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Employers' Liability
and
Workmen's Compensation Law
OF THE
STATE OF NEW HAMPSHIRE
C O M P L I M E N T S OF
The Fidelity and Casualty Company
of New York
92 Liberty Street, New York City
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266892
|MARCH 1930
NEW HAMPSHIRE LAW. . JAN. 1, 1912 .
STATE OF NEW HAMPSHIRE.
In the year of our Lord one thousand nine hundred and
eleven. -
AN Act in Relation to Employers' Liability and Workmen's
Compensation.
Be it enacted by the Senate and House of Representatives in
General Court convened: . -
SECTION 1. This act shall apply only to workmen en-
gaged in manual or mechanical labor in the employments
described in this section, which, from the nature, conditions
or means of prosecution of such work, are dangerous to the
life and limb of workmen engaged therein, because in them
the risks of employment and the danger of injury caused by
fellow servants are great and difficult to avoid. (a) The
operation on steam or electric railroads of locomotives, en-
gines, trains or cars, or the construction, alteration, mainte-
nance or repair of steam railroad tracks or road beds over
which such locomotives, engines, trains or cars are or are to
be operated. (b) Work in any shop, mill, factory or other
place on, in connection with or in proximity to any hoisting
apparatus, or any machinery propelled or operated by steam
or other mechanical power in which shop, mill, factory or
other place five or more persons are engaged in manual or
mechanical labor. (c) The construction, operation, altera-
tion or repair of wires or lines of wires, cables, switch-
boards or apparatus, charged with electric currents. (d) All
work necessitating dangerous proximity to gunpowder, blast-
ing powder, dynamite or any other explosives, where the
same are used as instrumentalities of the industry, or to any
steam boiler owned or operated by the employer, provided
injury is occasioned by the explosion of any such boiler or
explosive. (e) Work in or about any quarry, mine or foun-
dry. As to each of said employments it is deemed necessary
to establish a new system of compensation for accidents to
workmen.
*gº
2
Sec. 2. If, in the course of any of the employments above
described, personal injury by accident arising out of and in
the course of the employment is caused to any workmen
employed therein, in whole or in part, by failure of the em-
ployer to comply with any statute, or with any order made
under authority of law, or by the negligence of the employer
or any of his or its officers, agents or employees, or by reason
of any defect or insufficiency due to his, its or their negli-
gence in the condition of his or its plant, ways, works, ma-
chinery, cars, engines, equipment, or appliances, then such
employer shall be liable to such workman for all damages
occasioned to him, or, in case of his death, to his personal
representatives for all damages now recoverable under the
provisions of chapter 191 of the Public Statutes. The work-
man shall not be held to have assumed the risk of any injury
due to any cause specified in this section; but there shall be
no liability under this section for any injury to which it shall
be made to appear by a preponderance of evidence that the
negligence of the plaintiff contributed. The damages pro-
vided for by this section shall be recovered in an action on
the case for negligence.
Sec. 3. The provisions of section 2 of this act shall not
apply to any employer who shall have filed with the commis-
sioner of labor his declaration in writing that he accepts the
provisions of this act as contained in the succeeding sections,
and shall have satisfied the commissioner of labor of his
financial ability to comply with its provisions, or shall have
filed with the commissioner of labor a bond, in such form
and amount as the commissioner may prescribe, conditioned
on the discharge by such employer of all liability incurred
under this act. Such bond shall be enforced by the com-
missioner of labor for the benefit of all persons to whom
such employer may become liable under this act in the same
manner as probate bonds are enforced. The commissioner
may, from time to time, order the filing of new bonds, when
in his judgment such bonds are necessary; and after thirty
days from the communication of such order to any employer,
such employer shall be subject to the provisions of section 2
of this act until such order has been complied with. The
employer may at any time revoke his acceptance of the pro-
visions of the succeeding sections of this act by filing with
the commissioner of labor a declaration to that effect, and by
posting copies of such declaration in conspicuous places about
the place where his workmen are employed. Any person
aggrieved by any decision of the commissioner under this
3
section may apply by petition to any justice of the superior
court for a review of such decision, and said justice on notice
and hearing shall make such order affirming, reversing or
modifying such decision as justice may require; and such
order shall be final. Such employer shall be liable to all
workmen engaged in any of the employments specified in
section 1, for any injury arising out of and in the course of
their employment, in the manner provided in the following
sections of this act. Provided, that the employer shall not
be liable in respect of any injury which does not disable
the workman for a period of at least two weeks from earning
full wages at the work at which he was employed, and, pro-
vided, that the employer shall not be liable in respect of any
injury to the workman which is caused in whole or in part
by the intoxication, violation of law, or serious or wilful
misconduct of the workman. Provided, further, that the
employer shall at the election of the workman, or his per-
Sonal representative, be liable under the provisions of sec-
tion 2 of this act for all injury caused in whole or in part
by wilful failure of the employer to comply with any statute,
or with any order made under authority of law.
SEC. 4. The right of action for damages caused by any
such injury, at common law, or under any statute in force
on January one, nineteen hundred and eleven, shall not be
affected by this act, but in case the injured workman, or in
event of his death his executor or administrator, shall avail
himself of this act, either by accepting any compensation
hereunder, by giving the notice hereinafter prescribed, or by
beginning proceedings therefor in any manner on account of
any such injury, he shall be barred from recovery in every
action at common law or under any other statute on account
of the same injury. In case after such injury the work-
man, or in the event of his death his executor or administra-
tor, shall commence any action at common law or under any
statute other than this act against the employer therefor, he
shall be barred from all benefit of this act in regard thereto.
SEC. 5. No proceedings for compensation under this act
shall be maintained unless notice of the accident as herein-
after provided has been given to the employer as soon as
practicable after the happening thereof and before the work-
man has voluntarily left the employment in which he was
injured and during such disability, and unless claim for com-
pensation has been made within six months from the occur-
rence of the accident, or in case of the death of the workman,
or in the event of his physical or mental incapacity, within
4. -
six months after such death or the removal of such physical
or mental incapacity, or in the event that weekly payments
have been made under this article, within six months after
such payments have ceased, but no want or defect or in-
accuracy of a notice shall be a bar to the maintenance of
proceedings unless the employer proves that he is prejudiced
by such want, defect or inaccuracy. Notice of the accident
shall apprise the employer of the claim for compensation
under this article, and shall state the name and address of
the workman injured, and the date and place of the acci-
dent. The notice may be served personally or by sending it
by mail in a registered letter addressed to the employer at
his last known residence or place of business.
SEC. 6. (1) The amount of compensation shall be, in
case death results from injury: (a) If the workman leaves
any widow, children or parents, resident of this state, at
the time of his death, then wholly dependent on his earnings,
a sum to compensate them for loss, equal to one hundred and
fifty times the average weekly earnings of such workman
when at work on full time during the preceding year during
which he shall have been in the employ of the same employer,
or if he shall have been in the employment of the same em-
ployer for less than a year then one hundred and fifty times
his average weekly earnings on full time for such less period.
But in no event shall such sum exceed three thousand dol-
lars. Any weekly payments made under this act shall be
deducted from the sum so fixed. (b) If such widow,
children or parents at the time of his death are in part only
dependent upon his earnings, such proportion of the benefits
provided for those wholly dependent as the amount of the
wage contributed by the deceased to such partial dependents
at the time of injury bore to the total wage of the deceased.
(c) If he leaves no such dependents, the reasonable expenses
of his medical attendance and burial, not exceeding one
hundred dollars. Whatever sum may be determined to be
payable under this act in case of death of the injured work-
man shall be paid to his legal representative for the benefit
of such dependents, or if he leaves no such dependents, for
the benefit of the persons to whom the expenses of medical
attendance and burial are due. *
(2) Where total or partial incapacity for work at any
gainful employment results to the workman from the injury,
a weekly payment commencing at the end of the second week
after the injury and continuing during such incapacity, sub-
ject as herein provided, not exceeding fifty per centum of
5
his average weekly earnings when at work on full time dur-
ing the preceding year during which he shall have been in
the employment of the same employer, or if he shall have
been in the employment of the same employer for less than
a year, then a weekly payment of not exceeding one-half the
average weekly earnings on full time for such less period.
In fixing the amount of the weekly payment, regard shall be
had to the difference between the amount of the average
earnings of the workman before the accident and the aver-
age amount he is able to earn thereafter as wages in the same
employment or otherwise. In fixing the amount of the
weekly payment, regard shall be had to any payment, allow-
ance or benefit which the workman may have received from
the employer during the period of his incapacity, and in
the case of partial incapacity the weekly payment shall in
no case exceed the difference between the amount of the
average weekly earnings of the workman before the acci-
dent and the average weekly amount which he is earning or
is able to earn in the same employment or otherwise after
the accident, but shall amount to one-half of such difference.
In no event shall any compensation paid under this act
exceed the damage suffered, nor shall any weekly payment
payable under this act in any event exceed ten dollars a week
or extend over more than three hundred weeks from the
date of the accident. Such payment shall continue for such
period of three hundred weeks provided total or partial
disability continue during such period. No such payment
shall be due or payable for any time prior to the giving of
the notice required by section five of this act.
SEC. 7. Any workman entitled to receive weekly pay-
ments under this act is required, if requested by the em-
ployer, to submit himself for examination by a duly qualified
medical practitioner or surgeon provided and paid for by
the employer, at a time and place reasonably convenient for
the workman, within two weeks after the injury, and there-
after at intervals not oftener than once in a week. If the
workman refuses to submit to such examination, or obstructs
the same, his right to weekly payments shall be suspended
until such examination has taken place, and no compensation
shall be payable during or for account of such period.
SEC. 8. In case an injured workman shall be mentally
incompetent at the time when any right or privilege accrues
to him under this act, the guardian of the incompetent ap-
pointed pursuant to law may, on behalf of such incompetent,
claim and exercise any such right or privilege with the
6
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 in this act provided for
shall run so long as said incompetent workman has no
guardian.
SEC. 9. Any question as to compensation which may
arise under this act shall be determined by agreement or by
an action at equity, as hereinafter provided. In case the
employer fail to make compensation as herein provided, the
injured workman, or his guardian, if such be appointed, or
his executor or administrator, may then bring an action to
recover compensation under this act in any court having
jurisdiction of an action for recovery of damages for negli-
gence for the same injury between the same parties. Such
action shall be by petition in equity, which may be made re-
turnable at the appropriate term of the superior court or may
be filed in the office of the clerk of the superior court and
presented in term time or vacation to any justice of said
court, who on reasonable notice shall hear the parties and
render judgment thereon. The judgment in such action if
in favor of the plaintiff shall be for a lump sum equal to the
amount of payments then due and prospectively due under
this act. In such action by an executor or administrator the
judgment may provide the proportions of the award or the
costs to be distributed to or between the several dependents.
If such determination is not made it shall be determined by
the probate court in which such executor or administrator is
appointed, in accordance with this act, on petition of any
party interested, on such notice as such court may direct.
Any employer who has declared his intention to act under
the compensation features of this act shall also have the
right to apply by similar proceedings to the superior court
or to any justice thereof for a determination of the amount
of the weekly payments to be paid the injured workman, or
of a lump sum to be paid the injured workman in lieu of
such weekly payments; and either such employer or work-
man may apply to said superior court or to any justice
thereof in similar proceeding for the determination of any
other question that may arise under the compensation feature
of this act; and said court or justice, after reasonable notice
and hearing, may make such order as to the matter in dis-
pute and taxable costs as justice may require.
Sec. 10. Any person entitled to weekly payments under
this act against any employer shall have the same preferential
claim therefor against the assets of the employer as is allowed
7
by law for a claim by such person against such employer for
unpaid wages or personal services. Weekly payments due
under this act shall not be assignable or subject to levy,
execution, attachment or satisfaction of debts. Any right to
receive compensation under this act shall be extinguished by
the death of the person entitled thereto.
SEC. 11. No claim of any attorney-at-law for any con-
tingent interest in any recovery under this act for services
in securing such recovery or for disbursements shall be an
enforceable lien on such recovery, unless the account of the
same be approved in writing by a justice of the superior
court, or, in case the same be tried in any court, by the justice
presiding at such trial. - -
Sec. 12. Every employer subject to the provisions of this
act shall from time to time make to the commissioner of
labor such returns as to its operation as said commissioner
may require upon blanks to be furnished by said com-
missioner. Any employer failing to make such returns when
required by said commissioner shall, until such returns are
made, be subject to the provisions of section 2 of this act.
Sec. 13. This act shall take effect January first, nineteen
hundred and twelve.
FRANK A. MUSGROVE,
Speaker of the House of Representatives.
WILLIAM D. Swart,
President of the Senate.
Approved April 15, 1911.
- RoBERT P. BASS,
Governor.