be construed to relieve any employer from criminal
prosecution for failure or neglect to perform any duty imposed by law.
S e c. 11. All contracts of employment made after the taking effect of Election p r ©this act shall be presumed to nave been made with reference to, andsume(1,
subject to, the provisions of part 2, unless otherwise expressly stated in
the contract, in writing, or unless written or printed notice has been
given by either party to the other, as hereinafter provided, that he does
not accept the provisions of part 2. Every employer and every
employee is presumed to have accepted and come under part 2 hereof,
unless thirty (30) days prior to accident he shall have signified his
election not to accept or be bound by the provisions of part 2, but for
an accident occurring within the first 30 days after employment notice
not to accept given at the time of employment shall be sufficient, and
in such event unless such notice has been given at the time of employ
ment, the acceptance and coming under part 2 hereof is conclusively
presumed. The notice of election not to accept part 2 shall be given Notice of nonas follows: Any employer and any employee who are parties to a con- accePtance*
tract of service or employment existing at the time this act goes into effect
is conclusively presumed to have accepted and come under part 2 hereof,
and said contract of service or employment shall be conclusively pre
sumed to continue under the provisions of part 2 of this act from and
after the day it goes into effect unless otherwise expressly stated in
writing in the contract of employment, or unless at least thirty (30) days
prior to the time this act goes into effect, written or printed notice have
been given by either party to the other as hereinafter provided that he
does not accept the provisions of part 2. The employer in case he elects
not to be bound by the provisions of part 2 hereof shall post and keep
posted in his shop or place of business a written or printed notice of his
election not to be bound by part 2 hereof and file a duplicate thereof
with the probate judge of each county in which the employer does
business. Said notice to be recorded by the judge of probate, for which
he shall receive the usual fee for recording conveyances. The em
ployee in case he elects not to be bound by the provisions of part 2
hereof shall give written or printed notice to the employer of his elec
tion not to be bound by part 2, and file a duplicate with proof of service
attached thereto with the probate judge of one county in which the
employer does business. A certified copy of said notice so required to be
recorded shall be presumptive evidence in any court or proceedings that
said employer or employee, as the case may be, has elected not to come
under part 2 hereof.
*■'
S ec . 12. Either party may terminate his acceptance, or his election, Termination of
not to accept the provisions of part 2 by thirty (30) days’ written notice accep nceV
to the other, such notice to be given as provided in section 11. A
duplicate of such notice with proof of service attached thereto shall
be filed with the probate judge of the county in which the employee
is performing service at tne time such notice is given, and shall be
recorded, and the time shall not begin to run until such notice is so
filed.
S ec . 12a. Minors shall, for the purposes of part 2 of this act, have the Minors,
same power to contract, make election of remedy, make settlements, ^
and receive compensation as adult employees; subject, however, to
the power of the court, in its discretion at any time to require the
appointment of a guardian to make such settlement and to receive
moneys thereunder or under an award, and payments or awards made :
to such minors or their guardians shall exclude any further compen- j
satioS either to the minors or to their parents for loss of services or
otherwise.
S ec . 12b. The interested parties shall have the right to settle all Settlements.]
matters of compensation and all questions arising hereunder between '
themselves: Provided, That all settlements made hereunder must be
in amount substantially the same as the amounts or benefits stipulated

270

w o r k m e n ’s c o m p e n s a tio n la w s o f t h e u n it e d s t a t e s .

in this act, unless a judge of the circuit court of the county where the
claim for compensation under this act is entitled to be made or upon
the written consent of the parties a judge of the circuit court or a judge
of the probate court of any county determines that it is for the interest
of the employee to accept a lesser sum and approves such settlement.
Any settlements hereunder may be vacated for fraud, undue influence
or coercion upon application made to the judge approving the settle
ment at any time not later than six months after the date of the settle
ment. Upon such settlements being approved judgment shall be
rendered thereon and duly entered on the records of said court in the
same manner and to have the same effect as other judgments or as an
award if the settlement is not for a lump sum. The costs of the pro
ceedings which shall not exceed two dollars, shall be borne by the
employer. All moneys voluntarily paid by the employer or insurance *
carrier to an injured employee in advance of agreement or award or
under an approved or vacated agreement or award shall be treated as
advance payments on account of the compensation due.
Temporary toS ec . 13. Following is the schedule of compensation: (a) For injury
tal disability.
producing temporary total disability, fifty (50) per centum of the
average weekly earnings received at the time of injury, subject to a
maximum compensation of twelve dollars ($12) per week, except as
otherwise provided herein and a minimum of five dollars ($5) per
week: Provided, That if at the time of injury the employee receives
average weekly earnings of less than five dollars ($5) per week, then
he shall receive the full amount of such average weekly earnings per
week. This compensation shall be paid during the time of such
disability, not, however, beyond three hundred weeks. Pay
ments to be made at the intervals when the earnings were payable, as
*
nearly as may be.
Partial disabil(5) i n all cases of temporary partial disability the compensation
ty'
shall be fifty (50) per centum of the difference between the average
weekly earnings of the workmen at the time of the injury and the
average weekly earnings he is able to earn in his partially disabled
condition. This compensation shall be paid during the period of
such disability, not, however beyond three hundred weeks, payments
to be made at the intervals when the earnings were payable as nearly
as may be and subject to the same maximum as stated in clause (a).
If the injured employee who is receiving such compensation for tem
porary partial disability should leave the employment of the employer
by whom he was employed at the time of the accident for which such
compensation is being paid, he shall, upon securing employment else
where, give to such former employer an affidavit in writing containing
the name of his new employer, the place of the employment and the
amount of wages being received at such new employment and until
he gives such affidavit the compensation for temporary partial dis
ability shall cease. The employer by whom such employee was
employed at the time of the accident for which such compensation
is being paid may also at any time demand of such employee, addi
tional affidavit in writing containing the name of his employer, the
place of his employment and the amount of wages he is receiving and
if the employee, upon such demand, fails or refuses to make and fur
nish such affidavit his right for compensation for temporary partial
,
disability shall cease until such affidavit is made and furnished.
Schedule l o r
(c) For permanent partial disability the compensation shall be
specmea injuries. b ase(j Upon the extent of such disability. In cases included by the
following schedule the compensation shall be that named in the
schedule, to-wit: For the loss of a thumb, fifty per centum of the
average weekly earnings during sixty (60) weeks. For the loss of a
first finger, commonly called index finger, fifty per centum of the
average weekly earnings during thirty-five weeks (35) weeks. For
the loss of a second finger, fifty per centum of the average weekly earn
ings during thirty (30) weeks. For the loss of a third finger, fifty per
centum of the average weekly earnings during twenty (20) weeks. For
the loss of a fourth finger, commonly called little finger, fifty per centum
of the average weekly earnings during fifteen (15) weeks. The losa
of the first phalange of the thumb, or of any finger, shall be consid
ered as equal to the loss of one-half of such thumb or finger, and

TEXT OF LAW S— ALABAMA.

271

compensation shall be paid at the prescribed rate during one-half of
the time specified above for such thumb or finger. The loss of two
or more phalanges shall be considered as the loss of the entire finger 01*
thumb: Provided, however, That in no case shall the amount received
for more than one finger exceed the amount provided in this schedule
for the loss of a hand. For the loss of a great toe, fifty per centum of
the average weekly earnings during thirty (30) weeks. For the loss
of one of the toes other than the great toe, fifty per centum of the aver
age weekly earnings during ten^ (10) weeks. The loss of the first
phalange of any toe shall be considered to be equal to the loss of onehalf of such toe, and compensation shall be paid at the prescribed
rate during one-half the time prescribed above for such toe. The
loss of two or more phalanges shall be considered as the loss of the
entire toe. For the loss of a hand, fifty per centum of the average
weekly earnings during one hundred and fifty (150) weeks. For
the loss of an arm, fifty per centum of the average weekly earnings
during two hundred (200) weeks. For the loss of a foot, fifty per
centum of the average weekly earnings during one hundred and
twenty-five (125) weeks. For the loss of a leg fifty per centum of
the average weekly earnings during one hundred and seventy-five
(175) weeks. Foi the loss of an eye, fifty per centum of the average
weekly earnings during one hundred (100) weeks. For the complete
and permanent loss of hearing in both ears, fifty par centum of the
average weekly earnings during one hundred and fifty (150) weeks.
For the loss of an eye and a leg, fifty per centum of the average weekly
earnings during three hundred and fifty (350) Weeks. For the loss of
an eye and an arm, fifty per centum of the average weekly earnings
during three hundred ana fifty (350) weeks. For the loss of an eye
and a hand fifty per centum of the average weekly earnings during
three hundred and twenty-five (325) weeks. For the loss of an eye
and a foot, fifty per centum of the average weekly earnings during
three hundred (300) weeks. For the loss of two arms other than at
the shoulder, fifty per centum of the average weekly earnings during
four hundred (400) weeks. For the loss of two hands, fifty per centum
of the average weekly earnings during four hundred (400) weeks.
For the loss of two legs fifty per centum of the average earnings during
four hundred (400) weeks. For the loss of two feet, fifty per centum
of the average weekly earnings during four hundred (400) weeks.
For the loss of one arm and the other hand, fifty per centum of the
average weekly earnings during four hundred (400) weeks. For
the loss of one hand and one foot, fifty per centum of the average
weekly earnings during four hundred (400) weeks. For the loss of
one leg and the other foot, fifty per centum of the average weekly
earnings during four hundred (400) weeks. For the loss of one leg
and one hand, fifty per centum of the average weekly earnings dur
ing four hundred (400) weeks. For the loss of one arm and one foot,
fifty per centum of the average weekly earnings during four hundred
(400) weeks. For the loss of one arm and one leg, fifty per centum of
the average weekly earnings during four hundred (400) weeks. Where
an employee sustains concurrent injuries resulting in concurrent. Concurrent in
disabilities, he shall receive compensation only for the injury whichjunes*
produced the longest period of disability, but this section shall not
affect liability for the concurrent loss of more than one member for
which, member, compensation is provided in the specific schedule
in subsection (d) below. In all cases the permanent and total loss Loss of use.
of the use of a member shall be considered as equivalent to the loss
of that member, but in such cases the compensation in and by said
schedule shall be in lieu of all other compensations. In cases of
permanent disability due to injury to a member resulting in less than
total loss of use of such member not otherwise compensated in this
schedule, compensation shall be paid at the prescribed rate during
that part of the time specified in the schedule for the total loss or total
loss of use of the respective member, which the extent of the injury
to the member bears to its total loss. If an injured employee refuses Refusing cmemployment suitable to his capacity, offered to or procured for him, p y m
he shall not be entitled to any compensation at any time during the
continuance of snch refusal, unl^«s at any time in the opinion of the

272

w o r k m e n ’s c o m p e n s a tio n la w s o f t h e u n it e d s t a t e s .

judge of the circuit court of the county of his residence such refusal
is justifiable. All compensations provided in clause (c) of this sec
tion for loss of members, or loss of use of members, are subject to the
same limitations as to maximum and minimum as are stated in clause
(a). In all other cases of permanent partial disability not above
enumerated, the compensation shall be fifty per centum of the dif
ference between the average weekly earnings of the workman at the
time of the injury and the average weekly earnings he is able to earn
in his partially disabled condition, subject to a maximum of twelve
($12) per week as otherwise provided herein. Compensation shall
continue during disability^ not, however, beyond three hundred
(300) weeks. In case the injured employee leaves the services of the
employer for whom he was working at the time of the accident and
accepts employment elsewhere he shall make and furnish affidavit
as to his new employment in the manner as required in subsection
(b) of section 13 hereof.
permanent to- (d) For permanent total disability as defined in subsection (e)
tal disability.
below, fifty per centum of the average weekly earnings received at
the time of the injury subject to a maximum compensation of twelve
dollars ($12) per week except as otherwise provided herein and a
minimum compensation of five dollars ($5) per week: Provided, That
if at the time of injury the employee was receiving earnings of less
than five dollars ($5) per week, then he shall receive the full amount
of his earnings per week. This compensation shall be paid during such
permanent total disability, not exceeding five hundred and fifty
(550) weeks; but in all such cases drawing more compensation than
five dollars ($5) per week, the payment after the first four hundred (400)
weeks shall be reduced to five dollars ($5) per week for the remainder
of the five hundred and fifty weeks (550) weeks, while the permanent
total disability continues; payment to be made at the intervals when
the earnings was payable as nearly as may be: Provided, however,
Such payments with the approval of the circuit judge may be made
monthly or quarterly. The total amount of compensation payable
under this^ subsection shall not exceed five thousand (5,000) in any
case: Provided, however, That in case an employee, who is perma
nently and totally disabled becomes an inmate of a public institution,
then no compensation shall be payable unless he has wholly depen
dent on him for support a person or persons named in subsection (1),
£2), and (3) of section 14 (whose dependency shall be determined as
if the employee were deceased), in which case the compensation
provided for in this subsection shall be paid_ for the benefit of such
person so dependent, during dependency, in the manner ordered
by the court, while the employee is an inmate of such institution.
(e) The total and permanent loss of the sight of both eyes, or the loss
of both arms at the shoulder, or complete and permanent paralysis or
total and permanent loss of mental faculties, which totally incapaci
tates the employee from working at an occupation which brings him
an income shall constitute permanent total disability.
Second injuries. ( e ) l . If an employee has a permanent disability or has previously
sustained another injury than that in which he received a subsequent
permanent injury by accident such as is specified in the sections
herein defining permanent injury he shall be entitled to compensation
only for the degree of injury that would have resulted from the latter
accident if the earlier disability or injury had not existed.
(e)
1§. If an employee has previously lost the sight of one eye or
lost one leg or lost one arm, and thereafter in the same employment or
in the employment of another he should by accident receive additional
injuries so as to proximately cause the loss of the sight of both eyes
or the loss of both legs or the loss of both arms said employee shall
receive three-fourths of the amount provided hereunder for one who
has received a permanent total disability and there shall be credited
on said three-fourths amount any payments which said employee
had received or may receive for his first disability.
(e)
2. For permanent total disability other than as defined in sub
section (e) fifty per centum of the average weekly earnings received
at the time of injury subject to a maximum compensation of twelve
dollars ($12) per week and a minimum compensation of five dollars

TEXT OF LAW S— ALABAMA.

273

($5) per week: Provided, That if.at the time of injury the employee was
receiving earnings of less than five dollars ($5) per week, then he shall
receive the full amount of his earnings per week. This compensation
shall be paid during the period of such permanent disability not
exceeding four hundred (400) weeks; payments to be made at the
intervals when the earnings were payable as nearly as may b e: Pro
vided, however. Such payments with the consent of the circuit judge
may be made monthly or quarterly.
(e)
3. If an employee received an injury for which compensation
is payable^ while he is still receiving or entitled to compensation
for a previous injury in the same employment, he shall not at the
same time be entitled to compensation for both injuries, unless the
later injury be a permanent injury, such as specified in section 13; but
he shall be entitled to compensation for that injury and from the time
of that injury which will cover the longest period and the largest
amount payable under this act.
(e)
4. If an employee receives a permanent injury as specified in
section 13 after having sustained another permanent injury in the
same employment, he shall be entitled to compensation for both
injuries, but the total compensation shall be paid by extending the
period and not by increasing the amount of weekly compensation, and
in no case exceeding five hundred weeks. When the previous and sub
sequent permanent injuries received in the same employment result
in total disability compensation shall be payable for permanent total
disability, but payments made for the previous injury shall be de
ducted from the total payment of compensation due.
( f ) In case a workman sustains an injury occasioned by an accident Subsequent
arising out of and in the course of his employment and during the
period of disability caused thereby death results proximately there
from, all payments previously made as compensation for such injury
shall be deducted from the compensation, if any, due on account of
death.
(/) 1. In all claims for compensation for hernia resulting from injury Hernia,
by an accident arising out of and in the course of his employment it
must be definitely proved to the satisfaction of the court:
First. That there was an injury resulting in hernia.
Second. That the hernia appeared suddenly.
Third. That it was accompanied by pain.
Fourth. That the hernia immediately followed an accident.
Fifth. That the hernia did not exist prior to the accident for which
compensation is claimed.
All hernia, inguinal, femoral, or otherwise, so proved to be the
result of an injury by accident arising out of and in the course of the
employment shall be treated in a surgical manner by radical operation.
In case the injured employee refuses to undergo the radical operation
for the cure of said hernia, no compensation will be allowed during the
time such refusal continues. If, however, it is shown that the em
ployee has some chronic disease, or is otherwise in such physical con
dition that the court considers it unsafe for the employee to undergo
said operation, the employee shall be paid as otherwise provided
herein.
(g) Compensation hereunder shall be computed on the basis of the Wage basis
average weekly earnings. “ Average weekly earnings ” shall mean the
earnings of the injured employee in the employment in which he was
working at the time of the injury during the period of fifty-two weeks
immediately preceding the date of the injury divided by fifty-two; but
if the injured employee lost more than seven consecutive calendar days
during such period although not in the same week, then the earnings
for the remainder of such fifty-two weeks shall be divided by the num
ber of weeks remaining after the time so lost has been deducted Where
the employment prior to the injury extended over a period of less than
fifty-two weeks, the method of dividing the earnings during that period
by the number of weeks and parts thereof which the employee earned
wages shall be followed, provided results just and fair to both parties
will thereby be obtained. Where by reason of the shortness of the time
177982°— 21— Bull. 272 ------ 18

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during which the employee has been in the employment of his em
ployer, or the casual nature or terms of the employment, it is imprac
ticable to compute the average weekly earnings as above defined, regard
shall be had to the. average weekly amount which during the fifty-two
weeks prior to the injury was being earned by a person in the same
grade, employed at the same work by the same employer, and if there
is no such person so employed, by a person in the same grade employed
in the same class of employment in the same district. Wherever allow
ance of any character made to an employee in lieu of wages are specified
as part of the wage contract, they shall be deemed a part of his earnings.
Additional al- (h) Wherever in this section there is a provision for fifty (50) per
lowance for chil- centum such per centum shall be increased five (5) per centum for each
en*
totally dependent child of the employee under the age of eighteen years
at the time of the injury to the employee until sucn per centum shall
reach a maximum of sixty (60) per centum. (2) Wherever in this sec
tion a weekly maximum compensation of twelve dollars ($12) is pro
vided such maximum compensation shall be increased in the following
cases to the following amounts: Thirteen ($13) dollars in case of an
employee with one totally dependent child under the age of eighteen
years at the time of the injury to the employee. Fourteen ($14) dollars
in case of an employee with two totally dependent children under the
age of eighteen years at the time of the injury to the employee. Fifteen
($15) dollars in case of an employee with three or more totally depend
ent children under the age of eighteen years at the time of the injury to
the employee. The increase in the above per centum and in the maxi
mum amount shall be paid only so long as the child upon which the
increase is based remain Under the age of eighteen years.
Dependents.
S ec. 14. ( 1 ) Wife and children conclusively presumed wholly de
pendent; when. For the purposes of this act the following described
persons shall be conclusively presumed to be wholly dependent:
(a) Wife, unless it be known that she was voluntarily living apart
from her husband at the time of his injury or death or unless it be shown
she was not married to the deceased at the time of the accident or for a
reasonable period prior to his death, or unless it be shown that the hus
band was not in any way contributing to her support.
( b) Children between sixteen and eighteen years of age or those
over eighteen, if physically or mentally incapacitated from earning,
shall prima facie, be considered dependent.
Total depend- (3) Wife, child, husband, mother, father, grandmother, grandfather,
ents.
sister, brother, mother-in-law and father-in-law who were wholly sup
ported by the deceased workman at the time of his death ana for a
reasonable period of time immediately prior thereto shall be considered
his total dependents, and payment of compensation shall be made to
them in the order named.
Partial depend(3A) Any member of a class named in subdivision (3)) who
ents*
regularly derived part of his support from the earnings of the
deceased workman at the time of nis death and for a reasonable
period of time immediately prior thereto, shall be considered his partial
dependent and payment of compensation shall be made to such partial
dependents in the order named.
Death benefits.
(4) In death cases where the death results proximately from the
accident within three years compensation payable to dependents shall
be computed on the following basis and snail be paid to the persons
entitled thereto without administration.
(5) If the deceased employee leave a dependent widow or dependent
husband and no dependent child, there shall be paid to the widow
thirty per centum of the average weekly earnings of deceased.
(6) If the deceased employee leave a dependent widow or dependent
husband and one dependent child, there shall be paid to the widow for
the benefit of herself and such child forty per centum of the average
weekly earnings of the deceased.
(7) If the deceased employee leave a dependent widow or dependent
husband and either two or three dependent children, there shall be paid
to the widow for the benefit of herself and such children fifty per centum
of the average weekly earnings of the deceased.
(8) If the deceased employee leave a dependent widow or dependent
husband and four or more dependent children, there shall be paid

TEXT OF LAWS— ALABAMA.

275

to the widow for the benefit of herself and such children sixty per
centum of the average weekly earnings of the deceased.
(8A) In all cases where compensation is payable to a widow for the
benefit of herself and dependent child or children the court shall have
power to determine in its discretion what portion of the compensation
shall be applied for the benefit of any such child or children and may
order the same paid to a guardian.
(9) In case of remarriage of a widow of an employee who had depend
ent children, the unpaid balance of compensation" which would other
wise become due to her, shall be paid to such children.
(10) If the deceased employee leave a dependent orphan, there shall
be paid thirty per centum of the average weekly earnings of deceased,
with ten per centum additional for each additional orphan with a
maximum of sixty per centum of such wages.
(11) If the deceased employee leave a dependent husband and no
dependent child, there shall be paid to the husband twenty-five per
centum of the average weekly earnings of the deceased.
(12) If the deceased employee leave no widow or child or husband
entitled to any payment hereunder, but should leave a parent or parents,
either or both of whom are wholly dependent on the deceased, there
shall be paid if only one parent, twenty-five per centum of the average
Weekly earnings of the deceased and if both parents, thirty-five per
centum of the average weekly earnings of the deceased to such parent
or parents.
(13) If the deceased leave no dependent widow or dependent child
or husband or parent entitled to any payment hereunder, but leaves a
grandparent, brother, sister, mother-in-law or father-in-law wholly
dependent on him for support, there shall be paid such dependent,
if but one, twenty per centum of the average weekly earnings of the
deceased, or if more than one, twenty-five per centum of the average
weekly earnings of the deceased, divided between or among them
share and share alike.
(14) If compensation is being paid under part 2 of this act to any
dependent, such compensation shall cease upon the death or marriage
of such dependent, and the dependency of a child shall terminate with
the age of 18 unless otherwise provided herein.
(15) Partial dependents shall be entitled to receive only that Partial de
proportion of the benefits provided for actual dependents which the p
Saverage amount of the earnings regularly contributed by the deceased
to such partial dependent, at and for a reasonable time immediately
prior to the injury bore to the total income of the dependent during
the same time.
(16) In all cases where death resulted to an employee caused by an Burial ,etc.
accident arising out of and in the course of his employment the em
ployer shall pay, in addition to the medical and hospital expenses
provided for in section 18 the expense of last sickness, and burial,
not exceeding in amount one hundred dollars ($100), except in cases
where an insurer of the deceased or a benefit association is liable
therefor, or for a part thereof, in such case the employer shall not be
required to pay any part of such expense, for which such insurer or
benefit association is liable unless such non-payment by the employer
would diminish the benefits received by the dependent of the de
ceased from any such insurer or benefit association. In case dispute
arises as to the reasonable value of the services rendered in connection
with the last sickness and burial, the same shall be approved by
the court before payment, after such reasonable notice to interested
parties as the court may require. If the deceased leaves no depend
ents no compensation shall be payable, except as provided by this
subsection.
(17) The compensation payable in case of death wholly dependent Limitations on
shall be subject to maximum compensation of twelve dollars ($12) per payme
week and a minimum of five dollars ($5) per week: Provided, That if at
the time of injury the employee receives earnings of less than five
dollars ($5) per week, then the compensation shall be the full amount
of such earnings per week. The compensation payable to partial
dependents shall be subject to a maximum of twelve dollars ($12)
per week and a minimum of five dollars ($5) per week: Provided, That

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if the income loss of the said partial dependents by such death is less
than five dollars ($5) per week, th^n the dependents shall receive the
full amount of their income loss. This compensation shall be paid
during dependency not exceeding three hundred (300) weeks, payments
to be made at the interval when the earnings were payable as nearly as
may be.
(18) In computing and paying compensation to orphans or other
children, in all cases, only those under eighteen years of age, or those
over eighteen years of age, who are physically or mentally incapacitated
from earning, shall be included; the former to receive compensation
only during the time they are under eighteen, the latter for the time they
are so incapacitated, within the period of three hundred (300) weeks.
(19) Total dependents shall be entitled to take compensation in
the order named in subsection (3) above, until the per centum of the
average weekly earnings of the deceased during the time and as specified
in subsection (17) shall have been exhausted; but the total compensa
tion to be paid to all total dependents of a deceased employee shall
not exceed in the aggregate twelve dollars ($12) per week, except as
otherwise provided herein.
Preexisting con(20) If the degree or duration of disability resulting from an acciditions.
dent is increased or prolonged^ because of a preexisting injury or in
firmity the employer shall be liable only for the disability that would
have resulted from the accident had the earlier injury or infirmity not
existed.
Additional ai(21) Wherever in this section there is a provision for fifty (50) per
lowanee for chii- centum such per centum shall be increased five (5) per centum for
each totally dependent child of the deceased employee under the age
of eighteen years at the time of the death of the employee until such
per centum shall reach a maximum of sixty (60) per centum. Wher
ever in this section a weekly^ maximum compensation of twelve ($12)
dollars is provided such maximum compensation shall be increased in
the following cases to the following amounts: Thirteen ($13) dollars
in case the deceased employee leaves one totally dependent child
under the age of eighteen years at the time of the injury to the deceased
employee. Fourteen ($14) dollars in case the deceased employee
leaves two totally dependent children under the age of eighteen years
at the time of the injury to the deceased employee. Fifteen ($15)
dollars in case the deceased employee leaves three or more totally
dependent children under eighteen years of age at the time of the in
jury to the deceased employee. The increase in the above per centum
ana in the maximum amount shall be paid only go long as the child
upon which the increase is based remains under the age of eighteen
years.
Limit on pay- S ec . 141. In no case hereunder except as otherwise provided herein
mentsshall the compensation paid hereunder be more than twelve ($ 12) dollars
per week, nor (except as herein otherwise provided), less than five ($5)
dollars per week, and in no case shall the total amount of compensation
exceed five thousand ($5,000) dollars.
Payments.
S ec . 15. If compensation is being paid under this act to any depend
ent, such compensation shall cease upon the death or marriage of such
dependent. ^Where compensation is being paid under this act to any
dependent, in no event shall such dependents receive more than the
proportion which the amount received of the deceased employee’s
income during his life bears to the compensation provided hereunder.
Joint employS ec . 16. In case any employee for whose injury or death compensaers*
tion is payable under part 2 of this act shall, at the time of the injury,
be employed and paid jointly by two or more employers subject to
this act, such employers shall contribute the payment of such compen
sation in the proportion of their several earnings liablility to such em
ployee. If one or more but not all of such employers should be sub
ject to part 2 of this act, and otherwise subject to liability for com
pensation hereunder, then the liability of such of them as are so sub
ject, shall be to pay the proportion of the entire compensation which
their proportionate earnings liability bears to the entire earnings of
the employee: Provided, however, That nothing in this section shall
prevent any arrangement between such employers for a different dis-

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277

tribution, as between themselves, of the ultimate burden of such
compensation.
S ec . 17. In case of temporary total or temporary partial disability Waiting time,
no compensation shall be allowed for the first two weeks after disability
except as provided by section 18, nor in any case unless the employer
has actual knowledge of the injury or is notified thereof within the
period specified in section 19. Compensation shall begin with the third
week and in the event the disability from the injury exists for a period
as much as four weeks compensation for the first two weeks after the
injury shall be added to and payable with the first installment due
the employee after the expiration of the four weeks.
S e c . 18. In addition to the compensation herein provided the em- Medical, etc.,
ployer shall pay the actual cost of reasonably necessary medical and
•
surgical treatment and attention, medicine, medical and surgical sup
plies, crutches and apparatus, as may be obtained by the injured em
ployee during the first sixty (60) days of disability (or in case of death
within said sixty (60) days, obtained during the period occurring be
tween the time of the injury and his death therefrom): Provided, how
ever, That the total liability of the employer under this section shall
not exceed the^ aggregate of one hundred dollars, and further, that the
pecuniary liability of the employer for such services rendered the em
ployee shall be limited to such charges as prevail for similar treatment
m the community where the injured employee resides. All cases of
dispute as to the value of such services shall be determined by the tri
bunal having jurisdiction of the claim of the injured employee for com
pensation : And provided, further, That (except in an emergency it is
necessary; or in the event medical and surgical service and attention
is not readily obtainable, under contract for same; or the employer
does not promptly furnish the same, as hereinafter provided), if the
employer shall furnish, free of charge to the injured employee such
medical and surgical treatment and attention, medical and surgical
supplies, crutches and apparatus, he shall not be liable under this
section, except for that he may fail to furnish: And provided, further,
In the event the injured employee obtains the same under a contract
between him and another (or the employer), existing at the time of the
injury, the employer shall be liable to pay (or repay, as the case may
be), only the cost of the same under the terms of said contract, but in
no event to exceed the aggregate of one hundred dollars as hereinabove
provided: Provided, further, That the employer may, if he so elects,
furnish proper and efficient medical and surgical treatment and atten
tion and services herein provided for free of charge to the injured em
ployee during such sixty (60) days or such time thereafter as he desires
to furnish the same, and such employees shall accept the same. The
injured employee must submit himself to the examination by the
employer’s physician at all reasonable times if requested to do so by . Physical examthe employer, but the employee shall have the right to have a physician matlonof his own selection present at such examination, in which case the
employee shall be liable to such physician for his services. The
employer shall pay for the services of the physician making the exami
nation at the instance of the employer. And in case of dispute as to
the injury, the court may, at the instance of either party or of its own
motion, appoint a neutral physician of good standing and ability to
make an examination of the injured person and report his findings to
the court, the expense of which examination shall be borne equally by
the parties. If the injured employee refuses to comply with any
reasonable request for examination, or refuses to submit to medical ana
surgical treatment and attention or refuses to accept the medical service
which the employer elects to furnish under the provisions of this act,
his right to compensation shall be suspended, and no compensation
shall be payable for the period of such refusal. Any physician whose
services are furnished or paid for by the employer, or any physician of
the injured employee, and who treats or makes or is present at any
examination of an injured employee may be required to testify as to
any knowledge by him in the course of such treatment or examination
as same relates to the injury or disability arising therefrom. In all
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interested party may require an autopsy, the cost of which is to *ba
borne by the party demanding the same.
Notice of acciS ec . 19. Every injured employee or his representative shall within
dent‘
five days after the occurrence of an accident give or cause to be given
to the employer written notice of the accident and the employee if he
fails to give such notice shall not be entitled to physicians or medical
fees nor any compensation which may have accrued under the terms of
this act, unless it can be shown that the party required to give such
notice had been prevented from doing so by reason of physical or mental
incapacity, other than minority, or fraud or deceit, or equal good reason,
but no compensation shall be payable unless such written notice is
iven within ninety days after the occurrence of the accident, or where
eath results within ninety (90) days after the death.
Form, etc.
S e c . 20. The notice referred to in section 19 may be served person
ally upon the employer, or upon any agent of the employer upon whom
a summons may be served in civil action, or by sending it by registered
mail to the employer at the last known residence or business place
thereof within the State, and shall be substantially in the following
form: Notice—You are hereby notified than an injury was received by
(name) who was in your employ at (place) while engaged as (kind of
work) under the superintendency o f .......... on or about t h e ------ day of
___ , 19.., at about .., o’ clock .. m., and who is now located at (give
town, street and number) that so far as now known, the nature of the
injury w a s .............. and that compensation may be claimed therefor.
(Signed) ............... (Giving address) ................... Dated -----, 19...
But no variation from this form shall be material if the notice is suffi
cient to advise the employer that a certain employee, by name, re
ceived a specified injury in the course of his employment on or about a
specified time, at or near a certain place specified.
Action in one
S e c . 20a. In case of a personal injury all claims for compensation shall
year*
be forever barred unless within one year after the accident the parties
shall have agreed upon the compensation payable under this act or un
less within one year after the accident one of the parties shall have filed
a verified complaint as provided in section 28 hereof. In case of death
all claims for compensation shall be forever barred unless within one
year after death, when the death results proximately from the accident
within three years, the parties shall have agreed upon the compensation
under this act or unless within one year after such death one of the
parties shall have filed a verified complaint as provided in section 28
hereof. Where, however, payments of compensations have been made
in any case, said limitations shall not take effect until the expiration of
one year from the time of making the last payment. In case of physical
or mental incapacity, other than minority, of the injured person or his
dependents to perform or cause to be performed any act required within
the time in this section specified the period of limitation in any such
case shall be extended to become effective one year from the date when
such incapacity ceases.
Settlement of
S e c . 21. (1) In case of a dispute between employer and employee or
disputes.
between the dependents of a deceased employee and his employer
with respect to the right to compensation under this act or the amount
thereof either party may submit the controversy to the circuit court of
the county which would have jurisdiction of a civil case in tort between
the same parties. Such controversy shall be heard and determined by
such judge or judges of said court as would hear and determine a civil
action between the same parties arising out of tort and in case there is
more than one judge of such court such controversies shall be set and
assigned for hearing under the same rules and statutes that civil actions
in tort are set and assigned; such court is empowered to hear and deter
mine such controversies in a summary manner, that the decision of the
judge hearing the same shall be conclusive and binding between the
parties, subject to the right of appeal in this act provided for. When
willful misconduct on the part of the employee is set up by the employer
as it is provided for herein, the employer may, upon appearing, de
mand a jury to hear and determine, under the direction of the court, the
issues involved in this defense. If the employer fails to demand a
jury upon appearing, the employee may demand a jury to try such
issues by filing his demand within five days after the appearance of the

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employer. When a jury is demanded by either party the court must
submit the issue of fact as to willful misconduct set up by the employer
to the jury, for a special finding of the facts subject to the usual powers of
the court over verdicts rendered contrary to the evidence or the law,
but the judge must determine all other questions involved in the con
troversy without a jury. Upon setting up such defense the employer
must serve a copy of the plea or answer setting up the defense upon the
employee or his attorney of record. For the purpose of hearing and de
termining controversies between employer ana employee or the de
pendents of a deceased employee and the employer, arising under this
act, the circuit couit shall be deemed always in session. (2) If at any
time there are adverse claimants to compensation hereunder the em
ployer in submitting said claim to said circuit court may suggest in
writing said claimants and they shall be required to interplead and
said court shall determine and decree to which claimant or claimants
such compensation is justly due and said employer upon complying
with the order of such judge shall be released from the claims of any
other claimants thereto. From such decree any party aggrieved may
by certiorari within 30 days thereafter appeal to the Supreme Court of
Alabama.
S ec . 22. Compensation for the death of an employee shall be paid
Alien beneonly to dependents who at the time of the death of the injured employee
ies<
were actually residents of the United States. No right of action to
recover damages for the death of an employee shall exist in favor or
for the benefit of any person who was not a resident of the United States
at the time of the death of such employee.
S ec . 23. The amounts of compensation payable periodically here
under, either by agreement of the parties, approved by the court, or
by decision.of the court, may be commuted to one or more lump sum Lump sums,
payments, except compensation due for death or permanent total dis
ability, or for permanent partial disability resulting from total loss of
hearing or from the loss of an arm or a hand or a foot or a leg or an eye or
of more than one such member. These may be commuted only with
the consent of the circuit court. In making such commutations, the
lump sum payments shall, in the aggregate, amount to a sum equal to
the present value of all future installments of compensation calculated
on a six per cent basis.
S e c . 24. All amounts paid by the employer and received by the
employee or his dependents under settlements made under section
12b, shall be final; but the amount of any award payable periodically
Review of
for more than six months may be modified as follows: {a) At any time awards*
by agreement of the parties and approved by the court. (b) If the
parties cannot agree, then at any time after six (6) months from the
date of the award an application may be made to the court by either
party on the ground of increase or decrease of incapacity due solely to
the injury. In such case the same procedure shall be followed as in
section 28 in case of disputed claim for compensation.
S e c . 25. At any time after the amount of any award has been agreed P a y m e n t to
upon by the parties, or found and ordered by the court, a sum equal trusteeto the present value of all future installments of compensation calcu
lated on a six per cent basis, may (where death or the nature of the
injury renders the amount of future payments certain) by leave of
court, be paid by the employer to any savings bank or trust company
of this State or any national bank doing business in this State to be
approved and designated by the court, and such sum, together with all
interest thereon, shall thereafter be held in trust for the employee or
the dependents of the employee, who shall have no further recourse
against the employer. The payment of such sum by the employer,
evidenced by the receipts in duplicate of the trustees, one of which
shall be filed with the probate judge of the county in which the injury
or death occurred, and the other filed with the clerk of the circuit
court, shall operate as a satisfaction of said award as to the employer.
Payments from said fund shall be made by the trustee in the same
amounts and at the same time as are herein required of the employer
until said fund and interest shall be exhausted. In the appointment
of the trustee, preference shall be given, in the discretion of the court,
to the choice of the injured employee or the dependents of the de-

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ceased employee, as the case may be: Provided, further, That in the
event the right to receive compensation should terminate on account
of death, becoming of age, or marriage or for any other cause as provided
in this act the balance remaining in said bank or trust company after
such termination shall be returned by them to the employer, his suc
cessors or assigns.
Security of pay- S e c . 26. In all cases in which the award or judgment is payable in inments*
stallments and default has been made in the payment of any installment,
the owner or interested party may, upon the expiration of thirty days
from said default and upon five days’ notice to the defaulting employer
or defendant, move for a modification of the judgment or award b y
ascertaining the cash or present value of same, under the rule of com
putation contained in section 25, and upon which execution may issue
unless the defaulting employer enter into a good and sufficient bond,
to be approved by the circuit judge, securing the payment of all future
installments, and forthwith pay all past due ones with interest thereon
since due. Said bond to be recorded upon the minutes of the circuit
court. Claims for compensation or awards, or judgments or agreements
to pay compensation owned by an injured employee or his dependents
shall not be assignable and shall be exempt from seizure or sale or
garnishment for the payment of any debt or liability. There shall be
no right to waive this exemption.
Payments pre- S e c . 27. The right to compensation and of compensation awarded
ferred.
anyinjured employee or for death claims to his dependents shall have
the same preference against the assets of the employer as other unpaid
wages for labor; but such compensation shall not become a lien upon
the property of third persons by reason of such preference.
Procedure.
S e c . 28. Procedure in cases of dispute shall be as follows: Either
party to a controversy arising under this act may file a verified complaint
m the circuit court of the county which would have jurisdiction of
an action between the same parties arising out of tort which shall set
forth the names and residences of the parties and the circumstances
relating to the employment at the time of the injury with a full descrip
tion of the injury, its nature and extent, the amount of the average
earnings received by the employee which would affect his compensa
tion under this act, the knowledge of the employer of the injury or the
notice to him thereof, which must be of the kind provided for in this
act, and such other facts as may be necessary to enable the court to
determine what, if any, compensation the employee, or in case of a
deceased employee, his dependents, are entitled to under this act.
The complaint shall be filea with the clerk of the court and upon serv
ice of such complaint, as hereinafter provided for, any judge of such
court shall make an order fixing the time and place for the hearing
thereof, which time shall be not less than thirty days after the service
of summons to the employer as hereinafter provided for. Summons
to answer such complaint shall be issued by the clerk, accompanied
by a copy of the complaint, both of which shall be served by the
sheriff upon the employer. Within five days prior to the date fixed for
the hearing of the controversy the employer shall file a verified answer
to the complaint setting up the facts which he relies on in defense
thereof. At the time fixed for hearing, or any adjournment thereof,
the court shall hear such witnesses as may be presented by each party,
and in a summary manner without a jury, unless one is demanded to
try the issue of willful misconduct on the part of the employee decide
the controversy. This determination shall be filed in writing with
the clerk of the said court, and judgment shall be entered thereon in
in the same manner as in causes tried in the said circuit court, and
shall contain a statement of the law and facts and conclusions as deter
mined by said judge. Subsequent proceedings thereon shall only be for
the recovery of moneys thereby determined to be due: Provided, That
nothing herein contained shall be construed as limiting the jurisdic
tion of the Supreme Court or Court of Appeals to review questions of
law by certiorari. Costs may be awarded by said court in his discre
tion, and when so awarded the same costs^shall be allowed, taxed and
collected as for like services and proceedings in civil cases: Provided,
That if it shall appear that the employer, prior to the commencement of

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the action, made to the person or persons entitled thereto a written
offer of compensation in specific terms, which terms were in accordance
with the provisions of this act, then no costs shall be awarded or taxed
against such employer. Whenever any decision or order is made and
filed by the court upon any matter arising under part 2 of this act, the
clerk of the court shall forthwith make and forward to the judge of
probate of the county in which the complaint was filed a certified
copy of such decision or order with any memorandum of the judge and
of any judgment entered. ^No fee or other charge shall be collected
therefor: Provided, The plaintiff or owner of any judgment so certified
may have the same registered by the probate judge upon the payment
of the fee now fixed by law for registering judgments, and the same
shall become a lien in like manner as other registered judgments,
unless the same is made a preferred lien by other provisions of some
law. When the judgment, however, is for a sum not due, that is pay
able periodically, the defendant may discharge the registered lien by
giving a bond for the payment of same to be approved by the probate
judge and recorded and for which he shall receive the same for regis
tration: And provided further, That 110 execution shall issue where such
judgment is payable periodically unless default is made in the pay
ment of one or more of said periodical payments.
S e c . 28A. Any judgment rendered under the provisions of this act, Judgments,
either by award or by settlement, and entered on the minutes of any
court shall be by said court discharged and marked satisfied upon pre
sentment to said court or the clerk thereof of a release or discharge of
said judgment executed by the party in whose favor the same runs, and •
acknowledged in the same manner as conveyances are acknowledged,
or, upon presentment by the employer or his representative, of an affi
davit that said, judgment has been in accordance with its terms fully
satisfied and discharged, together with satisfactory proof in the way of
vouchers or checks duly endorsed by the party in whose favor said
judgment ran.
S ec . 29. Every right of action for death by wrongful act or for injury Existing rights
by negligence accruing to an injured employee prior to the takingof actlon*
effect of this act is continued and preserved under the existing law.
S e c . 30. Every employer who accepts the provisions of this act Insurance,
relative to the payment of compensation may at his option insure and
keep insured his liability thereunder in some insurance corporation,
association, organization or insurance association or corporation or
association formed of employers and workmen or formed by a group
of employers to insure the risks under part 2 of this act operating by the
mutual assessment or other plans or otherwise: Provided, Such insurance
association, organization or corporation shall have first had its contract
and plan of business approved in writing by the commissioner of
'insurance of Alabama and have been authorized by said insurance com
missioner to transact the business of workman’s compensation insurance
in this State and under such charter or plan. Those writing such
insurance shall in every case be subject to the conditions of this section
hereinafter named. Nothing herein contained shall prevent an
employer from insuring only a particular class or classes of employees
or class, form or kind of risks all or any part thereof or from limiting
such insurance either as to maximum or taking out insurance policies
with such other limitations as are authorized by law, or from carrying
catastrophe insurance. Such policies shall contain a clause to the
effect that as between the workman and the insurer, notice to and
knowledge by the employer of the occurrence of the injury shall be
deemed notice and knowledge on the part of the insurer; that jurisdic
tion of the employer for the purposes of this act shall be jurisdiction of
the insurer, and that the insurer will in all things be bound by and
subject to the awards, adjudgment or judgment rendered against such
employer upon the risks so insured. Such policies must provide that
the workman shall have equitable lien upon any amount which shall
become owing on account of such policy to the employer from the
insurer, and in case of the legal incapacity or inability of the employer
to receive the said amount and pay it over to the workman or depend
ents, the said insurer will pay the same direct to the said workman or

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dependents, thereby discharging all obligations under the policy to the
employer and all of the obligations of the employer and the insurer to
the workman, but such policies shall contain no obligations relieving
the insurance company from payment when the employer becomes
insolvent or discharged in bankruptcy or otherwise, during the period
the policy is in force, if the compensation remains owing. The insurer
must be one authorized b y law to conduct such business in the State
of Alabama, and authority is hereby granted to all insurance companies
writing such insurance to include in their policies, in addition to the
requirements now provided by law, the additional requirements,
terms and conditions in this section provided. Every insurance cor
poration, mutual corporation, reciprocal exchange or association
authorized to transact the business of workmen’s compensation insur
ance in this State and which insures employers against liability for
compensation under the provisions of this act shall file with the insur
ance commissioner its classification of risks and premiums relating
thereto and any subsequent proposed classification of risks and pre
miums, together with the basic rates and merit rating schedules, if a
system of schedule rating or merit rating be used by such insurance
corporation, exchange or association, none of which shall take effect
until the insurance commissioner shall have approved the same as
reasonable, adequate and not excessive. And within ten days after
such approval of said rates, schedules and system of schedule merit
rating by said insurance commissioner, he shall make or cause to be
made, a sufficient number of printed or typewritten copies of same, for
such purpose, and shall mail at least one copy of each of the same to
every insurance carrier writing workmen’s compensation business in
the State of Alabama, at its last address, or at the last address of its
designated agent to receive the same, left in writing by such carrier
with said insurance commissioner. And every such insurance carrier
shall (or if such insurance carrier be a member of or associated with a
rating or inspection bureau, either or both of them or a concern or
aggregation of like character, it shall cause such rating and inspection
bureau, either or both, or concern or aggregation of like character with
which it is affiliated to do so) file with the insurance commissioner a
full and complete statement of the actuarial and underwriting expe
rience, data and the like in its possession, from which and upon which
said rates, schedules and systems so filed were ascertained, calculated
and constructed, and within six months after the expiration of each suc
ceeding six months, file a like statement of all actuarial and underwrit
ing data and the like, pertaining to such rates, schedules and system,
accumulated or acquired by it during the preceding six months. Upon
failure to file said statement within the time specified above, said
rates, schedules or systems may be presumed by the insurance commis
sioner, without more [examination] to be excessive^ unreasonable or.
inadequate to prove the necessary reserves, or discriminatory as the
case may be. The insurance commissioner may withdraw his approval
of any premium rate or schedule made by any such insurance corpora
tion, association, mutual corporation or reciprocal exchange if in his
judgment such premium rate or schedule is excessive or unreasonable
or discriminatory or is inadequate to provide the necessary reserves.
Nothing in this act contained or in any other law of this State shall
affect the right of any insurance corporation,or any mutual or reciprocal
insurance corporation or association to issue participating policies or
contracts and to pay savings, refunds or dividends upon such policies
or contracts. No agreement by an employee to pay to an employer
any portion of the cost of insuring his risk under this act shall be valid
unless such agreement between the employer and employee the plan of
which is part of a contract [is] approved in writing by the commissioner
of insurance of the State of Alabama. But it shall be lawful for the
employer and the workman to agree to carry the risks covered by part 2
of this act in conjunction with other and greater risks and providing
other and greater benefits such as additional compensation, accident,
sickness or old age insurance or benefits, and the fact that such plan
involves a contribution by the workman shall not prevent its validity
if such plan has been approved in writing by the commissioner of
ineurance of Alabama. Any employer who shall make any charge or

TEXT OF LAW S— ALABAMA.

283

deduction prohibited by this section shall be guilty of a misdemeanor.
If the employer shall insure to his employees the payment of the com
pensation provided by part 2 of this act and according to the full bene
fits thereof and with full coverage under this act in a corporation or
association authorized to do business in the State of Alabama and
approved by the commissioner of insurance of the State of Alabama,
and if the employer shall post a notice or notices in a conspicuous
place or in conspicuous places about his place of employment, stating
that he is insured and by whom insured, and if the employer shall
further file a copy of such notice with the commissioner of insurance,
then, and in such case, any suits or actions brought by an injured
employee or his dependents shall be brought directly against the
insurer, and the employer or insured shall be released from’any further
liability: Provided, That in case of insolvency or bankruptcy of such
insurance company or in case it can not be reached by due diligence by
process in this State, the employer shall not be released from liability
under the provisions of this act: And provided further, That should any
recovery had in excess of the amount of the insurance carried the
employer shall be liable for such excess. The return of any execution
upon any judgment of an employee against any such insurance com
pany unsatisfied in whole or in part shall be conclusive evidence of the
insolvency of such insurance company for the purpose of this act and
in case of the adjudication of bankruptcy or insolvency of any such
insurance company by any court of competent jurisdiction, proceedings
may be brought by the employee against the employer in the first
instance or against such employer and insurance company jointly or
severally or in any pending proceeding against any insurance company,
the employer may be joined at any time after such adjudication.
S ec . 31. (1) Any person who creates or carries into operation any Evading profraudulent scheme, artifice or device to enable him to execute work Visi0ns of ^
without himself being responsible to the workman for the provisions of
this act, shall himself be included in the term 11employer,” and be
subject to all the liabilities of employers under this act. "But this sec
tion shall not be construed to cover or mean an owner who lets a con
tract to a contractor in good faith, nor to a contractor who, in good faith,
lets to a subcontractor a portion of his contract: Provided, however, That
no person shall be deemed a contractor or subcontractor so as to make
him liable to pay compensation within the meaning of this section, who
performs his work upon the employer’s premises, and with the em
ployers’ tools or appliances and under the employer’s direction; nor
one who does what is commonly known as ‘ ‘ piecework/’ or in any way
where the system of employment used merely provides a method of
fixing the workman’s wages. (2) When compensation is claimed from,
or proceedings taken against, a person under subdivision 1 of this sec
tion, the compensation shall be calculated with reference to the wage the
workman was receiving from the person by whom he was immediately
employed at the time of the injury. (3) The employer shall not be
liable or required to pay compensation for injuries due to the acts or
omissions of third persons not at the time in the service of the employer,
nor engaged in the work in which the injury occurs, except as provided
in section 32.
S e c. 32. ( 1 ) Third party under part 2 . Where an injury or death L^biiity
of
for which compensation is payable under part 2 of this act is caused * ird Parties*
under circumstances also creating a legal liability for damages on the
part of any party other than the employer, such party also being subject
to the provisions of part 2 of this act, the employee in case of injury, or
his dependents in case of death, may, at his oV their option, proceed
either at law against such party to recover damages, or against the em
ployer for compensation under part 2 of this act, but not against both.
If the employee in case of injury, or his dependents in case of death,
shall bring an action for the recovery of damages against such party
other than the employer or his insurance carrier, the amount thereof,
manner in which, and the person to whom the same are payable, shall
be as provided for in part 2 of this act and not otherwise: Provided, That
in no case shall such party be liable to any person other than the em
ployee or his dependents for any damages growing out of or resulting
from such injury or death. If the employee or his dependents shall

284

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elect to receive compensation from the employer, then the latter or his
insurance carrier shall be subrogated to the right of the employee or his
dependents, to recover against such other party, and may bring legal
proceedings against such party and recover the aggregate amount of
compensation payable by him to such employee or his dependents here
under, together with the costs of such action and reasonable attorney’s
fees expended by him therein. (2) Third party not under part 2.—
Where the injury or death for which compensation is payable under
part 2 of this act was caused under circumstances also creating a 1egal lia
bility for damages on the part of any party other than the employer,
such party not being subject to the provisions of part 2 of this act, legal
proceedings m&y be taken by the employee or dependents against such
other party to recover damages, notwithstanding the payment by the
employer, or his liability to pay compensation hereunder. But in such
case, if the action against such other party is brought by the injured em
ployee, or in case of his death by his dependents, and judgment is ob
tained and paid, or settlement is made with such other party, either
with or without suit, the employer shall be entitled to deduct from the
compensation payable by him the amount actually received by such
employee or his dependents: Provided, That if the injured employee,
or in case of his death his dependents, shall agree to receive compensa
tion from the employer or shall institute proceedings to recover the same,
or accept from the employer any payment on account of such compen
sation, such employer or his insurance carrier shall be subrogated to all
the rights of such employee, or dependents, and may maintain, or in
case an action has already been instituted, may continue the action
either in the name of the employee or dependents, or in his own name
against such other party for the recovery of damages, but such em
ployer shall nevertheless pay over to the injured employee or depend
ents all sums collected from such other party by judgment or otherwise
in excess of the amount of such compensation payable by the em
ployer under part 2 of this act, and costs, attorney’s fees, and reasonable
expenses incurred by such employer in making such collection or en
forcing such liability: Provided, That in no case shall such party be
liable to any person other than the employee or his dependents for any
damages growing out of or resulting from such injury or death.
Rules to beuniS ec . 33. It shall be the duty of the chief justice of the Supreme
fonn*
Court of Alabama, from time to time, as he deems it is necessary, to
prepare uniform rules for the circuit judges and circuit courts, which
may be necessary for carrying out the provisions of this act including
such forms for orders and decrees as said chief justice of the Supreme
Court of Alabama deems best, such rules and forms when so prepared
and promulgated by the chief justice of the Supreme Court of Alabama
shall be followed and used by the said judges and courts.
Commissioner.
S ec . 33a. For the purpose of gathering statistics and performing the
duties hereinafterwards required there is hereby created an office
known and designated as the compensation commissioner of the State
Alabama. The director of the department of archives and history of
the State of Alabama shall be ex officio the compensation commissioner
of the State of Alabama.
Duties.
S ec . 34. The compensation commissioner of the State of Alabama
shall prepare and cause to be printed, at the expense of the State and
to be paid for as other supplies are paid for, and upon request furnish
free of charge to any employee or employer such blank forms and
literature as he shall deem requisite to facilitate or promote the efficient
administration of this act other than the papers relating to court pro
ceedings, which as set forth in the section 33 are to be prepared by the
chief justice of the Supreme Court of Alabama.
Records of acciS ec . 35. Every employer shall hereafter keep a record of all injuries,
fatal or otherwise, for which compensation is claimed or paid, received
by his employees in the course of their employment, on blanks ap
proved by the compensation commissioner of the State of Alabama.
Within fifteen days after the occurrence and knowledge thereof by the
employer of an injury to an employee, causing his absence from work
for more than fourteen days, for which compensation is claimed or paid
a report shall be made in writing and mailed to the compensation com-

TEXT OF LAW S---- ALABAMA.

285

missioner of the State of Alabama on blanks to be procured from such
commissioner for this purpose.
S ec . 36. Such employer shall within ten days after the settlement Settlements to
of any cause make a report in writing giving the details of such settleeporte *
ment and mail the same to the compensation commissioner of Alabama
on blanks to be procured from the commissioner for such purpose.
S ec . 37. The clerk of the circuit court shall within ten days after Courts to make
the disposition of any case in his court make a report in writing, giving reports*
the details of such disposition, and mail the same to the compensation
commissioner of Alabama on blanks to be procured from the commis
sioner for such purpose.
S ec . 38. Upon the termination of the disability of the injured em- Supplementary
ployee or if the disability extends beyond a period of 60 days then reports*
also at the expiration of such period the employer shall make a supple
mentary report'to the compensation commissioner of the State of Ala
bama on blanks to be procured from the commissioner for such purpose.
S ec . 39. It shall be the duty of the compensation commissioner of . Reports to legthe State of Alabama from the records of the insurance commissioner l ure#
of Alabama and from the reports furnished to him and from such other
information as he may obtain, to prepare and submit to the next
regular session of the legislature- of Alabama upon its convening a de
tailed and statistical report showing the results, as fully as the same can
be shown, of the operation of this act, the number of employers carrying
their own insurance, the number of employers insuring their risks
with insurance companies, the number of insurance companies, asso
ciation, or corporations engaged in the business of workmen’s compensa
tion insurance in the State of Alabama, the extent of such business,
the premium rates charged therefor and a comparison of such premium
rates with rates charged in other States, and with such recommenda
tions as he desires to make in reference to the amendment or im
provement of this act. For preparing said report, printing the same,
and furnishing same such compensation commissioner shall be paid
out of the State treasury the necessary reasonable expense therefor and
in addition such sum of money as may be approved by the governor
of the State of Alabama for his services.
S ec . 40. (1) Whoever makes in the verified complaint in section 28 Violations,
hereof provided for or in any claim for compensation hereunder any
statement knowing it to be false shall be guilty of perjury and must,
on conviction, be imprisoned in the penitentiary for not less than
three or more than twenty years. (2) Any person entitled to compensa
tion under this act whose compensation by the terms of this act ceases
upon marriage or upon his becoming over the age of eighteen years,
or for any other cause herein provided for, knowingly accepts any pay
ments or compensation after marriage, or after he becomes over eighteen
years of age, or after the disability for which he is receiving compensa
tion has ceased, shall be guilty of a misdemeanor, and on on conviction,
may be imprisoned in the county jail or sentenced to hard labor for the
county for not more than twelve months, and must also be fined not
more than five hundred dollars. (3) Any person knowingly guilty of
doing an act amounting to fraud in making or perfecting a settlement
under the authority of this act, or by means of fraudulent representa
tion obtaining a settlement from any employee shall be guilty of a
misdemeanor and on conviction may be imprisoned in the county jail
or sentenced to hard labor for the county for not more than twelve
months, and must also be fined not more than five hundred dollars.
(4) Any person who knowingly presents a false or fictitious claim of
injury for compensation hereunder or who aids or assists in the pre
sentment of such false or fictitious claim, knowing the same to be false
or fictitious, shall be guilty of a misdemeanor, and on conviction, may
be imprisoned in the county jail or sentenced to hard labor for the
county for not more than twelve months, and must also be fined not
more than five hundred dollars. (5) Any person, upon any hearing
before the judge of the circuit court or before the circuit court in refer
ence to any compensation claimed or paid hereunder, who knowingly
testifies falsely as to any material fact shall be guilty of perjury and
must, on conviction, be imprisoned in the penitentiary for not less than
three nor more than twenty years. (6) Any physician who makes any

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statement or certificate as to any compensation claimed or paid here
under, knowing it to be false, shall be guilty of a misdemeanor, and
on conviction, may be imprisoned in the county jail or sentenced to
hard labor for the county for not more than twelve months and must
also be fined not more than five hundred dollars. (7) Any attorney
who in person solicits employment to collect for a consideration any
claim of any employee for compensation hereunder or solicits for a
consideration employment to defend such claims or who knowingly
accepts such claim after it has been solicited by some other person
or who employs any other person for the purpose of soliciting or obtain
ing such claim or claims shall be guilty of a misdemeanor, and on con
viction, may be imprisoned in the county jail or sentenced to hard
labor for the county for not more than twelve months and must also
be fined not more than five hundred dollars. Any attorney convicted
hereunder must be removed and disbarred from the practice of law in
this State and the record of his conviction is conclusive evidence
thereof. The commission by any attorney of any of such acts shall
also be a cause for the removal and disbarment of such attorney. (8)
Any person who is not authorized by law to practice the profession of
law within this State who solicits for a consideration ov traffics in for a
consideration or represents for a consideration any claimant^ claimants,
or claim for compensation hereunder shall be guilty of a midemeanor,
and on conviction, may be imprisoned in the county jail or sentenced
to hard labor for the county for not more than twelve months and must
also be fined not more than five hundred dollars. (9) Whoever makes
in any affidavit required to be filed hereunder any statement knowing
it to be false shall be guilty of perjury and must, on conviction, be
imprisoned in the penitentiary for not less than three nor more than
twenty years. (10) Any insurance corporation, organization, or associa
tion, or any officer, employee, or agent of such insurance corporation,
organization, or association, who solicits or writes any workmen’s com
pensation insurance in this State without complying with the law as
herein set forth in reference to filing with the insurance commissioner
its classifications of risks and premiums relating thereto or without
having received from said insurance commissioner approval of its plan
of business or who fails to comply with any other requisites herein set
out for the doing of such insurance business in the State of Alabama,
shall be guilty of a misdemeanor, and on conviction, may be im
prisoned in the county jail or sentenced to hard labor for the county
for not more than twelve months and must also be fined not more than
five hundred dollars. (11) Any person required hereunder to make
reports in writing who willfully fails to make such reports shall be
guilty of a misdemeanor, and on conviction, may be imprisoned in
the county jail or sentenced to hard labor for the county for not more
than twelve months and must be fined not more than five hundred
dollars. (12) Any person other than a beneficiary under this act who
for a consideration takes or accepts from an employee an assignment
of his claim or award or judgment for, or agreement to pay, compensa
tion, or who accepts or takes same as security for a loan or a debt, or
who takes a power of attorney to collect the same, retaining any inter
est in the amount to be collected, shall be guilty of a misdemeanor,
and on conviction may be imprisoned in the county jail or sentenced
to hard labor for the county for not more than twelve months and must
also be fined not more than five hundred dollars.
S e c . 36 [41]. Throughout this act the following words and phrases as
used therein shall be considered to have the following meaning, re
spectively, unless the context shall clearly indicate a different mean
ing in the connection used, (a) The word “ compensation” has been
used both in part 1 and part 2 of this act to indicate the money benefits
to be paid on account of injury or death. Strictly speaking, the benefit
which an employee may receive by action at law under part 1 of this act
in [is] damages, and this is indicated in section 1. To avoid confusion,
the word “ compensation ” has been used in both parts of the act, but
it should be understood that under part 1 the compensation by way of
damages is determined by an action at law. (b) 11Child ” or “ children ”
includes posthumous children and all other children entitled by law
to inherit as children of the deceased, also step children who were

TEXT OiT LAW S— ALABAMA.

members of the family of the deceased at the time of his accident and
dependent upon him for support, (c) A dependent child or orphan
shall be considered to mean an unmarried child under the age of eight
een years, or one over that age who is physically or mentally incapaci
tated from earning, (d) The term “ employer” as used herein shall
mean every person not excluded by section 8, who employs another
to perform a service for hire and to whom the ‘ ‘ employer ’ *directly pays
wages, and shall include any person or corporation, copartnership, or
association, or group thereof, and shall, if the employer is insured,
include his insurer as far as applicable and shall not include one who
employs a less number than sixteen in any one business. (e) The term
“ physician” shall include “ surgeon,” and in either case shall mean
one authorized by law to practice his profession within one of the
United States and in good standing in his profession at the time.
(/) The term “ workman” shall include the plural and all ages and
both sexes. (g) The term ‘ ‘ employee ’ ’ and ‘ ‘ workman ’ ’ are used inter
changeably and have the same meaning throughout this act, and shall
be construed [so] to mean, (h) The terms “ wages,” “ weekly wages”
and such expressions shall in all cases, unless the context clearly indi
cates a different meaning, be construed to mean “ average weekly
earning.”
(2)
Every person not excluded by section 8, in the service of another
under any contract of hire, express or implied, oral or written, including
aliens, and also including minors who are legally permitted to work
under the laws of the State. Any reference herein to a workman or
employee shall where the employee is dead include a reference to his
dependents as herein defined if the context so require. (i) The
word “ accident” as used in the phrases “ personal injuries due to
accident” or “ injuries or death caused by accident” in this act shall,
unless a different meaning is clearly indicated by the context,
be construed to mean an unexpected or unforeseen event, happening
suddenly and violently, with or without human fault, and producing
at the time injury to the physical structure of the body, by accidental
means. (j ) Personal injuries, etc.—Without otherwise affecting
either the meaning or interpretation of the abridged clause, injuries
by an accident arising out of and in the course of his employment, it
is hereby declared: Not to cover workmen except while engaged in,
on, or about the premises where their services are being performed, or
where their service requires their presence as a part of such service
at the time of the accident, and during the hours of service as such
workmen, and shall not include an injury caused by the act of a
third person or fellow employee intended to injure the employee
because of reasons personal to him, and not directed against him as an
employee, or because of his employment, and it shall not include a
disease unless the disease results proximately from the accident.
(k) Wherever in this act the singular is used, the plural shall be
included; where the masculine Render is used, the feminine and neuter
shall be included. (Z) Amputation.—Amputations between the elbow
and wrist shall be considered as the equivalent to the loss of a hand,
and the amputation between the knee and the ankle shall be con
sidered as the equivalent of the loss of a foot, (m) “ The court” as
used herein shall mean the circuit court which would have jurisdiction
in an ordinary civil case involving a claim for the injuries or death in
question, and “ the judge” shall mean a judge of said court, (n) As
to constitutionality.—In case for any reason any paragraph or any
provision of this act shall be questioned in any court of last resort and
shall be held by such court to be unconstitutional or invalid, the same
shall not be held to affect any other paragraph or provision of this
act, except that parts 1 and 2 are hereby declared to be inseparable
and if either part be declared void or inoperative in an essential part
so that the whole of such part must fall, the other part shall fall with
it and not stand alone. # Part 1 of this act shall not apply in cases where
part 2 becomes operative in accordance with the provisions thereof,
but shall apply in all other cases, and in such cases shall be in extension
or modification of the common law.

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Sec. 36| [41£]. For the purposes of reference in other statutes and in
court proceedings this act may be, with legal effect, referred to as the
“ Workmen’s compensation act.”
S ec . 37 [42]. All laws or parts of laws inconsistent with the provisions
of this act are hereby repealed.
S ec . 38 [43]. This act shall take effect from and after the first dajr of
January, 1920: Provided, That those sections of the act which provide
for the making and issuance of forms shall take effect on the first day
of December, 1919.
Approved August 23, 1919.

ALASKA.
ACTS OF 1915.
C h a p . 71.— Compensation of ivorkmen for injuries.
S ection 1. Any person or persons, partnership, joint-stock com- Employees in
pany, association, or corporation employing five or more employees
opera'
in connection “with mining operations carried on in this Territory,
who shall not have given notice of his, her, their, or its election to
reject the provisions of this act in the manner hereinafter provided, or
who having given such notice shall, prior to the time that an employee is
injured, as hereinafter referred to, have waived the same in the manner
hereinafter provided, shall be liable to pay compensation, in accordance
with the schedule herein adopted, to each of his, her, their, or its
employees who receives a personal injury by accident arising out of
and in the course of his or her employment, or to the beneficiaries
named herein, as the same are hereinafter designated and defined, in
all cases where the employee shall be so injured and such injuries shall
result in his or her death: Provided, The employee so injured had not,
prior to the time of being so injured, given notice of his or her election
to reject the provisions of this act in the manner hereinafter provided,
or having given such notice had prior to such time waived the same in
the manner hereinafter provided.
The compensation to which such employee so injured, or in case of
Compensation
his or her death, if death results from such injury, such beneficiaries, for“
shall be entitled, and for which such employer shall be legally liable,
shall be as follows:
(A) In the event of the death of any such employee resulting from Death;
such injury, where such employee at the time of his death was married,
his widow shall be entitled to receive the sum of three thousand ($3,000)
dollars.
(B) (as amended by chapter 44, Acts of 1917). In those cases where
such married employee had children under the age of sixteen (16)
years at the time of his death, his widow shall be entitled to receive in
addition to the sum above specified, the sum of six hundred dollars
($600) for each child under the age of sixteen (16) years, or child wholly
dependent upon his or her parents for support by reason of physical or
mental in competency, or unborn or posthumous child which such
employee left at the time of his decease, but not to exceed in all the
sum of six thousand dollars ($6,000).
(0)
In those cases where such employee left either father or mother
or both, dependent upon him for support at the time of his death, the
sum of six hundred ($600) dollars shall be paid to such father or mother
or both, in addition to the sum provided for and made payable to the
widow. In no case, however, is the total sum to be paid hereunder to
exceed the sum of six thousand ($6,000) and the payments to which the
widow and children may be entitled shall be first paid out of said sum
of six thousand ($6,000) dollars.
(D) In those cases where such deceased employee was unmarried at
the time of his or her death survived by either his or her father or
mother, who was at the time of his or her death dependent upon him or
her for support, such father or mother shall be paid the sum of one
thousand two hundred ($1,200) dollars.
(E) Where such deceased employee was survived by his or her
father and mother, both dependent upon him or her for support at the
time of his or her death, such father and mother dependent upon him
or her for support shall be paid the sum of one thousand two hundred
($1,200) dollars each.
(F) In those cases where such deceased employee was a widower at
the time of his death, but left one or more minor orphan children, there
shall be paid the sum of three thousand ($3,000) dollars, and the further
sum of six hundred ($600) dollars for each orphan child under the age of
sixteen (16) years: Provided, The total amount paid shall not exceed
six thousand ($6,000) dollars; and the judge of the probate court of the

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precinct wherein such accident or injury occurred shall appoint a
guardian for all said children, who shall be entitled to and who shall
be paid the amount specified in this paragraph for the benefit of said
orphan children, and shall divide three thousand ($3,000) dollars
thereof equally among such children and divide the surplus, if any,
among the children under sixteen (16) years of age.
(G)
In those cases where such deceased employee is at the time of
his or her death unmarried, and leaves no children nor father nor mother
dependent upon him or her as above specified, the employer shall be
required to pay the funeral expenses of the deceased, not to exceed the
sum of one hundred fifty ($150) dollars, and such other expenses, if any,
arising after the injury and before the death, not to exceed the further
sum of one hundred fifty ($150 ) dollars.
P er ma n e n t
Where any such employee receiving an injury arising out of and in
total disability;
0f hia or ker employment as the result of which he or she ia
totally and permanently disabled, he or she shall be entitled to receive
compensation as follows:
(a) If such employee was at the time of his injury married, he shall
be entitled to receive four thousand eight hundred ($4,800) dollars,
with six hundred ($600) dollars additional for each child under the age
of sixteen (16) years, but the total to be paid shall not exceed six
thousand ($6,000) dollars.
(b) If such employee at the time of his injury had no wife or children,
but had a mother or father dependent upon him, four thousand two hun
dred ($4,200) dollars.
(c) In case where such employee who at the time of his injury had
both father and mother dependent upon him, four thousand eight hun
dred ($4,800) dollars.
(d) In those cases where such employee was at the time of his injury
a widower or was divorced, but had minor children, he shall receive the
sum of three thousand six hundred ($3,600) dollars, with an additional
sum of six hundred ($600) dollars for each child below the age of sixteen
(16) years: Provided, That the total sum to be paid such employee shall
not in any case exceed the sum of six thousand ($6,000) dollars.
(e) In those cases where such employee so injured at the time of his
injury was unmarried and had no children nor father nor mother de:
pendent upon him, he shall receive the sum of three thousand six
hundred ($3,600) dollars.
Permanen t Where any such employee receives an injury arising out of or in the
partial disability; course 0f his or her employment, resulting in his or her partial disabil
ity, he or she shall be paid in accordance with the following schedule:
For the loss of a thumb:
(a) In case the emplovee was at the time of the injurv unmarried,
$480.
(b) In case the employee was married but had no children, $600.
(c) In case the employee was either married or a widower, but had
one or more children, $720.
For the loss of an index finger:
(a) In case the emplovee was at the time of the injurv unmarried.
$300.
(b) In case that the employee was married but had no children, $390.
(c) In case the employee was either married or a widower, but had
one or more children, $480.
For the loss of any other finger than the index finder and thumb,
$180.
For the loss of a great toe, $300.
For the loss of any other toe than the great toe, $120.
For the loss of a hand:
(a) In case the employee was at the time of the injury unmar
ried, $1,440.
(b) In case the employee was married but had no children, $1,920.
(c) In case the employee was either married or a widower and had
one child, $1,920 and $240 additional for each of said children, not to
exceed, however, the total sum of $2,400.
For the loss of an arm:
(a) In case that the employee was at the time of the injury unmar
ried, $1,800.
(b) In case the employee was married but had no children, $2,400.

T E X T

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(c)
In case the employee was either married or a widower and had
one child, $2,400 and $300 additional for each additional child, the
total amount not to exceed, however, $3,000.
For the loss of a foot:
#(a) In case that the employee was at the time of the injury unmar
ried, $1,440.
(b) In case the employee was married but had no children, $1,800.
(c) In case the employee was either married or a widower and had
one child, $1,920 and $240 additional for each additional child, but
not to exceed the total sum of $2,400.
For the loss of a leg:
(a) In case the employee was at the time of the injury unmarried,
$1,800.
(b) In case the employee w'as married but had no children, $2,400.
(c) In case the employee was either married or a widower and had
but one child, $2,400 with $300 for each additional child, not to exceed
the total sum of $3,000.
For the loss of an eye :
(a) In case the employee was at the time of the injury unmarried,
$1,440.
(b) In case the employee was married but had no children, $1,920.
(c) In case the employee was either married or a widower and had
one child, $1,920, plus $240 for each additional child, not to exceed,
however, the total sum of $2,400.
For the loss of an ear, $240.
For the loss of the nose, $480.
For all other injuries causing temporary disability the e m p l o y e r
Tempor
shall pay the employee during the period of such disability fifty per disabllltycent (50%) of his daily average wages: Provided, however, That the
period for the payment for temporary disability shall not exceed
six (6) months. And in all cases where the injury develops or proves
to be such as to entitle the employee to compensation under some
provision in this schedule, relating to cases other than temporary
disability, and the employee has been paid compensation for tempo
rary disability, the amount so paid him shall be deducted from the
amount to which he shall be entitled under such provision in this
schedule.
The loss of both hands, or both arms, or both feet, or both legs, or
both eyes, or any two thereof, shall constitute total^ and permanent
disability and be compensated according to the provisions of this act
with reference to total and permanent disability.
Amputation between the elbow and the Wist shall be considered
equivalent to the loss of a hand, and amputation between the knee
and the ankle shall be considered equivalent to the loss of a foot.
Whenever such employee receives an injury, arising out of and in Proportio
the course of employment, as a result of which he or she is partially awardsdisabled, and the disability so received is such as to be permanent
in character and such as not to come wholly within any of the specific
cases for which provision is herein made, such employee shall be
entitled to receive as compensation a sum which Bears the same
relation to the amount he or she would be entitled to received here
under if he or she were totally and permanently disabled that the loss
of earning capacity of such employee, by reason of the accident,
bears to the earning capacity such employee would have had had he
or she not been injured, the amount to be paid in no case to exceed
four thousand eight hundred ($4,800) dollars.
To illustrate: If said employee were of a class that would entitle
him or her to four thousand eight hundred ($4,800) dollars under this
schedule, if he or she were totally and permanently disabled and his
or her injury would be such as to reduce his or her earning capacity
twenty-five (25% ) per cent, he or she would be entitled to receive one
thousand two hundred ($1,200) dollars, it being the amount that bears
the same relation to four thousand eight hundred ($4,800) dollars that
twenty-five (25%) per cent does to one hundrea (100%) per cent.
Should such employee receive an injury that would impair his or her
earning capacity seventy-five (75%) per cent, he or she would be
entitled to receive three thousand six hundred ($3,600) dollars, it

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being the amount that bears the same relation to four thousand eight
hundred ($4,800) dollars th'at seventy-five (75%) per cent does to one
hundred (100%) per cent.
Right to higher gEC. 2. If an injured employee entitled to compensation hereunder
awards.
shall be paid compensation under any subdivision or part of this
scredule [schedule], and it shall afterwards develop that he or she is
or was entitled to a higher rate of compensation under some other part
or subdivision of this schedule, then and in that event he or she shall
receive such higher rate, after first deducting the amount that has
already been paid him or her: Provided, however, That no compensation
under such increased rate shall be paid unless the disability entitling
the employee thereto shall develop within twp (2) years after the injury.
Settlement by
s Ec. 3. At any time subsequent to the injury the employer and
agreement.
em p i0y ee shall have the right to compromise and settle any claim
for injury hereunder in accordance with schedule herein, and the
employee shall have the right to give full satisfaction and acquittance
therefor and thereby discharge the employer from further liability,
and such satisfaction and acquittance shall be binding upon the said
employer, employee beneficiaries under this act, and all other persons
whatsoever.
Willful inteng ECt 4 . No compensation shall be allowed or paid for the injury or
twn'
death of an employee in any case where such injury or death was
occasioned by his or her willful intention to bring about the injury or
death of himself or herself or of another, or where the employee’s
intoxication was the proximate cause of the injury.
Waiting time.
gEC> 5 # No compensation shall be paid under this act for an injury
which does not incapacitate the employee for a period of at least two
weeks from earning full wages, but if incapacity extends beyond the
period of two weeks, compensation shall begin on the fifteenth day
Proviso.
after the injury: Provided, however, That if such disability continues
for eight weeks or longer, such compensation shall be computed from
the date of the injury.
Contractors.
S e c . 6 . No contractor or subcontractor shall be entitled to receive
compensation under this act, but shall be deemed to be an employer.
Remedy exclug EC> 7 . The right to compensation for an injury and the remedy
sive*
therefor granted by this act shall be in lieu of all rights and remedies
as to such injury now existing either at common law or otherwise, and
no rights or remedies, except those provided for by this act, shall accrue
to employees entitled to compensation under this act, while it is in
effect, nor shall any right or remedy, except those provided for by
this act, accrue to the personal or legal representatives, dependents,
beneficiaries under this act, or next of kin of such employees.
step - parents,
g EC# 8 , Step-parents shall be regarded in this act as parents; and
an adopted child, or adopted children, or a stepchild, or children,
shall be regarded in this act as issue of the body.
Statement as to
g EC> 9 Every employee coming within the provisions of this act
dependents.
shall, either at the time he or she is employed or thereafter, furnish
his or her employer with a written statement showing the name or
names of each and all persons that would be entitled to benefits under
the provisions of this act in case such employee should become de
ceased as a result of an injury received by him or her arising out of and
in the course of his or her employment; such written statement shall
bear the date upon which the same shall be furnished to the employer
and shall be signed by the employee: Provided, That in cases where
such employee is unable to write his or her name, his or her name may
be affixed to such statement by another, and such employee shall make
liis or her mark in the manner customary in such cases, and such mark
shall be made in the presence of at least one witness, who shall sub
scribe such statement as a witness.
In all cases where there shallIbe a change of beneficiaries, or a change
in the address of any beneficiary, the employee may furnish the em
ployer with a new statement showing such change; such new statement
to be so furnished shall in all respects conform and comply with the
provisions hereof with reference to the original statement to be fur
nished.
In all cases where such statement or statements is or are furnished
the employer by the employee, the employer shall, if such employee

TEXT OF LAW S---- ALASKA.

293

became deceased as a result of an injury received in the course of his or
her employment, notify each beneficiary named in the last statement
of that fact; such notice shall be given by sending each beneficiary at
the address given in the last statement furnished a copy of such notice
by registered mail, and an envelope containing such notice addressed
to each beneficiaryat the address given in said last statement furnished
shall be deposited in the post office and registered within ten days after
such iemployee shall have become deceased.
The notice to be so given shall be substantially in the following form:
T o ------------------- (giving the name of the beneficiary):
This is to advise you that------------------- (giving the name of the de
ceased person) became deceased on the---------day o f-------- as a result of
an injury received while in the employ o f ------------------- . You will
take notice that all persons entitled to benefits because of the fact that
the above-named employee was injured and as a result thereof became
deceased, under the laws of Alaska, are required to serve notice upon
the employer within one hundred and twenty (120) days after the date
on which such employee became deceased, in accordance with the pro
visions of the laws of Alaska upon that subject, and that a failure to
serve such notice within the time specified and in the manner specified
will result in depriving the beneficiary failing to give such notice within
such time and in such manner of his or her rights to compensation
under the laws of Alaska.
Any failure on the part of the employee to supply the employer with
a statement as hereinabove provided shall not work a forfeiture of the
right of his or her beneficiaries to benefits hereunder, but it shall re
lieve the employer of all obligation to give to any of the beneficiaries of
such deceased employee notice of the fact that such deceased employee
became deceased.
In cases where the employer shall have been furnished with such
statement or statements and shall fail to notify the beneficiaries therein
named as shown by the last statement furnished, within the time and
in the manner herein provided, such beneficiaries who have not been
so notified shall have the right to notify the employer of their
claim to benefits and file claims and prosecute actions or other proceed
ings for the recovery thereof, notwithstanding the fact that such notice
was not served, as hereinafter provided, within the period of one hun
dred and twenty (120) days from and after the time that the employee
became deceased.
Upon the trial of any issue relating to a beneficiary’s right to compen
sation under this act, any statement furnished an employer, as herein
above provided, may be offered in evidence by such employer, and
when so offered shall be received in evidence and shall be held to es
tablish the fact that the persons named in the statement bore to the
deceased the relation shown by such statement at the date thereof.
In all cases where any person claims to be a beneficiary under this
act entitled to compensation because of an injury to an employee com
ing within its provisions, which resulted in his or her death, such ben
eficiary, or some one in his or her behalf, shall within one hundred and
twenty (120) days from and after the death of such employee serve a
written notice upon the employer, which notice shall contain the name
and address of the person claiming to be such beneficiary, the relationship
existing between such beneficiary and the deceased; and if such bene
ficiary shall be either the father or mother of the deceased, such notice
shall also contain a statement showing that such person was dependent
upon the earnings of the deceased. Such notice shall be liberally
construed, and no claim for compensation shall be denied because of
any defect in the notice: Provided, It appears that a notice was served
with a bona fide intention to comply with the provisions of this act.
Such notice may be served by any person of legal age by delivering a
copy thereof to the employer or the employer’s agent in person or by
leaving a copy thereof at the employer’s principal place of business
within the Territory of Alaska with some person over the age of eighteen
(18) years in the employ of such employer. If the employer can not be
found within the Territory and has no known agent or place of business

Notice,

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Notice
posits.

Actions
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Pablicaiion
notice.

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therein^ such beneficiary may serve such notice b y publishing the same
in one issue of any newspaper of general circulation published in the
judicial division where the injury, out of which the right to compensa
tion arose, occurred. Except in the cases in this section otherwise
expressly provided, no action or other proceedings to recover such com
pensation shall be brought or maintained, nor shall any claim for such
compensation be filed or allowed, as hereinafter provided, unless such
notice shall have been served in the manner and within the time herein
provided.
fry
S e c . 1 0 . In case one or more beneficiaries serve notice upon an em
ployer, as above provided, of his, her, or their claim to compensation
under this act, such employer may at any time during the ten days next
following the period of one hundred and twenty (1 2 0) days during which
such notices could be served, deposit six thousand ($6,000) dollars with
the clerk of the district court for the division within which such em
ployee was injured, or such employer may deposit with such clerk of
the court a bond in the sum of six thousand ($6,000) dollars, signed by
such employer as principal and two or more good and sufficient sureties,
to be approved by the judge of the court, conditioned that such em
ployer will pay the sum or sums that may be finally awarded as com
pensation under this act under the judgment of the court to the ^person
or persons entitled thereto according to said judgment, and conditioned
further that judgment may be entered on said bond, not only against
the principal, but against the sureties, and each of them, jointly and
severally, as well as by the court in said proceeding and without bring
ing a separate action on said bond. No action brought to recover such
compensation shall be tried until after the expiration of said period of
one hundred and twenty (120) days and said period of ten days.
de* S e c . 11. Upon depositing such sum or such bond, as above provided,
the employer shall notify in writing any and all persons who shall have
served notice upon such employer as herein provided, claiming to be
beneficiaries under this act, of the fact that such sum or bond has been
so deposited. Such notice may be served by delivering a copy thereof
to the person to be served in person or by sending a copy thereof by reg
istered mail to the address given in the notice served upon the employer
by the beneficiary to be served.
to
S e c . 1 2. If prior to the time that such sum or such bond is so
deposited an action or actions have been commenced against such
employer to recover compensation on account of the death of such
employee by a person or persons claiming to be a beneficiary or
beneficiaries, such action or actions shall thereupon abate, and all pro
ceedings had therein shall be quashed and set aside, and the plain
tiff or plaintiffs shall thereupon be required to establish his, her, or their
claims to compensation in the manner hereinafter provided. In case
where such action or actions is or are so dismissed, and it is after
wards adjudged that the plaintiff or plaintiffs is or are entitled to
compensation in connection with the injury which was the subject
matter of the action or actions so dismissed, such plaintiff or plain
tiffs shall then be awarded his, her, or their costs in the action or
actions so dismissed, which the employer shall be required to pay,
in addition to the other sum or sums awarded against the employer.
S e c . 13. The employer by whom such sum or such bond shall
have been deposited shall, upon such deposit having been made,
give at least sixty (60) days’ notice of the fact that such sum or such
bond has been so deposited with the clerk of the district court, which
notice shall be published in a newspaper published within the
commissioner’s precinct within which such employee was injured,
or, if no newspaper be published in such precinct, then in a news
paper published nearest the place wiiere such employee was injured.
The notice shall be published once a week for four (4) consecutive
weeks, and the sixty (60) days’ period shall commence to run from
the date of the first publication. Such notice shall be substantially
in the following form:
Notice to beneficiaries b y --------------------, employer, has deposited
with the clerk of the district court for the Territory of Alaska, divi
sion num ber------, the sum of six thousand ($6,000) dollars (or a good
and sufficient bond in the sum of six thousand ($6,000) dollars, as

TEXT OE LAW S---- ALASKA.

295

the case may he) in accordance with the provisions of the^ law relat
ing to employees’ compensation, for award and distribution among
the beneficiaries thereto entitled because of the death o f -------------------,
an employee of s a id --------------——■, employer; and all persons are
notified, cited, and warned to appear before the district court for the
Territory of Alaska, division num ber---------, on or before the — day
o f ---------and make and file their claims, if any, to compensation.
------------------- , Employer.
S e c . 14. All beneficiaries shall, within the time fixed by said Claims to be
notice, file his or her or their claim in writing with such district e
court, which said claim shall be verified by the oath of the claim
ant or claimants, or some one authorized thereto in his or her or
their behalf, and#shall set up the facts relied upon as a basis for the
claimant’s o| claimants’ claim to such compensation under this act.
Two or more claimants may join in the same claim or may file sep
arate claims. A copy of each claim so filed shall be served upon
the employer, who shall have twenty days, from and after the time
such copy has been so served, to file an answer thereto. Such answer
may admit, or deny, the facts set up in said claim, either in whole or in
part, or may set up any other defense thereto. And any and all claim
ants shall have the right within twenty (20) days from and after the
date as fixed in the published notice within which claims may be filed,
to file an answer thereto admitting or denying the same, either in whole
or in part, or setting up any defense whatsoever to the allowance of
such claim. The court may, in its discretion and in furtherance of
justice, allow the parties to amend the claims or answers filed.
Sec. lS. 'The court shall upon the application of the employer Hearings,
or any claimant fix a date for a hearing upon the claim or claims
so filed, which date shall be not less than thirty (30) days later than
the date fixed in the published notice for the filing of such claims.
The hearing may be continued at any time by the court for good
cause shown as in other cases. Upon the date set for hearing, or at any
time prior thereto, the employer or any claimant, who shall have
filed his claim, as herein provided, may ask for a jury to try and
determine any issue or issues of fact arising upon any of the claims
and answers so filed. If no jury is demanded, as above provided,
a jury shall be deemed to have been waived, and the trial of all the
issues raised shall proceed before the judge of the court as in other cases.
Upon a trial, whether before the court or jury, proofs shall be offered
by the claimant or claimants in support of his, her, or tlieir claims
to compensation under this act in the same manner that proof is heard
and received upon the trial of other civil cases. The court shall also
hear and receive such proof as may be offered by the employer touch
ing the right of any or all of the claimants to compensation under
this act, and the fact that such employer has deposited the sum afore
said, or the bond as herein provided for, shall not be construed asan
admission against such employer.
Upon such trial evidence shall be received in accordance with
the rules of evidence touching any issue of fact raised as herein
before provided. The order of proof shall rest in the discretion of
the court, but such discretion shall be so exercised as to give all par
ties a full, fair, and complete hearing. Upon the conclusion of such
trial the court shall, in all cases tried before the court without a jury,
make written findings of fact based upon the evidence before him.
And in all cases tried before a jury, the jury shall determine any
and all issues of fact under instruction from the court as in other
cases. Upon the filing of such findings of fact made by the court, or
such verdict rendered by the jury, the court shall, unless a new trial
is granted, enter a judgment in accordance therewith.
S e c . 16. If no claim on the part of any dependent be filed with
Return of dethe district court within the time specified by the notice above re- p s‘
ferred to, or if such claim or claims be filed and it appear from the
findings of the court or the verdict of the jury that none of the claim
ants is entitled to compensation under this act, then the sum deposited
by the employer, less the cost of publishing the notice above provided
for and the filing, trial, and other fees of court in connection with
such proceeding, shall be returned to the employer in cases where
such sum was deposited as above provided, and the bond shall be de-

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clared void and the sureties thereon exonerated in those cases where
a bond was deposited, upon the payment by the employer of the filing,
trial, and other fees of court and the cost of publishing the notice as
herein provided.
Payments out
S e c . 17. In all cases where a judgment is entered against the emofdeposits.
ployer and in favor of one or more claimants, and where the sum of
six thousand ($6,000) dollars was deposited as aforesaid by the em
ployer, the amount to which each, any, and all claimants shall be so
adjudged to be entitled shall be paid to such claimant or claimants
out of the sum so deposited without costs and without the allowance
of interest thereon. And if any part of said six thousand ($6,000)
dollars so deposited shall remain after such payments have been
made to the claimant or claimants entitled thereto, under the judg
ment of the court, such amount shall be returned to tie employer,
less the court costs of any claimant or claimants, in any action or ac
tions which have been dismissed because of the deposit by the employer
of such six thousand ($6,000) dollars, as herein previously provided
for. Such court costs in such cases so previously dismissed shall
be allowed and paid to the claimant or claimants by which the same
was or were brought, in addition to the compensation to which sueh
claimant or claimants shall be found entitled, and shall be deducted
from the amount deposited in cases where the total amount of the
claims allowed plus such court costs does not exceed six thousand
($6,000) dollars. In other cases such claimant or claimants shall have
judgment against such employer for the court costs that shall have
accrued in such action or actions so dismissed.
Judgments.
S ec . 18. In cases where the employer has deposited a bond as herein
provided and judgment is entered in favor of one or more claimants as
herein provided, such judgment shall be entered in favor of the claim
ant or claimants found entitled thereto, and shall specify the amount
to which each of such claimants, if more than one, is entitled, and shall
be against the employer and each of the suretieson the bond so deposited
in such a manner that each and all shall be jointly and severally liable
under said judgment. In those cases where any one or more claimants
had filed actions which were dismissed because of the deposit of a bond
as herein provided and such claimant or claimants shall be adjudged
entitled to compensation so as to entitle him, her or them to costs in
connection with such action under the provisions hereof, and the total
amount of claims allowed plus such costs shall be less than six thousand
($6,000) dollars, the amount to which any claimant may be entitled to
as such costs shall be added to the amount to which such claimant is
entitled as compensation, and included within said judgment in his
favor and against the employer, and the sureties as above provided. In
all other cases separate judgments shall be entered against the employer
only for the amount of such costs in favor of the claimant or claimants
entitled thereto because of the dismissal of an action previously
brought by such claimant or claimants.
Appeals.
S e c . 19. One or more claimants may take an appeal from any judg
ment rendered under this act as to such claimant or claimants, and any
employer may take an appeal from any such judgment, either in whole
or in part, that is to say, as to any one or more of the claimants. Such
appeal shall be to the United States Circuit Court of Appeals for the
Ninth Circuit, and shall be taken up on writ of error, sued out and
prosecuted as in other cases. When, however, an employer takes an
appeal from such judgment or any part thereof against the allowance in
favor of any one or more claimants, and the judgment shall be affirmed
as to any such claimant, the claimant in whose favor the judgment has
been so affirmed shall be entitled to interest at the rate of eight (8 % )
per cent on the amount of his claim calculated from the date of the judg
ment and shall also be entitled to costs on appeal.
Actions to be
S e c . 20. Whenever two or more persons claiming to be beneficiaries
conso mated.
any(jeceage(j employee, whose beneficiaries are entitled to compen
sation under the provisions of this act, bring separate actions to recover
such compensation, such actions shall be consolidated and tried as one
action upon the application of any party to either or any of such actions.
Actions brought S ec . 21. Actions for the recovery of compensation due under this act,
ere*
may be brought, maintained and determined in and by the courts of
this Territory, and when so brought shall be governed by the law of pro-

TEXT OF LAW S— ALASKA.

297

cedure applicable to other actions for the recovery of money except
as herein otherwise expressly provided.
S ec . 22. No action for the recovery of compensation hereunder shall Venue,
be brought in any court holden outside of the judicial division in which
the injury occurred, out of which the right to compensation arises except
in cases where service can not be had on the employer in the judicial
division where the injury occurred. Any attempt to bring such action
in any court outside of the Territory of Alaska shall work a forfeiture of
the right of the plaintiff in such action to compensation under this act.
Sec. 23. (a) A writ of attachment shall be issued by the clerk of the Procedure,
court in which such action for the recovery of compensation under this
act is pending or by the United States commissioner in actions pending
in the court of such commissioner. Whenever the plaintiff or anyone
in his behalf shall make and file an affidavit showing that he or she is
entitled to recover compensation from the defendant, under the pro
visions of this act, such affidavit must show all the facts necessary to
bring the plaintiff within the provisions of this act, and must further
set up all the facts necessary to show that a cause of action exists in favor
of the plaintiff and against the defendant for the amount sued for and
for which the attachment is sought under the provisions of this act.
(b) Upon filing such affidavit in actions pending as aforesaid with the
clerk of the court, or the commissioner in actions pending in the court
of such commissioner, the plaintiff shall be entitled to have a writ of
attachment issued without filing any bond or other security; such writ
shall be directed to the marshal, and shall in all respects conform to writs
of attachment in other cases and shall be issued, served, executed, and
returned in the same manner that writs of attachment in other cases are
now issued, served, executed, and returned.
(c) The defendant may, however, file a written undertaking in any
pending cause for the benefit of the plaintiff in an amount equal to
double the amount sued for, executed by two or more sufficient sureties,
to-be approved by the judge or commissioner in whose court the action
is pending, and conditioned that the defendant will pay any judgment
that may be awarded against such defendant in the action. No writ of
attachment shall issue after such undertaking has been filed by the
defendant, and if such undertaking shall be filed after the writ has been
issued such writ shall be quashed, and if property has been attached
under such writ at the time of the filing of such undertaking such attach
ment shall be dissolved and set aside and the property attached returned
to the defendant.
S ec . 24. The employee shall, after an injury, at reasonable times dur- Medical examling the continuance of his or her disability, if so requested by his or her natl0ns*
employer, submit himself or herself to an examination by a physician
or surgeon authorized to practice medicine under the laws of the Terri
tory of Alaska, furnished and paid for by the employer. The employee
shall have the right to have a physician, provided and paid for by him
self or herself, present at such examination or examinations. If any
employee refuses to submit himself or herself to any such examination
or examinations provided for in this act, or in any way obstructs any
such examination or examinations, his or her rights to compensation
shall be suspended, and his or her compensation during such period of
suspension may, in the discretion of the jury or court determining an
action brought for the recovery of compensation under this act, be for
feited.
S ec . 25. No agreement by an employee to waive his or her rights to Waivers,
compensation under this act shall be valid, except as herein elsewhere
provided, and no employer or employee shall exempt himself, herself,
or itself, except in the manner herein elsewhere provided, from the
burden or waive the benefits of this act by any contract, agreement, rule,
icgulation, or device, and any such contract, agreement, rule, regula
tion, or device shall be absolutely void.
S ec . 26. Any and all claims for conpensation under this act shall be Limitation,
barred unless an action for the recovery of the same shall be commenced
within two years after the cause of action shall have accrued, or in the
event of mental incapacity within two years after the removal of such
mental incapacity.
S ec . 27. Where the injury for which compensation is payable under l i a b i l i t y of
this act was caused under circumstances creating a legal liability in some
p

298

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s a t io

l a w

o f

t h

i t e

s t a t e s

one other than the employer to pay damages in respect thereof, the em
ployee may take proceedings both against the one so liable to recover
damages and against anyone liable to pay compensation under this act,
but shall not be entitled to receive both damages and compensation.
And if the employee has been paid compensation under this act, the
employer by whom the compensation was paid shall be entitled to in
demnity from the person, firm, or corporation so liable to pay damages
as aforesaid, and to the extent of such indemnity shall be subrogated to
the rights of the employee to recover damages therefor.
Election
pre- S e c . 28. When five or more employees, as defined by this act, are
sumed when.
employed in the same general employment in connection with mining
operations carried on in this Territory, and in the usual and ordinary
conduct of such operations, it shall be presumed that the employer,
as defined by this act, has elected to pay compensation according to
the terms, conditions, and provisions of this act to such employees as
may sustain personal injury arising out of and in the course of the em
ployment, and in such case the employer shall be leiieved fiom lia
bility for a recovery of damages or other compensation for such personal
injuries unless by the terms of this act otherwise provided.
Defenses abroS e c .# 29. If such employer exercise the light to reject the teims,
gated.
conditions, and provisions of this act, in the manner and form by this
act provided, such employer shall not escape liability for personal
injury sustained by an employee of such employer when the injury
sustained arises out of and m the usual course of the employment be
cause:
(1) The employee assumed the risks inherent to or incidental to or
arising out of his or her employment, or the risks arising from the
failure of the employer to piovide and maintain a reasonably safe
place to work, or the risks arising from the failuie of the employer to
furnish reasonably safe tools or appliances, or because the employer ex
ercised reasonable care in selecting reasonably competent employees
in the business;
(2) That the injury was caused by the negligence of a coemployee;
(3) That the employee was negligent, unless and except it shall
appear that such negligence was willful and with intent to cause tho
injury; or the result of intoxication on the part of the injured p?rty;
(4) In actions by an employee against an employer for personal
injury sustained arising out of and in the course of the employment
where the employer has elected to reject the provisions of this "act, it
shall be presumed that the injury to the employee was the first result
and growing out of the negligence of the employer, and that such negli
gence was the proximate cause of the injury; and in such case the bur
den of proof shall rest upon the employer to rebut the presumption of
negligence.
Notice of rejecS e c . 30. Every such employer shall be conclusively presumed to
n‘
have elected to pay compensation to employees for injuries sustained
arising out of and m the course of the employment^ according to the
provisions of this act, unless and until notice in writing of an election
to the contrary shall have been given to the employee by recording
said notice with the United States commissioner in whose precinct the
employer’s operations are carried on; and if such operations are carried
on m more than one precinct, then such notice shall be recorded in
the office of the commissioner for each precinct in which the same are
being conducted, and the notice to reject shall be lecorded by the
commissioner, who shall be paid a fee of one and one-half dollars there
for, and such notice when so recorded shall be and become a public
record. Such recorded notice shall be substantially in the following
form, and the signature shall be witnessed by two witnesses:
em ployer’s

n o t ic e

reject.

To the employees of the undersigned:
You and each of you are hereby notified that the undersigned rejects
the terms, conditions, and provisions to pay compensation to em
ployees of the undersigned for injuries received as provided in the act
of the Legislature of the Territory of Alaska, known as “ An act relating
to the measure and recovery of compensation of injured employees in
the mining industry of this Territory, and the compensation to desig-

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299

nated beneficiaries where such injuries result in death, defining and
regulating the liability of employers to their employees in connection
with such industry, and repealing all acts and parts of acts in conflict
with this act, ’ ’ and that the undersigned employer elects to pay damages
for personal injuries of such employees under the common law and
statutes of this Territory, modified by the provisions of the act above
referred to and the other laws of the Territory of Alaska.
( S i g n e d ) -------------------.
Witnesses:

S ec . 31. The notice so recorded shall apply to the employees sub- Future hirings,
sequently employed by the employer with the same fulness and effect
and to the same extent and in like manner as employees in the employ
at the time the notice was recorded, except as herein provided.
Sec. 32. Where the employer and employee have not given notice Terms of conof an election to reject the terms of this act, this act shall constitute atracfc*
part of every contract of hire, express or implied, and the same shall
be construed as an agreement on the part of the employer to pay and
on the part of the employee to accept compensation in the manner as
by this act provided for all personal injuries sustained arising out of
and in the course of the employment.
Sec. 33. All employees affected by this act shall be conclusively Rejection by
presumed to have elected to take.compensation in accordance with emPl0Feesthe terms, conditions, and provisions of this act until notice in writing
shall have been served upon the employer or his agent in person, and
shall also have been recorded in the office of the commissioner for the
precinct in which the mining operations of the employer, in connection
with which the employee is employed, are conducted; and if such opera
tions are carried on in more than one precinct, then the same shall be
recorded in the precinct wherein the employer’s principal place of
business in the Territory is situate, and the commissioner shall record
the same, and shall receive a fee of one dollar and fifty cents therefor,
and the same shall be and become a public record. Such notice shall be
accompanied with an affidavit thereon showing the date upon which
the same was served upon the employer.
(b)
In the event that such employee elects to reject the terms,
conditions, and provisions of this act, the rights and remedies thereof
shall not apply where an employee brings an.action or takes proceed
ings to recover damages or compensation for injuries received growing
out of and in the course of his or her employment except as otherwise
provided by this act; and in such actions where the employee has re
jected the terms of this act the employer shall have the right to plead Defenses,
and rely upon any and all defenses, including those at common law,
and the rules and defenses of contributory negligence, assumption of
risk, and fellow servant shall apply and be available to the employer,
unless otherwise provided in this act: Provided, however, That if an
employee sustains an injury as the result of the employer’s failure to
furnish or fails to exercise reasonable care to keep or maintain any
safety device required by statute, or violates any ol the statutory pro
visions or rules and regulations now or hereafter in force relating to
safety of employees, the doctrine of assumed risk in such case growing
out of the negligence of the employer shall not apply or be available as
defensive matter to such offending party. The notice required to be
given by an employee shall be substantially in the following form:
em plo yee ’s

n o t ic e

reject.

T o -------------------(giving the name of the employer):
You are hereby notified that the undersigned elects to reject the
terms, conditions, and provisions of an act for the payment of compensa
tion as provided by an act of the Territorial Legislature of the Territory
of Alaska, entitled “ An act relating to the measure and recovery of com
pensation of injured employees in the mining industry of this Territory
and the compensation to designated beneficiaries where such injuries
result in death, defining and regulating the liability of employers to
their employees in connection with such industry, and repealing all
acts and parts of acts in conflict with this act,” and acts amendatory

300

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C O M P E N S A T IO N

L A W S

O F

T H E

U N IT E D

S T A T E S .

thereto, and elects to rely upon the common law, as modified by the
provisions of the act last above referred to, for the right to recover for
personal injury which I may receive, if any, growing out of and
arising from the employment while in line of duty for my employer
above named.
Dated th is------day o f ---------- , --------- .
( S i g n e d ) ------------------- .
United States of America,
Territory of Alaska, ss:
The undersigned being first duly sworn deposes and [says]: That
the above and toregoing written notice was on th e ---------day o f --------- •
served on the within-named employer of the undersigned by deliver
ing t o ------------------- (here give the name of the employer or his agent)
a true, correct, and verbatim copy thereof.
( S i g n e d ) ------------------- .
Subscribed and sworn to before me this---------day o f ----------, ---------.
Notary Public for Alaska. ,
My commission expires----------------.
Term of elec
S e c . 34. Where the employer or employee has given notice in com
tion.
pliance with this act electing to reject the terms thereof, such election
shall be for one year from the date of becoming effective, and unless
renewed within thirty days before the expiration of one year, as herein
provided, it shall be conclusively presumed that such party has elected
to waive the rejection made and come under the provisions of this act
Renewal of no to pay or accept, as the case may be, the compensation here provided
tice.
until the contrary is shown by the service of notice anew, electing to
reject the provisions of this act as herein provided.
Waiver of re
Sec. 35. Where an employer or employee rejects the terms, condi
jections.
tions, or provisions of this act such party may at any time thereafter
elect to waive the same by giving notice in writing in the same manner
required of the party in electing to reject the provisions of this act, and
which shall become effective and be recorded with the commissioner
or commissioners in like manner that said notice to reject is required to
be recorded.
Rejections by
S e c . 36. Where the employer and employee elect to reject the terms,
both parties.
conditions, and provisions of this act the liability of the employer
shall be the same as though the employee had not rejected the terms
and conditions thereof and the employer had rejected the same.
Assignment of
S e c . 37. No claim for compensation due under this act shall be
claims.
assignable, and all compensation due hereunder shall be exempt from
execution.
Employer.
S e c . 38. Whenever the term ‘ ‘employer” is used in this act refer
ence is had to any person or persons, partnership, joint stock company,
association, or corporation employing five or more employees in con
nection with mining operations carried on in this Territory. And
whenever the term 4‘employee” is used in this act reference is had to
an employee employed by an employer as above defined.
Mining opera
S e c . 39. The phrase ‘ ‘mining operations, ” whenever used in this act,
tions.
shall be held to include all work in connection with underground
workings, underground mines, open-cut working, surface working,
stamp mills, roller mills, chlorination processes, cyanide processes,
coke ovens, all reduction work of any kind or character, and all work
performed on or for the benefit of any, mine, mining claim, or claims,
whether quartz or placer, and the phrase shall be held to include
development and construction work as well as work carried on in con
nection with actual mining or milling.
Beneficiary.
S e c . 40. The term ‘ ‘beneficiary,” as used in this act, refers to any
person entitled to compensation under the provisions hereof.
Genders.
S e c . 41. The masculine gender whenever used herein shall be held
to include the femine and neuter.
Costs.
S e c . 42. If the court before whom any proceedings are brought
under this act determines that such proceedings have been brought,
prosecuted, or defended without resonable ground, it may asess the
whole cost of the proceedings upon the party who has so brought,
prosecuted, or defended them.
Approved April 29, 1915.

ARIZONA.

A r tic le

CONSTITUTION.
X V III.— Employment of labor— Compensation for injuries to
workmen.

Section 8. The legislature shall enact a workmen’s compulsory

C o m p u ls o r y

compensation law applicable to workmen engaged in manual or me- ComPensation.
chanical labor in such employments as the legislature may determine
to be especially dangerous, by which compulsory compensation shall
be required to be paid to any such workman by his employer, if in
the course of such employment personal injury to any such workman
from any accident arising out of, and in the course of, such employ
ment is caused in whole or in part, or is contributed to, by a necessary
risk of danger of such employment, or a necessary risk or danger in
herent in the nature thereof, or by failure of such employer, or any
of his or its officers, agents, or employee, or employees, to exercise
due care, or to comply with any law affecting such employment: Pro
vided, That it shall be optional with said employee to settle for such
compensation, or retain the right to sue said employer as provided
by this constitution.
REVISED STATUTES—CIVIL CODE—1913.
VIT.— Compensation for injuries to workmen.
3163. This chapter is a workman’ s compulsory compensation Titl©law as provided in section 8 of Article X V III of the State constitution.
S e c . 3164. Compulsory compensation shall be paid by his employer
Compensation
to any workman engagecf in any employment declared and determined to paid*whenas in the next section hereof (as provided in sec. 8 of Article X V III
of the State constitution') to be especially dangerous, whether said
employer be a person, firm, association, company, or corporation, if
in the course of the employment of said employee personal injury
thereto from any accident arising out of, and in the course of, such
employment is caused in w^hole, or in part, or is contributed to, by a
necessary risk of danger of such employment, or a necessary risk or
danger inherent in the nature thereof, or by failure of such .employer,
or any of his or its officers, agents, or employee or employees, to exer
cise due care, or to comply with any law affecting such employment.
Sec. 3165. The employments hereby declared and determined to be Especially danespecially dangerous (as provided in sec. 8 of Article X V III of the ^ n tf emp y"
State constitution) within the meaning of this chapter are as follows:
(1) The operation of steam railroads, electrical railroads, street
railroads, by locomotives, engines, trains, motors, or cars of any kind
propelled by a steam, electricity, cable, or other mechanical power,
including the construction, use or repair of machinery, plants, tracks,
switches, bridges, roadbeds, upon, over, and by which such railway
business is operated.
(2) All work when rnaldng, using or necessitating dangerous prox
imity to gunpowder, blasting poAvder, dynamite, compressed air, or
anv other explosive.
(3) The erection or demolition of any'bridge, building, or structure
in which there is, or in which the plans and specifications require,
iron or steel frame work.
(4) The operation of all elevators, elevating machinery or derricks
or hoisting apparatus used within or on the outside of any bridge,
building or other structure for conveying materials in connection with
the erection or demolition of such bridge, building or structure.
(5) All work on ladders or scaffolds of any kind elevated twenty (20)
feet or more above the ground or floor beneath in the erection, con
struction, repair, painting or alteration of any building, bridge, struc
ture or other work in which the same are used.
(6) All work of construction, operation, alteration or repair, where
wires, cables, switchboards, or other apparatus or machinery are in
use charged with electrical current.
(7) All work in the construction, alteration or repair of pole lines
for telegraph, telephone or other purposes.
C h a p te r

S e c tio n

302

-w o r k m e n 's

c o m p e n s a t io n l a w s

t h e u n it e d s ta te s .

(8) All work in mines; and all work in quarries.
(9) All work in tho construction and repair of tunnels, subways
and viaducts.
( 10) All work in mills, shops, works, yards, plants, and factories
where steam, electricity, or any other mechanical power is used to
operate machinery and appliances in and about such premises.
A i t er n a t i ve
S e c . 3166. In case such employee or his personal representative shall
right3 of employ- refuse to settle for such compensation as provided in section 8 of
Article X V III of the State constitution, and chooses to retain the
right to sue said employer (as provided in any law provided for in
section 7, Article X V Ilt of the State constitution) he may so refuse
to settle and may retain said right.
Failure to exerSEc. 3167. It is hereby declared and determined to be contrary to
cise due care.
public policy that any employer conducting any especially dangerous
industry, through any of his or its officers, agents, or employee or
employees, shall fail to exercise due care, or fail to comply with any
law affecting such employment, in such manner as to endanger the
lives and safety of employees thereof, without assuming the burden
of the financial loss through disability entailed upon such employees,
or their dependents, through such failure; and it is further declared
and determined to be contrary to public policy that the burden of
the financial loss* to employees in such dangerous employments, or to
their dependents, due to injuries to such employees received through
such accidents as are hereinbefore mentioned shall be borne by said
employees without due compensation paid to said employees, or
their dependents, by the employer conducting such employment,
owing to the inability of said employees to secure employment in said
employments under a free contract as to the conditions under which
they will work.
Liability withgEc. 3168. The common-law doctrine of no liability without fault is
out fault.
hereby declared and determined to be abrogated in Arizona as far as it
shall be sought to be applied to the accidents hereinbefore mentioned.
What injuries
S e c . 3169. When, in the course of work in any of the employments
sated
comi)en' described in section 67 of this title, personal injury by accident arising
out of and in the course of such labor, service, or employment, is caused
to or suffered by any workman engaged therein, by any risk or failure
specified in section 66 hereof, then such employer shall be liable to
and must make and pay compensation to the workman injured, and
his personal representative, when death ensues, for the benefit of the
estate of the deceased, for such injury at the rates and in the manner
hereinafter set out in this chapter.
Waiting time.
Provided, That the employer shall not be liable under this chapter
in respect of any injury which does not disable the workman for a
period of at least two weeks after the date of the accident from earning
full wages at the work at which he was employed at the time of the
injury, and
Provided, further, That the employer shall not be liable under this
chapter in case the employee refuses to settle for such compensation
and retains his right to sue as provided in section 68 of this title.
Amount of comSec. 3170. When an injury is received by a workman engaged in any
pensaaon
labor or service specified in section 67 of this title, and for which the
employer is made liable as specified in section 71 hereof, then the
measure and amount of compensation to be made by the employer to
such workman or his personal representative for such injuries, shall be
as follows:
For total disa(i) i f the injury by accident does not result in death within six months
11 y‘
from the date of the accident, but does produce or result in total inca
pacity o f the workman for work at any gainful employment for more
than two ( 2) weeks after the accident, then the compensation to be
made to such workman by his employer shall be a semimonthly pay
ment commencing from the date of the accident and continuing during
such total incapacity, of a sum equal to fifty (50) per centum of the
workman’s average semimonthly earnings when at work on full time
during the preceding year, if he shall have been in the employment
of such employer for such length of time; but if not for a full year,
then fifty (50) per centum of the average wages, whether semimonthly,
weekly, or daily, being earned by such workman during the time he
was at work for his employer before and at the time of the accident.

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303

( 2) In case (1) the accident does not wholly incapacitate the work- For partial disman from the same or other gainful employment; or ( 2) in case the ablllt^workman, being at first wholly incapacitated, thereafter recovers so
as to be able to engage at labor in the same or other gainful employ
ment, thereby earning wages, then in each case the amount of the
semimonthly payment shall be one-half of the difference between the
average earnings of the workman at the time of the accident deter
mined as above provided, and the average amount he is earning or is
capable of earning, thereafter, semimonthly in the same or other
employment—it being the intent and purpose of this chapter, that the
semimonthly payment shall not exceed, but equal, from time to time
one-half the difference between the amount of average earnings ascer
tained as aforesaid at the time of the accident, and the average amount
which the workman is earning, or is capable of earning, in the same
or other employment or otherwise, after the accident, and at the time
of such semimonthly payment. Such payments shall cease upon the
workman recovering and earning, or being capable of earning, in the
same or other gainful employment or otherwise, wages equal to the
amount being earned at the time of the accident.
Provided, however, That the payments shall continue to be made
as herein determined to the workman so long as incapacity to earn
wages in the same or other employment continues, but in no case shall
the total amount of such payments, as provided in subsections 1 and 2
of this section exceed four thousand ($4,000) dollars.
^(3) When the death of the workman results from the accident within For death,
six months thereafter, and the workman, at the time of his death,
leaves a widow, and a monor [minor] child, or children dependent on
such workman’s earnings for support and education, then the employer
shall pay to the personal representative of the deceased workman for
the exclusive benefit of such widow and child, or children, a sum
equal to twenty-four hundred times one-half the daily wages or earn
ings of the decedent, determined as aforesaid, but in no event more
than the sum of four thousand dollars ($4,000). Such sum shall be paid
in lump and held in trust by such representative for such widow and
children and applied by him to the support of the widow while she
remains unmarried, and to the support and education of the children
so long as necessary, and until eighteen (18) years of age, in such way
and manner as to him shall seem best and just, under and in accord
ance with the directions of the court having jurisdiction of the estate
of the decedent; any balance remaining unapplied at the closing of
the estate of the decedent shall be distributed to the decedent’s widow
(if still his widow), and the children or next of kin, as provided by the
law of descents. The personal representative may pay out of said
fund the reasonable and necessary expenses of medical attendance and
burial of the decedent. If the workman leaves no widow or child, or
children, but a father or mother or sister dependent on him for support,
then said sum shall be for their benefit to be applied as above provided.
If the deceased workman leaves no widow, children, or other depend
ents, then the employer shall pay the reasonable expenses of medical
attendance upon the decedent and also provide and secure his burial
in a proper cemetery, which may be chosen by the friends of the
decedent.
^ S e c . 3171. Any workman claiming compensation under the p rovi-. Medical examsions of this chapter shall, if requested by the employer, or upon matlonswritten notice by him given to the employer, submit himself for bodily
examination by some competent licensed medical practitioner or sur
geon of the county in which the workman then resides, to ascertain and
determine the nature, character, extent, and effect of the injury to such
workman at the time of such examination for the purpose of ascertain
ing the semimonthly compensation then and thereafter to be made.
The employer or the workman not having requested the examination
may have present at the examination a medical representative, by him
chosen. Each party shall pay his chosen representative the expenses of
Such examination. The said notice shall be given at least ten ( 10) days
before the date fixed for the examination, and the place shall be con
venient for the workman to be examined. In case the employer is a
corporation, the notice may be served on any officer or agent thereof
in the said county, and if none there, then elsewhere in the State.

304

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law s

the

u n it e d

states.

The examiner shall make a verified report in writing in duplicate
within ten ( 10) days after the examination and furnish one copy to the
employer and one to the workman. If any workman neglects or refuses
to submit to an examination, his right to compensation, if any, shall be
suspended until he notifies the employer in writing of his readiness to
submit thereto. No persons other than the physicians and surgeons
aforesaid shall attend any examination except by agreement of the
parties. If the employer and the workman each have an examiner,
and they shall agree upon and join in a report, the same shall be con
clusive so long as it remains in force. If either the employer or the
employee, having opportunity, fails to provide an examiner, then the
report of the examiner making such examination shall likewise be con
clusive so long as the same remains in force. If the workman and the
employer each have an examiner present, and they disagree as to the
nature, character, extent, or effect of the injury, and the degree of inca
pacity, if any, for labor on the part of the workman at the time of such
examination, then they shall join in a written report stating the matters
in which they agree, and in which they disagree, and mutually select
some disinterested medical practitioner or surgeon of the county, to
whom the same shall be referred, and who shall proceed promptly to
make an examination of the workman as to the matters in disagreement,
and the same shall be conclusive so long as such report remains in force,
which report shall be made by such disinterested examiner and verified,
and a copy thereof furnished to the employer and the workman. For
making such examination, such examiner shall be entitled to a fee of ten
dollars ($ 10), to be paid one-half by the employer and one-half by the
workman at the time of such examination. Such examination may be
required by the workman or the employer at periods not shorter than
three months from the date of the last examination. The report of any
examination shall supersede all previous reports. When there is dis
agreement between the examiners aforesaid, and they can not agree
upon a third person as above provided, then it shall be the duty of the
chairman of the board of supervisors of the county, on written notice
of either the workman or employer, to appoint some licensed medical
practitioner or surgeon, who shall be a resident of the county, to make
such examination, and said appointee shall be entitled to the same
compensation.
Notice.
S e c . 3172. Every workman seeking compensation under the provi
sions of this chapter, where the same is not fatal or does not render him
incompetent to give the notice, shall, within two weeks after the day of
the accident, give notice in writing to the employer, or his representative
employing such workman, or to the foreman or other employee of the
employer under whom he was working at the time of the accident, and
before the workman has voluntarily left the service of the employer and
during his disability. The notice shall state (1) the name and address
of such workman, (2) the date and place of the accident, (3) and state in
simple words the cause thereof, (4) the nature and degree of the injury
sustained, (5) and that compensation is claimed under this chapter. The
notice may be written and served personally by the workman or by
any one in his behalf on any person named above in this section, or by*
mail, postpaid, to such person, addressed to the office, place of busi
ness or residence of the person notified. No want or defect or inaccu
racy of the notice shall be a bar to the right of the workman to claim and
receive compensation under this chapter, or to maintain any proceed
ing to secure the same, unless the employer proves that he has been
seriously prejudiced by such lack of notice. No compensation shall be
claimed or allowed so long as such notice is not given. If the workman
is killed, or otherwise rendered incompetent to give the notice, the
same is not hereby required, nor is any notice required to be given by
the personal representative of such deceased person. It shall be the
duty of any one giving a notice as in this section provided, to mail a
duplicate copy to the attorney general of this State.
Settlement of
Sec. 3173. Any question which may arise between the employer and
oispu es.
the workman or his personal representative, under this chapter, shall
be determined either (1 ) by written agreement between the parties, or
(2) by arbitration, or (3) by reference and submission to the attorney
general of this State; and in case of a refusal or failure of the employer
and workman, or such personal representative, to agree upon a settle-

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ment by either of the modes above provided, then by a civil action at
law, showing such refusal or failure as a reason for suit. If any em
ployer fails to make and pay compensation, as in this chapter provided,
for a period of three months after the date of the accident, or for any
two months or more after payment of the last monthly compensation,
then the injured workman, if surviving, or the personal representative,
in case of death, may bring an action in any court of competent juris- Enforcement
diction to recover and enforce the compensation herein provided. cIaimsSuch action shaU be conducted as near as may be in the same manner
as other civil actions at law. The action shall be brought within one Limitation,
year after the happening of the accident, or after the nonpayment of
any semimonthly installment theretofore fixed by agreement or other
wise ; or within one year after the appointment of a personal represen
tative of the decedent. The judgment in such action, when in favor
of the plaintiff, shall be for a sum equal to the amount of payments
then due and prospectively due under the provisions of this chapter.
The judgment shall be for the total amount thereof and collectible
without relief from valuation or appraisement laws. And the court
awarding the judgment shall, by proper order, direct that the same
shall be paid ratably to the workman, if living, in semimonthly install Payments.
ments until the determination of the periods provided in this chapter
the same as if such payments were being made voluntarily or without
suit in conformity with this chapter. The judgment by agreement, if
it appears to the court to be for the best interests of the workman,
may be paid in lump and not otherwise. The court rendering the
judgment is hereby given power from time to time to make such orders
touching the matter of payments as may appear best to provide for the
maintenance and support of the workman and his family during his
infirmity, and for his and their benefit and security. The employer
shall have the right to stay the judgment in whole, whether the same
is to be paid in lump sum or monthly installments, upon securing the
same by one or more freehold sureties or a surety company, to be ap
proved by the court rendering the judgment, who shall enter into a
recognizance acknowledging themselves bound for the defendant for
the payment of the judgment in lump or in partial payments as the
same is, or shall be made, payable, together with interest and costs.
On failure of any one or more of such payments by the employer,
execution may issue out of said court and cause, against such defend
ant, and his bail from time to time leviable and collectible without
relief from valuation or appraisement or stay laws. The recognizance
shall be written upon the order book of the court and immediately
following the entry of the judgment and signed by such bail and
docketed in the judgment docket of the court against such defendant
and bailors, which shall bind the property of the same in the same
manner as the judgment binds the property of the employer. In an ac
tion by a personal representative of a deceased workman, the court shall
determine the proportions of the judgment, whether in lump or in in
stallments, to be distributed between the widow and child, or children, Distribution.
with power to alter and amend the proportionment from time to time on
petition of any party interested £ts the court may deem best for the
support, maintenance, and education of such widow and children.
In any action under this chapter the court shall fix and allow, at Attorney’s fees,
the time of entering the judgment against the employer, a reasonable
fee to the workman’s attorney, to be taxed against the employer as
costs, and collectible in the same manner. From such allowance
there shall be no right of appeal. Such attorney shall have no claim
for compensation upon the judgment or its proceeds, other than as
herein provided. But no allowance, or any fee payable by the work
man to an attorney for services, or any fee payable by the workman
to an attorney for services in securing a recovery or disbursement,
shall ever exceed twenty-five (25) per centum of the principal of the
sum recovered; and the same shall not be made a lien on the recovery
of its proceeds, except as may be determined and allowed and fixed
by the court.
Sec. 3174. Any workman entitled to monthly or other payments from Payments are
preferred claims.
or to any judgment against any employer as above provided, as com 1
177982°—21—Bull. 272-

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pensation shall have the same preferential claim therefor against the
property and assets of the employer and any bailor, as now is allowed
by law for unpaid wages or personal services. No judgment or any
part thereof, nor monthly payments due, or coming due, under this
chapter shall be assignable by the workman or subject to mortgage,
levy, execution, or attachment. But the same shall stand as a con
tinuing provision for the maintenance and support of such injured
workman during his incapacity for the periods provided in this chapter.
Mental incomS e c . 3175. In case an injured workman, having a right of action under
petence.
^ Qprovisi0ns of this chapter, shall be mentally incompetent at the time
when any right or privilege accrues thereunder to him, a guardian may
be appointed by any court having jurisdiction, to secure and protect
the rights of such workman; and the guardian may claim and exercise
any and all of such rights or privileges with the same force and effect
as if the workman himself had been competent and had claimed or
exercised any such right or privilege; and no limitation of time pro
vided in any of the foregoing sections shall run so long as said incompe
tent workman has no guardian.
Effect of act.
S e c . 3176. This chapter shall be construed as a continuation of the law
contained in chapter 14 of the laws of the first legislature of the State of
Existing con- Arizona, second session. All workmen employed by an employer at
tracts*
manual and mechanical labor of the kinds defined in section 67 of this
title shall be deemed and held in law to be employed and working
subject to the provisions of this chapter, and the employer and the
workman shall alike be bound by and shall have each and every bene
fit and right given in this chapter the same as if a mutual contract to
that effect were entered into between the employer and the workman
at any time before the happening of any accident. It shall be lawful,
however, for the employer and workmen to disaffirm an employment
under the provisions of this chapter by written contract between them,
or by written notice by one to, and served upon the other to that effect
before the day of the accident.
Substitute
Provided, Such written contract does not provide for less compen
schemes.
sation than as provided in this chapter. And in the absence of such
written contract or written notice, served as above provided, it shall be
taken and held that the employment and service is under this chapter;
and the same shall be the sole measure of their respective rights and
liabilities when and as provided in this chapter.
Suits.
Provided, If, after the accident, either the employer or the workman
shall refuse to make or accept compensation under this chapter or to
proceed under or rely upon the provisions hereof for relief, then the
other may pursue his remedy or make his defense under other existing
statutes, the State constitution, or the common law, except as herein
provided, as his rights may at the time exist. Any suit brought by the
workman for a recovery shall be held as an election to pursue such
remedy exclusively.
Agreements.
S e c . 3177. Any employer employing workmen to perform labor or
services of other lands than as defined m this chapter, and such work
men and employees may, by agreement, at any time during the em
ployment, accept and adopt the provisions of this chapter as to liabil
ity for accident, compensation, and the methods and means of pay
ing and securing and enforcing the same. And in every such case
the provisions of this chapter shall be taken in law and fact to bind
the parties as fully as if they were specifically mentioned and em
braced in the provisions of this chapter.
Nature of act.
Sec. 3178. This chapter is remedial in its purpose and shall be con
strued and applied so as to secure promptly and without burdensome
expense to the workmen the compensation herein provided and appor
tioned so as to provide support during the periods named for the loss
of ability to earn full wages.
Construction.
g EC> 3179. Nothing in this chapter shall be deemed or taken to
repeal or affect in any way any other acts or laws passed by the first
legislature of the State of Arizona, and as [sic] in so far as it refers to
the same subject in other acts it shall be deemed to be cumulative
only.
Approved May 13, 1913.
In effect October 1 , 1913.

CALIFORNIA.
CONSTITUTION.
A r tic le X X .— Compensation and insurance legislation.
S e c t io n 21. The legislature is hereby expressly vested with plenary
power, unlimited by any provision of this constitution, to create and
enforce a complete system of workmen’s compensation, by appropriate
legislation, and in that behalf to create and enforce a liability on the
part of any or all persons to compensate any or all of their workmen
for injury or disability, and their dependents for death incurred or
sustained by the said workmen in the course of their employment,
irrespective of the fault of any party. A complete system of work
men’s compensation includes adequate provisions for the comfort,
health and safety, and general welfare of any and all workmen and
those dependent upon them for support to the extent of relieving from
the consequences of any injury or death incurred or sustained by work
men in the course of their employment, irrespective of the fault of any
party; also full provision for securing safety in places of employment;
full provision for such medical, surgical, hospital, and other remedial
treatment as is requisite to cure and relieve from the effects of such
injury; full provision for adequate insurance coverage against liability
to pay or furnish compensation; full provision for regulating such
insurance coverage in all its aspects, including the establishment and
management of a State compensation insurance fund; full proAdsion
for otherwise securing the payment of compensation; and full provision
for vesting power, authority, and jurisdiction in an administrative
body with all the requisite governmental functions to determine any
dispute or matter arising under such legislation, to the end that the
administration of such legislation shall accomplish substantial justice
in all cases expeditiously, inexpensively, and without incumbrance
of any character; all of which matters are expressly declared to be the
social public policy of this State, binding upon all departments of the
State government.
The legislature is vested with plenary powers to provide for the
settlement of any disputes arising under such legislation by arbitration,
or by an industrial accident commission, by the courts, or by either,
any, or all of these agencies, either separately or in combination, and
may fix and control the method and manner of trial of any such dispute,
the rules of evidence, and the manner of review of decisions rendered
by the tribunal or tribunals designated by it: Provided, That all deci
sions of any such tribunal shall be subject to review by the appellate
courts of this State. The legislature may combine in one statute all
the provisions for a complete system of workmen’s compensation, as
herein defined.
Nothing contained herein shall be taken or construed to impair or
render ineffectual in any measure the creation and existence of the
industrial accident commission of this State or the State compensation
insurance fund, the creation and existence of which, with all the
functions vested in them, are hereby ratified and confirmed.
Amendment adopted November 5, 1918.

Power to enact

‘

Safety, etc.

insurance,

Disputes,

STATUTES.
Compensation of workmen for injuries.1
S e c t io n 1. This act and each and every part thereof is an expression
of the police power and is also intended to make effective and apply
to a complete system of workmen’s compensation the provisions of sec* The original act, chapter 176, acts of 1913, was amended in 1915, and largely recast
in 1917. Other changes were made in 1919, so that the present law is the result of four
separate enactments. They are presented here in the form adopted by the Industrial
Accident Commission of the State.

ICh. 586,1917.)

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tion seventeen and one-half of article twenty and section twenty-one
of article twenty of the constitution of the State of California. A com
plete system of workmen’s compensation includes adequate provision
for the comfort, health, safety, and general welfare of any and all em
ployees and those dependent upon them for support to the extent of
relieving from the consequences of any injury incurred by employees
in the course of their employment, irrespective of the fault of any party;
also full provision for securing safety in places of employment, full pro
vision for such medical, surgical, hospital, and other remedial treatment
as is requisite to cure and relieve from the effects of such injury, full pro
vision for adequate insurance coverage against the liability to pay or
furnish compensation, full provision for regulating such insurance cover
age in all its aspects, including the establishment and management of a
State compensation insurance fund, full provision for otherwise securing
the payment of compensation, and full provision for vesting power,
authority, and jurisdiction in an administrative body with all the
requisite governmental functions to determine any matter arising
tinder this act to the end that the administration of this act shall accom
plish substantial justice in all cases expeditiously, inexpensively, and
without incumbrance of any character; all of which matters contained
in this section are expressly declared to be the social public policy of
this State, binding upon all departments of the State Government.
[Ch. 176,1913.]
gEC. 1 . This act shall be known, and may be cited, as the
Short title.
“ workmen’s compensation, insurance, and safety act” and shall apply
to the subjects mentioned in its title.
[Ch. 586,1917.]
gEC. 2. This ackshall be known and may be cited as the “ workmen’s
Short title.
compensation, insurance, and safety act of 1917 ” and shall apply to the
subjects mentioned in its title.
[Ch. 586, 1917.]
S e c . 3 (a s amended b y chapter 471, acts of 1919). The following
Definitions.
terms as used in this act shall, unless a different meaning is plainly re
quired by the context, be construed as follows:
( 1) The term “ commission” means the industrial accident commis
sion of the State of California as created under the provisions of chapter
one hundred seventy-six of the laws of 1913.
(2) The term “ commissioner ” means one of the members of the com
mission.
(3) The term ‘ ‘ compensation ” means compensation under this act
and includes every benefit or payment conferred by sections six to
thirty-one, inclusive, of this act upon an injured employee, or in the
event of his death, upon his dependents, without regard to negligence.
(4) The term “ injury, ” as used in this act, shall include any injury
or disease arising out of the employment, including injuries to artificial
members. In case of aggravation of any disease existing prior to such
injury, compensation shall be allowed only for such proportion of the
disability due to the aggravation of such prior disease as may reasonably
be attributed to the injury.
(5) The term “ damages” means the recovery^allowed in an action
at law as contrasted with compensation under this act.
( 6) The term “ person” includes an individual, firm, voluntary asso
ciation, or a public, quasi-public or private corporation.
(7) The term “ insurance carrier” includes the State compensation
insurance fund and any private company, corporation, mutual associa
tion, reciprocal or interinsurance exchange authorized under the laws
of this State to insure employers against liability for compensation
under this act and any employer to whom a certificate of consent to
self-insure has been issued.
(8 ) Whenever in this act the singular is used, the plural shall be
included; where the masculine gender is used, the feminine and
neuter shall be included.
[Ch. 176,1913.]
S e c . 3. There is hereby created a board to consist of three members
cr^ted.m1ss10 n who shall be appointed by the governor from the State at large and
which shall be known as the “ Industrial Accident Commission” and
shall have the powers, duties, and functions hereinafter conferred.
Within thirty days prior to the first day of January, 1914, the governor
shall appoint the three members of said commission, one for the term
of two years, one for the term of three years, and one for the term of
four years. Thereafter the term of office of each commissioner shall

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be four years. Vacancies shall be filled by appointment in the same
manner for the unexpired term. Each commissioner shall receive an
annual salary of five thousand dollars. Each commissioner shall, before
entering upon the duties of his office, take and subscribe the constitu. tional oath of office.
S e c . 4. The commission shall organize by choosing one of its mem [Ch. 176, 1913.]
bers as chairman. A majority of the commission shall constitute a etc.Organization,
quorum for the transaction of any business, for the performance of
any duty, or for the exercise of any power or authority of the com
mission. A vacancy on the commission shall not impair the right of
the remaining members to perform all the duties and exercise all the
power and authority of the commission. The act of the majority of
the commission, when in session as a commission, shall be deemed to be
the act of the commission, but any investigation, inquiry, or hearing,
which the commission has power to undertake or to hold, may be
undertaken or held by or before any member thereof or any referee
appointed by the commission for that purpose, and every finding, order,
decision, or award made by any commissioner or referee, pursuant to
such investigation, inquiry, or hearing, when approved and confirmed
by the commission and ordered filed in its office, shall be deemed to be
the finding, order, decision, or award of the comrjiission.
S ec . 5. The commission shall have a seal, bearing the following [Ch. 176. 1913.]
inscription: “ Industrial Accident Commission State of California, seal.” Seal.
The seal shall be affixed to all writs and authentications of copies of
records and to such other instruments as the commission shall direct.
All courts shall take judicial notice of said seal.
S ec . 6 . The commission shall keep its principal office in the city and [Ch. 176,1913.]
county of San Francisco, and shall also keep an office in the city of Los Offices.
Angeles, and shall provide itself with suitable rooms, necessary office
furniture, stationery and other supplies. For the purpose of holding
sessions in other places, the commission shall have power to rent
temporary quarters.
S e c . 7. The commission shall have full power and authority:
( 1) To appoint as its attorney an attorney at law of this State, who [Ch. 176, 1913.]
shall hold office at the pleasure of the commission. It shall be the right Officers.
and the duty of the attorney to represent and appear for the people of
the State of California and the commission in all actions and proceed
ings involving any question under this act or under any order or act of
the commission and, if directed so to do by the commission, to intervene,
if possible, in any action or proceeding in which any such question is
involved; to commence, prosecute, and expedite the final determination Attorney.
of all actions or proceedings, civil or criminal, directed or authorized by
the commission; to advise the commission and each member thereof,
when so requested, in regard to all matters in connection with the juris
diction, powers, or duties of the commission and members thereof; and
generally to perform all duties and services as attorney to the com
mission which may be required of him.
(2) To appoint, and it shall appoint, a secretary, who shall hold office Secretary.
at the pleasure of the commission. It shall be the duty of the secretary
to keep a full and true record of all the proceedings of the commission,
to issue all necessary processes, writs, warrants, and notices which the
commission is required or authorized to issue, and generally to perform
such other duties as the commission may prescribe. The commission
may also appoint such assistant secretaries as may be necessary, and such
assistant secretaries may perform any duty of the secretary, when so
directed by the commission.
(3) To appoint a manager of the State compensation insurance fund, M a n a g e r of
4
who shall hold office at the pleasure of the commission. It shall be the State fund.
duty of such manager to manage, supervise, and conduct, subject to
the general direction and approval of the commission, the business
and affairs of the State compensation insurance fund and to perform
such other duties as the commission may prescribe. Before entering
on the duties of his office he must give an official bond in the sum of
fifty thousand dollars, and take and subscribe to an official oath. Said
bond must be approved by the commission, by written endorsement
thereon, and be filed in the office of the secretary of state.

310

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(4) To appoint a superintendent of the department of safety, who
shall hold office at the pleasure of the commission and who shall per
form such duties as the commission shall prescribe.
(5) To employ such other assistants, officers, experts, statisticians,
actuaries, accountants, inspectors, referees, and other employees as it
may deem necessary to carry out the provisions of this act, or to per
form the duties and exercise the powers conferred by law upon the
commission.
[Ch. 586,1917.]
S ec . 4. The commission shall have power and authority to appoint
Assistant attor an aggigtant to its attorney, who shall be an attorney at law of this State,
and who shall hold office at the pleasure of the commission. It shall be
the right and duty of such assistant attorney to perform any of the
duties of the attorney of the commission under the direction of the
commission or its attorney.
[Ch. 586, 1917.]
S e c . 5. Said commission is hereby vested with full power, authority,
Powers.
and jurisdiction under the provisions of this act and charged with the
duties defined by the provisions of this act in addition to all other
power, authority, jurisdiction, and duties conferred upon it and exer
cised by it as heretofore created, constituted, and existing.
S e c . 8 . All officers and employees of the commission shall receive
such compensation for their services as may be fixed by the commission
and shall hold office at the pleasure of the commission and shall per
form such duties as are imposed on them by law or by the commission.
[Ch. 176,1913.] The salaries of the members of the commission, its attorney, secretary,
[Salaries.
and assistant secretary, as fixed by law or the commission, shall be
paid in the same manner as are the salaries of other State officers. The
salary or compensation of every other person holding office or employ
ment under the commission, as fixed by law or by the commission,
shall be paid monthly, after being approved by the commission, upon
claims therefor to be audited by the State board of control. All ex
penses incurred by the commission pursuant to the provisions of this
act, including the actual and necessary traveling and other expenses
and disbursements of the members thereof, its officers and employees,
incurred while on business of the commission, either within or without
the state, shall, unless otherwise provided in this act, be paid from the
funds appropriated for the use of the commission, after being approved
by the commission, upon claims therefor to be audited by the board of
control: Provided, however, That no such expenses incurred outside of
the State shall be allowed unless prior authorization therefor be ob
tained from the board of control.
[Ch. 176,1913.]
S e c . 9. In all cases in which salaries, expenses, or outgoings of one
Expenses.
department under the jurisdiction of the commission are expended in
whole or in part on behalf of another department the commission may
apportion the same between such departments.
[Ch. 176,1913.]
S e c . 10. The commission shall cause to be printed and furnished
orms.
free of charge to any employer or employee, or other person, such
blank forms as it shall deem requisite to facilitate or promote the
efficient administration of this act; it shall provide a book in which shall
Records.
be entered the minutes of all its proceedings, a book in which shall be
recorded all awards made by the commission, and such other books
or records as it shall deem requisite for the proper and efficient adminis
tration of this act; all such records to be kept in the office of the com
mission.
S e c . 11 . The commission shall also have power and authority:
[Ch. 176,1913.]
( i ) To charge and collect the following fees: For copies of papers
ees*
and records not required to be certified or otherwise authenticated by
the commission, ten cents for each folio; for certified copies of official
documents and orders filed in its office or of the evidence taken on
proceedings had, fifteen cents for each folio,
Reports.
(2) To publish and distribute in its discretion from time to time, in
addition to its annual report to the governor of the State, such further
reports and pamphlets covering its operations, proceedings and matters
relative to its work as it may deem advisable.
(3) To fix and collect reasonable charges for publications issued
under its authority.
(4) The fees charged and collected under this section shall be paid
monthly into the treasury of the State to the credit of the “ industrial
accident fund” and shall be accompanied by a detailed statement
thereof.

TEXT OF LAW S— CALIFORNIA.

311

Sec. (T (as amended by Chapter 471, acts of 1919). (a) Iliability for ^^iplns'atio”
the compensation provided by this act, in lieu of any other liability payable
Compensation
when.
whatsoever to any person, shall, without regard to negligence, exist
against an employer for any injury sustained by his employees arising
out of and in the course of the employment and for the death of any
such employee if the injury shall proximately cause death, in those
cases where the following conditions of compensation concur:
( 1) Where, at the time of the injury, both the employer and employee
are subject to the compensation provisions of this act.
(2) Where, at the time of the injury, the employee is performing
service growing out of and incidental to his employment and is acting
within the course of his employment.
JS) Where the injury is proximately caused by the employment,
either with or without negligence, and is not caused by the intoxication
of the injured employee, or is not intentionally self-inflicted.
(-1) Where the injury is caused by the serious and willful misconduct
Willful misconof the injured employee, the compensation otherwise recoverable by ct’
him shall be reduced one-half: Provided, however, That such miscon
duct of the employee shall not be a defense to the claim of the depend
ents of said employee, if the injury results in death, or to the claim
of the employee, if the injury results in a permanent partial disability
equaling or in excess of seventy per cent of total: And provided further,
That such misconduct of said employee shall not be a defense where
his injury is caused by the failure of the employer to comply with any
provision of law, or any safety order of the commission, with reference
to the safety of places of employment: And provided further. That in
case of an injury suffered by an employee under sixteen years of age,
it shall be conclusively presumed that such injury was not caused by
serious and willful misconduct.
(b) Where such conditions of compensation exist, the right to recover Acts of emsuch compensation, pursuant to the provisions of this act, shall be p yers'
the exclusive remedy against the employer for the injury or death:
Provided, That where the employee is injured by reason of the serious
and willful misconduct of the employer, or his managing representative,
or if the employer be a partnership, on the part of one of the partners,
or if a corporal ion, on the part of an executive or managing officer or
general superintendent thereof, the amount of compensation otherwise
recoverable for injury or death, as hereinafter provided, shall be
increased one-half, any of the provisions of this act as to maximum
payments or otherwise to the contrary notwithstanding: Provided,
however, That said increase of award shall in no event exceed two
thousand five hundred dollars.
(c) In all other cases where the conditions of compensation do not
concur, the liability of the employer shall be the same as if this act
had not been passed.
S ec . 7 (as amended by chapter 471, acts of 1919). The term LCk- 586>1917-1
“ employer” as used in sections six to thirty-one, inclusive, of this
p yer‘
act shall be construed to mean: The State, and each county, city
and county, city, school district, irrigation district, all other dis
tricts established by law, and all public corporations and quasi
public corporations and public agencies therein, and every person,
firm, voluntary association, and private corporation, including any
public service corporation, who has any person in service under any
appointment or contract of hire, or apprenticeship, express or implied,
oral or written, and the legal representative of any deceased employer.
S e c . 8 . (a) The term “ employee” as used in sections six to thirty
[Ch. 586, 1917.]
one, inclusive, of this act shall be construed to mean: Every person in
p yee’
the service of an employer as defined by section seven hereof under any
appointment or contract of hire or apprenticeship, express or implied,
oral or written, including aliens, and also including minors, whether
lawfully or unlawfully employed, and all elected and appointed paid
public officers, and all officers and members of boards of directors of
quasi-public or private corporations, while rendering actual service for
such corporations for pay, but excluding any person whose employment Employments
is both casual and not in the course of the trade, business, profession or excluded*
occupation of his employer, and also excluding any employee engaged
in household domestic service, farm, dairy, agricultural, viticultural or

312

w o r k m e n 's c o m p e n s a t i o n l a w s o f t h e

u n ite d s ta te s .

horticultural labor, in stock or poultry raising and any person holding
an appointment as deputy clerk, deputy sheriff or deputy constable
appointed for the convenience of such appointee, who receives no com
pensation from the county or municipal corporation or from the citizens
thereof for services as such deputy: Provided, That such last exclusion
shall not deprive any person so deputized from recourse against any
private person employing him for injury occurring in the course of and
arising out of such employment.
Presumption of
(&) Any person rendering service for another, other than as an indeempioyment.
pendent contractor, or as expressly excluded herein, is presumed to
be an employee within the meaning of this act. The term 4‘indepen
dent contractor” shall be taken to mean, for the purposes of this act,
any person who renders service, other than manual labor, for a specified
recompense for a specified result, under the control of his principal as
to the result of his work only and not as to the means by which such
result is accomplished. A working member of a partnership receiving
wages irrespective of profits from such partnership shall be deemed an
employee within the meaning of this section.
Casual workers.
(c) The term “ casual” as used in this section shall be taken to refer
only to employments where the work contemplated is to be completed
in not exceeding ten working days, without regard to the number of
men employed, and where the total labor cost of such work is less than
one hundred dollars. The phrase “ course of the trade, business, pro
fession or occupation of his employer” shall be taken to include all
services tending toward the preservation, maintenance or operation of
the business, business premises or business property of the employer.
The words “ trade, business, profession or occupation of his employer”
shall be taken to include any undertaking actually engaged in by him
with some degree of regularity, the trade name, articles of incorporation
or principal business of the employer to the contrary notwithstanding.
Watchmen.
(c?) Watchmen for nonindustrial establishments, paid by subscription
by several persons, shall not be held to be employees within the meaning
of this act. In other cases where watchmen, paid by subscription by j
several persons, have at the time of the injury sustained by them taken j
out and maintained in full force and effect insurance upon themselves
as self-employing persons conferring benefits equal to those conferred by ,
this act, the employer shall not be liable under this act.
4
Persons unlaw(g) It shall not be a defense to the State, or any political subdivision
fully employed. Qr institution thereof, or public or quasi-public corporation, that a person *
injured while rendering service for it was not lawfully employed by
reason of the violation of any civil service or other law, rule, or regu
lation respecting the hiring of employees.
!
Partnerships of
(^) Workmen associating themselves under a partnership agreement
wor men.
principai purpose of which is the performance of the labor on a
particular piece of work, shall be deemed employees of the person
having such work executed, and, in the event the average weekly earn
ings are not otherwise ascertainable, shall be deemed to be Employed at
an average weekly wage of twelve dollars: Provided, however, That if
such workmen shall have taken out and maintained in full force and
effect insurance, in an insurance carrier as defined in this act, insuring
to themselves and all persons employed by them benefits identical with
those conferred by this act, the person for whom such work is to be
done shall not be liable as an employer under this act.
ICh. 586, 1917.]
S e c . 9 (as amended by chapter 471, acts of 1919). Where liability
ment?
treat_ f 0y compensation under this act exists, such compensation shall be
furnished or paid by the employer and be as provided in the following
schedule:
(a)
Such medical, surgical and hospital treatment, including nursing,
medicines, medical and surgical supplies, crutches and apparatus,
including artificial members, as may reasonably be required to cure and
relieve from the effects of the injury, the same to be provided by the
employer, and in case of his neglect or refusal seasonably to do so, the
employer to be liable for the reasonable expense incurred by or on be
half of the employee in providing the same: Provided, That if the
employee so requests, the employer shall tender him one change of
physicians and shall nominate at least three additional practicing physi
cians competent to treat the particular case, or as many as may be

T E X T

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313

available if three can not reasonably be named, from whom the em
ployee may choose; the employee shall also be entitled, in any serious
case^ upon request, to the services of a consulting physician to be
provided by tne employer; all of said treatment to be at the expense
of the e m p l o y e r I f the employee so requests, the employer must
procure certification Jby the commission or a commissioner of the com
petency for the particular case of the consulting or additional physi
cians: Provided further, That the foregoing provisions regarding a
change of physicians shall not apply to those cases where the employer
maintains, for his own employees, a hospital and hospital staff, the
adequacy and competency of which have been approved by the com
mission. Nothing contained in this section shall be construed to limit
the right of the employee to provide, in any case, at his own expense,
a consulting physician or any attending physicians whom he may
desire. Controversies between employer and employee, arising under
this section, shall be determined by the commission, upon the request
of either party.
(b)
If the injury causes temporary disability, a disability payment Temporary dlswhich shall be payable for one week in advance as wages on the eighth ablllty*
day after the injured employee leaves work as a result of the injury.
If the injury causes permanent disability, a disability payment which
shall be payable for one week in advance as wages on the eighth day
after the injury. Such indemnity shall thereafter be payable on the
employer’s regular pay day, but not less frequently than twice in each
calendar month, unless otherwise ordered by the commission, subject,
however, to the following limitations:
(1) If the period of disability does not last longer than seven days Waiting time,
from the day the employee leaves work as the result of the injury, no
disability payment whatever shall be recoverable.
(2 ) If the period of disability lasts longer than seven days from the
day the employee leaves work as the result of the injury, no disability
payment shall be recoverable for the first seven days of disability
suffered.
2. The disability payment shall be as follows:
(1) If the injury causes temporary total disability, sixty-five per cent Temporary disof the average weekly earnings during the period of such disability, abllit5rconsideration being given to the ability of the injured employee to
compete in an open labor market;
(2) If the injury causes temporary partial disability, sixty-five per
cent of the weekly loss in wages during the period of such disability;
(3) If the temporary disability caused by the injury is at times total
and at times partial the weekly disability payment during the period
of each such total or partial disability shall be in accordance with
paragraphs one and two of this subdivision respectively;
(4) Paragraphs one, two, and three of this subdivision shall be Maximum limlimited as follows: Aggregate disability payments for a single injury •
causing temporary disability shall not exceed three times the average
annual earnings of the employee, nor shall the aggregate disability
period for such temporary disability in any event extend beyond two
hundred forty weeks from the date of the injury.
(5) If the "injury causes permanent disability, the percentage of Permanent diadisability to total disability shall be determined and the disability payment computed and allowed as follows: For a one per cent disability,
sixty-five per cent of the average weekly earnings for a period of four
weeks; for a ten per cent disability, sixty-five per cent of the average
weekly earnings for a period of forty weeks; for a twenty per cent
disability, sixty-five per cent of the average weekly earnings for a
period of eighty weeks; for a thirty per cent disability, sixty-five per
cent of the average weekly earnings for a period of one hundred twenty
weeks; for a forty per cent disability, sixty-five per cent of the average
weekly earnings for a period of one hundred sixty weeks; for a fifty Rates,
per cent disability, sixty-five per cent of the average weekly earnings
for a period of two hundred weeks; for a sixty per cent disability,
sixty-five per cent of the average weekly earnings for a period of two
hundred forty weeks; for a seventy per cent disability, sixty-five per
cent of the average weekly earnings for a period of two hundred forty
weeks, and thereafter ten per cent of such weekly earnings during the

314

w o r k m e n ’s c o m p e n s a tio n la w s o f t h e u n it e d s t a t e s .

remainder of life; for an eighty per cent disability , sixty-five per cent
of the average weekly earnings for a period of two hundred forty
weeks and thereafter twenty per cent of such weekly earnings during
the remainder of life; for a ninety per cent disability, sixty-five per
cent of the average weekly earnings for a period of two hundred forty
weeks and thereafter thirty per cent of such weekly earnings during
the remainder of life; for a hundred per cent disability, sixty-five per
cent of the average weekly earnings for a period of two hundred forty
weeks and thereafter forty per cent of such weekly earnings during the
remainder of life.
Interm ediate
(6) The payment for permanent disabilities intermediate to those
ratings.
fixed by the foregoing schedule shall be computed and allowed as fol
lows: If under seventy per cent, sixty-five per cent of the average
weekly earnings for four weeks for each one per cent of disability; if
seventy per cent or over, sixty-five per cent of the average w'eekly
earnings for two hundred forty weeks and thereafter one per cent of
such weekly earnings for each one per cent of disability in excess of
sixty per cent to be paid during the remainder of life.
D e te rm in in g
( 7) In determining the percentages of permanent disability, account
percentages.
shall be taken of the nature of the physical injury or disfigurement, the
occupation of the injured employee, and his age at the time of such
injury, consideration being given to the diminished ability of such
injured employee to compete in an open labor market.
Double injury.
(8) Where an injury causes both temporary and permanent disa
bility, the injured employee shall not be entitled to both a temporary
and permanent disability payment, but only to the greater of the two.
(9) The following permanent disabilities shall be conclusively pre
sumed to be total in character: Loss of both eyes or the sight thereof;
loss of both hands or the use thereof; an injury resulting in a prac
tically total paralysis; an injury to the brain resulting in incurable
imbecility or insanity. In all other cases, permanent total disability
shall be determined in accordance with the fact.
( 10) The percentage of permanent disability caused by any injury
shall be so computed as to cover the permanent disability caused by
that particular injury without reference to any injury previously
suffered or any permanent disability caused thereby.
Schedule.
(ix) The commission may prepare, adopt, and from time to time
amend, a schedule for the determination of the percentages of perma
nent disabilities, such table to be based upon the proper combinations
of the factors indicated in subdivision seven above. Such schedule
shall be available for public inspection and without formal introduc
tion in evidence shall be prima facie evidence of the percentage of
permanent disability to be attributed to each injury covered by said
schedule.
Accrued bene
3. The death of an injured employee shall not affect the liability of
fits.
the employer under subsections (a) and ( 6) of this section, so far as
such liability has accrued and become payable at the date of the death,
and any accrued and unpaid compensation shall be paid to the depend
ents, if any, or, if there are no dependents, to the personal representa
tive of the deceased employee or heirs or other persons entitled thereto,
without administration, but such death shall be deemed to be the
termination of the disability.
Death.
(c)
If the injury causes death, either with or without disability, the
burial expense of the deceased employee as hereinafter limited and a
death benefit which shall be payable in installments equal to sixty-five
per cent of the average weekly earnings of the deceased employee, upon
the employer’s regular pay day, but not less frequently than twice in
each calendar month, unless otherwise ordered by the commission,
which death benefit shall be as follows:
Dependents.
( i ) Jn case the deceased employee leaves a person or persons wholly
dependent upon him for support, such dependents shall be allowed the
reasonable expense of his burial, not exceeding one hundred dollars,
and a death benefit, which shall be a sum sufficient, when added to the
disability indemnity which at the time of death has accrued and
become payable, under the provisions of subsection (&) hereof, and the
said burial expense, to make the total disability indemnity, cost of
burial and death benefit equal to three times his average annual earn-

TEXT OF LAWS— CALIFORNIA.

315

iiigs, such average annual earnings to be taken at not less than three
hundred thirty-three dollars and thirty-three cents nor more than one
thousand six hundred sixty-six dollars and sixty-six cents.
(2) In case the deceased employee leaves no person wholly dependent
upon him for support, but one or more persons partially dependent Partial dependtherefor, the said dependents shall be allowed the reasonable expense ents‘
of his burial, not to exceed one hundred dollars, and in addition thereto,
a death benefit which shall amount to three times the annual amount
devoted by the deceased to the support of the person or persons so
partially dependent: Provided, That the death benefit shall not be
greater than a sum sufficient, when added to the disability indemnity
which, at the time of the death, has accrued and become payable
under the provisions of subsection (b) hereof, together with the cost of
the burial of such deceased employee, to make the total disability
indemnity, cost of burial and death benefit equal to three times his
average annual earnings, such average annual earnings to be taken at
not less than three hundred thirty-three dollars and thirty-three cents
nor more than one thousand six hundred sixtv-six dollars and sixtysix cents.
(3) If the deceased employee leaves no person dependent upon him No dependents,
for support, the death benefit shall consist of the reasonable expense of
his burial, not exceeding one hundred dollars an d su ch oth er b en efit
as may be provided by law.
(c?) Payment of compensation in accordance with the order and
direction of the commission shall discharge the employer from all
claims therefor.
S e c . 1 0. The commission shall have power to in sp e c t an d d e te rm in e [Ch*
„
the adequacy of hospitals and hospital facilities supplied by employers
erb 0a"
or by mutual associations of employees, with or without the concur
rence of the employer, for the treatment of injuries coming within the
provisions of this act. No part of any contribution paid by employees
or deducted from their wages for the maintenance of such hospital
facilities shall be devoted to the payment of any portion of the cost of
providing compensation prescribed by this act. N o th in g contained in
this section shall be taken to prevent any h o sp ita l association or m e d ic a l
department furnishing the treatment prescribed in this act free of charge
to employees. Every such hospital shall make to th e co m m issio n from
time to time, upon demand, but not less frequently than once a year,
reports of receipts, disbursements, and services rendered to or for em
ployees. If, in the judgment of the c o m m issio n , the services or e q u ip
ment of any hospital are inadequate to m e e t th e reasonable re q u ire
ments of medical treatment contemplated in se c tio n n in e (a) of th is a c t,
the commission may, after notice and an opportunity to b e heard,
declare such facilities to be inadequate and thereafter in ju re d employees
of such employer may procure treatment elsewhere, and the reason
able cost thereof shall be a charge against such e m p lo y e r under said
section nine (a). Any finding of the commission, after su ch n o tic e ,
determining the fact of such inadequacy, shall b e conclusive evidence
in any proceeding for compensation of the fact of such inadequacy
during the period covered by such finding. Such finding of inade
quacy may be amended, modified, or rescinded by the commission at
any time upon good cause appearing therefor.
S e c . 11. (a) Unless compensation is paid or an agreement for its [Cb. 586,1917.]
payment made within the time limited in this section for the institus*
tion of proceedings for its collection, the right to institute such proceed
ings shall be barred: Provided, That the filing of an application with
the commission for any portion of the benefits prescribed by this act
shall render this

Full text of Workmen's Compensation Legislation of the United States and Canada : Bulletin of the United States Bureau of Labor Statistics, No. 272

FRASER